Book Review: The Modern Cy-près Doctrine: Applications and Implications By Rachael P. Mulheron (2006)

• Author: John C. Kleefeld
• Pages: 203-210

203

BOOK REVIEW

The Modern Cy-Près Doctrine: Applications & Implications. By Rachael

P. Mulheron. London: Routledge-Cavendish, 2006. 400 pp. (Hbk.,

£62.95). ISBN: 978-1-84472-086-6

Review by John C. Kleefeld1

To this study of the cy-près2 doctrine, Professor Mulheron brings the

same scholarly depth she brought to her comparative analysis of class

action procedure.3 Her book considers both the common law and statu-

tory development of the cy-près concept; covers case law from over a

dozen jurisdictions and statutes in nearly fifty; and has a well-organized

schema, introduction, table of cases, table of legislation, bibliography, and

index — not all of which can be taken for granted these days. Readers of

this journal may be tempted to go straight to the latter half of the book,

which deals with the application of cy-près doctrine to class actions and

the individual litigation remedy of cy-près specific performance. But they

would be well-advised to also read at least the introduction and perhaps

the first couple of chapters and the last one, so as to get a sense of the

doctrine’s historical context and its future direction.

The gist of the cy-près doctrine is that when a court finds it impos-

sible, impracticable, or infeasible — the adjectives vary, and the choice

may matter — to literally comply with a donor’s intention for disposing

of property, the court should nevertheless carry out the intention “as near

as possible.” The doctrine has expanded into other areas and is relevant

to class actions in two senses that are now relatively uncontroversial in

Canada and, to a lesser extent, the U.S.: (i) distribution of the unclaimed

1 Of the Faculty of Law, University of British Columbia. B.A. (Waterloo), LL.B.

(British Columbia), (LL.M.) (Osgoode Hall).

2 Pronounced variously (“see-preh,” “see-pray,” “sigh-pray”) and thought to be

derived from the Norman French “aussi-prè que possible” (“as near as pos-

sible”) or “ici-près” (“near here”), though the actual derivation is in doubt. See

Rachael Mulheron, The Modern Cy-Près Doctrine: Applications and Implications

(London: Routledge-Cavendish, 2006) at 5 [Modern Cy-Près Doctrine].

3 Rachael Mulheron, The Class Action in Common Law Legal Systems: A

Comparative Perspective (Oxford, U.K. & Portland, OR.: Hart, 2004) (reviewed

by Craig Jones, (2005) 2 Canadian Class Action Review 177).