'The Past, Present, and Future of Resulting Trusts'

(2017) 70 Current Legal Periodicals DOI 10.1093/clp/cux003

39 Pages Posted: 13 Oct 2017 Last revised: 31 Dec 2018

See all articles by John Mee

John Mee

University College Cork

Date Written: August 31, 2017

Abstract

This article considers the nature and future of resulting trusts, and offers a critique of the Birks/Chambers theory of resulting trusts. It argues that the current law cannot be explained, as the Birks/Chambers theory suggests, on the basis of the reversal of unjust enrichment. Instead, the law of resulting trusts is based on an old fiction whereby the owner of property is regarded as holding a beneficial interest which may be retained when the legal ownership has been transferred to another person. Unfortunately, this ‘retention’ idea does not provide a doctrinally satisfying justification for the current law. A logical response would be to discard those aspects of the law of resulting trusts that depend on the retention idea and, therefore, to dispense with presumed resulting trusts. The article argues that, in fact, in English law the purchase-money resulting trust has already been made irrelevant by the common intention constructive trust. However, the article argues for the continued recognition of gap-filling (i.e. ‘automatic’) resulting trusts on the basis that an alternative justification can be identified for such trusts.

Keywords: Resulting Trusts, Trusts, Unjust Enrichment, Legal History, Equity, Land Law, Property, Law Reform, Presumptions

JEL Classification: K00, K1, K10, K11, K19, K3, K30, K36, K39, K4, K40, K41, K49

Suggested Citation

Mee, John, 'The Past, Present, and Future of Resulting Trusts' (August 31, 2017). (2017) 70 Current Legal Periodicals DOI 10.1093/clp/cux003. Available at SSRN: https://ssrn.com/abstract=3052141

John Mee (Contact Author)

University College Cork ( email )

Aras na Laoi
Western Road
Cork
Ireland

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