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Constructive trust
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Constructive trust
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In trust law, a constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enrichment or interference, or due to a breach of fiduciary duty, which is intercausative with unjust enrichment and/or property interference.[1][2] It is a type of implied trust (i.e., it is created by conduct, not explicitly by a settlor).

In the United States (in contrast to England), a constructive trust remedy generally does not recognize or create any continuing fiduciary relationship — that is, a constructive trust is not actually a trust except in name. Rather, it is a fiction declaring that the plaintiff has equitable title to the property at issue, and ordering the defendant to transfer legal ownership and possession to the plaintiff.[3] For instance, in some states the slayer rule is implemented in the form of a constructive trust.

Definition

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Constructive trusts are imposed by operation of law. They are also referred to as implied trusts. They are not subject to formality requirements.[4] Unlike a resulting trust, which also arises by operation of law, a constructive trust does not give effect to the imputed/presumed intention of the parties.[5]

Instead, constructive trusts are largely said to be triggered by unconscionability. This is the idea that a defendant would be unjustly enriched if they were allowed to keep property for themselves. The main issue with this argument is that we would have to have a really broad approach to unjust enrichment in order for a constructive trust to come under that underpinning concept in order for us to understand constructive trust.[6] This statement is incoherent and without any basis in law or fact.

Events generating constructive trusts

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Breach of fiduciary duty

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In a constructive trust the defendant breaches a duty owed to the plaintiff. The most common such breach is a breach of fiduciary duty, such as when an agent wrongfully obtains or holds property owned by a principal.[7] A controversial example is the case of Attorney General for Hong Kong v Reid,[8] in which a senior prosecutor took bribes not to prosecute certain offenders. With the bribe money, he purchased property in New Zealand. His employer, the Attorney-General, sought a declaration that the property was held on constructive trust for it, on the basis of breach of fiduciary duty. The Privy Council awarded a constructive trust. The case is different from Regal (Hastings) Ltd v Gulliver,[9] because there was no interference with a profit-making opportunity that properly belonged to the prosecutor.[10]

Being a Privy Council decision, Reid did not overrule the previous decision of the Court of Appeal of England and Wales in Lister v Stubbs[11] which held the opposite, partially because a trust is a very strong remedy that gives proprietary rights to the claimant not enjoyed by the defendant's other creditors. In the event of the defendant's insolvency, the trust assets are untouchable by the general creditors. Supporters of Lister suggested that there was no good reason to put the victim of wrongdoing ahead of other creditors of the estate. There was a tension in English law between Lister and Reid which was highlighted in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd.[12] The United Kingdom Supreme Court subsequently overruled Sinclair in FHR European Ventures LLP v Cedar Capital Partners LLC,[13] holding that Lister was no longer good law.

Property interference

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In Foskett v McKeown[14] a trustee used trust money together with some of his own money to purchase a life insurance policy. Then he committed suicide. The insurance company paid out to his family. The defrauded beneficiaries of the trust sought a declaration that the proceeds were held on constructive trust for them. The House of Lords said that the beneficiaries could choose between either: (a) a constructive trust over the proceeds for the proportion of the life insurance payout purchased with their money; or (b) an equitable lien over the fund for the repayment of that amount.

There is controversy as to what the true basis is of this trust. The House of Lords said that it was to vindicate the plaintiffs' original proprietary rights. However, this reasoning has been criticized as tautologous by some scholars who suggest the better basis is unjust enrichment (see below). This is because there must be a reason why a new property right is created (i.e. the trust) and that must be because otherwise the family would be unjustly enriched by receiving the proceeds of the insurance policy purchased with the beneficiaries' money. "Interference with the plaintiff's property" can justify why the plaintiff can get its property back from a thief, but it cannot explain why new rights are generated in property for which the plaintiff's original property is swapped.

In Foskett v McKeown, the plaintiff's original property was an interest in the trust fund. The remedy they obtained was a constructive trust over an insurance payout. It is not obvious why such a new right should be awarded without saying it is to reverse the family's unjust enrichment.[15]

Unjust enrichment

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In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd[16] one bank paid another bank a large sum of money by mistake (note that the recipient bank did not do anything wrong – it just received money not owed to it). Goulding J held that the money was held on (constructive) trust for the first bank. The reasoning, in this case, has been doubted, and in Westdeutsche Landesbank Girozentrale v Islington London Borough Council the House of Lords distanced itself from the idea that unjust enrichment raises trusts in the claimant's favour. This remains an area of intense controversy.

These types of trusts are called '"institutional" constructive trusts'. They arise the moment the relevant conduct (breach of duty, unjust enrichment etc.) occurs. They can be contrasted with '"remedial" constructive trusts', which arise on the date of judgment as a remedy awarded by the court to do justice in the particular case.

An example is the Australian case Muschinski v Dodds.[17] A de facto couple lived in a house owned by the man. They agreed to make improvements to the property by building a pottery shed for the woman to do arts and crafts work in. The woman paid for part of this. They then broke up. The High Court held that the man held the property on constructive trust for himself and the woman in the proportions in which they had contributed to the improvements to the land. This trust did not arise the moment the woman commenced improvements – that conduct did not involve a breach of duty or an unjust enrichment etc. The trust arose at the date of judgment, to do justice in the case.

In Bathurst City Council v PWC Properties, the High Court that as constructive trusts are the most severe remedy in cases of breach of fiduciary duty, they should only be imposed when other remedies are inappropriate in providing relief.

Common intention constructive trusts

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Common intention constructive trusts were developed to fulfil the reasonable expectations of parties to family property disputes. Equity follows the law, the legal ownership will generally be regarded as the equitable ownership. However, where there are the cohabitants, the other cohabitant (the one who doesn't have title) may consider they have acquired a beneficial ownership interest through their contributions to the family or improvement of the property.[18]

To advance a common intention constructive trust theory, it must be shown that:

  • there is an agreement or common intention between the legal owner, on the one hand, and the claimant, on the other, that the owner intended that the claimant have a beneficial interest in the property; and
  • the claimant acted in detrimental reliance on that agreement or common intention.[19]

The question of quantum must also be addressed. There is a presumption of equal sharing which can be rebutted if there was common intention to hold the property in different proportions. Following Stack v Dowden equity will look at the entire course of dealing and distribute ownership in the appropriate proportions.[20][21]

Actual, inferred and imputed intention

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If there is no evidence of actual intention, the courts will search of inferred or imputed intention. In Jones v Kernott the Supreme Court inferred intention to the parties.[21] Therefore, imputed intention involves a lot more judicial discretion, whereas inferred intention is still supposed to be based on the conduct between the parties. This kind of trust is based on bargain between the claimant and the defendant, as opposed to aspects such as proprietary rights which are based on the word of the defendant to the claimant leading to their reliance on the word hence leading to detriment suffered by the claimant.

