Andrew Kull, ‘The metaphorical constructive trust’

The constructive trust claim approved in Chase Manhattan Bank (Ch 1979) – permitting recovery of a mistaken payment ahead of the payee’s general creditors – has the wholehearted support of the new Restatement Third, Restatement of Unjust Enrichment, but its prospects are less certain in today’s US courts. Cardozo’s statement that ‘constructive trust is the formula through which the conscience of equity finds expression’ began as shorthand for certain uncontroversial propositions about equitable interests in property; it has come to be suspected of authorizing an after-the-fact redistribution to suit a court’s sense of justice. But the US remedy of constructive trust has never been ‘remedial’ in that sense.

Andrew Kull, ‘The metaphorical constructive trust‘. Trusts & Trustees (2012). Oxford Journals,  doi: 10.1093/tandt/tts118. First published online: September 29, 2012.

First posted 2012-10-06 07:48:07

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