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Title:	Certainly of subject-matter in a trust unascertained fungible goods and bursa shares in a bulk: a critical study
Authors:	John Chuah Chong Oon (P52944)
Supervisor:	Hasani Mohd Ali, Prof. Dr.
Keywords:	Trusts and trustees Universiti Kebangsaan Malaysia -- Dissertations Dissertations, Academic -- Malaysia
Issue Date:	22-Aug-2016
Description:	The aim of this thesis is to study the law pertaining to the requirement of certainty of subject matter in the creation of trust over a portion of unascertained fungible property in a bulk. The main question that arises is whether precise identification of trust property is required before the requirement of subject matter is satisfied. The subject matter in question are fungible shares traded in Bursa Malaysia and fungible tangible goods. The research methodology employed is doctrinal in nature coupled with theoretical and jurisprudential analysis in view with the fact that the objectives of this thesis involve resolving theoretical disagreements at common law. It entails traditional methods of case and statutory analysis with emphasis on the analogy and distinguishing of cases. Materials employed include primary and secondary sources of law in what is essentially a library based research. The first research question is to ascertain whether the decision of Hunter is correctly decided. The findings suggest that the case is correctly decided. Thus there is no uncertainty of subject matter when a trust is created over a portion of unascertained fungible shares in a bulk without identifying the specific trust property. The need for semantic certainty is required, namely an accurate description of the trust property and quantity of equitable interest. This approach conflicts with traditional trust law which requires precise identification of specific trust property. The findings have resolved much of the uncertainty surrounding Hunter which has been much criticized. Under the second research question, the findings suggest that the nature of proprietary holding of the beneficiary when the principle of Hunter applies is that of separate property and not as tenants in common with the trustee. The third research question seeks to ascertain whether the principle of Hunter can be applied to unascertained fungible tangible goods. The findings suggest that where the trust is created under the influence of the Sale of Goods Act 1957, the traditional trust law that requires identification of trust property is the preferred choice of law. Hunter should not apply since it cannot be the intention of the legislature to allow the purchasers to obtain proprietary rights over goods purchased under trust law when none is conferred by the Sale of Goods Act 1957. However when the trust is created outside the influence of the Sale of Goods Act 1957, the principle of Hunter can apply provided physical risks affecting the said goods can be averted. In both situations the goods held on trust for the beneficiary is treated as separate property. The findings shed light on an area of law that is without judicial precedent in Malaysia. The final research question suggests that the principle of Hunter is applicable to fungible shares traded in Bursa Malaysia, specifically the securities account of the broker. There is certainty of subject matter in the said account though the fungible shares are co-mingled without the need to identify the shares held on trust. It follows that purchasers who have paid for their shares are afforded proprietary protection for their shares in the form of the trust mechanism. This insulates them from the credit risks of the brokers in the event of insolvency.,Ph.D.
Pages:	373
Call Number:	C15.JOH 2016 2 tesis
Publisher:	UKM, Bangi
Appears in Collections:	Faculty of Law / Fakulti Undang-undang

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