Given that the primary obligation of a trustee is to hold properties belonging to others and to preserve them for the benefit of the beneficiaries, it is no surprise that trustees are generally expected ‘to use such due diligence and care as men of ordinary prudence and vigilance would use in the management of their own affairs’. When investing, they are expected ‘to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide’. This focus on integrity rather than ability ties in with the conventional wisdom that `[t]he importance of preservation of a trust fund will always outweigh success in its advancement’ . Read the rest of this entry »
The Midland Bank Trustee case therefore is a clear rejection of the wider proposition that intentional wrong, gross negligence, and fraud of a trustee cannot be excluded or modified. Before accepting this narrower formulation or the wider proposition or indeed either of the two propositions one must question the theoretical basis of each of these propositions.
It seems that even under the narrower view, an exemption clause cannot effectively exclude wilful default. Read the rest of this entry »
As the manager is in a contractual relationship with the unitholders, it may have a contractual duty of care under the express or implied terms of the contract as contained in the unit trust deed. Historically, the court has chosen the contract as a medium of control over the conduct of people giving professional services. Invariably, the court will imply a duty of skill and care into a contract for professional services. However, as Deane J in Hawkins v. Clayton has reminded us, the preconditions for implying a term into a contract include that the term must be necessary for the efficacy of the contract, and the term must have been intended by the parties to form part of the contract. Read the rest of this entry »
Trust cases have demonstrated that the court is very reluctant to make an agent of a trustee liable to the beneficiaries directly on the basis of constructive trust. The agent will not be liable for merely carrying out the instructions of the trustee, even when it knows that the property is trust property. There must be a want of probity on its part.” One cannot expect an agent to make detailed investigations to see whether or not its principal is validly appointed or whether or not its principal is properly exercising its power. After the decision in Royal Brunei Airlines v. Read the rest of this entry »
A major defence industry supplier, Death Mines plc, wishes to borrow £1 million for twelve years at a fixed interest rate to finance a new investment project. It could do so by issuing a straight eurobond but, as it is not well known in the market and does not have a high credit risk rating, would have to pay a coupon of 8 per cent which it regards as too high. The firm’s own bank is willing to lend Death Mines the required amount via a one-year floating rate note at a rate of 2 per cent over LIBOR, currently at 3.6 per cent.
Clearly, the floating rate loan is much cheaper at the moment, but LIBOR could easily rise over the period of the loan to such a level that Death Mines would finish up losing on the project. Thus, it enters into a contract with a swap bank, Border International, to pay to it 5 per cent on the principal, receiving in exchange LIBOR.
The position of Death Mines now is:
Pays to its own bank LIBOR + 2 per cent
Pays to Border 5 per cent
Receives from Border LIBOR
Net position — fixed rate loan at 7 per cent Read the rest of this entry »
There are two ways that a swap position can be interpreted: (1) as a package of forward/ futures contracts, and (2) as a package of cash flows from buying and selling cash market instruments.
Package of Forward Contracts Consider the hypothetical interest-rate swap described earlier to illustrate a swap. Let’s look at party X’s position. Party X has agreed to pay 10% and receive six-month LIBOR. More specifically, assuming a $50 million notional principal amount, X has agreed to buy a commodity called six-month LIBOR for $2.5 million This is effectively a six-month forward contract in which X agrees to pay $2.5 million in exchange for delivery of six-month LIBOR. If interest rates increase to 11%, the price of that commodity (six-month LIBOR) is higher, resulting in a gain for the fixed-rate payer, who is effectively long a six-month forward contract on six-month LIBOR. The floating-rate payer is effectively short a six- month forward contract on six-month LIBOR. There is therefore an implicit forward contract corresponding to each exchange date. Read the rest of this entry »
