Chinese philosophy Essay Example for Free

Chinese philosophy Essay Taiji (literally great pole) is a Chinese cosmological term for the Supreme Ultimate state of undifferentiated absolute and infinite potentiality, contrasted with the Wuji ( , Without Ultimate). The term Taiji and its other spelling Tai chi (using Wade-Giles as opposed to Pinyin) are most commonly used in the West to refer to Taijiquan (or Tai chi chuan, ), an internal martial art, Chinese meditation system and health practice. This article, however, refers only to the use of the term in Chinese philosophy and Daoist spirituality. Contents [hide] 1 The word 2 Taiji in Chinese texts 2. 1 Zhuangzi 2. 2 Huainanzi 2. 3 Yijing 2. 4 Taijitu shuo 3 Core concept 4 See also 5 References [edit]The word Chinese taiji is a compound of tai ? great; grand; supreme; extreme; very; too (a superlative variant of da ? big; large; great; very) and ji ? pole; roof ridge; highest/utmost point; extreme; earths pole; reach the end; attain; exhaust. In analogy with the figurative meanings of English pole, Chinese ji ? ridgepole can mean geographical pole; direction (e. g. , siji four corners of the earth; worlds end), magnetic pole (Beiji North Pole or yinji negative pole; anode), or celestial pole (baji farthest points of the universe; remotest place). Common English translations of the cosmological Taiji are the Supreme Ultimate (Le Blanc 1985, Zhang and Ryden 2002) or Great Ultimate (Chen 1989, Robinet 2008); but other versions are the Supreme Pole (Needham and Ronan 1978), Great Absolute, or Supreme Polarity (Adler 1999). [edit] Taiji in Chinese texts Taiji references are found in Chinese classic texts associated with many  schools of Chinese philosophy. Zhang and Ryden explain the ontological necessity of Taiji. Any philosophy that asserts two elements such as the yin-yang of Chinese philosophy will also look for a term to reconcile the two, to ensure that both belong to the same sphere of discourse. The term supreme ultimate performs this role in the philosophy of the Book of Changes. In the Song dynasty it became a metaphysical term on a par with the Way. (2002:179) [edit]Zhuangzi The Daoist classic Zhuangzi introduced the Taiji concept. One of the (ca.3rd century BCE) Inner Chapters contrasts Taiji great ultimate (tr. zenith) and Liuji six ultimates; six cardinal directions (tr. nadir). The Way has attributes and evidence, but it has no action and no form. It may be transmitted but cannot be received. It may be apprehended but cannot be seen. From the root, from the stock, before there was heaven or earth, for all eternity truly has it existed. It inspirits demons and gods, gives birth to heaven and earth. It lies above the zenith but is not high; it lies beneath the nadir but is not deep. It is prior to heaven and earth, but is not ancient; it is senior to high antiquity, but it is not old. (tr. Mair 1994:55) [edit]Huainanzi The (2nd century BCE) Huainanzi mentions Taiji in a context of a Daoist Zhenren true person; perfected person who perceives from a Supreme Ultimate that transcends categories like yin and yang. The fu-sui (burning mirror) gathers fire energy from the sun; the fang-chu (moon mirror) gathers dew from the moon. What are [contained] between Heaven and Earth, even an expert calculator cannot compute their number. Thus, though the hand can handle and examine extremely small things, it cannot lay hold of the brightness [of the sun and moon]. Were it within the grasp of ones hand (within ones power) to gather [things within] one category from the Supreme Ultimate (tai-chi ) above, one could immediately produce both fire and water. This is because Yin and Yang share a common chi and move each other. (tr. Le Blanc 1985:120-1) [edit]Yijing Taiji also appears in the Xici Appended Judgments commentary to the Yijing, a late section traditionally attributed to Confucius but more likely dating to about the 3rd century B.C. E. [1] Therefore there is in the Changes the Great Primal Beginning. This generates the two primary forces. The two primary forces generate the four images. The four images generate the eight trigrams. The eight trigrams determine good fortune and misfortune. Good fortune and misfortune create the great field of action. (tr. Wilhelm and Baynes 1967:318-9) This two-squared generative sequence includes Taiji, Liangyi Two Polarities; Yin and Yang, Sixiang Four Symbols (Chinese constellation), and Bagua Ba gua. Richard Wilhelm and Cary F. Baynes explain. The fundamental postulate is the great primal beginning of all that exists, tai chi – in its original meaning, the ridgepole. Later Indian philosophers devoted much thought to this idea of a primal beginning. A still earlier beginning, wu chi, was represented by the symbol of a circle. Under this conception, tai chi was represented by the circle divided into the light and the dark, yang and yin, . This symbol has also played a significant part in India and Europe. However, speculations of a Gnostic-dualistic character are foreign to the original thought of the I Ching; what it posits is simply the ridgepole, the line. With this line, which in itself represents oneness, duality comes into the world, for the line at the same time posits an above and a below, a right and left, front and back – in a word, the world of the opposites. (1967:lv) [edit]Taijitu shuo Zhous Taijitu diagram The Song Dynasty philosopher Zhou Dunyi (1017-1073 CE) wrote the Taijitu shuo Explanation of the Diagram of the Supreme Ultimate, which became the cornerstone of Neo-Confucianist cosmology. His brief text synthesized aspects of Chinese Buddhism and Daoism with metaphysical discussions in the Yijing. Zhous key terms Wuji and Taiji appear in the opening line , which Adler notes could also be translated The Supreme Polarity that is Non-Polar! . Non-polar (wuji) and yet Supreme Polarity (taiji)! The Supreme Polarity in activity generates yang; yet at the limit of activity it is still. In stillness it generates yin; yet at the limit of stillness it is also active. Activity and stillness alternate; each is the basis of the other. In distinguishing yin and yang, the Two Modes are thereby established. The alternation and combination of yang and yin generate water, fire, wood, metal, and earth. With these five [phases of] qi harmoniously arranged, the Four Seasons proceed through them. The Five Phases are simply yin and yang; yin and yang are simply the Supreme Polarity; the Supreme Polarity is fundamentally Non-polar. [Yet] in the generation of the Five