Joint venture

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The focus here is the joint venture between the claimant and the defendant. For there to be a joint venture it would be unconscionable for the defendant to deny the other party's beneficial interest in the property.[22]

The three main requirements for a joint venture constructive trust are; (1) an arrangement or understanding between the parties; (2) reliance on that arrangement or understanding; and (3) an inconsistent act.[23]

Vendor under a specifically enforceable contract for sale

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The seller holds land on a constructive trust for the purchaser.[24] However, this is limited. In Rayner v Preston the claimant had purchased a property from the defendant, but the house was then destroyed in the fire before they could move in. The defendant received a big payout from the insurance company and refused to give that money to the claimant. It was held that the claimant was not entitled to the payout because it was not the trust property, and because of the nature of the dispute, the trustee only had a low standard of care, particularly when you compare it to an express trustee.[25]

The purchaser also cannot transfer their beneficial interest before receiving legal title.[26]

Voluntary transactions made by mistake

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The court can set aside a gift or disposition where the transfer was made by mistake. The property must have been transferred by deed not an oral agreement.[27]

Usefulness of constructive trusts

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Judicial remedies
Legal remedies (Damages)
Equitable remedies
Related issues

For example, if the defendant steals $100,000 from the plaintiff and uses that money to buy a house, the court can trace the house back to the plaintiff's money and deem the house to be held in trust for the plaintiff. The defendant must then convey title to the house to the plaintiff, even if rising property values had appreciated the value of the house to $120,000 by the time the transaction occurred. If the value of the house had instead depreciated to $80,000, the plaintiff could demand a remedy at law (money damages equal to the amount stolen) instead of an equitable remedy.

The situation would be different if the defendant had mixed his own property with that of the plaintiff, for example, adding $50,000 of his own money to the $100,000 stolen from the plaintiff and buying a $150,000 house or using plaintiff's $100,000 to add a room to defendant's existing house. The constructive trust would still be available but in proportion to the contributions, not wholly in the claimant's favour. Alternatively, the claimant could elect for an equitable lien instead, which is like a mortgage over the asset to secure repayment.

Because a constructive trust is an equitable device, the defendant can raise all of the available equitable defenses against it, including unclean hands, laches, detrimental reliance, and undue hardship.

See also

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Notes

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Revisions and contributorsEdit on WikipediaRead on Wikipedia

Constructive trust

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A constructive trust is an imposed by a , by rather than by the parties' intent, to prevent when a holding legal to would otherwise retain it in circumstances where equity demands conveyance to another rightful claimant. Unlike express or resulting trusts, which arise from the settlor's intentions or implications thereof, a constructive trust functions as a remedial device to rectify wrongful conduct, such as , breach of , or , compelling the title holder to transfer the property or its equivalent value. This remedy is particularly invoked in situations involving misappropriated assets, including those obtained through , , or violation of a confidential relationship, ensuring that the receives specific restitution rather than mere monetary . Courts apply constructive trusts flexibly, guided by principles of fairness and good conscience, though requirements vary by jurisdiction; for instance, New York typically demands proof of a fiduciary relationship, a inducing property transfer, reliance thereon, and resulting enrichment. In , emphasis is placed on the property's acquisition via or breach, coupled with the defendant's unjust benefit and possession. Overall, the doctrine underscores equity's role in adapting to prevent inequitable outcomes where legal title alone would allow retention of ill-gotten gains.

Definition and Nature

Core Definition

A constructive trust is an imposed by law upon a who holds under circumstances rendering it unconscionable to retain the beneficial , without requiring any intention to create a trust. This remedy prevents by compelling the transfer of the property's to the rightful claimant, functioning as a judicial tool to rectify wrongdoing rather than as a consensual arrangement. Constructive trusts are typically triggered by events such as , breach of duty, or mistake, leading the to declare the a ex post facto for the claimant's benefit. In these scenarios, the trust arises not from the parties' agreement but from the equity 's inherent power to intervene where legal alone would permit inequity. Unlike express trusts, which depend on deliberate intent, constructive trusts impose obligations retroactively to restore fairness. A hallmark of constructive trusts is their remedial character, especially in jurisdictions where courts wield discretion to fashion the trust as a to specific injustices, as opposed to the institutional model in where the trust vests immediately by upon the wrongful conduct. This mechanism operates as a , effectively transferring equitable title to prevent the from profiting at the claimant's expense. The doctrinal foundations trace to English equity principles, as articulated by in his 1765 Commentaries on the Laws of England, where he observed that courts of equity have acquired over almost all matters of through compulsive discovery, enabling specific relief such as setting aside fraudulent deeds to avert injustice.

Distinction from Other Trusts

Constructive trusts fundamentally differ from express trusts, which are intentionally created by a through explicit declaration, settlement, or written instrument, reflecting the parties' deliberate intent to establish beneficial interests in property. In contrast, constructive trusts emerge by , imposed by courts to address inequity without requiring or considering the parties' intentions. Unlike resulting trusts, which arise from a or of the parties' —such as when beneficial interest reverts due to the of an or when contributions to property purchase imply retained ownership—constructive trusts operate independently of any actual or presumed intention. Resulting trusts focus on effectuating the inferred wishes of the transferor, often automatically at the time of the transaction, whereas constructive trusts serve as an equitable intervention to prevent or remedy wrongdoing, triggered by circumstances like or breach of duty. In jurisdictional terms, the characterization of constructive trusts varies significantly. In , they are institutional, arising automatically upon specific facts recognized by equity and imposing immediate, ongoing duties on the akin to those in express trusts. By contrast, in many jurisdictions, constructive trusts function primarily as a remedial device rather than a substantive trust, allowing courts to award interests retrospectively as a means to restore fairness, without creating proprietary rights from the outset.
AspectExpress TrustsResulting TrustsConstructive Trusts
Basis of CreationIntentional declaration or settlement by Presumed or inferred intent (e.g., purchase contributions, trust failure), irrespective of intent
PurposeEffectuate settlor's wishesReflect presumed Remedy or inequity
Timing and NatureProspective, substantive trustAutomatic at transaction, substantiveCourt-imposed, often remedial () or institutional ()
Remedy TypePersonal and proprietaryProprietary reversionProprietary () or personal/proprietary ()

