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
Date Written: 2014
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: Suggested Citation