Phases, each one has its nature. (tr. Adler 1999:673-4) Instead of usual Taiji translations Supreme Ultimate or Supreme Pole, Adler uses Supreme Polarity (see Robinet 1990) because Zhu Xi describes it as the alternating principle of yin and yang, and †¦ insists that taiji is not a thing (hence Supreme Pole will not do). Thus, for both Zhou and Zhu, taiji is the yin-yang principle of bipolarity, which is the most fundamental ordering principle, the cosmic first principle. Wuji as non-polar follows from this. [edit]Core concept Taiji is understood to be the highest conceivable principle, that from which existence flows. This is very similar to the Daoist idea reversal is the movement of the Dao. The supreme ultimate creates yang and yin: movement generates yang; when its activity reaches its limit, it becomes tranquil. Through tranquility the supreme ultimate generates yin. When tranquility has reached its limit, there is a return to movement. Movement and tranquility, in alternation, become each the source of the other. The distinction between the yin and yang is determined and the two forms (that is, the yin and yang) stand revealed. By the transformations of the yang and the union of the yin, the 5 elements (Qi) of water, fire, wood, metal and earth are produced. These 5 Qi become diffused, which creates harmony. Once there is harmony the 4 seasons can occur. Yin and yang produced all things, and these in their turn produce and reproduce, this makes these processes never ending. (Wu, 1986) Taiji underlies the practical Taijiquan (T’ai Chi Ch’uan) A Chinese internal martial art based on the principles of Yin and Yang and Taoist philosophy, and devoted to internal energetic and physical training. Taijiquan is represented by five family styles: Chen, Sun, Yang, Wu(Hao), and Wu (NQA {Meeting}).

Lord of the Flies :: Free Essay Writer

Lord of the Flies Man must have rules in order to control his savage side. William Golding brings out this theme in the novel Lord of the Flies. When you first read Lord of the Flies you may think it is merely a simple adventure story of boys on a deserted island. But if you take a deeper look into it and consider the statement above you will see that this book is also an attempt to trace the defects of civilization back to the defects of human nature. There are many characters in the story that help prove how man must have rules in order to control his savage side. Ralph is the chief and he represents civilization and its parliaments. Piggy is Ralph’s brain trust and an intellectual. Both Ralph and Piggy represent the struggle for order and democracy. Jack is the spark of wildness that burns hot and close to the surface, which later conflicts with Ralph. From the very beginning Jack seems to harbor emotions of anger and savagery. Simon has them most positive outlook out of all of the characters and is a â€Å"Christ figure.† He is good and pure and insists that they will be rescued. Roger represents pure evil and wrongness. He gets pleasure in torturing pigs and was the first one to intentionally kill another boy when he smashed Piggy with a boulder. Sam and Eric are the twins that do everything together. They represent unity and reliance. Later in the story they reveal Ralph’s hiding place to Jack because the loss of civilization led them to lose any real sense of loyalty to others. These characters assist in showing how the theme is brought out. There are also many symbols in the novel. The conch represents rules, civilization, democracy and order. Piggy’s glasses represent clear-sightedness and intelligence. The state of the glasses represents the status of social order. When they break it marks the progressive decay of rational influence. The island represents the world. The â€Å"scar† represents man’s destruction. The Lord of the Flies represents the Devil and the great danger or evil. The killing of the sow and the hunting of pigs are accomplished in terms of sexual intercourse. The beast that the â€Å"littleuns† are afraid of is created by the emotions that all of the boys on the island are experiencing. The beast represents the evil residing within everyone and the dark side of human nature. Lord of the Flies :: Free Essay Writer Lord of the Flies Man must have rules in order to control his savage side. William Golding brings out this theme in the novel Lord of the Flies. When you first read Lord of the Flies you may think it is merely a simple adventure story of boys on a deserted island. But if you take a deeper look into it and consider the statement above you will see that this book is also an attempt to trace the defects of civilization back to the defects of human nature. There are many characters in the story that help prove how man must have rules in order to control his savage side. Ralph is the chief and he represents civilization and its parliaments. Piggy is Ralph’s brain trust and an intellectual. Both Ralph and Piggy represent the struggle for order and democracy. Jack is the spark of wildness that burns hot and close to the surface, which later conflicts with Ralph. From the very beginning Jack seems to harbor emotions of anger and savagery. Simon has them most positive outlook out of all of the characters and is a â€Å"Christ figure.† He is good and pure and insists that they will be rescued. Roger represents pure evil and wrongness. He gets pleasure in torturing pigs and was the first one to intentionally kill another boy when he smashed Piggy with a boulder. Sam and Eric are the twins that do everything together. They represent unity and reliance. Later in the story they reveal Ralph’s hiding place to Jack because the loss of civilization led them to lose any real sense of loyalty to others. These characters assist in showing how the theme is brought out. There are also many symbols in the novel. The conch represents rules, civilization, democracy and order. Piggy’s glasses represent clear-sightedness and intelligence. The state of the glasses represents the status of social order. When they break it marks the progressive decay of rational influence. The island represents the world. The â€Å"scar† represents man’s destruction. The Lord of the Flies represents the Devil and the great danger or evil. The killing of the sow and the hunting of pigs are accomplished in terms of sexual intercourse. The beast that the â€Å"littleuns† are afraid of is created by the emotions that all of the boys on the island are experiencing. The beast represents the evil residing within everyone and the dark side of human nature.

