Equity and Trusts Research Essay

1 Found helpful • 6 Pages • Essays / Projects • Year: Pre-2021 • Previously uploaded under: LAWS217 - Equity and Trusts

I. Institutional and Remedial Constructive Trusts The first distinction drawn between the institutional and remedial constructive trust is discretion. Institutional constructive trusts arise automatically from predefined facts according to settled 2 principles independently of judicial discretion. The remedial constructive trusts arises at the discretion of the court with retrospective effect. This approach was perceived to be unprincipled as the discretionary judicial power interferes with the established property rights hence renders the law unpredictable and subjective.3 Furthermore, another divergent characteristic relates to the commencement of the constructive trusts.4 An institutional constructive trust may be imposed from the moment of pre-existing conduct.5 Conversely, the remedial constructive trust imposed by the court following the finding of 6 unconscionable conduct, will only take effect from date of judgement. This issue was reflective in the case Bahr v Nicolay , the constructive trust arose at time of transfer, thus independent of court order hence it was institutional in nature.7 However, dissenting Justice Brennan reasoned that equity

This document is 20 Exchange Credits