Proprietary Remedies in Context: A Study in the Judicial by Craig Rotherham

By Craig Rotherham

There's a pressure in English legislation among the concept that the courts may well supply a therapy through developing new estate rights and the knowledge that the judiciary's function is restricted to the safety of latest proprietary pursuits with the ability to redistribute estate dwelling within the legislature on my own. whereas there are various situations during which the courts interfere to readjust estate rights, those are disguised in metaphor and fiction. even if, this has intended that the legislations during this sector has constructed with out open attention of justifications for redistributing estate. the results of this is often that there's little coherence within the legislations of proprietary treatments as a complete and a great deal of it's indefensible. The publication examines redistributive approaches, comparable to, tracing, subrogation and proprietary estoppel and using the confident belief within the context of contracts to assign estate, vitiated transactions, the gains of wrongdoing and the breakdown of intimate relationships. It contrasts the English therapy of this sector of legislations with advancements in different universal legislations jurisdictions the place a extra dynamic knowing of estate has approved extra open acknowledgement of the judicial position in redistributing proprietary rights.

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Canada Law Book, 1990) 82, 87–93; Waters, supra n. 40 at 2. 65 Ibid. at 19–22. 66 R Goode, “Twentieth Century Developments in Commercial Law” [1983] LS 283 at 292. 67 Pound, supra n. 41 at 423. 70 In particular, he complained that Keech v. 73 Thus, in the New Zealand Court of Appeal in Liggett v. 78 The continuing significance attached to the connection between the constructive trust and fiduciary relationships was also apparent in AG for Hong Kong v. Reid,79 where the Privy Council concluded that an employer became the beneficial owner of a bribe accepted by an employee.

A systematic analysis of these issues is no doubt valuable in its own right. Such a study would certainly give us insight into some of the intuitions that underlie the arcane language that flourishes in this area. In addition, an analysis of this kind would also assist us both to diagnose the law’s failings and to offer prescriptions for its reform. Nonetheless, in itself, such an analysis is unlikely to provide a sufficient basis for understanding the law of proprietary remedies. For one thing, in interpreting, applying and changing the common law, judges do not always, or perhaps even often, openly pursue policy objectives.

DIFFERENT USES OF THE CONSTRUCTIVE TRUST In addition to trusts that gave effect to consensual arrangements, the courts of Chancery recognised certain trust relationships that were said to arise by operation of law. 21 More strikingly, the constructive trust often comes into being even where there is no evidence that the beneficiary intended it and it is positively contrary to the will of the constructive trustee. The constructive trust emerged as a device for constraining errant trustees and recipients of trust property but proved so useful that it came to be employed more broadly.

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