It has been distinguished by Hunter v Moss,[1] and Re Harvard Securities Ltd,[2] and may not be consistent with the general policy of insolvency law as seen in Re Lehman Brothers International (Europe).
[3] Oliver J held that even if the company had said the wine was to come from current stocks, the trust would in any event have been uncertain.
[4] I appreciate the point taken that the subject matter is a part of a homogeneous mass so that specific identity is of as little as importance as it is, for instance, in the case of money.
Nevertheless, as it seems to me, to create a trust it must be possible to ascertain with certainty not only what the interest of the beneficiary is to be but to what property it is to attach.
I cannot see how, for instance, a farmers who declares himself to be a trustee of two sheep (without identifying them) can be said to have created a perfect and complete trust… And it would seem to me to be immaterial that at the time he has a flock of sheep out of which he could satisfy the interest.Any alleged constructive or express trust of 50 bottles because the subject matter of the trust would be uncertain, at least until 50 specific bottles were set aside for the customers.