William Swadling, ‘The Fiction of the Constructive Trust’

The orthodox position in English law is that the constructive trust is as much a trust as the express trust; the only difference being that it is ‘constructed’ by the court. As a consequence, the constructive trustee has all the duties of a trustee, and the constructive beneficiary has all the benefits he would have as the beneficiary of an express trust. The argument presented here is that that view is false; that the constructive trust is not a trust but a fiction. The reality is that the language masks nothing more than two types of court order: (i) that the defendant pay a sum of money to the claimant; and (ii) that the defendant convey a particular right to the claimant. Only once the fictitious nature of the ‘trust’ is realized can any coherent analysis of the incidence of such orders be made.

William Swadling, The Fiction of the Constructive Trust. Current Legal Problems (2011) doi: 10.1093/clp/cur005 First published online: September 2, 2011

First posted 2011-09-07 08:03:01

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