Amy Tan and Functionalism Essay

This essay will explore the real life of Amy Tan and the translation of her life through her large body of work. The research will not only involve biographical information but quotes from her books as they relate to her life and the influence of Asian culture on those works as well as her life. The works that will be focused on in this essay will The Joy Luck Club and other others. The main development of the essay will be based upon the comparing qualities found in The Joy Luck Club. This essay will be partly analytical and partly research based in its design. Amy Tan’s work, though broad in theme will usually bear the relationship of the mother-daughter paradigm in the weight of the story incorporating a functionalist theory. Cognitive processes performed by the brain allow for construction of an internal model of reality from the sensory data. This also coincides with consensual reality or perceived reality which is the function of the normal processes of the brain. Sensory perception is a crux by which cognitive science develops its theories. As such, the mind is in a continuous learning equation. The brain chronically categorizes representations of reality (objects, feelings, events, etc) and learns how to problem solve, and compute these different sensory receptions. This is a self-organizing process by which the mind acts like a computer and stores information from sensory events into a coded mechanism. Amy Tan writes about the way in which an Asian woman grows up in a Western culture and the effects of this on the mother-daughter relationship. Thus, not only is the theme of the familial relationship relevant but also the theme of the first generation Asian American important. Especially in the novel The Joy Luck Club the view of Asian values as they are pitted against Western culture is examined, just as in Amy Tan’s life, such issues were relevant. Tan’s novels peak with relevance to the negotiation of the characters toward their assimilation into Western society †¦Asian American culture emerges out of the contradictions of Asian immigration, which in the last century and a half of Asian entry into the United States have placed Asians within the United States nation-state, its workplaces, and its markets, yet linguistically, culturally and racially marked Asians as foreign and outside the national polity. Under such contradictions, late nineteenth-century Chinese immigrants labored in mining agriculture, and railroad construction but were excluded from citizenship and political participations in the state†¦By insisting on Asian American formation as contradictory, and therefore as dialectical and critical†¦while immigration has been the locus of legal and political restriction of Asians as the other in America, immigration has simultaneously been the site fro the emergence of critical negations of the nation-state for which those legislations are the expression†¦The national institutionalization of unity becomes the measure of the nation’s condition of heterogeneity. If the nation proposes American culture as the key site for ht resolution of inequalities and stratifications that cannot be resoled on the political terrain of representative democracy, then that culture performs that reconciliation by naturalizing a universality that exempts the non-American from its history or aestheticizes ethnic differences as if they could be separated form history (Lowe 11). Asian Americans are prone to negotiation and this interaction between cultures as well as between generations is especially prevalent in The Joy Luck Club as it relates to Tan’s life. In the context of this process is the history of Tan’s own life. She was a first generation Asian American born in Oakland California. Her parents were Chinese immigrants. Her father was a Baptist minister and her mother was a Shanghai nurse. When Tan was fourteen years old, her father as well as her elder brother died of brain tumors. After the death of the figurehead of the family and the brother, Tan, her mother Daisy and the younger brother Peter moved to Montreux, Switzerland. As Tan grew older she began to realize the great gap that existed between herself and her mother due to their difference in culture. As Tan grew up she realized that there was much tension between herself and her mother. Tan eventually moved away from home and gained her master’s degree in linguistics at San Jose State University. Tan’s first job was as a children’s speech therapist. Within the context of Tan’s writing there exists these elements of her life; integration, acceptance, alienation both in terms of culture and through this culture of familial ties. The ideal behind the immigration to America is extrapolated in her novels as a way of achieving the American dream. This issue is brought subtly to the foreground by way of the parents’ expectations of their children and the children’s noncompliance to these wishes, a sort of shucking off of the parents’ ideal for the children’s own interest, Although ‘Asian values’ have continued to define the material success of Asian Americans in American culture and society since the 1980’s, these values have equally been deployed to suggest the inability of Asian Americans to embrace the American Dream, a problem that would culminate in the myth of ‘perpetual foreigner. ’†¦the history of Asians in America can be fully understood only if we regard them as both immigrants and members of nonwhite minority groups precisely because Asian Americans have never been completely absorbed into American society and its body politic (Shu 93). Thus, Tan’s novels, as juxtaposed with her life emphasize the alienation first generation Asian Americans deal with as being ostracized from either culture, Culture is the medium of the present—the imagined equivalences and identifications through which the individual invents lived relationship with the national collective. But it is simultaneously the site that mediates the past, through whih history is grasped as difference, as fragments, shocks, and flashes of disjunction. It is through culture that the subject becomes, acts, and speaks itself as American. It is likewise in culture that individuals and