Research Handbook on Not-For-Profit Law
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Research Handbook on Not-For-Profit Law

Edited by Matthew Harding

This Research Handbook provides a comprehensive overview of scholarship on not-for-profit law. The chapters, written by world leading experts, explore key ideas and debates in relation to: theories of the not-for-profit sector, the composition and scope of that sector, not-for-profit organisations and the constitution, the legal conception of charity, the tax treatment of not-for-profit organisations and the regulation of not-for-profits. The book serves to represent not-for-profit law as a field of academic inquiry, and to point the way to future research in that field.
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Chapter 16: Public benefit post-Pemsel

Mary Synge

Abstract

This chapter considers the public benefit test that is a central feature of charity law. It argues that common law jurisdictions once held a shared view about the role of the public benefit requirement. It then outlines the various ways in which that consensus has been fragmented and lost because of legislative and other reforms in different parts of the world. In particular there has been considerable divergence in relation to the requirement, and practice, of ‘presuming’ or ‘assuming’ the public benefit of purposes of one or another type, and this divergence has generated much confusion and controversy. The chapter raises the question: does charity law need a public benefit requirement at all, or could all the work of such a requirement be done more clearly and efficiently by the ‘heads’ of charity coupled with precise and targeted disqualifying rules?

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