Constructive Trusts Arising on a Receipt of Property Sub Conditione
![handle is hein.journals/lqr120 and id is 691 raw text is: CONSTRUCTIVE TRUSTS ARISING ON A RECEIPT OF
PROPERTY SUB CONDITIONE
I. INTRODUCTION
THE purpose of this article is to examine the nature and validity of a
particular group of constructive trusts. In general terms, these trusts arise
when a party acquires property having made an undertaking to allow
another a right in respect of that property. The group is therefore a wide
one: it includes the trust recognised in Rochefoucauld v Boustead'; secret
trusts; and the trusts controversially recognised in Lord Strathcona
Steamship Co Ltd v Dominion Coal Co Ltd2; Neale v Willis'; Ashburn
Anstalt v Arnold4; and Banner Homes Group Plc v Luff Developments Ltd.5
The crucial question is whether these trusts share more than a similar
factual background: in particular, can they all be seen as exemplifying a
common principle which justifies the purchaser's6 being bound? This
inquiry is particularly pressing given the severe disapproval to which many
of these trusts have been subject,7 but it may not seem to be very
promising. The group includes both cases relating to land and cases
relating to personal property; it includes both commercial and family
disputes; and it includes situations where the trust gives rise to property
rights and situations where such a result would be eminently unsuitable.'
Nonetheless, a new analysis will be put forward which argues that these
difficulties can be overcome and that this group of cases depends on, and
proves the existence of, an important unifying principle.
In Part I, the nature of the trusts will be examined in the light of three
basic means by which a purchaser of property can be made subject to a
claim in respect of that property. In particular, the trusts will be distin-
guished from constructive trusts which give effect to a pre-existing
property right. It will be argued that the trusts all involve the recognition
by the courts of a new right, either personal or proprietary, which arises on
'[18971 1 Ch. 196.
2 [1926] A.C. 106.
'(1968) 19 P. & C.R. 836.
4 [1989] 1 Ch. t.
[20011 Ch. 372.
Of course, these trusts can apply whether the party acquiring the property is a purchaser or not.
However, the term purchaser is used here as a convenient shorthand for the part, acquiring the
propcrty
7 Disapproval of Lord Strathcona: e.g. Swadling, The Proprietary Effect of a Hire of Goods in Palmer
and McKcndrick (eds), Interests in Goods (2nd ed., 1998); disapproval of Neale i Wlz: Feltham,
Informal Trusts and Third Parties [1987] Cony. 246 at pp.249-2150. disapproval of Ashburn Anstalt:
Swadling, ibid., Hopkins, Informal Acquisition of Rights in Land (2000), at pp.50 et seq., Megarry and
Wade, Law ol Real Property (Harpum ed., 6th ed., 2000), at para. 10-022; disapproval of Banner Homes:
Hopkins The Pallant v Morgan 'Equity' [2002] Cony. 35. Parker and Mellows, Modern La of Trusts
(Oakley ed., 8th ed.. 2003) at pp.420-421
' See the analysis of Ashburn Anstalt v Arnold below, text at n.67.](ViewImageLocal?handle=hein.journals/lqr120&div=39&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Already a HeinOnline Subscriber?
profiles profiles most
Constructive Trusts Arising on a Receipt of Property Sub Conditione
Already a HeinOnline Subscriber?
profiles profiles most