Belchier v Parsons

Belchier v Parsons (1754) 96 ER 908 is an English trusts law case, which stands as one of the earliest formulations of the prudent person rule.

Mrs Parsons was chosen as an assignee of the bankrupt estate, and she employed a broker, Mr Wigan, to sell off the assets (including a large quantity of tobacco) at public auction, and recover money for them.

And surely had they been, in that case, embezzled, it would not have been pretended that we were liable to make them good; for his sorting, selling, &c. were necessary acts, and for the benefit of the creditors, which we, being unconversant in these affairs, could not have done ourselves.

Were it once to be laid down, as a rule in this Court, that an assignee, or trustee, should be answerable in all events for the people they employ, no man in his senses would ever undertake those offices.

In cases of this kind, it is not to be expected that the assignees will themselves attend the disposition of the bankrupt's effects, and less so still in the present case, from the sex of the person whom the creditors have thought proper to choose assignee: nor would it indeed be for the benefit of the creditors, if they did, brokers, and such sort of people, being more conversant with the effects to be disposed of, better judges of their value, and more capable of disposing of them to advantage.

the broker, when she employed him, was a man in business, and credit; had she appointed another person, he could be no more; he too might have failed: 'tis impossible to know the circumstances of men with absolute certainty.

For what is more common in this Court, when the property of ships, goods, or merchandizes, is disputed, than to direct the same to be sold by some broker of reputation, and credit, who is to receive the money, and pay it into the bank, to wait the event of the cause?

This is not like the case that has been mentioned of a goldsmith's note, where, for the benefit of trade, that being looked upon as money, the drawer has been indemnified, if not offered the drawee in season.

A moral necessity is, as in the case of Lord Plymouth: the receiver's business was to receive the produce of my lord's estate, and remit it to London: for that purpose he must either have remitted it in the manner he did, or brought, or sent it to town in cash, in both of which there was some hazard: it is true, he might have come to town with it guarded; but since the increase of trade, and commerce, inland bills of exchange becoming more frequent, that has not been insisted on; and as the person through whose hands he remitted it was a person of reputation, and had usually conveyed it safe, the Court thought he ought not to be answerable for a loss which was no way to be imputed to him, notwithstanding he was a receiver, and had a salary, which, it was urged, implied an undertaking to indemnify, &c. In the present case the party being a trustee for the benefit of others, without any expectation of gain, or reward, is, to be sure, more to be favored, for that has always been considered as a material ingredient in questions of this kind.

Under the head of prudent acts, was the determination that has been mentioned of my Lord Talbot: and certainly it would be very unreasonable that a trustee should be a sufferer by any act apparently for the good of the persons entitled to the benefit of the trust: and this Court will be always cautious of establishing any rules that may deter people from undertaking offices of this nature, by subjecting them to the hazard of becoming considerable losers, without any possibility of gain.