collectivities struggle and remember, and in that difficult remembering, imagine and practice both subject and community differently (Lowe 10). In Tan’s novel The Joy Luck Club the main attraction for readers resides in the focus of the four main Chinese-American families. These families unite in the club they formed called The Joy Luck Club in which the mothers, and towards the end of the novel the daughters play the Chinese game Mahjong for money while also partaking of a myriad of Chinese dishes. In fact, Tan brings a lot of Chinese culture into her stories through food. The novel is written in a vignettes style in which the characters lives are portrayed in sixteen chapters divided into four sections where the narrative is dedicated to both the mother and the daughter. The beginning of the novel begins with Jing-Mei or ‘June’ who has at this point lost her mother Suyuan to an aneurysm. The Joy Luck Club requests that June take the place of her mother at their game. This begins the novel in a fashion of exploration and a journey in which June discovers who her mother was and thereby finds her own identity through her mother on behalf of the information gleaned from Suyuan’s friends. This topic of finding the self through the mother relates to Tan’s own life and her relationship with her mother. This is also a cultural issue in which the daughter denies her heritage, in this case both Tan and June, and only through this journey of discovering who the mother is does the daughter begin to understand her own self, In contrast, the cultural productions emerging out of the contradictions of immigrant marginality displace the fiction of reconciliation, disrupt the myth of national identity by revealing its gaps and fissures, an intervene in the narrative of national development that would illegitimately locate the immigrant before history, or exempt the immigrant from history. The universals proposed by the political and cultural forms of the nation precisely generate the critical acts that negate those universals. These acts compose the agency of Asian immigrants and Asian Americas: the acts of labor, resistance, memory, and survival as well as the politicized cultural work that emerges from dislocation and disidentification. Asian immigrants and Asian Americans have not only been subject to immigration exclusion and restriction, but have also been subjects of the migration process and are agents of political change, cultural expression, and social transformation (Lowe 11-12). Tan’s novels also focus on the American dream as it is reinterpreted by her characters. Tan’s use of culture as it applies to the characters is also applicable through the identity of being an immigrant. The loss of self through the loss of culture becomes a very viable source of depression for the characters in the novel just as Tan wrote that her own family suffered from this disease. Depression is prevalent with the daughters of the novel in struggling to find their identity and for June in finding out who her mother was as a person and as a mother. The novel deals greatly in behind the scene actions and events that are not revealed to the protagonist until the right time toward the end of the novel. In a way the old adage of a woman not becoming a woman until the death of her mother plays a specific role in this novel just as it does for Tan’s life. When June’s mother dies June must take on her mother’s responsibilities in the Joy Luck Club and in a way become her mother for these women. It is in this position that June learns of Suyuan’s life before being a mother just as much as she is an identity as a mother. Tan stated that her mother Daisy witnessed her mother’s suicide. This theme was emphasized in The Bonesetter’s Daughter when the mother tried to contact Precious Auntie. The form of contact that June clutches to in The Joy Luck Club is found in Suyuan’s circle of friends My father has asked me to be the fourth corner at the Joy Luck Club. I am to replace my mother whose seat at the mah jong table has been empty since she died two months ago. My father thinks she was killed by her own thoughts†¦My mother could sense that the women of these families also had unspeakable tragedies they left behind in China and hopes they couldn’t begin to express in their fragile English. Or at least, my mother recognized the numbness in these women’s faces. And she saw how quickly their eyes moved as she told them her idea for the Joy Luck Club (Tan 19-20). The pressure that mother insists upon the daughter is prevalent in Tan’s live as well as it is presented in the lives of her characters, especially June. There is a theme concurrent with this idea of memory, escape and eventual recognition in The Joy Luck Club which persists with the image and symbolism of the piano. Jing-mei’s mother Mrs. Woo insists that Jing-mei is a musical prodigy but during her debut recital both mother and daughter realize how bad she is at playing the instrument. As a result of this terrible recital Jing-mei shouts at her mother that she wishes she had never been born, that she were dead like those twins Mrs. Woo had to abandon. The mother then backs off and allows Jing-mei to forget about the piano. Later in the story the piano is given to Jing-mei as a thirtieth birthday presents and in this gift Jing-mei realizes that her mother only wanted her to find something worthwhile in her life. The gift of the piano reminds Jing-mei of the daughters that her mother had to leave behind, however, it is only after her mother’s death that Jing-mei can come to accept the gift of the piano. As she plays the piano Tan’s underlying theme becomes refocused on the American Dream translated into Chinese culture. Jing-mei’s mother wanted her to make something of herself, hence the piano. In Jing-mei’s ugly comment about wanting to be dead like her twin sisters the reader realizes that this is a metaphorical death, that Jing-mei is realizing that she is the product of a Chinese household but with ever growing dreams persuade by Western culture. Jing-mei eventually goes to China to meet with her twin sisters and in so doing she becomes reunited with her mother in the stories that she must give them, but all is revealed in