Question: Was Hunter V Moss was correctly decided?
Hunter V Moss is one of the most significant cases in trust law which deals with certainty of subject matter. For more clarification let’s have brief facts and judgment. Moss was founder and director of company and owns 950 out of 1000 shares of company. Hunter who was financial director of company was gifted 50 shares by Moss. But this was never implemented due to tax concerns, possible takeover and mainly because Moss changed his mind. Latter Hunter argued that there was valid trust but when certainty of subject matter came then rule lay down by Re London wine was that property which intend to be trust should be segregated and if not then no valid trust exist.
Now the significance of this case come at this point when Dillon LJ and Hirst LLJ in court of appeal ruled that there was valid trust and draw a line between tangible and intangible properties. This major reason for which both gave this decision was because this case dealt with intangible rather than tangible property, this rule of Re London Wine did not have to be applied. Because all the shares were identical, it did not matter that they were not segregated, and the trust was valid
Different sort of problem arose after this decision. It has been pointed out, Hayton (1994), that difficulties in a case like Hunter v. Moss could arise if the trustee later split up the fund, sold the shares and invested some of the proceeds in fund A and some in fund B, one of which funds would then have performed better than the other. However, equitable tracing rules ought to allow this problem to be resolved. Also, even Hayton accepts (as did Dillon L.J. in Hunter v. Moss itself), that if Moss had executed a transfer of 50 shares, and handed over to his brokers the transfer and the trusts certificate for all 950 shares, in equity the transfer would take place immediately, and there would be a trust of the 50 shares:...