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Journal articles on the topic 'Constructive trusts'

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Published: 4 June 2021

Last updated: 29 January 2023

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1

Smith, Lionel. "Constructive Trusts and Constructive Trustees." Cambridge Law Journal 58, no. 2 (1999): 294–302. http://dx.doi.org/10.1017/s0008197399002020.

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THIS article attempts to explain the meaning of the term “constructive trustee” and to understand why allegations of personal liability on the part of third parties to trusts are pleaded in the language of constructive trusteeship. The author concludes that the language of constructive trusteeship is dictated by the structure and historical context of the trust. Although this terminology could usefully be abandoned, an understanding of its origins suggests that as a matter of linguistic logic there is no room for third party liability which is somehow different from liability “as a constructiv

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2

Gretton, George L. "Constructive Trusts and Insolvency." European Review of Private Law 8, Issue 3 (2000): 463–76. http://dx.doi.org/10.54648/273252.

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In English law, the expression “Constructive Trust” appears to be used in two different senses. (1) It is used to mean a trust which arises ex lege, as opposed to ordinary trusts, which arise ex voluntate. (2) It is used to mean an obligation arising out of unjustified enrichment. This double meaning has been, and continues to be, the source of much confusion. In a mixed legal system, which has inherited enrichment law from the ius commune, there is no room for sense (2). What about sense (1)? Scots law, like South African law, has the institution of trust. South African law rejects the constr

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3

Gretton, George L. "Constructive Trusts: I." Edinburgh Law Review 1, no. 3 (1997): 281–316. http://dx.doi.org/10.3366/elr.1997.1.3.281.

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This paper was delivered in Edinburgh on 19 October 1996, at a conference on constructive trusts sponsored by the Scottish Law Commission, the University of Strathclyde and the University of Edinburgh. The first part, which appears below, deals with the nature of the constructive trust, and raises the question of whether it in fact exists in Scots law, and, if it does, to what extent and to what effect. The view arrived at is that it does exist, though only at the margin. It is argued that the doctrine is an unhelpful one and can be productive of injustice. In the second part, which will appea

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4

Gretton, George L. "Constructive Trusts: II." Edinburgh Law Review 1, no. 4 (1997): 408–19. http://dx.doi.org/10.3366/elr.1997.1.4.408.

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The first part of this article, which appeared in the May issue, considered whether Scots law has the constructive trust, and concluded that it does, but only to a very limited degree. It was also suggested that the doctrine is an unsatisfactory one. This part looks at options for law reform.

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5

Meagher, Jacob J. "Rationalising Constructive Trusts." King's Law Journal 29, no. 2 (2018): 324–27. http://dx.doi.org/10.1080/09615768.2018.1502071.

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6

Harpum, Charles. "The Uses and Abuses of Constructive Trusts: The Experience of England and Wales." Edinburgh Law Review 1, no. 4 (1997): 437–63. http://dx.doi.org/10.3366/elr.1997.1.4.437.

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This paper, which was first given on 19 October 1996 at a seminar on constructive trusts organised by the Universities of Edinburgh and Strathclyde with the Scottish Law Commission, examines the role that constructive trusts play in English law. It explains the amorphous nature of such trusts, how they are rooted in concepts of equity and conscience, and how they are often imposed in accordance with equity's traditional grounds for intervention. The central thesis of the paper is that a constructive trust, when imposed, will cause the trustee to become subject to one or more fiduciary obligati

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7

Cameron, Edwin. "Constructive Trusts in South African Law: The Legacy Refused." Edinburgh Law Review 3, no. 3 (1999): 341–58. http://dx.doi.org/10.3366/elr.1999.3.3.341.

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This paper was first presented on 19 October 1996 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of constructive trusts. Although trusts are a distinctively Common Law institution, seemingly incompatible with Civilian concepts of property, trust law has been received in the mixed South African legal system. But constructive trusts have found no place in South African trust law, in the view of the author, rightly so. Much of the work performed by the constructive trust can be achieved through the law of obligations, while the ac

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8

Etherton, Terence. "CONSTRUCTIVE TRUSTS: A NEW MODEL FOR EQUITY AND UNJUST ENRICHMENT." Cambridge Law Journal 67, no. 2 (2008): 265–87. http://dx.doi.org/10.1017/s0008197308000342.