that initial hug between the sisters. The mother’s children unite thereby uniting the family after so many years dislocated. In this way Tan’s focus is one of Diaspora, in the lack of home and the journey emotionally, spiritually and physically that each character in The Joy Luck Club must undertake to come to recognition with their identity, as Asian Americans, immigrants, products of a cultural dichotomy and as daughters and mothers, Tan also explores the effect of popular culture on the immigrant. Mrs. Woo gets her ideas from television and popular magazines. She does not question the validity of these sources. The magazines range from the bizarre—Ripley’s Believe It or Not—to the commonplace—Good Housekeeping and Reader’s Digest. Everything has been predigested for mass consumption (Shu 93). This predigested concept elicits for Tan the idea of self as seen through culture. The mother in this passage is seeking to redefine and assimilate into a culture for which she is ill designed. The theme then, as it was for Tan who was a first generation Asian American who later moved to Switzerland and then back to the San Francisco Bay area, is this idea of relocation, Diaspora. Through this concept of Diaspora through Tan’s novels it is easy to understand the psyche of her characters in relation to her own sentiments about life, immigration, identity as they in turn relate back, each of them, to the mother and daughter relationship. These forced concepts of becoming a woman and struggling with identity as it pertains to these outside forces is a daunting realization for each other Tan’s characters as it must have been difficult for her to define her life growing up a first generation Asian American. Amy Tan’s talent for writing is based on her affiliation with true life events which is a very functionalist way to write. Thus, when she writes her fiction novels she is also writing in part her biography as the thoughts of the characters are revealed to be strikingly similar to the sentiments that Tan must have felt growing up and finding out the history of her own mother who witnessed her mother’s suicide. Through the incorporation of these personal thoughts there is also the element in this way of thinking that focuses on Asian culture. The concept of the immigrant as it applies to Western culture is inclusive of being ostracized. Thus, the characters in Tan’s novels are in search of identity; identity as it relates to the dichotomy of Asian and Western culture, mother-daughter relationships, and the self. Through the arrival of the mother’s past revealed to the daughters in each of Tan’s novel, the daughter comes to an epiphany. The daughter realizes that she is her mother in part, and that is where her home is found. Thus, Tan is able to transfer this personal quest of self in the novel, as well as her real life, into the notion of the self being identified through the struggle of the mother for the daughter and the sacrifice therein. This concept is proved especially with June’s character, but for Tan , the idea of the mother defining the daughter is constant. Work Cited Lowe, Lisa. â€Å"The Power of Culture†. Journal of Asian American Studies. Vol. 1, No. 1. 1996. Shu, Yuan. â€Å"Globalization and ‘Asian Values’: Teaching and Theorizing Asian American Literature. † College Literature. Vol. 32, No. 1. Winter 2005. Tan, Amy. â€Å"The Joy Luck Club†. Putnam. 1989. Tan, Amy. â€Å"The Bonesetter’s Daughter. † Putnam. 2001.

Equity and Trust Law - Free Essay Example

Sample details Pages: 11 Words: 3284 Downloads: 5 Date added: 2017/06/26 Category Law Essay Type Analytical essay Level High school Tags: Trust Essay Did you like this example? Brief : 189084 Delivery Date : 18/08/06 Title: There is no single convincing explanation for the operation of the resulting trust.. Discuss ANSWER Introduction It is submitted that the resulting trust is a form of implied trust that is created by the inference of the law in circumstances in which the actions of the parties concerned and the characteristics of the transaction between them suggests a legal intent to establish a trust relationship. Resulting trusts resemble express trusts from many perspectives, in particular because intent is a prerequisite to the creation of the former mode of trust, that said however, intent in the case of a resulting trust is presumed by the law to exist between the parties instead of being directly proved by means of evidence before the court.[1] In essence a resulting trust occurs where although legal title becomes vested in a trustee, equitable title remains vested in the trust settlor. A resulting trust will typically arise in situations where it would be deemed in conflict with the fundamental principles of equity for a person in which property becomes vested to hold that property and enjoy legal rights over it otherwise than as a legal trustee with the commensurate responsibilities.[2] By way of example, in circumstances where property is purchased in the name of one party, but the purchase price is settled by another party, a resulting trust is created in favour of the person who actually paid the consideration. Don’t waste time! Our writers will create an original "Equity and Trust Law" essay for you Create order A resulting trust may also be created in a situation where a contract is formed for the sale of real estate property. In this case a trust will result to the purchase at the point of completion of the contract, and the vendor thereafter stands as trustee for the purchaser until the conveyance of the legal estate is subsequently made. Resulting trusts may occur in a variety of situations. For example, where an express trust fails due to an absence of formalities, or in circumstances where completion is not possible (known as dispositive failure), a resulting trust may arise. Moreover, in the case of an apparent gift, where a presumption of advancement is lacking (namely a presumption that the intention was to make a gift), equity principle dictates the conclusion that the donor must have been bereft of the intention to forfeit his entire interest in the property in question. It is contended that resulting trusts most often arise in circumstances where one party fails