The Discretionary Remedial Constructive Trust '[A] Debate as Cogent as a Discussion of the Merits of English versus American Unicorns'

Posted: 16 May 2016 Last revised: 4 Mar 2017

See all articles by Jacob Meagher

Jacob Meagher

University of Cambridge; Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: 2014

Abstract

Those who seek settled property rights in Equity will find little comfort in this paper. With legal realism in mind the author asks what are the courts of Equity doing to property when recognising an institutional constructive trust? The author concludes that there is little distinction between a remedial and an institutional constructive trust; they are the same remedial equitable mechanisms for transferring property from A to B in equity. That is, an ICT, like the RCT is are awarded/imposed/recognised by the courts based on the underlying concepts of fairness and justice (or the equitable term of art; 'unconscionability'). The ICT is seen as legitimate because it hides behind the mask of language of 'institution'. Finally if jurisdictions continue to recognise and impose the ICT, then there is no logic in rejecting the RCT as an any less legitimate tool in the Equities armory.

Keywords: Emedial Constructive Trust, Institutional Constructive Trust, RCT as a Legitimate Equitable Proprietary Remedy, Proprietary Remedies in Equity, Lack of Distinction between RCT and ICT

JEL Classification: K10, K11

Suggested Citation

Meagher, Jacob, The Discretionary Remedial Constructive Trust '[A] Debate as Cogent as a Discussion of the Merits of English versus American Unicorns' (2014). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 14/2016, Available at SSRN: https://ssrn.com/abstract=2779919

Jacob Meagher (Contact Author)

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington
New Zealand

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