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Hunter v Moss
''Hunter v Moss'' () 1 WLR 452 is an English trusts law case from the Court of Appeal concerning the certainty of subject matter necessary to form a trust. Moss promised Hunter 50 shares in his company as part of an employment contract, but failed to provide them. Hunter brought a claim against Moss for them, arguing that Moss's promise had created a trust over those 50 shares. The constitution of trusts normally requires that trust property be segregated from non-trust property for the trust to be valid, as in ''Re London Wine Co (Shippers) Ltd''.〔() PCC 121〕 On this occasion, however, both Colin Rimer in the High Court of Justice and Dillon, Mann and Hirst LJJ in the Court of Appeal felt that, because this case dealt with intangible rather than tangible property, this rule 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. The decision was applied in ''Re Harvard Securities'',〔() (EWHC Comm 371 ); () 2 BCLC 369〕 creating a rule that segregation is not always necessary when the trust concerns intangible, identical property.
The academic reaction to ''Hunter'' was mixed. While some called it "fair, sensible and workable",〔 or noted that "Logically the decision in ''Hunter v Moss'' appears a sensible one",〔 Alastair Hudson felt that "doctrinally, it is suggested that the decision in ''Hunter v Moss'' is wrong and should not be relied upon",〔 because it contradicted existing property law and drew a distinction between tangible and intangible property he felt to be "spurious".〔
==Facts==
Moss was the founder and director of Moss Electrical Co Ltd, and owned 950 of the 1,000 available shares. In September 1986 he said that Hunter, the finance director, could have 50 of these shares as part of his employment. Crucially, he made no statement or trust involving the other 900 shares. This gift of 50 shares was never implemented because of tax concerns, the risks of a takeover, and mainly because Moss changed his mind. Hunter brought a case against Moss claiming his 50 shares, which rested on two issues. First, whether the language used was sufficient to create a trust, and second, whether or not the trust failed to provide the three certainties because of the lack of segregation between the shares.〔Norris (1995) p.43〕
Prior to ''Hunter'', a valid trust required three certainties – certainty of intention (that the donor intended to make a trust) certainty of subject matter (that the property to make up the trust was identifiable) and certainty of object (that the beneficiaries were identifiable).〔Hudson (2009) p.73〕 The normal rule for certainty of subject matter is that the property intended to be in the trust be separated from other property, showing clarity in what is intended to be trust property. If there is no clear separation, the trust will fail. ''Re London Wine Co'' concerned creditors of a bankrupt wine trading company, who argued that they should be able to claim the bottles of wine they had paid for. The problem was that these bottles were not individually identifiable, and Oliver J held that:
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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