effectively to transfer his beneficial interest in the property concerned with the trust. This may be an accidental or deliberate occurrence and Re Vandervells Trusts (No..2)[3], for example, offers an erudite and illuminating discussion of the classification.. This case is discussed below. Discussion of the conceptual foundations of the resulting trust Resulting trusts were not often subject to detailed analysis during the twentieth century, presumably because until the relatively recent past, the law concerning resulting trusts was considered to be largely settled. Standard textbooks on equity and trusts often provide little more than a list of situations in which resulting trusts may arise and avoid deeper comment on the jurisprudence that underpins and defines their existence. It is argued, however, that there is in fact a surprising dearth of agreement as to the exact form of the principles that govern the operation of resulting trusts, in particular regarding the central issue as to w hether resulting trusts arise by a process of law or on the basis of a presumed intention to establish a trust. It is therefore suggested by this commentator that an academic polemic persists over the precise conceptual foundations and rationale for resulting trusts specifically regarding the intention the donor must possess.[4] Many authoritative commentators have entered the debate, including for example Professor Birks in An Introduction to the Law of Restitution[5]. However it is contended there are essentially two camps of legal thought on the issue. Lord Browne-Wilkinson delivering the leading majority judgment in Westdeutsche Bank Landesbank Girozentrale v Islington London BC[6] and academic commentator William Swadling[7] have endorsed the view that a resulting trust is created on the basis of a presumption of intention to create a trust which favours the donor: for example where X has the intention to give Z Property to Y so that Y can hold it for X. A different appr oach is supported by such legal academic commentators as Robert Chambers, in his book Resulting Trusts[8] and in cases such as Twinsectra Ltd v Yardley and Others[9] Potter LJ and Lord Millet argue in the alternative that it is in fact an absence of intention to benefit the recipient that serves to establish a trust, for example where X transfers Z Property to Y, but does not exhibit an intention to benefit Y. Further authority on this issue can be found in cases such as Air Jamaica Ltd Ors v Charlton. Ors.[10]. In such an instance, where there is a lack of contradictory evidence, the trust returns the money to X on the presumption that he did not want Y to benefit. Of course, it is submitted that in many situations the result may be the same whichever line is taken. However, it may be forcefully contended that the difference between the two approaches may be highly significant in light of the fact that in many cases it may be extremely hard to prove actual intention but noneth eless much easier to rebut the legal presumption. There is little doubt that the approach advocated by Robert Chambers would inevitably result in the creation of significantly more resulting trusts than that endorsed by Swadling et al. In support of Swadlingà ¢Ã¢â€š ¬Ã¢â€ž ¢s preferred line in Westdeutsche v. Islington BC Lord Browne-Wilkinson was manifestly fearful that pursuit of the alternative would serve to offer every claimant a tangible proprietary right in bankruptcy and thus create a so-called open-floodgates issue. This would, it is argued result in vastly more claimants becoming secured creditors, with the effect that the rights and protection enjoyed by secured creditors would be diluted in practice. Lord Browne-Wilkinson did appear to conclude in Westdeutsche that the remedial constructive trust might provide a more appropriate framework for the support of restitutionary remedies than the resulting trust. Lord Browne-Wilkinson opined: à ¢Ã¢â€š ¬Ã‹Å"the court may, by way of remedy impose a constructive trust on a defendant who knowingly retains the property of which the claimant has been unjustly deprived.. Since the remedy can be tailored to the circumstances of the particular case, innocent third parties would not be prejudiced and restitutionary defences, such as change of position, are capable of being given effect.à ¢Ã¢â€š ¬Ã¢â€ž ¢[11] However, at this point it should be noted that Westdeutsche v. Islington BC has been subject to extensive criticism in the academic press and from some perspectives it can indeed be found wanting. The loan transaction in question in Westdeutsche would under normal market conditions have earned compound interest for the lender.. It could be argued that by refusing to grant the lender in Westdeutsche compound interest the House of Lords effectively failed to grant full restitution to the lender. It is consequently an easy step to infer that the borrower in question in Westdeutsche was therefore unju stifiably enriched at the expense of the lender by the value of the compound interest on the loan. Lord Browne-Wilkinson appeared to lend stoic support to the principles of tracing as established in Re Diplock[12] in the Westdeutsche case. It can be inferred from this that his Lordship accepted the stipulation that a fiduciary relationship must exist before tracing could be permitted in equity. Often this will not provoke undue difficulty, because as Millett LJ noted in cases such as the early Banque Belge pour lEtranger v Hambrouck[13] and the more recent Agip (Africa) Ltd v Jackson[14] theft is typically perpetrated by an employee who enjoys a fiduciary position, however, it may result in problems if theft is committed by a stranger. The stipulation that a fiduciary relationship exists has been said not to be necessary in terms of fundamental principle, and it is submitted that most authorities that hinge upon it are historical in nature. However in the Westdeutsche case Lord Browne-Wilkinson seemed to stress the importance of the factor. In light of his Lordshipà ¢Ã¢â€š ¬Ã¢â€ž ¢s opinion as to the lenderà ¢Ã¢â€š ¬Ã¢â€ž ¢s assertion that it had taken steps to retain the equitable title, it is hard to understand the means by which an equitable interest could be