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Article: The Mental Element in Equitable Accessory Liability

TitleThe Mental Element in Equitable Accessory Liability
Authors
KeywordsTheoretical basis of equitable accessory liability
Mental element
Intention
Knowledge
Dishonesty
Issue Date2020
PublisherOxford University Press. The Journal's web site is located at http://www.oup.co.uk/law/yearbooks/yearbook-legalprob
Citation
Current Legal Problems, 2020, Forthcoming How to Cite?
AbstractThere has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination and coherence with accessory liability in criminal law and contract law.
Persistent Identifierhttp://hdl.handle.net/10722/295200
ISSN
2019 Impact Factor: 0.708
SSRN

 

DC FieldValueLanguage
dc.contributor.authorHo, L-
dc.date.accessioned2021-01-06T14:02:25Z-
dc.date.available2021-01-06T14:02:25Z-
dc.date.issued2020-
dc.identifier.citationCurrent Legal Problems, 2020, Forthcoming-
dc.identifier.issn0070-1998-
dc.identifier.urihttp://hdl.handle.net/10722/295200-
dc.description.abstractThere has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination and coherence with accessory liability in criminal law and contract law.-
dc.languageeng-
dc.publisherOxford University Press. The Journal's web site is located at http://www.oup.co.uk/law/yearbooks/yearbook-legalprob-
dc.relation.ispartofCurrent Legal Problems-
dc.subjectTheoretical basis of equitable accessory liability-
dc.subjectMental element-
dc.subjectIntention-
dc.subjectKnowledge-
dc.subjectDishonesty-
dc.titleThe Mental Element in Equitable Accessory Liability-
dc.typeArticle-
dc.identifier.emailHo, L: lusinaho@hku.hk-
dc.identifier.authorityHo, L=rp01250-
dc.identifier.hkuros700003914-
dc.publisher.placeUnited Kingdom-
dc.identifier.ssrn3731893-
dc.identifier.hkulrp2020/065-
dc.identifier.issnl0070-1998-

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