Paper Presentation by Alec J Morris: 'Unincorporated Associations and the Property Problem: The ‘Contract-Holding’ Theory as the Ace of Clubs?
This is the third meeting of the Oxford Private Law Postgraduate Research Students Discussion Group. This is a discussion group for postgraduate research students with an interest in private law (broadly defined) to come together to discuss their work and exchange ideas. At each meeting, a student will give a short, informal presentation on an aspect of their research which will be discussed by the group. Each meeting will be chaired by a Faculty member, but otherwise the participants will all be post-graduate students. As well as substantive discussion, there will also be discussion of topics relevant to thesis writing and career development.
We are very pleased that our speaker this term is Alec Morris (University of Buckingham and University of Portsmouth). As well as discussion of Alec's paper, on 'Unincorporated Associations and the Property Problem: The ‘Contract-Holding’ Theory as the Ace of Clubs?' (abstract below), there will also be a discussion at the end of the session on wider issues relevant to doctoral study - namely, in this session, we will discuss about preparing for life post-PhD, including, e.g., academic/research job applications.
The Chair will be Dr Aruna Nair (University of Oxford). This event is open to postgraduate research students with an interest in private law (broadly defined), whether studying at Oxford or elsewhere.
To register and receive the Teams link, please email private-law-postgrad@law.ox.ac.uk, marking one of the Co-Convenors: anirudh.belle@law.ox.ac.uk or aleksandra.kobyasheva@law.ox.ac.uk. When registering, please indicate your institutional affiliation.
If you would like to volunteer to present at a future meeting, please write to us, letting us know your proposed topic.
Abstract:
"Unincorporated associations are the epitome of civil society. Like-minded individuals joining together, not to profit, but to pursue a particular purpose; a group dedicating their time and resources in furtherance of a common cause. However, unlike most other civil society groups, unincorporated associations differ in not having a separate legal personality.
One well-known problem, resulting from their lack of legal personhood, is that of explaining, satisfactorily, how such associations hold property. Yet, it is now widely believed that this once seemingly intractable issue has been resolved following the introduction of the ‘contract-holding’ theory. In fact, despite this theory’s relatively nascent nature (at least in light of the long history of unincorporated associations in England and Wales), it has proved so popular that it has become the default approach the courts use to address the property-holding problem for clubs and societies. Should the facts allow – and they often do – the courts will use this ace up their sleeve.
Surprisingly, however, there has not been sufficient scrutiny of the contract-holding theory since it came into being several decades ago. True though it is the theory’s simplicity is attractive, we should be wary of accepting it at face value, without proper examination – particularly if it means it might undermine foundational rules and principles of private law. This paper will examine the contract-holding theory and expose its fundamental flaws, revealing it to be nothing more than judicial sleight of hand; a method we avoid looking at too closely lest we ruin the ‘magic’. The paper will then go on to provide a new theory – one which not only avoids the problems which afflict the contract-holding theory, but one whose foundation is firmly cemented in recognised rules and principles of property law and equity. Central to such a theory is that of the treasurer/officer of the association being a trustee de son tort, in addition to the presence of a mandate determining the use of the group’s property. It is hoped that this theory will not only appease private lawyers but also prove flexible; being relevant for all types of unincorporated association and capable of accommodating and explaining inter vivos – as well as testamentary – gifts of property to these associations."