The past, present, and future of resulting trusts
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Date
2017-08-30
Authors
Mee, John
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Oxford University Press
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Abstract
This article considers the nature and future of resulting trusts, and offers a critique of the Birks/Chambers theory of resulting trusts. It argues that the current law cannot be explained, as the Birks/Chambers theory suggests, on the basis of the reversal of unjust enrichment. Instead, the law of resulting trusts is based on an old fiction whereby the owner of property is regarded as holding a beneficial interest which may be retained when the legal ownership has been transferred to another person. Unfortunately, this ‘retention’ idea does not provide a doctrinally satisfying justification for the current law. A logical response would be to discard those aspects of the law of resulting trusts that depend on the retention idea and, therefore, to dispense with presumed resulting trusts. The article argues that, in fact, in English law the purchase-money resulting trust has already been made irrelevant by the common intention constructive trust. However, the article argues for the continued recognition of gap-filling (i.e. ‘automatic’) resulting trusts on the basis that an alternative justification can be identified for such trusts.
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Keywords
Resulting trusts , Birks/Chambers theory of resulting trusts , Unjust enrichment
Citation
Mee, J. (2017) 'The past, present, and future of resulting trusts', Current Legal Problems, 70(1), pp. 189-225. https://doi.org/10.1093/clp/cux003
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© 2017, John Mee. Published by Oxford University Press. All rights reserved. This is a pre-copyedited, author-produced version of an article accepted for publication in Current Legal Problems, following peer review. The version of record [Mee, J. (2017) 'The past, present, and future of resulting trusts', Current Legal Problems, 70(1), pp. 189-225] is available online at: https://doi.org/10.1093/clp/cux003