Constructive Trusts up to Lord Eldon - A Consent Issue

25 Pages Posted: 9 May 2019

See all articles by Rod Thomas

Rod Thomas

Auckland University of Technology - Faculty of Business & Law; University of Cambridge - Cambridge Centre for Property Law; European Law Institute; IPRA-CINDER; Australian College of Strata Lawyers

Date Written: September 6, 2017

Abstract

This paper looks at the development of constructive trust liability up to the retirement of Lord Eldon in 1827. It suggests liability over this period was imposed to enforce performance of expectations in a way not possible under an executed model of contractual liability. With advent of the Industrial Revolution such grounds became difficulty to justify. Performance of promises became enforceable under an executory contract model of liability, causing us to think the grounds for imposition of liability over this earlier time lack a coherent framework.

This approach invites us to reconsider the basis for liability being imposed in Keech v Sandford and the bribes cases. Also whether remedial constructive trusts are indeed “unprincipled, incoherent and impractical,” as recently suggested by Lord Neuberger. In terms of the presented argument, constructive trust liability up to the tenure of Lord Eldon was imposed on remedial grounds.

Suggested Citation

Thomas, Rod, Constructive Trusts up to Lord Eldon - A Consent Issue (September 6, 2017). Available at SSRN: https://ssrn.com/abstract=3379974 or http://dx.doi.org/10.2139/ssrn.3379974

Rod Thomas (Contact Author)

Auckland University of Technology - Faculty of Business & Law ( email )

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Australian College of Strata Lawyers ( email )

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