Historical Development

Origins in English Equity

The doctrine of the constructive trust has roots in earlier equity practices but emerged as a distinct remedial device in the during the 17th and 18th centuries to address situations involving , breach of duty, or claims grounded in , particularly where provided inadequate relief. Chancery judges imposed these trusts to prevent or to enforce moral obligations, treating the defendant as holding property on trust for the claimant despite no express intention to create a trust. This development filled gaps in the rigid system, allowing equity to intervene based on principles of fairness and good rather than strict legal title. Early cases illustrate the application of constructive trusts to fiduciary misuse. Similarly, Keech v. Sandford (1726) became a landmark decision when Lord Chancellor King held that a who renewed a market in his own name, originally held for a minor , must hold the renewed lease on constructive trust for that beneficiary, emphasizing the strict of loyalty to avoid any . The ruling underscored that trustees could not profit from their position, even without actual , as "the trustee is disabled from purchasing for his own benefit." Prominent chancellors like (Heneage Finch) and Lord Eldon further shaped the framework of constructive trusts through their emphasis on principled equity. , serving as from 1673 to 1682, grounded equitable interventions in "civil and political conscience," as seen in cases like Cook v. Fountain (1676), where he prioritized moral fairness over arbitrary discretion, influencing the conscience-based imposition of trusts. Lord Eldon, who held office from 1801 to 1827, advocated for more settled and uniform equitable doctrines to align equity with predictability. Their contributions reinforced the "clean hands" maxim—that claimants seeking equity must act without inequity—ensuring constructive trusts were not available to those with unclean conduct, a rooted in Chancery's moral oversight. Efforts to codify aspects of constructive trusts appeared in the , notably in the Law of Property Act 1925. Section 53(2) explicitly exempts resulting, implied, and constructive trusts from the writing requirements imposed on express trusts under Section 53(1)(b) and (c), preserving their flexible creation without formalities. This provision reflected equity's enduring influence, allowing constructive trusts to continue addressing conscience-driven claims unhindered by statutory formalities.

Evolution Across Jurisdictions

In the United States, constructive trusts were adopted through equity as a flexible remedial device to prevent and enforce duties, often imposing proprietary interests in specific assets. This approach was exemplified in Beatty v. Guggenheim Exploration Co. (1919), where the held that a constructive trust arises when is acquired under circumstances where the legal titleholder cannot in good conscience retain the beneficial interest, converting the holder into a and allowing recovery of the or its traceable proceeds. The remedial emphasis prioritizes restitution over strict institutional forms, enabling courts to tailor relief based on the equities of the transaction. In , the evolution of constructive trusts integrated the fusion of and equity, particularly through recognition as a monetary or proprietary remedy for in non- contexts. The landmark decision in Pettkus v. Becker (1980) established that a constructive trust could remedy situations where one party is enriched at another's expense without juristic reason, requiring proof of enrichment, corresponding deprivation, and absence of justification. This case expanded the doctrine beyond traditional fiduciary breaches, applying it to common-law relationships and emphasizing proportional property division based on contributions. Australia developed a balanced institutional-remedial model for constructive trusts, viewing them as arising to enforce equitable defaults in failed joint endeavors while allowing judicial discretion to prevent . In Muschinski v. Dodds (1985), the imposed a constructive trust over property from a collapsed , holding that equity requires repayment of contributions proportionally upon dissolution, with any surplus shared equally absent contrary agreement, thus blending predefined equitable principles with remedial flexibility. This approach treats the trust as both an institutional obligation independent of and a tool to adjust rights fairly. Key jurisdictional differences include the ' focus on personal liability and proprietary tracing as a broad remedial tool, contrasting with the United Kingdom's more institutional emphasis on fiduciary duties and limited proprietary effects. In jurisdictions influenced by civil law, such as , constructive trusts lack proprietary status due to the indivisibility of and preference for personal obligations over dualistic property , often resulting in monetary remedies instead.

Circumstances Triggering Constructive Trusts

Breach of Fiduciary Duty

A constructive trust arises in equity when a , such as a , director, or agent, breaches their by personally profiting from their position or misusing it for unauthorized gain, requiring the fiduciary to hold such profits or gains on trust for the principal. This remedy ensures that the fiduciary does not retain benefits obtained through the breach, treating the situation as if the gains were always the principal's . The imposition is institutional, operating by to prevent unjust retention of acquired in violation of fiduciary obligations. The no-profit rule underpins this application of constructive trusts, imposing on fiduciaries without requiring proof of , dishonesty, or actual loss to the principal. Under this rule, any unauthorized profit derived from the relationship must be disgorged, as equity views the fiduciary as holding it on constructive trust from the moment of receipt. Innocence or provides no defense; the breach alone triggers the obligation to account fully for the profits, reinforcing the prophylactic nature of duties to deter . In Attorney General for Hong Kong v Reid 1 AC 324, the Privy Council established that bribes received by a fiduciary in breach of duty are held on constructive trust for the principal, extending the trust to property purchased with the bribe proceeds. The court emphasized that "a fiduciary who receives a bribe in breach of his duty must pay it over to his principal and is accountable as a constructive trustee," rejecting prior authority that limited remedies to personal claims. This decision clarified the proprietary nature of the remedy, allowing the principal to trace and recover assets directly. The principle was reaffirmed and expanded in FHR European Ventures LLP v Cedar Capital Partners LLC UKSC 45, where the UK Supreme Court held that any bribe or secret commission accepted by an agent in breach of duty is held on constructive trust for the principal, irrespective of whether the principal suffered quantifiable loss. The Court resolved conflicting precedents by affirming proprietary remedies for such breaches, stating that the fiduciary's gains belong beneficially to the principal from inception. This ruling ensures comprehensive accountability, compelling the fiduciary to disgorge all benefits without defenses based on the principal's lack of harm or the agent's intent.