established at all without the creation of a trust, given that it makes no legal sense to discuss the concept of equitable title in any circumstances where one party enjoys absolute ownership of property.. That said, it can be argued that a resulting trust is not an apposite vehicle for the grant of restitution, due to the fact that the fiduciary relationship that it inevitably establishes is a not an altogether appropriate side effect of that device, assuming that the recipientà ¢Ã¢â€š ¬Ã¢â€ž ¢s conscience is unaffected. It is submitted that it would have been possible to achieve full restitution by extending the jurisdiction to award compound interest to cover the relevant eventuali ties (money had and received). It appears that the old, established authorities persuaded Lord Browne-Wilkinson against pursuing this form of approach, however he may have taken a different line in other circumstances, so it may well be that this is an area of law that should be considered for reform by Parliament. If it was possible to award compound interest on a claim for à ¢Ã¢â€š ¬Ã…“money had and receivedà ¢Ã¢â€š ¬Ã‚  plaintiffs could be entitled to a grant of full restitution avoiding the proprietary consequence of imposing a resulting trust which may often be undesirable in the circumstances. Where a resulting trust is created however, the donee is considered a fiduciary for the settlor and the former is bound to return the money that has been received and also to invest the sum. As in such cases as A-G for Hong Kong v Reid[15] the settlor is thereafter entitled to claim title to the investments. However, if the doneeà ¢Ã¢â€š ¬Ã¢â€ž ¢s conscience remains unaffected i t is submitted that this may not be an equitable solution. Furthermore as Lord Browne-Wilkinson noted in the Westdeutsche case because the settlor remains owner of the money in equity he or she can trace into any property purchased with the money and this may cause far-reaching and inappropriate consequences. While the law in this field is far from perfect, on this basis and generally on the strength of Milletà ¢Ã¢â€š ¬Ã¢â€ž ¢s argument in his Law Quarterly Review article Tracing the Proceeds of Fraud[16] it is argued that the use of a resulting trust as a means of granting restitution may not prove to be a panacea. Trusts are typically classified as either express (namely those established by intention) or constructive (namely those established by matters other than intent) and this would seem to leave little space for a third class of resulting trusts.. It is submitted that the category of constructive trusts should perhaps therefore be expanded to include resulting trusts as another species of trust established by the operation of the law.[17] The term à ¢Ã¢â€š ¬Ã‹Å"resultingà ¢Ã¢â€š ¬Ã¢â€ž ¢ itself causes some difficulty. As opposed to the terms express and constructive, which refer to the mode of creation of the trust, the term resulting refers to the effect of the trust, describing that one party has received an asset from another party and that the trust preserves the beneficial ownership the latter party. Professor Birks has branded the categorisation of trusts as either express, constructive or resulting as a à ¢Ã¢â€š ¬Ã…“bent classificationà ¢Ã¢â€š ¬Ã‚ . In dwelling in the anomalies of the law in this field he argued that: à ¢Ã¢â€š ¬Ã‹Å"When we say that trusts are express, implied, resulting, or constructive, the word à ¢Ã¢â€š ¬Ã…“resultingà ¢Ã¢â€š ¬Ã‚  is on its face the odd man out, for à ¢Ã¢â€š ¬Ã…“resultingà ¢Ã¢â€š ¬Ã‚  indicates that the beneficial interest resalit (jumps back), and the other terms are focused on the mode of creation, not the location of the beneficial interest.à ¢Ã¢â€š ¬Ã¢â€ž ¢[18] Chambers also notes[19] that Professor Birks argues that even express and constructive trusts can be resulting in shape, form and effect.[20] It is submitted however that the resulting trust is not designed to include trusts which maybe constructive or express but which nonetheless have a resulting effect.. Instead it is suggested that the purpose of the resulting trust classification is to group certain trusts on the basis of the events that serve to establish those trusts. Perhaps the chief area of disagreement between academic commentators and members of the judiciary concerns the precise nature of those establishing factors.. As a consequence of this uncertainty it is sometimes difficult to determine, in a coherent fashion, why a resulting trust has not been categorised as either a constructive or an indeed an express trust. Megarryà ¢Ã¢â€š ¬Ã¢â€ž ¢s classification of resulting trusts Megarry J set out two main classes of resulting trust. In Re Vandervells Trusts (No. 2)[21] , Megarry J drew a distinction between automatic and presumed resulting trusts, on the following lines: à ¢Ã¢â€š ¬Ã…“(a) The first class of case is where the transfer to B is not made on any trust there is a rebuttable presumption that B holds on resulting trust for A. The question is not one of the automatic consequences of a dispositive failure by A, but one of presumption: the property has been carried to B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold the entire interest on trust, but also to hold the beneficial interest for A absolutely. The presumption thus establishes both that B is to take on trust and also what that trust is. Such resulting trusts may be called presumed resulting trusts. (b) The second class of case is where the transfer to B is made on trusts which leave some or all of the beneficial interest undis posed of. Here B automatically holds on resulting trust for A to the extent that the beneficial interest has not been carried to him or others. The resulting trust here does not depend on any intentions or presumptions, but is the automatic consequence of As failure to dispose of what is vested in him. Since ex hypothesi the transfer is on trust, the resulting trust does not establish the trust but merely carries back to A the beneficial interest that has not been disposed of. Such resulting trusts may be called automatic resulting trusts.