THE SHORT LIFE AND LONG AFTER LIFE OF CHARITABLE IMMUNITY IN THE COMMON LAW
AbstractMany people think that charities and other altruistic organisations should enjoy special protection from claims in negligence or special protection from having their assets seized in payment of their liabilities . This is the doctrine of charitable immunity. The doctrine had a brief life in England a century and a half ago and was then abolished. Despite its abolition, however, the concepts, which underlie the doctrine, keep popping up in legal argument, seemingly without recognition that these concepts have been fully considered by many courts throughout the common law world and rejected by them. This article traces the history of the doctrine and the concepts that gave it life and demonstrates that, since the middle of the nineteenth century, most courts in Great Britain, the United States of America and Canada have recognised that the protection of charitable property from tort liability is purely a matter for public policy and have accepted that no policy sustainable in a democratic society presents itself for doing so. Accordingly, modern law rejects the doctrine, whether it is presented as an application of the law of torts, the law of trusts or the law of charities, and whether it is said to apply to the enterprise, its assets or both.
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