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Restricted Philanthropic Gifts: Paradigm Clash between Law and Practice or Simply a Muddle?


Ian Murray, Jeanette Jensen, Marco Rizzi, Robyn Carroll, Donovan Castelyn and Natalie Skead

Restricted philanthropic gifts are becoming more common, yet their legal characterisation is unsettled. Moreover, other than from anecdotal evidence, it is unclear how charities treat such gifts in practice. This article investigates the potential legal characterisations of restricted gifts and identifies the charitable trust as a commonly preferred construction by the courts. It then examines original empirical interview evidence from charities to show that, contrary to legal expectations, charities do not typically treat restricted gifts as being on charitable trust, but rather as being subject to an agreement or an extra-legal set of agreed norms with donors. This indicates a move away from a publicly regulated arrangement (the charitable trust) to private ordering arrangements, which has implications for the pursuit of public goals and the degree of power afforded to donors over social, cultural and environmental projects.

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2024 47(1) UNSWLJ 139: