Onstructive Trusts show the conscience of Equity at work.

Constructive Trusts show the conscience of Equity at work. Discuss

This is a very broad subject area so you need to focus on specific sections/examples of our choosing

A suggested layout is as follows:

Introduction

The question is suggesting that constructive trusts are the epitome of equity  the Lord Chancellor was the keeper of the King s conscience and decisions were made according to conscience. This of course was developed into a set of clear rules and no longer changes with the size of the Chancellor s/judge s foot (or does it?)

Seek to define/describe constructive trusts  Note I say seek to define. You will probably find that there is no one definition to suit the range of uses of constructive trusts.

Points to note refer to in your definition/description:
” They are (like all trusts) equitable and so all the equitable rules apply
” They are constructed by the courts and so the flexibility of precedent applies (as well as all the other features of precedent)
” They do not require formalities (e.g. to be in writing)  note the maxim that equity looks to be done which ought to be done and will not allow a statute to be an engine of fraud
” They can be seen as a cause of action whereby a complainant may claim the existence of a trust which will enable enforcement action to take place.
” They can be seen as a remedy imposed by the court where otherwise there would be none  note the maxim equity will not suffer a wrong without a remedy.

Examples of Constructive Trusts

Having highlighted the range of uses then look at the range of circumstances in which constructive trusts have been acknowledge, note the different types of classification, e.g.:
” Breach of a fiduciary duty
” Inequitable conduct/Common intention
” Receipt of property by mistake
” Theft
” Fraud
” Fully secret trusts
” Incomplete transfers of property
” A contract for the sale of land
” Mutual wills
” Receiving trust property, or assisting in a breach of trust
” To prevent a fiduciary obtaining an unauthorised profit from his or her position;
” To give relief to person who has suffered as a result of anothers fraudulent or inequitable conduct.

Identify one or two in particular that:
a) you have found some material on and you find interesting  I defy you not t find one of them interesting!
b) you consider to be good examples of constructive trusts e.g. it is was not for the constructive trust there would be no cause of action/remedy  refer to the features of equity (discretionary/fill the gaps left by the common law  only applied when the common law is inadequate) and the maxims. Keep in mind that the question is suggesting that constructive trust is the epitome of equity.

Analysis

Look at the chosen examples in detail. Note the cases. Ask and attempt to answer questions (that is what analysis is).
” Why was a constructive trust chosen?
” Is there a theme or a typical situation in which constructive trusts are imposed by the courts?
” What if the constructive trust was not there, would there be another cause of action or remedy to fill the gap, are they only used when no other remedy would apply or are they just part of the judge s tool box etc& ?
” Is the constructive trust too flexible or not flexible enough?
” Should judges (or statute) identify more clearly the way in which constructive trusts are used or is this already the case? Look at the textbooks how do they classify constructive trusts?

Conclusion

Overall do you agree with the statement taking account of the particular examples that you have chosen. You may say yes or no or (and I think this more likely) say the constructive trust has clearly defined uses and some less defined uses, sometimes it is used appropriately and other times less so. Consider whether it is an essential part of equity?
atleast 4 journals
cases
textbooks