Case note: Can “Conceptual Uncertainty” be Resolved by a Chief Rabbi?

The following is my case note on In re Tuck's Settlement Trusts [1978], infused with my own commentary and research.

Facts

In 1910 Sir Adolph Tuck was made a baronet. Being rightly proud of this hereditary dignity and a Jew, he in 1912 made a settlement by which he sought to ensure each baronet in succession should marry an “approved wife” and put money in trust for “the Baronet for the time being if and when and so long as he shall be of Jewish faith and be married to an approved wife”. “An approved wife” was defined as:

“'An approved wife' means a wife of Jewish blood by one or both of her parents and who has been brought up in and has never departed from and at the date if her marriage continues to worship according to the Jewish faith.”

“As to which facts in case of dispute or doubt, the decision of the Chief Rabbi in London of either the Portuguese or Anglo German Community (known respectively as the Sephardim and the Ashkenazim Communities) shall be conclusive.”

The Issue of Uncertainty

The grounds of the appeal were that the judge of the lower court erred in law in that:

1. a condition which included a requirement as to Jewish blood was void for conceptual uncertainty;
2. a condition which included a requirement as to Jewish faith was void for conceptual uncertainty;
3. such invalidity was not cured by a provision in the settlement which purported to make the decision of a Chief Rabbi conclusive in case of dispute or doubt;
4. a provision in the settlement which purported to make the decision of a Chief Rabbi conclusive was void as an attempted ouster of the jurisdiction of the court.
   
   

Lord Denning M.R.'s Judgment

“Conceptual uncertainty” vs “Evidential uncertainty”

Lord Denning M.R. first probed the meanings of “conceptual uncertainty” and “evidential uncertainty”, the two phrases which “have begun to fascinate Chancery lawyers (equity lawyers)”:

“'Conceptual uncertainty' arises where a testator or settlor makes a bequest or gift upon a condition in which he has not expressed himself clearly enough. He has used words which are too vague and indistinct for a court to apply. They are not sufficiently precise. So the court discards the condition as meaningless. It makes it of no effect, at any rate when it is a condition subsequent. ” 

“'Evidential uncertainty' arises where the testator or settlor, in making the condition, has expressed himself clearly enough. The words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts. It has to resort to extrinsic evidence to discover the facts, for instance, to ascertain those whom the testator or settlor intended to benefit and those whom he did not. Evidential uncertainty never renders the condition meaningless. The court never discards it on that account. It applies the condition as best it can on the evidence available.”

Then his Lordship went on to criticize the dichotomy between “conceptual” and “evidential” uncertainty adumbrated by Jenkins J. in In re Coxen [1948] as “most unfortunate” as it has led the courts to discordant decisions:

On the one hand, the condition that an “approved wife” should be “of Jewish blood” would seem to be afflicted with conceptual uncertainty on the previous consistent court decisions on similar matters.

On the other hand, however, a condition that a person shall be “of the Jewish faith” has produced diverse views. Lord Denning ranged himself with the dissenting judge Lord Wright in Clayton v. Ramsden [1943] that it was sufficiently clear and distinct to be able to be applied. The reason is that evidence can be given of the tenets of that religion or faith so as to see if the person is or is not an adherent of it. On this reasoning the condition about “Jewish faith” would seem to be valid and not avoided for conceptual uncertainty.

“Condition precedent” vs “condition subsequent”

According to The Longman Dictionary of Law:

“A condition precedent” is one which delays the vesting of a right until the occurrence of a particular event, e.g., 'to X if he graduates in law'; a condition subsequent is one which provides for the defeat of an interest on the occurrence or non-occurrence of a particular event, e.g., 'to X on condition that he shall never sell out of his family'.”

Failing to understand the difference, I resorted to Wikipedia which says:

Condition subsequent refers to an event or state of affairs that brings an end to something else. 

A condition subsequent may be either an event or of affairs that must either (1) occur or (2) fail to continue to occur. 

