Estates in UK Law

Thus in cases other than those where a man is a property dealer so that property is his stock-in-trade it is quite clear that the purchase of a fee simple for a purchase price by a trader is the acquisition of property for the purposes of trade and the purchase cannot be regarded as a cost of carrying on the trade, it is therefore capital.

Mr Martin also submits that the reference in s.82(3) to overriding interests is inconsistent with the notion that a claim to rectification is itself an overriding interest. The answer to this point is, as I see it, that the right to claim rectification must be coupled with actual occupation for the saving in section 82(3) to apply. Section 82(3) is, therefore, not rendered circular by construing section 70(1)(g) so that overriding interest is capable of including a claim to rectification.

What is the agreement causing loss on which Britel and Meretz rely as amounting to the conspiracy? The answer, as it seems to me, must be the Wrap Around Agreement and the subsequent implementation of the steps it contemplated. Underlying the whole of the allegation is the exercise by FP of its power of sale in circumstances in which the obligation of ACP to make further commission payments to Meretz would never arise; and Britel would not be able to enforce the Lease-Back Option.

We have no reason to doubt Peter Smith J's conclusions but in any event, as he observed, section 114 provides for a transfer "unless a contrary intention is expressed" in the mortgage. Thus if section 114 applies, all depends upon the true construction of the mortgage and, in our judgment, for the reasons given earlier, on the true construction of the sub-charge, there was no such transfer in this case.

A trust in this form has the effect of making the beneficiary a tenant for life within the meaning of the Settled Land Act, 1925, and, consequently, there is very little practical difference between such a trust and a trust for life simpliciter."

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.

The general presumption is that the parties have expressed every material term which they intended should govern their agreement, whether oral or in writing. But it is well recognised that there may be cases where obviously some term must be implied if the intention of the parties is not to be defeated, some term of which it can be predicated that "it goes without saying", some term not expressed but necessary to give to the transaction such business efficacy as the parties must have intended.