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A comprehensive review, or what has been variously described as the classification or mapping or taxonomy, of constructive trusts would require analysis of areas of law as diverse as vendor and purchaser transactions, the perfection of imperfect gifts, fully secret and half secret trusts, breach of fiduciary duty, and accessory liability for breach of trust, among several others. The search for an acceptable, universally acknowledged, principle for the establishment of a constructive trust, which gives coherence to past decisions and provides a clear guide for the future, will certainly prove

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9

Hicks, Andrew. "Do constructive trusts deter disloyalty?" Northern Ireland Legal Quarterly 69, no. 2 (2018): 147–73. http://dx.doi.org/10.53386/nilq.v69i2.90.

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Constructive trusts of disloyal fiduciary gain often are justified by the argument of deterrence. For there to be effective deterrence, two conditions must be satisfied: first, potentially disloyal fiduciaries must be sufficiently informed, directly or indirectly, of the properties of the constructive trust; secondly, fiduciaries must respond by accurately weighing the costs/benefits of disloyalty and other options before choosing the option that maximises their self-interest. Typically, one or both of these conditions will not be satisfied. Drawing upon insights from the behavioural sciences

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10

Chong, Adeline. "The Common Law Choice of Law Rules for Resulting and Constructive Trusts." International and Comparative Law Quarterly 54, no. 4 (2005): 855–83. http://dx.doi.org/10.1093/iclq/lei040.

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There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the v

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11

Evans, Stuart. "Constructive Trusts and Tracing." Journal of Financial Crime 2, no. 3 (1994): 222–33. http://dx.doi.org/10.1108/eb025649.

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12

Nield, Sarah. "Constructive trusts and estoppel." Legal Studies 23, no. 2 (2003): 311–31. http://dx.doi.org/10.1111/j.1748-121x.2003.tb00216.x.

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Repeated comments are made as to the similarity between the common intention constructive trust and proprietary estoppel, but there remains considerable confusion over the precise nature of this interrelationship. The constituent elements of each doctrine bear close comparison and, although their respective modes of operation remain distinct, they may lead to similar results. The recent redefinition of the Pallant v Morgan equity provides an opportunity to probe once more the interrelationship between these doctrines. The Pallant v Morgan1 equity explores the operation of the Rochefoucauld v B

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13

J.G. "Case Note: Constructive Trusts." Trusts & Trustees 5, no. 4 (1999): 13–19. http://dx.doi.org/10.1093/tandt/5.4.13.

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14

Pawlowski, M. "Estoppel, constructive trusts and unconscionability." Trusts & Trustees 12, no. 9 (2006): 10–15. http://dx.doi.org/10.1093/tandt/ttl007.

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15

Greer, Sarah, and Mark Pawlowski. "CONSTRUCTIVE TRUSTS AND THE HOMEMAKER." Denning Law Journal 22, no. 1 (2012): 35–49. http://dx.doi.org/10.5750/dlj.v22i1.353.

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To what extent, following the decisions in Stack v Dowden and Abbott v Abbott, may a claimant acquire beneficial ownership in the family home under a constructive trust relying purely on domestic contributions as homemaker? The writers examine this question against the background of single and joint ownership cases and suggest that, in the light of recent judicial pronouncements, the criteria for establishing a common intention constructive trust enunciated by Lord Bridge in Lloyds Bank plc v Rosset may have been eroded so as to allow for a much broader inquiry of the claimant’s contributions

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16

Liew, Ying Khai. "REANALYSING INSTITUTIONAL AND REMEDIAL CONSTRUCTIVE TRUSTS." Cambridge Law Journal 75, no. 3 (2016): 528–49. http://dx.doi.org/10.1017/s0008197316000519.

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AbstractIt is often said that English law does not impose “remedial” constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some “remedial” constructive trusts and not others, and that the perceived diff

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17

Nwabueze, Remigius N. "Equitable Bases of the Nigerian Land Use Act." Journal of African Law 54, no. 1 (2010): 119–42. http://dx.doi.org/10.1017/s0021855309990192.

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AbstractDo the terms of the Nigerian Land Use Act permit the application of equitable principles to transactions under it? More particularly, could equity be used to enforce null and void transactions under the Act? Although the Supreme Court answered these questions in the negative in Ajilo, other decisions of the Supreme Court, as well as some sections of the Act itself, suggest that the Act is not incompatible with equitable principles. Nor is it contrary to public policy to enforce null and void transactions under the Act through the intervention of equity. Two relevant equitable concepts

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18

Pawlowski, M. "Constructive Trusts: Knowing Receipt and Unconscionability." Trusts & Trustees 7, no. 4 (2001): 13–18. http://dx.doi.org/10.1093/tandt/7.4.13.