An example of the first, a condition that must occur to bring an end to something else:

"When I run out of fuel, the fire will die down." 

An example of the second, a condition that must fail to occur to bring an end to something else:

"So long as I have fuel, the fire will continue." 

In both cases, running out of fuel is a condition subsequent to the continuance of the fire.In comparison, a condition subsequent brings a duty to an end whereas a condition precedent initiates a duty.

Conceptual uncertainty may avoid a condition subsequent, but not a condition precedent.

Lord Denning deplored both dichotomies between conceptual and evidential uncertainty, and between condition precedent and subsequent condition, as his Lordship fails “to see the logic of this distinction”:

“They serve in every case to defeat the intention of the testator or settlor. […] [the dichotomies give] rise to argument without end as to whether [the settlor's] words were sufficiently clear and distinct: and whether the condition in which they occur was a condition precedent or a condition subsequent.”

The Chief Rabbi's clause

So will the Chief Rabbi's clause resolve the conceptual uncertainty of being “of Jewish blood”?

Lord Denning was of the view that if the settlor thought leaving any dispute to a rabbi is a good solution, his Lordship too thought it was a good solution.

The appellant's lawyer cited previous authorities and argued that if there was conceptual uncertainty for the court, it followed inexorably that there must be conceptual uncertainty for a rabbi too. And he also argued, with cited authorities, that by entrusting the decision to a rabbi instead of to the court, the settlor was ousting the jurisdictions of the court.

Lord Denning disagreed. His Lordship said all the cases the lawyer relied on should be reconsidered in the light of the Scottish case of Dundee General Hospitals Board of Management v. Walker [1952] where the House of Lord decided that the entrusting to the settlor's trustees to decide whether the money had been taken over by the state. Then Lord Denning preempted any attack on his citing of this case by saying although this was a Scottish case but it's still of the highest persuasive value. After all, Donoghue v. Stevenson [1932] was a Scottish appeal too but it transformed the law of England.

His Lordship reasoned that, if any doubt or dispute can be resolved by trustees, it too can be resolved by a third person. This has always been the general rule in contract law. Lord Denning throughout his judgement intended to give effect to the intentions of the settlors for public policy reasons:

“But still the testator may even today think that the courts of law are not really the most suitable means of deciding the dispute or doubt. He would be quite right. As this very case shows, the courts may get bogged down in distinctions between conceptual uncertainty and evidential uncertainty: and between conditions subsequent and conditions precedent. The testator may want to cut out all that cackle, and let someone decide it who really will understand what the testator is talking about: and thus save an expensive journey to the lawyers and the courts. For my part, I would not blame him. I would give effect to his intentions. Take this very case. Who better to decide these questions of "Jewish blood" and "Jewish faith" than a Chief Rabbi? The settlor mentions two Chief Rabbis. It is not necessary to ask both of them. Either one will suffice. I venture to suggest that his decision would be much more acceptable to all concerned than the decision of a court of law. I would let him decide it.”

His Lordship held that there was no conceptual uncertainty, and even if there was, it could be cured by the Chief Rabbi clause.

Lord Russell of Killowen's Judgment

Lord Russell did not propose to rule upon the matter of whether reference to a decision of the Chief Rabbi could solve any question of uncertainty

Eveleigh L.J.'s Judgment

Eveleigh L.J. disagreed with Lord Denning that the settlor was really intending to leave it to the Chief Rabbi to discover what the settlor meant or to provide a meaning when the meaning is in doubt.

Eveleigh L.J. also did not think that Dundee General Hospitals Board of Management v. Walker [1952] allowed the court to provide a meaning.

Eveleigh L.J., however, thought that the settlor was only saying that his definition was the same as that of the Chief Rabbi and therefore came to the same conclusion that “id certum est” (it is certain).

The view of Eveleigh L.J. is the preferred view.

"Ain't I cute?"