Unjust Enrichment

A constructive trust serves as an to address , where one party gains a benefit at another's expense without any legal or equitable justification, compelling the to impose a trust over the enriched to prevent inequity. This proprietary mechanism is particularly invoked when a personal restitutionary claim, such as recovery of money had and received, proves inadequate—often due to the defendant's or the vulnerability of the involved—allowing the claimant to trace and claim priority over specific . To establish warranting a constructive trust, three core elements must be satisfied: first, an enrichment of the through the receipt or retention of a benefit; second, a corresponding deprivation or loss to the claimant directly linked to that enrichment; and third, the absence of any juristic reason justifying the enrichment, such as a valid , , statutory , or other legal ground. Without these, no equitable intervention occurs, as courts emphasize preventing windfalls rather than punishing fault. The enrichment-deprivation nexus is assessed on a straightforward economic basis, focusing on tangible losses like monetary payments or transfers, while juristic reasons are scrutinized to ensure no pre-existing right supports the defendant's retention. A seminal illustration is Chase Manhattan Bank NA v Israel-British Bank (London) Ltd Ch 105, where the English Court of Appeal imposed a constructive trust over funds mistakenly paid twice by Chase Manhattan to Israel-British Bank, holding that the recipient acquired the money with knowledge of the error and thus could not retain it without enriching itself unjustly at the payer's expense. In this case, Chase had transferred US$2 million intending to settle a debt, but the payment was duplicated by error; upon Israel-British's insolvency, the trust enabled Chase to claim proprietary relief over the traceable assets, underscoring how mistaken payments devoid of juristic reason trigger such remedies. Similarly, in Muschinski v Dodds (1985) 160 CLR 583, the declared a constructive trust over purchased by a couple for a failed , apportioning proportional to their unequal contributions to avert . Here, Ms Muschinski had advanced nearly all the purchase price (AUD$20,000 of AUD$23,000), expecting shared use in a communal enterprise that collapsed without fruition; the Court ruled that Mr Dodds' retention of full title would unconscionably deprive her, imposing the trust as a remedial device tied to the enrichment from her deprivation absent any contractual or donative basis. Legal scholar Peter Birks provided a foundational framework for understanding restitution via constructive trusts as a direct response to , categorizing it within a broader aimed at reversing gains without justification and securing claimant rights through property interests where personal remedies falter. In works like An Introduction to the Law of Restitution (1985), Birks emphasized that such trusts effectuate the restitutionary goal by imposing duties on the enriched party, ensuring the claimant's deprivation is redressed proportionally without overreaching into discretionary relief.

Interference with Property Rights

Constructive trusts may be imposed on third parties, known as "strangers" to the original trust, who interfere with property rights through knowing receipt of trust property or dishonest assistance in a breach of trust. This liability arises when such interference unjustly deprives beneficiaries of their equitable interests, compelling the stranger to hold the property or its traceable proceeds on constructive trust for the rightful owners. The ensures accountability for wrongful dealings with trust assets, extending beyond the primary to those who facilitate or benefit from the . The foundational principles were established in Barnes v Addy (1874), where Lord Selborne articulated that strangers are not to be made constructive trustees merely because they act as agents of the in lawful transactions, but liability attaches in two key circumstances: first, where trust property passes into their hands by a transfer made in breach of trust with actual or constructive of the breach; or second, where they assist the with of a dishonest and fraudulent design on the trust estate. In Barnes v Addy, solicitors were absolved of liability for advising on a trustee appointment that led to a breach, as they lacked of any fraudulent intent and did not receive the trust funds directly. This "two-limb" framework—knowing receipt and dishonest assistance—limits stranger liability to cases of culpable involvement, preventing overreach into innocent third-party actions. For knowing receipt, the elements require: (1) a disposal of the claimant's assets in breach of or trust ; (2) the defendant's beneficial receipt of those assets; and (3) by the defendant sufficient to make retention , which encompasses actual , wilfully shutting one's eyes to the obvious, or of circumstances that would indicate the facts to an honest and . This threshold, clarified in BCCI v Akindele Ch 437, focuses on rather than strict , allowing constructive trusts to remedy interference where the recipient deals with the property as their own despite awareness of the originating breach. retention often involves the recipient's failure to restore the property upon acquiring the requisite , thereby interfering with the beneficiary's proprietary rights. Dishonest assistance, the second limb, imposes liability where a stranger assists in a breach of trust with actual knowledge of the essential facts constituting the breach and acts dishonestly by the objective standards of reasonable and honest people. Unlike knowing receipt, it does not require actual receipt of property but focuses on facilitative conduct that enables the interference, such as providing services or resources that aid the trustee's wrongdoing. The dishonesty element, as developed post-Barnes v Addy, evaluates whether the assistant's participation fell short of proper standards, often leading to a constructive trust over any profits derived from the assistance. A seminal illustration of remedies for such interference is Foskett v McKeown UKHL 29, where misappropriated trust funds from land purchase subscriptions were traced into premiums for the trustee's policy, and subsequently into the policy payout upon his death. The upheld proprietary tracing, granting the beneficiaries a proportionate share (40% based on their contribution to the premiums) of the £1 million payout, emphasizing vindication of property rights over personal claims. Although not imposing a new constructive trust, the decision affirmed that interfered assets retain their equitable character through substitution, allowing beneficiaries to elect proprietary relief such as an equitable lien or full beneficial interest in the traced proceeds. Remedies for interference via knowing receipt or dishonest assistance typically include personal accountability, where the stranger must pay equitable compensation equivalent to the value of the misappropriated at the date of judgment, or proprietary claims imposing a constructive trust directly over the interfered assets or their traceable substitutes. Proprietary remedies prioritize the beneficiary's security by attaching to specific , surviving the wrongdoer's , whereas personal remedies focus on restitutionary recovery. In both limbs, courts exercise to ensure the constructive trust aligns with equitable principles, often requiring the stranger to account as if they were a for the interfered .