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19

Waters, D. "Resulting trusts, and the Canadian remedial constructive trust: reconciling the two." Trusts & Trustees 20, no. 3 (2013): 234–45. http://dx.doi.org/10.1093/tandt/ttt217.

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20

Smith, Lionel. "CONSTRUCTIVE TRUSTS AND THE NO-PROFIT RULE." Cambridge Law Journal 72, no. 2 (2013): 260–63. http://dx.doi.org/10.1017/s000819731300038x.

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21

Televantos, Andreas, and Lorenzo Maniscalco. "PROPRIETARY ESTOPPEL AND VENDOR PURCHASER CONSTRUCTIVE TRUSTS." Cambridge Law Journal 74, no. 1 (2015): 27–30. http://dx.doi.org/10.1017/s0008197315000185.

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THE recent Supreme Court decision in Scott v Southern Pacific Mortgages [2014] UKSC 52; [2014] H.L.R. 48 considered whether a promise made by the buyer of a piece of land, before completion, could give rise to a proprietary estoppel claim. Obiter, the court also considered the width and applicability of the rule in Abbey National B.S. v Cann [1991] A.C. 56, which has traditionally been seen to provide that completion and the creation of a mortgage charge are to be considered as one transaction in cases of acquisition mortgages where the purchaser could not have purchased the property without t

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22

Swadling, W. "Constructive trusts and breach of fiduciary duty." Trusts & Trustees 18, no. 10 (2012): 985–99. http://dx.doi.org/10.1093/tandt/tts125.

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23

Rickett, C. EF. "Instrumentalism in the Law of Trusts – The Disturbing Case of the Constructive Trust Upon an Express Trust." Victoria University of Wellington Law Review 47, no. 3 (2016): 463. http://dx.doi.org/10.26686/vuwlr.v47i3.4791.

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New Zealand courts have begun to use the device of imposing a constructive trust over assets already held on trust under an express trust. This device raises a number of important issues about whether a doctrinally damaging analysis should be used to achieve what are clearly instrumental designs usually termed justice or fairness. This article examines the issues in depth and argues strongly that the device of a constructive trust on an express trust is illegitimate.

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24

Welstead, Mary. "Domestic Contribution and Constructive Trusts: The Canadian Perspective." Denning Law Journal 2, no. 1 (2012): 151–61. http://dx.doi.org/10.5750/dlj.v2i1.165.

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25

Powell, H. Jefferson. ""Cardozo's Foot": The Chancellor's Conscience and Constructive Trusts." Law and Contemporary Problems 56, no. 3 (1993): 7. http://dx.doi.org/10.2307/1192175.

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26

Duggan, Anthony. "Constructive Trusts from a Law and Economics Perspective." University of Toronto Law Journal 55, no. 2 (2005): 217–52. http://dx.doi.org/10.1353/tlj.2005.0005.

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27

Collins, N. "Constructive trusts and business assets: Lloyd v Pickering." Trusts & Trustees 11, no. 8 (2005): 23–28. http://dx.doi.org/10.1093/tandt/11.8.23.

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28

Friedman, P. D., and C. Newman. "Remedial Constructive Trusts. Where to next? Part I." Trusts & Trustees 6, no. 7 (2000): 20–25. http://dx.doi.org/10.1093/tandt/6.7.20.

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29

Friedman, P. D., and C. Newman. "Remedial Constructive Trusts. Where to next? Part II." Trusts & Trustees 6, no. 8 (2000): 6–10. http://dx.doi.org/10.1093/tandt/6.8.6.

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30

Belshaw, Mark. "Fiduciaries, bribes and constructive trusts—a policy-based justification." Trusts & Trustees 25, no. 8 (2019): 835–40. http://dx.doi.org/10.1093/tandt/ttz075.

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Abstract The Supreme Court in FHR European Ventures LLP v Cedar Capital Partners LLC [2015] AC 250 made clear that a fiduciary who breaches his fiduciary duties by receiving a bribe will hold that bribe on constructive trust for his principal. This article suggests that the law’s response to a breach of fiduciary duty is focused on the wrong of breach, rather than on enforcing the fiduciary’s primary duties. Viewed through this prism, a more thorough justification than that identified by the Supreme Court is necessary for imposing a constructive trust over a bribe. This article suggests that t

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31

Wong, Simone. "Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?" Legal Studies 18, no. 3 (1998): 369–90. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00023.x.

