Charitable Un-educational Objects

• Author: Gino E Dal Pont
• Position: Professor, Faculty of Law, University of Tasmania
• Pages: 191-219

Charitable Un-educational Objects

Gino E Dal Pont*

Judges appear to have stipulated a ‘merits’ test when it comes to public benef‌it

underscoring education as a charitable object. e same is not evident in, say, objects

directed to relieving poverty or advancing religion. At the same time, courts have

progressively broadened the concept of ‘education’ for the purposes of charity law. is

may present a tension between what is ‘educational’ and what is ‘benef‌icial’ in the

charity sphere. Lacking more than a perfunctory coverage of this issue in the literature,

it is appropriate to probe the rationales and parameters of the ‘merits’ test, with a view

to developing an understanding of how education intersects with charity law. is is

pursued by reference to three primary scenarios where contention has focused: (1) where

the object is allegedly irrational or nonsensical; (2) where a donor has sought to establish

a perpetual display of his or her possessions; and (3) bequests of funds for publication of

(usually the donor’s) work.

* Faculty of Law, University of Tasmania.

192

Dal Pont, Charitable Un-educational Objects

I. C

II. T M U E H

III. I  N

IV. P C  A D

V. F  P  D  W

VI. W D T L U

I. Context

The concept of ‘charity’ has challenged common law judges for

hundreds of years. It has been judicially described as a “dif‌f‌icult and

very artif‌icial branch of the law”,1 one “full … of anomalies”2 and an area

in which “many f‌ine distinctions have been made”.3 And Lord Evershed,

Master of the Rolls, once remarked that “[a]ll those who practise in

this branch of the law know how inf‌inite is the variety of the decided

cases, how extreme sometimes are the ref‌inements, and how apparent on

occasions the contradictions which those cases demonstrate”.4 Propelling

these dif‌f‌iculties, distinctions, ref‌inements and contradictions is the

insistence at general law that an object is either charitable, or it is not;

there is, in this regard, no legally recognised and ef‌fective intermediate

(partially charitable) category. Charity law has, to this end, so occupied

the judicial thought because, in the words of Oliver Wendell Holmes,

“where to draw the line … [is] pretty much everything worth arguing in

the law”.5

Complicating this line-drawing exercise are various characteristics

of the concept of ‘charity’ espoused by the law, sometimes verging on

the paradoxical. For instance, while it is acknowledged that ‘charity’

must ref‌lect time and place, judges not infrequently refer to the Statute

of Charitable Uses from 1601.6 Also, whereas the law attributes a legal

meaning to ‘charity’, this mostly functions to reduce its precision

6. (UK), 43 Eliz I, c 4 (also known as the Statute of Elizabeth I) [Statute of

Charitable Uses].