Talk:Constructive trust

Untitled

This is an entirely incomplete definition and describes only two type of contructive trust (that arising in restitution or for wrongs), and not others such as remedial constructive trusts, and cases in which the terminology of contstructive trust is used to describe associational trusteeship. Needs extensive expansion and rewrite Alex Bartho 21:42, 7 March 2006 (UTC)[reply]

Completely - I agree it is dreadful. I have tried to clean up some major parts but am now getting very tired and will return to it later. It's a big job.--Jeremybrennan 21:13, 14 June 2006 (UTC)[reply]

Constructive Trust

Very True, it does have some good points, but its focus is too much on Commonwealth Law, US Common Law and from their Schizoid states like California and Louisiana would be helpful to show the varying degree of contructive trusts.

It is a bit eerie actually; this article reads just like the lecture note handouts for that portion of the restitution course on the BCL at Oxford. I may have missed my guess, but I'd bet good money that is where the first draft of this article came from. Legis 16:09, 18 September 2006 (UTC)[reply]

Jurisdictions

This article needs to explain that the approach is different in different jurisdictions. Currently it misleads as to the role of Constructive Trusts in England, where they are not used as a remedy for unjust enrichment. DavidCBrannan (talk) 13:51, 28 May 2008 (UTC)[reply]

Agreed. The courts often do treat a constructive trust as a trust (contrary to the lead). There is sufficient confusion in England that I'd not know where to begin, I shudder at the thought of trying to deal with all common law jurisdictions. Is the article right for somewhere? Not here - you don't get to be a constructive trustee of stolen property (that would be daft since you aren't the legal owner how can you be a trustee of it)? Weird. 82.68.102.190 (talk) 14:34, 6 May 2009 (UTC)[reply]

Loose, arguably completely wrong theory

I've just come across this, and frankly, large parts are completely wrong. I would fail a student who gave me this kind of summary. In particular, one section claims that remedial constructive trusts in Australia are those court-ordered to do justice, when the leading judgment directly refutes this kind of thinking:

Per Justice Deane in Muschinski v Dodds (1985) 160 CLR 583:

"Where an equity court would retrospectively impose a constructive trust by way of equitable remedy, its availability as such a remedy provides the basis for, and governs the content of, its existence inter partes independently of any formal order declaring or enforcing it. In this more limited sense, the constructive trust is also properly seen as both "remedy" and "institution". Indeed, for the student of equity, there can be no true dichotomy between the two notions."

I would emphasise the last sentence. It directly not only contradicts the summary that there's such a thing called a 'remedial constructive trust' as a distinct creature of equity in Australia, but also states it's a confused theoretical approach.

This also resolves the issues invented in the article about the controversy in AG v Reid, certainly arguably: the court is not, through declaring a constructive trust, creating a priority over insolvency creditors, rather they are giving judicial recognition (the remedy) to what conscience requires (the institution). —Preceding unsigned comment added by 86.156.129.44 (talk) 16:32, 7 October 2009 (UTC)[reply]

Regarding the Australian position, I have little idea. But one think I am sure: Australia recognizes remedial constructive trust. And I am afraid you have a misconception: the declaration of a constructive trust automatically creates a priority for the beneficiary over unsecured creditors. Property held by any trustees, express, resulting or constructive, is treated as not part of the trustee's pool of assets when he goes bankrupt. Craddocktm (talk) 16:21, 25 February 2010 (UTC)[reply]

In Australian law, yes, remedial constructive trusts are de facto applied, but under a legal fiction not "de jure" recognised as such.

--Shirt58 (talk) 12:00, 20 June 2015 (UTC)[reply]

Introduction

The second sentence of the introduction looks doubtful to me. I was taught that constructive trust is actually a trust - at least that is the position in England and Hong Kong. Even if US law does not regard constructive trust as a true trust, it should not appear in the introduction as this is supposed to be an article for all jurisductions. I suggest retaining only the part that reads, "the trustee's sole duty is to transfer the title and possession to the beneficiary."Craddocktm (talk) 16:27, 25 February 2010 (UTC)[reply]