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Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not

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32

Oldham, Mika. "Estate Contracts, Constructive Trusts and Estoppels in Unregistered Land." Cambridge Law Journal 56, no. 1 (1997): 32–34. http://dx.doi.org/10.1017/s0008197300017657.

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33

Bennett, Mark. "Harvey v Beveridge: Common Intention Constructive Trusts in New Zealand?" Victoria University of Wellington Law Review 46, no. 3 (2015): 959. http://dx.doi.org/10.26686/vuwlr.v46i3.4895.

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This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge in respect of the existence of "common intention constructive trusts" in New Zealand law. It analyses the development of constructive trusts doctrine in New Zealand, and argues that a different approach was taken to the application of this doctrine in relationship property disputes compared with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and it is argued that an adequate understanding of this difference requires us to grapple with the underlying found

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34

Hood, Parker. "What is so special about being a fiduciary?" Edinburgh Law Review 4, no. 3 (2000): 308–35. http://dx.doi.org/10.3366/elr.2000.4.3.308.

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The fiduciary label is not infrequently used. However, there has been little discussion of what it entails in Scots law, and what the consequences are of a party acting in breach of fiduciary duty. A fiduciary owes a duty of “loyalty” to his principal, which is a higher standard of conduct than a party in an “arm's length” transaction. This has the consequence that the remedies for breach of fiduciary duty are more severe. A fiduciary in breach of duty can be required to disgorge gains made as a result of that breach via a constructive trust and/or an account of profits. The constructive trust

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35

Allan, Gregory. "Once a fraud, forever a fraud: the time-honoured doctrine of parol agreement trusts." Legal Studies 34, no. 3 (2014): 419–43. http://dx.doi.org/10.1111/lest.12024.

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This paper, through doctrinal analysis of the relevant case-law, examines the extent to which the prevention of fraud justifies equity's imposition of trusts that arise out of parol agreements. The authorities reveal that although there are a variety of circumstances in which equity will operate in such a manner, the nature of the fraud that prompts equity's intervention is always the same. Furthermore, it is argued that, since very early times, these trusts have been regarded as what are now best described as constructive trusts, and that all such trusts are enforced pursuant to a coherent do

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36

Pawlowski, M. "Constructive trusts, tracing and the requirement of a fiduciary obligation." Trusts & Trustees 11, no. 10 (2005): 10–14. http://dx.doi.org/10.1093/tandt/11.10.10.

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37

Harris, J. "Constructive trusts and private international law: determining the applicable law." Trusts & Trustees 18, no. 10 (2012): 965–79. http://dx.doi.org/10.1093/tandt/tts119.

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38

H.S, Iqbal-Singh, Safinaz Binti Mohd Hussein, and Nur Khalidah Binti Dahlan. "Proprietary Remedies for Constructive Trusts: A ’Commonwealth Yardstick’ for Malaysian Courts." International Journal of Asian Social Science 9, no. 9 (2019): 482–90. http://dx.doi.org/10.18488/journal.1.2019.99.482.490.

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39

Allen, Thomas. "Bribes and Constructive Trusts: A-G of Hong Kong v Reid." Modern Law Review 58, no. 1 (1995): 87–94. http://dx.doi.org/10.1111/j.1468-2230.1995.tb01996.x.

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40

Orawiec, Bartłomiej. "ENGLAND: DID THE DECISION OF THE SUPREME COURTIN THE CASE OF JONES V KERNOTT CLARIFY THE LAWIN RELATION TO TRUSTS OF THE FAMILY HOME?" Review of European and Comparative Law 28, no. 1 (2017): 85–127. http://dx.doi.org/10.31743/recl.4313.

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This dissertation will focus on common intention constructive trusts in relation to shared ownership of the family home predominantly in relation to unmarried couples. These trusts are particularly important because as opposed to married couples where the court may determine a couple’s financial and property issues upon divorce using the provisions of the Matrimonial Causes Act 1973, the position of unmarried couples is not covered by any legislation and so judges need to refer back to case law and property law in order to establish the equitable ownership of property.

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41

Beresford, Sarah. "It’s not me, it’s you: law’s performance anxiety over gender identity and cohabitation." Northern Ireland Legal Quarterly 63, no. 2 (2020): 187–200. http://dx.doi.org/10.53386/nilq.v63i2.382.

