Meagher, JJ;
(2016)
The Discretionary Remedial Constructive Trust.
Social Science Research Network (SSRN): Amsterdam, Netherlands.
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Abstract
Those who seek settled property rights in Equity will find little comfort in this paper. With legal realism in mind the author asks what are the courts of Equity doing to property when recognising an institutional constructive trust? The author concludes that there is little distinction between a remedial and an institutional constructive trust; they are the same remedial equitable mechanisms for transferring property from A to B in equity. That is, an ICT, like the RCT is are awarded/imposed/recognised by the courts based on the underlying concepts of fairness and justice (or the equitable term of art; 'unconscionability'). The ICT is seen as legitimate because it hides behind the mask of language of 'institution'. Finally if jurisdictions continue to recognise and impose the ICT, then there is no logic in rejecting the RCT as an any less legitimate tool in the Equities armory.
Type: | Working / discussion paper |
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Title: | The Discretionary Remedial Constructive Trust |
Open access status: | An open access version is available from UCL Discovery |
DOI: | 10.2139/ssrn.2739408 |
Publisher version: | https://doi.org/10.2139/ssrn.2739408 |
Language: | English |
Additional information: | This version is the version of record. For information on re-use, please refer to the publisher’s terms and conditions. |
Keywords: | Constructive trust, equity, institutional constructive trust |
UCL classification: | UCL UCL > Provost and Vice Provost Offices UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
URI: | https://discovery.ucl.ac.uk/id/eprint/10084393 |
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