Constructive and resulting trusts have a long history in English law, and the law which governs them continues to develop as they are pressed into service to perform a wide variety of different functions, for example, to support the working of express trusts and other fiduciary relationships, to allocate family property rights, and to undo the consequences of commercial fraud. However, while their conceptual flexibility makes them enormously useful, it also makes them hard to understand. In the twelve essays collected in this volume, the authors shed new light on various aspects of the law governing constructive and resulting trusts, revisiting current controversies, bringing new historical material to the fore, and offering new theoretical perspectives.
Robert Chambers has written a much-needed, detailed examination of the resulting trust which will be invaluable to all barristers and academics working in the areas of equity and trusts, restitution and the law of property.
The first part of this volume collates papers from the Second Mansfield Symposium, which examined the areas of equity, trusts and restitution. The second part addresses the emerging field of equitable compensation and its implications.
The book provides a succinct, clear and accessible explanation of key theories and terminology in equitable and trust law and demonstrates how these are applied in practice with simple, topical examples. Bryan from University Melbourne, Vann from Monash.
This chapter considers the justification for the 'automatic' resulting trust. It points out that, as a historical matter, the dominant explanation has been that the settler 'retains' any beneficial interest of which he has not disposed. It is suggested, by reference to the “doctrine of the old use” in the law of succession, that this explanation is far more deeply rooted in the law than has been generally recognized. However, some commentators have argued that the retention idea is flawed at the level of principle, providing support for the idea that the existing rules should be altered to allow resulting trusts to operate as an instrument to reverse unjust enrichment in a wide variety of cases. The relevant issues are investigated in this chapter and it is concluded that the retention explanation, though deeply rooted in authority, is not fully satisfactory at the level of principle. It is also noted that the proposition that all resulting trusts should be regarded as being based on unjust enrichment is not supported by authority and, at the level of principle, is vulnerable to some of the same criticisms as the retention idea. This chapter identifies an alternative rationalization of the existing rules (which does not involve any modification in the content of those rules). It suggests that, in the context of the 'automatic' resulting trust, equity is confronted with the question of what should happen when property is given on trust to a trustee but the particular trusts indicated do not exhaust the beneficial interest or are invalid. The rule chosen by equity in this situation, that there should be a resulting trust for the settler, is difficult to fault as a matter of justice. It proceeds on the basis of a logically prior decision by equity that, once property has been conveyed to a trustee in whom the settler has reposed trust to hold it according to the settler's instructions, the trust will not 'fail', even where there is a failure in the particular trusts declared or a failure to declare any such trusts. Once one is willing to accept that a trust has been brought into existence by the conveyance to the trustee, so that someone must become entitled to the beneficial interest under that trust, it is difficult to justify anyone besides the settler taking any unallocated beneficial interest.
Interest in resulting trusts has greatly increased in recent years, spurred by academic arguments that such trusts should be seen as a response to unjust enrichment and, therefore, as capable of arising in a wider range of situations than previously understood. This book provides a comprehensive analysis of the different types of resulting trust, including the purchase money resulting trust, the resulting trust arising upon a voluntary transfer of property and the 'automatic' resulting trust. It also examines the unclear relationship between the resulting trust and two other significant types of trust: the Quistclose trust (which arises in the commercial context) and the 'common intention constructive trust' (which generally arises in the family context). As well as engaging fully with the intricacies of the modern law on resulting trusts, the book also considers the history and underlying nature of resulting trusts and, drawing on the insights that emerge, offers an answer to the argument that it is appropriate to reshape the law of resulting trusts by reference to the principles of unjust enrichment.
This volume in the 'Core Text Series' covers the law of trusts, explaining from first principles what 'trusts' is about and providing the student with an understanding of the law and the important academic controversies surrounding it.