à ¢Ã¢â€š ¬Ã‚  This classification was considered to be definitive until Lord Browne-Wilkinson laid down his own classification in the Westdeutsche case, which although similar to that of Megarry was slightly less expansive in its scope. From Re EVTR to Twinsectra Prior to Westdeutsche, other decisions were heavily influenced by, if not predicated on Megarryà ¢Ã¢â€š ¬Ã¢â€ž ¢s suggested model for resulting trusts. In the case Re EVTR[22] Dillion LJ considered what might be labelled as the fictional justification for resulting trusts that they are designed to give full effect to the settlorà ¢Ã¢â€š ¬Ã¢â€ž ¢s wishes, in comparing the resulting trust to the constructive trust. Dillion LJ theorised that: à ¢Ã¢â€š ¬Ã…“As an equitable mechanism to vindicate the equitable interests of beneficiaries under express or resulting trusts, it is a long established principle of equity that, if a person who is a trustee receives money or property because of, or in respect of, trust property, he will hold what he receives as a constructive trustee on the trusts of that original trust property. Similarly, a third party other than a bona fide purchaser for value without notice, who, through breach of trust, receives property subject to an express, resulting or constructive trust will hold it and its traceable products as a constructive trustee on the trusts affecting such property. Finally, a person not within such two categori es, but who has obtained or enhanced his interest in propertyà ¢Ã¢â€š ¬Ã‚ ¦will be constructive trustee of the whole or part thereof where it would be unconscionable for him to act inconsistently with the property..à ¢Ã¢â€š ¬Ã‚  Furthermore, as Peter Gibson J stressed in the case Carreras Rothmans Ltd v Freeman Matthews Treasure Ltd [23] the practical effect of adopting Megarryà ¢Ã¢â€š ¬Ã¢â€ž ¢s analytical model is in fact to leave the beneficial interest in a state of suspense until either the purpose of the trust is fulfilled or it fails. It is submitted however that the problem with this unorthodox line is that it does not properly acknowledge the role that the resulting trust plays in the greater scheme of equity. In addition it fails to explain why the money in question is not merely held on a resulting trust for the lender. These points were considered by Lord Millett in Twinsectra Ltd v Yardley and Others[24], which was primarily concerned with the nature of the so-cal led à ¢Ã¢â€š ¬Ã…“Quistclose trustà ¢Ã¢â€š ¬Ã‚  (from the case Quistclose Investments Ltd. v Rolls Razor Ltd.[25]) and the requirements for its creation. A à ¢Ã¢â€š ¬Ã…“Quistclose trustà ¢Ã¢â€š ¬Ã‚  describes an arrangement whereby a loan is made to a borrower for a specific purpose and on terms on which the borrower is not free to use the money for any other purpose. Such an arrangement may create fiduciary obligations on the part of the recipient of the money which will be enforced by a court of equity. Concluding Comments In his judgment in Twinsectra Ltd v Yardley and Others,[26] while sharing a great deal of common ground with Chambers, Lord Millett did not endorse that commentators ultimate analysis as to the roots of the resulting trust, preferring the stance of Ho and Smart in à ¢Ã¢â€š ¬Ã…“Reinterpreting the Quistclose Trust: A Critique of Chambersà ¢Ã¢â€š ¬Ã¢â€ž ¢ Analysisà ¢Ã¢â€š ¬Ã‚ .[27] It is the conclusion of this commentator that, given that Chamb ersà ¢Ã¢â€š ¬Ã¢â€ž ¢ approach offers no easy solution to cases involving non-contractual payment and that it seems to contradict Lord Wilberforces assertion in Quistclose[28] that the borrowers obligation is fiduciary in nature and not simply contractual, Lord Millettà ¢Ã¢â€š ¬Ã¢â€ž ¢s reasoning as to the nature of the resulting trust should now be preferred as the most reliable modelling of the modern law. Having considered a variety of authorities and theories, in sum it is submitted that the analysis of resulting trusts provided by Lord Millett in Twinsectra rises above the polemic to stand as the most coherent and authoritative statement of the shape of the law to date. THE END WORD COUNT : 3125 BIBLIOGRAPHY Chambers R., Resulting Trusts, (1997) Clarendon Press. Birks P., An Introduction to the Law of Restitution (1989), Oxford. Todd P, Cases Materials on Equity and Trusts, (2000) Blackstones Press Ltd. Sydenham A., Equity and Trusts, (2000) Sweet and Ma xwell. Chalmers R., Resulting Trusts in Canada (Part I): https://shelburne.butterworths.co.uk/truststaxestates/articles/dataitem.asp?ID=16981tid=7 Parker D. et al, Parker and Mellows: The Modern Law of Trusts, (2003) Sweet and Maxwell Hudson A, Understanding Equity and Trust Law, (2004) Cavendish Publishing Ltd. P Birks, à ¢Ã¢â€š ¬Ã‹Å"Equity, Conscience, and Unjust Enrichmentà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1999) 23 Melbourne UL Rev 1 Hayton, D..J., The Law of Trusts, (2004) Sweet and Maxwell Ltd Swadling W, The Quistclose Trust, (2004) Hart Publishing. 1 Footnotes [1] Hudson A, Understanding Equity and Trust Law, (2004) Cavendish Publishing Ltd. [2] See for general comment, Todd P, Cases Materials on Equity and Trusts, (2000) Blackstones Press Ltd. [3] [1974] Ch 269. [4] See for insightful general comments and analysis: Hayton, D.J., The Law of Trusts, (2004), Sweet and Maxwell Ltd. [5] Birks P., An Introduction to the Law of Restitution (1989), Oxford. [6] [1996] 2 All E.R. 961. [7] Swadling W, The Quistclose Trust, (2004) Hart Publishing. [8] Chambers R., Resulting Trusts, (1997) Clarendon Press. [9] [2002] UKHL 12. [10] [1999] PLR 247. [11] [1996] 2 All E.R. 961. [12] [1948] Ch 456. [13] [1921] 1 KB 321. [14] [1990] 1 Ch 265. [15] [1994] AC 324 PC. [16] (1991) LQR 71. [17] See for comment: Chalmers R., Resulting Trusts in Canada (Part I): https://shelburne.butterworths.co.uk/truststaxestates/articles/dataitem.asp?ID=16981tid=7 [18] P Birks, à ¢Ã¢â€š ¬Ã‹Å"Equity, Conscience, and Unjust E nrichmentà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1999) 23 Melbourne UL Rev 1 at p 10. [19] Chalmers R., Resulting Trusts in Canada (Part I): https://shelburne.butterworths.co.uk/truststaxestates/articles/dataitem.asp?ID=16981tid=7 [20] Birks P., An Introduction to the Law of Restitution (1989), Oxford. [21] [1974] Ch. 269. [22] [1987] BCLC 646. [23] [1985] Ch 207. [24] [2002] UKHL 12. [25] [1970] AC 567. [26] [2002] UKHL 12. [27] (2001) 21 OJLS 267. [28] [1970] AC 567.