THE CHARITIES ACT, 1960

Publication Date01 Jul 1961
AuthorO. R. Marshall
DOIhttp://doi.org/10.1111/j.1468-2230.1961.tb02777.x
THE
CHARITIES ACT,
1960
THE Charities Act,
1960,l
which has already been the subject of an
excellent summary in a leading textbook
on
equity,* and of a
critical and exhaustive survey in
The Conveyancer,s
has repealed
either in whole
or
in part twenty-eight statutes as being obsolete,
made consequential amendments in eighteen and superseded forty-
seven.6
In
addition, the abolition of the law of mortmain has
resulted in the total or partial repeal of
no
fewer than ninety-fivee7
The
"
jungle
"
of statute law has therefore been cleared, but the
''
undergrowth
"
of judicial decisions still remains (save in
so
far
as
it
has been affected by the extension of the
cy-prBs
doctrine and
the abolition of the law of mortmain
lo).
Apart from achieving a thorough consolidation of such of the
statute law as
it
retains, the Act makes a number of important
changes. There are, however, two major omissions.
MAJOR
OMISSIONS
1.
Definition
First is the omission of a definition
l1
of charity. The Nathan Com-
mittee had recommended
l2
that (i) the definition of charity by
reference to the Preamble to the Charitable Uses Act,
1601,
should
be repealed, and
(ii)
in its stead there should be put on the Statute
Book
a
''
definition
"
based
on
Lord Macnaghten's classification in
1
s.
1
and Sched.
I
(constitution of the Chanty Commissioners),
8.
38
and Part
11
of Sched.
VII
(repeal of the law of mortmain)
and
s.
47
(powers
of
Parlia-
ment of Northern Ireland) came into force
on
July
29, 1960,
when
the Bill
received the Royal Assent. The remainder
of
the Act came into force on
January
1,
1961
(see
8.
49 (3)
).
2
Snell's
Principles
of
Equity,
25th
ed., pp.
151-161.
3
Spencer
G.
Maurice, "The Charities Act,
1960" (1960) 24
COnV.(N.S.) pp.
390-423.
4
s.
39
and Sched.
V.
5
8.
48 (1)
and Sched.
VI.
6
s.
48
(2)
and Part
I
of Sched.
VII.
In
addition two Church Assembly
Measures and six Orders in Council were thereby repealed.
7
8s.
38, 48
(2)
and
Pert
II
of Sched.
VII.
In addition eleven Church Assembly
Measures were thereby repealed.
8
So
described by
I;'fof.
G.
W.
Keeton
"
Some Problems in the Reform of the
Law of Charities
9
8s.
13
and
14;
post.
(1960) 13
Current Legal Problems
at p.
22.
Doubts
of
this-being achieved were expressed by Prof. Keeton,
Zoc.
cit.
at
p.
35.
For
a
discussion of the problems involved see
J.
W.
Brunyate:," The Legal
Definitiy
of
Charity"
(1945) 61
L.Q.R.
262;
G.
W.
Keeton, The Charity
Muddle
(1949)
2
Current Legal Problems
102;
the Nathan Report
on
Charitable Trusts (Cmd.
8710) 1952,
Chap.
3.
LOC. cit.
para.
140.
444
Jt-1.1-
1961
THE
CHARITIES
ACT,
1960
445
Pemsel’s
case, but preserving the case law as
it
stood. The Act
clearly gives effect to (i) by repealing the whole of the Mortmain
and Charitable Uses Act,
1888,
and destroying with it the preamble
to the Act of
1601
which had hitherto been preserved only by
section
13
(2)
of the Act of
1888.
Presumably the Aet also intends
to
give effect to (ii) by providing in section
38
(4)
l3
that
any
reference in any enactment
or
document to a charity within the
meaning, purview and interpretation of the Charitable Uses Act,
1601,
or
of the preamble to it, shall be construed as a reference to a
charity within the meaning which the word bears as a legal term
according to the law of England and Wales.”
The meaning of this subsection is not immediately apparent.
Two difficulties come to mind:
(a) Need the reference in the relevant enactment
or
document to a
charity expressly specify that the charity was within the mean-
ing, purview and interpretation of the Act of
1601,
or
would a
reference
to
charity
simpliciter
impliedly attract the operation
of the subsection
?
In short, does the subsection provide
for
the
interpretation of a gift in favour of
a charity within the mean-
ing of the Act of
1601
as welt as a gift in favour
of
charity
si~npliciter;
or
does it provide for the former case only
?
Since
the restriction of the subsection to the former case would
deprive
it
of much of its useful meaning, it is submitted that a
likely interpretation would be as follows:
Any reference in
any enactment
or
document to a charity which before the pass-
ing of this Act would have been held to come within the mean-
ing, purview and interpretation of the Charitable Uses Act,
1601,
or
of the preamble to it, shall hereafter be construed as a
reference to a charity within the meaning which the word bears
as a legal term according to the law of England and Wales,
regard being’had to the repeal of the aforesaid preamble by
subsection one of this section.”
(b)
But it is precisely when regard
is
had to the repeal
of
the
preamble that difficulty occurs concerning the legal meaning of
charity. Hitherto one could say with confidence that, in order
13
So
other section
in
the Act helps with regard to the problem of definition.
S.
45
(1)
defines charity
as
meaning
’’
any institution, corporate or
not.
which
is
established for charitable purposes
and
is subject to the control of the High
Court
in
the exercise
of
the court’s jurisdiction with respect to charities.”
Y.
46
defines
‘’
infititution
as including
‘*
any trust
or
undertaking.” The
requirement that the institution
must
he subject
to
the control
of
the
High
Court’s jurisdiction with respect to charities excludes from the ,4ct civil
corporations in respect
of
their corporate property, though not, of
course.
such
corporations
in
respect of property of which they are trustees
for
charitable
purposes.
S.
45
(2)
(a)
expressly excludes ecclesiastical corporations in respect
of corporate property held for exclusively ecciesiastical purposes.
S.
46
SIN PI^
defines
charitable purposes
as
purposes which are exclusively charitahle
according to the law
of
Englanc? and Wairs.”

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