Abstract

The orthodox position in English law is that the constructive trust is as much a trust as the express trust; the only difference being that it is ‘constructed’ by the court. As a consequence, the constructive trustee has all the duties of a trustee, and the constructive beneficiary has all the benefits he would have as the beneficiary of an express trust. The argument presented here is that that view is false; that the constructive trust is not a trust but a fiction. The reality is that the language masks nothing more than two types of court order: (i) that the defendant pay a sum of money to the claimant; and (ii) that the defendant convey a particular right to the claimant. Only once the fictitious nature of the ‘trust’ is realized can any coherent analysis of the incidence of such orders be made.

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