Pettitt v. Pettitt and Gissing v. Gissing

Abstract

This chapter considers the landmark family property decisions of the House of Lords in Pettitt v. Pettitt [1970] AC 777 and Gissing v. Gissing [1971] AC 886 through the prism of imputed common intention, an idea advanced by Lord Diplock in Pettitt and (on one view) implemented in a different form by him in his speech in Gissing. The conclusion is that the common intention trust analysis, as first put forward in the speech of Lord Diplock in Gissing, did not directly involve the imputation of common intentions. The notion of imputation has, following Stack v. Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776, crept back into the modern law on the common intention trust in respect of the secondary issue of quantification. However, as is argued in the chapter, it seems unnecessary to present the modern approach to quantification in terms of the imputation of a non-existent common intention. The chapter places Pettitt and Gissing in the context of the earlier case law – e.g. looking closely at the overrated ‘imputed common intention’ approach of the minority in Pettitt and its relationship with more overtly discretionary approaches of the Court of Appeal in earlier cases. The chapter also links this analysis to a consideration of the impact of the more recent cases of Stack v. Dowden and Jones v. Kernott.

Keywords: Law, Land Law, Law of Trusts, Cohabitation, Family Law, Property Law, Family Property, Legal History, constructive trusts, imputation, inference, resulting trusts, legal doctrine

JEL Classification: K00, K10, K11, K19, K39