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Remedial consistency and constructive trust claims
journal contribution
posted on 2019-04-30, 15:03 authored by Peter JaffeyAn express trust arises when a settlor transfers property to a recipient to hold as trustee, and the
trustee agrees to act as such and becomes subject to a duty to look after and manage the property
and distribute it to the beneficiaries on the terms stated by the settlor. A constructive trust arises
when D receives property and holds it on trust for C, not because the property was transferred to D
by a settlor intending to create an express trust in favour of C, but by operation of law in response to
the circumstances, to avoid or undo what the law deems to be an injustice. By contrast with the
position for an express trust, D has not agreed to act as trustee and has no management
responsibilities with respect to the property, and the effect of the constructive trust is simply to give
C a proprietary claim against D in respect of the property.
I shall discuss three types of case where the availability of a proprietary claim, by way of a
constructive trust, has been controversial: the constructive trust to recover a mistaken or
unauthorised payment, the constructive trust of fiduciary profits, and the constructive trust of
matrimonial or quasi-matrimonial property. My aim is not to offer a detailed analysis of the case law
on these topics, or to deal with all types of constructive trust, or to address all the arguments in the
very large literature,2 but more specifically to consider whether what I will refer to as the
requirement of “remedial consistency” can show whether a proprietary claim should in principle be
available in these cases, and provide guidance on how the law should be understood and developed.
History
Citation
The Conveyancer and Property Lawyer, 2019, In PressAuthor affiliation
/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law SchoolVersion
- AM (Accepted Manuscript)