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

AuthorJohn C. Kleefeld
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).

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