Common Intention in Relationships

In the context of constructive trusts, the doctrine of common intention plays a pivotal role in non-commercial personal relationships, such as or informal partnerships, where parties share property without formal legal arrangements. This arises when there is an actual, inferred, or imputed common intention regarding , coupled with detrimental reliance by one party, leading courts to impose a trust to prevent unconscionable outcomes. The intention may be express, through direct agreements, or inferred from the parties' conduct, such as joint contributions to household expenses or property improvements. A landmark development in this area came with the UK House of Lords decision in (2007), which established that when a property is transferred into joint names by cohabitants, there is a of joint unless evidence rebuts this shared intention. This reflects the parties' inferred intention from the act of joint legal title, shifting the burden to prove otherwise. Building on this, Jones v Kernott (2011) further clarified that where actual intention cannot be discerned, courts may impute an intention based on what is fair in the circumstances, such as adjusting shares to reflect unequal contributions or needs. The essential elements for establishing a constructive trust under common intention include: (1) a common intention, whether express or inferred from conduct, that one party has a in the property; and (2) detrimental reliance by that party, such as financial contributions to the purchase price, renovations, or forgoing career opportunities to support the household. For instance, direct payments toward or home improvements can demonstrate such reliance, justifying the imposition of the trust. However, the remedy is not automatic; it requires evidence of , meaning the retention of full by one party would be inequitable given the other's contributions and the shared understanding. This doctrine ensures equity in informal relationships by recognizing implied agreements, though courts emphasize objective evidence over subjective claims to avoid . While parallels exist in commercial settings, the focus here remains on personal dynamics where emotional and domestic contributions often underpin the intention.

Specific Applications

Family and Disputes

In family and cohabitation disputes, constructive trusts serve as a key for unmarried couples seeking to establish beneficial interests in shared property, particularly the family home, where one partner has made contributions that suggest a shared intention. These trusts arise to prevent when legal title is held by one party, allowing courts to recognize non-financial or indirect contributions—such as or renovations—as evidence of inferred common intention, thereby awarding proportional beneficial shares upon separation. This approach contrasts with matrimonial regimes under statutes like the , which apply only to married couples, leaving cohabitants reliant on trust principles for property division. The landmark case of plc v Rosset 1 AC 107 established the foundational test for common constructive trusts in scenarios. In this decision, the , per Lord Bridge, held that a beneficial interest could be claimed through either an actual common , evidenced by direct discussions or negotiations between the parties at the time of acquisition, or an inferred derived from the claiming party's conduct, specifically direct financial contributions to the property's . The court rejected Mrs. Rosset's claim to a half share in the family home, as her efforts in supervising renovations and providing domestic labor did not constitute direct contributions to the acquisition cost, nor was there proof of an express agreement; mere assumption of joint ownership was insufficient. This strict threshold emphasized detrimental reliance, ensuring that claims required clear evidence to override the legal owner's title. Subsequent developments have addressed post-separation adjustments by allowing courts to impute intentions for quantifying shares where the parties' actual or inferred intentions regarding shares cannot be determined, but only after the existence of a constructive trust has been established via actual or inferred common intention at acquisition, promoting fairness in the absence of evidence. In Jones v Kernott UKSC 53, the Supreme Court clarified that while acquisition of a beneficial interest demands actual or inferred intention, quantification of shares post-separation permits imputation of what the parties would have intended had they considered their positions at that time, based on factors like contributions, needs, and relationship length. For instance, the court imputed a 90% share to the female cohabitant after separation, reflecting her greater financial input and ongoing responsibilities for the children, thus adjusting the initial equal shares to achieve equitable outcomes. This imputation mechanism applies only after a trust is found to exist, focusing on remedial justice rather than rewriting past agreements. Constructive trusts in these disputes interact closely with the Trusts of Land and Appointment of Trustees Act 1996 (TLATA), which governs the resolution of property claims involving land held on trust. Under sections 14 and 15 of TLATA, courts may order the sale or partition of trust property in cases, considering factors such as the parties' conduct, welfare of any minor children, and the trust's purposes, while prioritizing equitable over rigid legal . This statutory framework complements constructive trust principles by providing procedural tools for enforcement, such as applications to declare beneficial interests or compel sales, ensuring that cohabitants can seek judicial intervention without automatic matrimonial protections. For example, where a constructive trust is established via contributions under Rosset, TLATA empowers courts to quantify and realize shares, balancing individual claims against family needs.

Commercial and Joint Ventures

In commercial and joint ventures, courts impose constructive trusts to prevent one party from retaining assets acquired in the course of a collaborative enterprise in a manner inconsistent with the shared purpose, particularly when the venture fails or breaks down. This arises where equity demands intervention to address unconscionable conduct, ensuring that benefits derived from the joint effort are not unilaterally appropriated. For instance, in property development ventures, if one party secretly acquires land intended for mutual exploitation, a constructive trust may compel sharing the proceeds to reflect the common design. The foundational elements for such a constructive trust, often termed the Pallant v Morgan equity, were articulated in Pallant v Morgan Ch 43, where two adjacent landowners agreed that the plaintiff's agent would abstain from bidding at an auction for adjoining , allowing the defendant's agent to bid on behalf of both, only for the later to deny any interest to the . Subsequent refinement in Banner Homes Group plc v Luff Development Ltd Ch 372 established that the trust requires: (1) a pre-acquisition arrangement or understanding contemplating a joint interest in the ; (2) the acquiring taking steps to purchase the asset; (3) the non-acquiring relying on the arrangement, thereby conferring an advantage or suffering a detriment; and (4) the acquiring failing to disclose any intention to renege prior to completion. These elements ensure the remedy targets specific in collaborative acquisitions, as opposed to mere commercial opportunism. In broader commercial contexts, constructive trusts extend to scenarios involving breaches of directors' duties or of profits, where relationships within the venture impose obligations to hold gains on trust for the group. For example, in joint enterprises with discretionary management authority, one party's secret diversion of venture opportunities may trigger a trust over the resulting assets, as seen in cases where duties arise from entrusted authority over joint affairs. However, this application is confined to situations where the conduct equates to unconscionable retention, such as failing to account for contributions in a collapsed . Limitations on imposing constructive trusts in commercial settings emphasize the need for equity to supplement, not supplant, contractual remedies, promoting commercial certainty. Courts decline the remedy where was already owned prior to the venture (Cobbe v Yeoman's Row Management Ltd UKHL 55) or in formal agreements marked "subject to ," as these indicate no equitable expectation beyond . In Crossco No 4 plc v Jolan Ltd EWCA Civ 1619, the Court of Appeal refused a trust in a commercial lacking clear pre-acquisition reliance, underscoring that equity intervenes only where contractual mechanisms fail to address injustice. Similarly, recent decisions like Dixon v Willan (2022) illustrate that while mere informal discussions without tangible contributions may not suffice for residential , an agreement to share profits in commercial can establish a Pallant v Morgan equity even without . This approach aligns with broader principles of in business dealings, where retention must be at the claimant's expense without justification.

