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A comparative perspective on the "joint-action rule" in the context of business trusts

dc.contributor.authorde Waal, MJ
dc.contributor.authorDu Plessis, I.
dc.date.accessioned2018-05-21T12:16:07Z
dc.date.available2018-05-21T12:16:07Z
dc.date.issued2014-01
dc.identifier.citationDe Waal, M.J. & Du Plessis, I. 2014. A comparative perspective on the "joint-action rule" in the context of business trusts. Stellenbosch Law Review = Stellenbosch Regstydskrif 25(2):343-360.
dc.identifier.issn1996-2193 (online)
dc.identifier.issn1016-4359 (print)
dc.identifier.urihttp://hdl.handle.net/10019.1/104034
dc.descriptionCITATION: De Waal, M.J. & Du Plessis, I. 2014. A comparative perspective on the "joint-action rule" in the context of business trusts. Stellenbosch Law Review = Stellenbosch Regstydskrif 25(2):343-360.
dc.descriptionThe original publication is available at https://journals.co.za/content/journal/ju_slr
dc.description.abstractThe "joint-action rule" in South African trust law entails that all trustees must act jointly in order to bind the trust. Non-compliance with the rule will most often lead to the invalidity of a contract between the trustees and an outsider. Hence, in the context of business trusts, the application of the rule may be particularly problematic. We submit that the main reason why the business trust remains a useful institution is that the trust brings with it, through the importation of certain standard features, important advantages that need not be specifically bargained for. However, normal rules of trust law, such as the joint-action rule, must also be complied with. Hence, mechanisms to ameliorate some of the problematical effects of this rule can be put in place, such as provisions stipulating that decisions can be taken by a majority of the trustees, or that the trustees can delegate certain defined duties or powers. It is clear, however, that difficulties remain and that South African courts are still facing challenges in developing this area of trust law. But South Africa is not the only trust jurisdiction where the joint-action rule applies and where mechanisms have been developed to address the difficulties experienced with this rule. Comparing the position in South Africa to that in England, Scotland and Canada (including Québec), a remarkable degree of similarity between South Africa, on the one hand, and the other jurisdictions, on the other, as far as the basic application of the joint-action rule is concerned, can be noted. However, there are a number of differences as well. In many of the other jurisdictions legislation generally plays a much bigger role than in South Africa and it may provide a rich source of ideas for the development of this area of South African trust law.en_ZA
dc.language.isoen_ZAen_ZA
dc.publisherJuta Law Publishing
dc.subjectSouth African trust law, joint-action rule, trust deed, business trusten_ZA
dc.titleA comparative perspective on the "joint-action rule" in the context of business trustsen_ZA
dc.typeArticleen_ZA
dc.description.versionPublishers version
dc.rights.holderJuta Law Publishing


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