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Vol 23 No 5 May/June 2018

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Cover of Drafting Commercial Agreements

Drafting Commercial Agreements

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Explaining Constructive Trusts

ISBN13: 9780198254157
ISBN: 0198254156
Published: June 1990
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: Out of print

Out of Print

The rules on constructive trusts form one of the most topical and controversial areas of the modern English law of trusts. There are two theses about the rules. One, inspired by the North American experience, is that the rules should be regarded as instruments of restitution.

The other is that the rules are confused and capricious. In this reappraisal of the area, these two topical theses are rejected and a fresh approach advanced. The third thesis is that the rules should be regarded as instruments for the rational furtherance of three coherent aims, firstly that one who has made a disposition in favour of another person should uphold the disposition.

Secondly that one who has gained through another's loss should give up the gain to the other, and thirdly that one who has caused loss to another should repair the loss. These three aims convicingly account for many, and point to compelling reforms of several other, significant features of the rules.

Equity and Trusts