Vendor-Purchaser Contracts

In English equity, a constructive trust arises in vendor-purchaser contracts for the sale of land upon the formation of a specifically enforceable agreement, whereby the vendor holds the legal to the property as for the purchaser. This ensures that the purchaser acquires an in the land from the moment the contract is concluded, reflecting equity's maxim that equity regards as done that which ought to be done. The seminal case establishing this doctrine is Lysaght v Edwards (1876), where the court held that "the moment you have a valid contract for sale the vendor becomes in equity a for the purchaser of the estate sold, and the passes to the purchaser." This trust operates to protect the purchaser's interest pending completion, allowing remedies such as to compel conveyance of . The scope of this constructive trust is narrowly confined to the assets subject to the , encompassing the and any associated equities like the 's for unpaid purchase money, without imposing a general duty on the . The acts as a " in a qualified sense only," owing duties limited to preserving the for the purposes of the sale and refraining from actions that undermine the 's performance, such as encumbering the beyond what is permitted. This limitation prevents the trust from extending to broader obligations, such as accounting for rents or profits derived from the during the interim period unless stipulated in the . The trust's effects thus prioritize the mutual of the agreement over expansive responsibilities. A key illustration of the purchaser's vesting upon exchange of contracts is Rayner v Preston (1881), where occurred after the contract but before completion. The court affirmed that the purchaser holds the beneficial interest from the contract date, entitling them to any proceeds received by the attributable to the , subject to the contract's terms. However, the decision underscored the trust's boundaries by ruling that the vendor is not automatically obligated to maintain insurance or transfer unrelated benefits, emphasizing that the equitable interest does not impose affirmative duties beyond contractual performance. In , the constructive trust in vendor-purchaser contracts retains these historical limits, particularly regarding allocation before completion, where the vendor's role as does not shift the burden of loss or damage to them despite holding legal title. Standard practice confirms that passes to the purchaser upon exchange of contracts, requiring the purchaser to insure the property from that point, while the vendor's duties remain confined to non-interference with the asset. This allocation reflects the trust's remedial focus on enforcing the bargain rather than reallocating comprehensive s, though parties may contractually modify these terms in commercial contexts.

Mistakes in Voluntary Transactions

A constructive trust may be imposed in cases of mistakes in voluntary transactions, such as gifts or settlements, where the donor labors under a fundamental mistake regarding the recipient's identity or the transaction's consequences, rendering the recipient's retention of the unconscionable. In such scenarios, equity intervenes to prevent by declaring a trust over the transferred , compelling the recipient to hold it for the donor's benefit until restitution occurs. This principle is illustrated in Lady Hood of Avalon v Mackinnon 1 Ch 476, where a voluntary appointing income from a trust to the donor's younger daughter was set aside due to the donor's mistaken belief that it would equalize benefits with her elder daughter, unaware of a prior similar appointment; the held the mistake fundamental, as it defeated the donor's purpose, and rescinded the to restore the status quo. Earlier precedents, such as those involving voluntary settlements erroneous as to existing facts, similarly supported equitable relief where the error was basic to the transaction. In modern English law, these principles were clarified in Pitt v Holt UKSC 26, where the held that a voluntary may be set aside for mistake if the donor labored under a serious mistake of fact or as to the legal or practical consequences of the or its effects on the donor's situation, and if it would be unconscionable or unjust to leave the in place. The requirements for imposing such a constructive trust include this serious or fundamental mistake by the donor that goes to the root of the transaction, coupled with the absence of any juristic reason justifying the recipient's enrichment, such that equity deems rescission appropriate through a declaration of trust rather than allowing the transfer to stand. This aligns with broader principles, where mistake vitiates the transfer absent a valid reason for retention. Unlike rectification, which corrects the terms of a to reflect the parties' true intentions without invalidating the transaction, the constructive trust in mistaken voluntary transfers focuses on rescinding the and restoring the original position, without needing to amend the underlying ; this preserves the donor's pending recovery.

Remedies and Practical Use

Tracing Assets and Proportional Recovery

In equitable tracing, which underpins the imposition of a constructive trust, claimants can follow misappropriated property into its product or substitute, asserting a in the identified asset. This contrasts with tracing, which is confined to situations where the claimant retains legal and cannot handle mixed funds or overdrawn accounts. Equitable tracing requires a relationship but enables recovery through complex transactions, such as bank mixes or substitutions. When assets are mixed, such as trust funds commingled with the wrongdoer's money in a , proportional recovery allows claimants to claim a proportionate share of the mixed fund or its proceeds based on their contribution. In Foskett v McKeown UKHL 29, purchasers' funds totaling £20,440 were misappropriated by a and used to pay 40% of premiums on a policy; the held that the claimants were entitled to 40% of the £1,000,580 policy payout upon the trustee's death, treating the policy as a mixed asset subject to equitable tracing. This approach ensures that innocent parties do not bear the loss disproportionately, prioritizing the claimant's proprietary interest over personal remedies. Equitable tracing also accommodates backward tracing, where a withdrawal from a mixed fund precedes the deposit of traceable , provided there is a direct causal link establishing the withdrawn asset as a substitute. This was affirmed in Federal Republic of v Durant International Corp UKPC 35, where the permitted tracing bribes into purchased with loan funds repaid using the misappropriated assets, rejecting chronological barriers if the transactions form a coherent scheme. Backward-forward tracing extends this by combining backward steps with forward substitutions, facilitating recovery in intricate financial flows like overdrafts or circular payments. Tracing is subject to limits to prevent overreach. The lowest intermediate balance rule restricts a claimant's recovery to the lowest balance in the mixed account after the deposit, presuming that any depletion below that level exhausts the traceable interest; this was applied in Bishopsgate Investment Management Ltd v Homan Ch 211, where funds traced into an overdrawn account were limited by the rule to protect innocent account holders. Additionally, defenses such as change of position may apply in limited circumstances to proprietary claims, allowing a recipient to reduce liability if they detrimentally altered their position in upon receipt, though it does not defeat the claimant's interest in identifiable substitutes.

