REANALYSING INSTITUTIONAL AND REMEDIAL CONSTRUCTIVE TRUSTS

It is often said that English law does not impose "remedial" constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencie...

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Bibliographic Details
Published in:Cambridge law journal 2016-11, Vol.75 (3), p.528-549
Main Author: Liew, Ying Khai
Format: Article
Language:English
Subjects:
Analysis
Judicial power
Law
Law and legislation
Property
Trusts
Trusts and trustees
Citations: Items that this one cites
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Summary:It is often said that English law does not impose "remedial" constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some "remedial" constructive trusts and not others, and that the perceived difficulties with remedial constructive trusts are often exaggerated. It ends by noting some crucial implications of the re-analysis for the future development of the law.
ISSN:0008-1973
1469-2139
DOI:10.1017/S0008197316000519