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Legal discourse constructs “truths”, not in relation to legal identity, but also in relation to other categories of identity. This article is concerned with a small but important part of those “truths” – that of correctly performed gender identity. It does so by exploring how some legal judgments determine the property interests of cohabiting couples in constructive trusts. However, this paper is not about constructive trusts as such. Rather, it is an interrogation of law’s language which creates and perpetuates types of behaviour seen as legally relevant. It uses a Butlerian approach to offer

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42

Allan, Gregory, and Stephen Griffin. "Corporate personality: utilising trust law to invoke the application of the concealment principle." Legal Studies 38, no. 1 (2018): 79–102. http://dx.doi.org/10.1017/lst.2017.2.

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AbstractThe landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant reassessment of the law relating to a court's ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court's ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this paper disputes the correctness of the Supreme Court's implied assertion that, in cases concerning ‘one-man type’ compa

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43

Tse, Dixon Siu Chung. "Ying K. Liew, Rationalising Constructive Trusts, London: Hart Publishing, 2017, 416 pp, hb £90.00." Modern Law Review 81, no. 2 (2018): 389–93. http://dx.doi.org/10.1111/1468-2230.12338.

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44

Sloan, Brian. "Keeping up with the Jones case: establishing constructive trusts in ‘sole legal owner’ scenarios." Legal Studies 35, no. 2 (2015): 226–51. http://dx.doi.org/10.1111/lest.12052.

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This paper considers the influence of the Supreme Court decision in Jones v Kernott on subsequent cases. It focuses on situations with which Jones was not directly concerned, namely where there is only one legal owner of a home and a non-legal-owning cohabitant seeks to establish that he has an equitable interest in it under a common intention constructive trust. The paper argues that while judges have mostly accepted that Jones is relevant to such sole-owner cases, they have had few opportunities (and taken fewer) to move beyond the restrictive approach of Lloyds Bank plc v Rosset and allow n

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45

Sheichenko, Viktor, Ihor Marynchenko, Ihor Dudnikov, and Mykola Korchak. "Development of technology for the hemp stalks preparation." Independent Journal of Management & Production 10, no. 7 (2019): 687. http://dx.doi.org/10.14807/ijmp.v10i7.913.

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Getting high-quality trusts in modern technology for growing technical hemp is one of the most labor-intensive processes.The main factors that cause loss of quality of hemp are determined by the level of perfection of the harvesting stage of the production process. It is precisely at this stage that the basic processes of product quality management are concentrated, the main physical and technological losses are taking place.The main drawbacks of the known methods of obtaining the trusts of technical hemp include the dependence of the process of forming its qualitative indicators on weather co

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46

Towell, Elaine. "The College drive to regionalise continues." Bulletin of the Royal College of Surgeons of England 88, no. 9 (2006): 304–5. http://dx.doi.org/10.1308/147363506x151053.

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In the past, the College's role has focused on setting and monitoring standards for basic surgical training and, through the specialist advisory committees, higher surgical training. These standards are now made explicit through the intercollegiate surgical curriculum. Since 2000, the College has focused on the management and delivery of training at the coalface. A recent regionalisation initiative, 'schools of surgery', will allow deaneries, Trusts and the College to engage in a constructive dialogue about surgical education and related challenges, such as balancing service and education need

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47

Moore, Imogen. "Proprietary Estoppel, Constructive Trusts and Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989." Modern Law Review 63, no. 6 (2000): 912–17. http://dx.doi.org/10.1111/1468-2230.00302.

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48

Pawlowski, Mark, and James Brown. "Beneficial Ownership of the Family Home." Denning Law Journal 32, no. 1 (2021): 151–73. http://dx.doi.org/10.5750/dlj.v32i1.1920.

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The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such questions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model.

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49

Purewal, Anita. "Fiduciary Duties, Secret Profits, and the Illegality Defence: Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49." Trusts & Trustees 28, no. 2 (2021): 125–31. http://dx.doi.org/10.1093/tandt/ttab105.

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Abstract CPS v Aquila Advisory Ltd has provided a welcomed judgment on the application of the illegality defence in the context of secret profits accrued in breach of fiduciary duties. The judgment clarifies the priority to be given to constructive trusts over unauthorised fiduciary profits in the face of CPS confiscation orders, and examines the interrelationship between the rules of attribution and the application of the illegality defence today, namely whether a director’s unlawful intention can be attributed to their company to prevent the company, on illegality grounds, from exercising a

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50

Hopkins, Nicholas. "Conscience, discretion and the creation of property rights." Legal Studies 26, no. 4 (2006): 475–99. http://dx.doi.org/10.1111/j.1748-121x.2006.00033.x.

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This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers ‘subject to’ rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers

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