Advantages in Equitable Relief

One key advantage of imposing a constructive trust lies in its provision of , which grants the claimant an in specific rather than merely a personal claim for monetary compensation. This nature ensures that the claimant's attach directly to the asset, protecting it from the defendant's subsequent disposal or . In cases of the defendant's , this allows the claimant to recover the asset in full, prioritizing them over general unsecured creditors who would otherwise share in the estate. For instance, if traceable forms part of the bankrupt estate, the constructive trust removes it entirely, enabling specific restitution without dilution by other claims. The flexibility of the constructive trust as an further enhances its utility, as courts can tailor it to the demands of in individual circumstances, unbound by rigid formulas. Unlike fixed legal remedies, it permits varied outcomes such as the of profits derived from the wrongful holding or the direct return of the asset, adapting to prevent effectively. This adaptability stems from equity's focus on substantive over form, allowing imposition where personal remedies like would prove inadequate or where the defendant's conduct warrants consequences. Constructive trusts also overcome key limitations of alternative remedies, such as the need for formalities in property transactions or the shortcomings of pure restitutionary claims. Under provisions like section 53(2) of the in , no writing or other formalities are required for their creation, as they arise by to enforce equity's principles. This bypasses evidentiary hurdles that might bar recovery under statutory rules, such as the , and addresses situations where restitution alone fails to reverse enrichment due to asset or third-party transfers—often resolved through brief reference to tracing techniques. A practical illustration of these advantages occurs when a uses stolen funds to purchase . In such scenarios, courts impose a constructive trust over the acquired asset, securing the claimant's proprietary interest despite the lack of formal title transfer and shielding recovery from the 's , thereby ensuring the original owner reclaims the specific or its traceable proceeds.

Criticisms and Limitations

Institutional vs. Remedial Debate

The debate over whether constructive trusts function as institutional or remedial mechanisms centers on the timing, nature, and judicial role in imposing such trusts, with significant implications for property rights and . In the institutional view, predominant in , a constructive trust arises automatically by at the moment of the wrongful conduct, imposing immediate duties on the without retrospective judicial . This approach treats the trust as a substantive , where the court's role is declarative, identifying a pre-existing equitable based on settled principles. A seminal illustration is Westdeutsche Landesbank Girozentrale v AC 669, where Lord Browne-Wilkinson emphasized that institutional constructive trusts operate from the date of the circumstances giving rise to them, contrasting this with remedial alternatives that would allow courts to fashion remedies prospectively. Under this framework, the trust's existence is not contingent on judicial intervention but on objective facts, ensuring predictability in property dealings. In contrast, the remedial view, more commonly adopted in the United States and , conceptualizes the constructive trust as a flexible imposed by the court at the time of judgment to prevent or unconscionable retention of property, without implying any prior fiduciary duties or automatic proprietary effects. Here, the trust serves as a tool for restitution, declared prospectively to achieve in individual cases, often in the absence of traditional trust relationships. For instance, in Canadian jurisprudence, the in Rawluk v Rawluk 1 SCR 70 recognized remedial constructive trusts to remedy in family property disputes, allowing courts discretion to impose proprietary relief tailored to the equities. Similarly, U.S. courts have employed this approach in claims, such as where a profits from mistaken payments, treating the trust as a remedial device rather than an institutional one. This perspective prioritizes remedial flexibility over rigid rules, enabling judges to address novel circumstances without straining traditional fiduciary doctrines. Criticisms of the remedial approach highlight its potential to introduce uncertainty and undermine the stability of property rights, as discretionary imposition could retroactively affect third-party interests without clear prior notice. English courts, in particular, have rejected it on grounds that it exceeds judicial authority by resembling legislative redistribution, as noted in Foskett v McKeown 1 AC 102, where proprietary rights were deemed governed by fixed rules rather than remedies. Conversely, the institutional model faces critique for overreach, particularly when applied to non-fiduciary relationships, potentially imposing unintended trust duties that rigidify equitable relief and disadvantage innocent parties. Scholars argue this rigidity may fail to adapt to modern complexities, such as informal joint ventures, leading to unjust outcomes. Jurisdictions like have pursued hybrid approaches, blending institutional certainty with remedial discretion to mitigate these tensions. In Baumgartner v Baumgartner (1987) 164 CLR 137, the described the constructive trust as a "remedial " imposed to reflect the parties' joint endeavors in relationships, arising from unconscionable conduct but allowing courts flexibility in quantifying relief proportionate to contributions. This model imposes the trust retrospectively upon finding wrongdoing but permits judicial adjustment of its terms, offering a balanced alternative that influences ongoing scholarly .

Jurisdictional Variations

In the , constructive trusts are institutional in nature, arising automatically by upon the occurrence of a triggering event, such as unconscionable conduct, and imposing proprietary rights from that moment without retrospective judicial discretion. This approach emphasizes strict adherence to formalities, with exceptions only in cases of or clear breaches of fiduciary duty, ensuring the trust serves as a substantive right rather than a flexible remedy. In the United States, constructive trusts function primarily as remedial devices, imposed by courts to prevent or rectify wrongdoing, with significant variations across states due to the absence of a uniform federal standard. For instance, in , courts emphasize as a foundational element, requiring proof of a wrongful acquisition or retention of through , mistake, or breach of before imposing the trust. This remedial focus allows judges discretion in tailoring , often prioritizing equitable adjustment over automatic proprietary claims. Canadian law treats constructive trusts as a remedial response centered on , where a claimant must demonstrate a deprivation linked to the defendant's corresponding benefit, but interests may be recognized when monetary remedies are inadequate. The in Soulos v. Korkontzilas extended this to include wrongful conduct independent of enrichment, such as breaches, allowing courts to impose the trust to deter while preserving flexibility in application. In and , constructive trusts operate as an equitable default mechanism to address failed expectations in relationships, particularly where common intentions for shared benefits are unmet due to unconscionable denial of interests. Australian courts impose them remedially to prevent in joint endeavors, with discretion to declare proprietary rights retrospectively, as seen in family property disputes. Similarly, New Zealand jurisprudence recognizes them to enforce accountability in relationships or fiduciary failures, blending institutional elements with remedial discretion to align outcomes with equitable principles. Cross-border cases involving constructive trusts face challenges, as differing institutional versus remedial characterizations complicate recognition and of proprietary rights across jurisdictions, often requiring choice-of-law analysis to determine applicable standards.

Recent Developments

Key Cases from 2020 Onward

In 2024, the in In re Trust A & Trust C addressed the imposition of a constructive trust in the context of a trustee's alleged breach of . The case involved a who sued the for improperly transferring assets out of family trusts, seeking a constructive trust to recover those assets. The Court reversed the lower court's order granting the constructive trust, holding that such a remedy is extraordinary and should only be imposed when necessary to prevent or to effectuate justice, particularly where legal remedies are inadequate. The decision emphasized the limited role of constructive trusts over existing trust property, cautioning against their use as a routine tool in intra-trust disputes without clear evidence of wrongdoing that demands equitable intervention. In the , the Supreme Court's 2025 decision in Stevens v. Hotel Portfolio II UK Ltd UKSC 28 provided significant clarification on dishonest assistance in breaches of constructive trusts, particularly regarding trustee duties and remedies in complex fiduciary scenarios. The case arose from a 's secret profits obtained through unauthorized transactions, where the dishonest assistant facilitated the dissipation of those profits held on constructive trust for the principal. The Court ruled that a dishonest assistant is personally liable to account for both their own profits and the full value of dissipated trust property, even if the assistant did not directly benefit, thereby expanding equitable compensation to include proprietary and personal remedies. This ruling, while not directly tied to media breaches, has implications for follow-up proceedings in cases like Various Claimants v. Associated Newspapers Ltd EWHC 1716 (KB), where ongoing claims involving breaches of trust in information-handling duties underscore heightened accountability for accessories in fiduciary misconduct. The Court of Appeal's 2022 ruling in Hudson v. EWCA Civ 1648 examined constructive trusts in cohabitation disputes, focusing on whether common intention could establish beneficial interests beyond legal formalities. The case centered on a former couple's jointly owned property, where the claimant argued for a greater beneficial share based on an inferred agreement from their relationship dynamics and contributions. Overturning the High Court's finding, the Court held that detrimental reliance remains a core requirement for a common intention constructive trust, rejecting the notion that domestic intentions alone suffice without evidence of acts taken to one's detriment in reliance on the shared understanding. This decision reaffirmed the need for objective proof of reliance, such as financial sacrifices or changes in position, to elevate informal arrangements into enforceable equitable interests. These post-2020 cases collectively reflect increased judicial scrutiny of proprietary remedies like constructive trusts, particularly in contexts where claimants seek to prioritize assets over general creditors. Courts have emphasized restraint to avoid undermining statutory distribution schemes, requiring stringent proof of necessity and wrongdoing before imposing such trusts, thereby balancing equitable relief with broader principles. In recent years, courts have increasingly employed constructive trusts as a remedial tool in cases, particularly for asset recovery in scams. For instance, in the 2024 English decision D'Aloia v Persons Unknown EWHC 2342 (Ch), the claimant successfully traced stolen USDT tokens through analysis, leading the court to consider imposing a constructive trust on an exchange that received the funds if knowledge of the could be established, though the claim ultimately failed due to insufficient proof of retention. Similarly, in , federal courts have granted temporary restraining orders imposing constructive trusts over traceable digital assets in civil crypto fraud suits, as seen in Luan Pham Doan v. Doe Defendants (S.D. Tex. 2025), where a victim recovered access to $10 million in by demonstrating irreparable harm and traceability. This trend reflects a broader remedial shift toward proprietary remedies to counteract the and of crypto transactions in scams reported to exceed $4 billion globally in 2024. Emerging applications of constructive trusts extend to environmental and climate-related fraud, where courts impose them to secure assets for remediation. In Neighbors for a True Oasis v. Village of Port Washington North (N.Y. Sup. Ct., filed May 2024), petitioners invoked the alongside requests for a constructive trust over a 7.45-acre forested area threatened by development, arguing that failure to account for and urban heat effects constituted at the public's expense. Such uses highlight the remedy's adaptability to cases involving fraudulent of environmental impacts, enabling proportional recovery of polluted or exploited assets amid rising litigation. The integration of constructive trusts with frameworks, particularly in breaches, shows influence on jurisdictions, where misuse triggers equitable remedies. Under the 's (GDPR), which shapes approaches post-Brexit, courts have begun recognizing constructive trusts over ill-gotten profits to vindicate rights akin to property interests. For example, in analyzing breaches under and duties, victims may recover via constructive trust to prevent unjust retention of benefits from unauthorized access, as discussed in comparative analyses of transatlantic enforcement. This convergence emphasizes conscience-based relief for violations, with principles informing decisions in the UK and to impose trusts on entities profiting from invasions. Interactions between limitations statutes and constructive trust claims have clarified time bars in recent rulings, balancing remedy access with finality. In Canada, the Ontario Court of Appeal in Ingram v. Kulynych Estate (2024 ONCA 678) held that claims for constructive trust via unjust enrichment against estates are subject to a two-year limitation under s. 38(3) of the Trustee Act, rather than the longer real property period, to facilitate prompt estate administration; the respondent's claim, filed over four years after the deceased's 2017 death, was thus barred. In the UK, s. 21(3) of the Limitation Act 1980 imposes a six-year bar on recovery of trust property, applicable to constructive trusts unless fraud is involved, as reaffirmed in 2025 guidance emphasizing its role in equitable claims. These decisions underscore a trend toward stricter temporal limits for remedial constructive trusts while exempting institutional ones from bars in fiduciary fraud contexts. The extension of constructive trusts to digital assets, including NFTs and , marks a significant evolution in tracing methodologies within . Emerging cases demonstrate courts' willingness to treat cryptocurrencies as traceable subject to constructive trusts, as in Bellis v. Unknown Persons (D.N.J., July 2024), where a $430,000 of and Solana prompted a TRO imposing a trust over identified wallet addresses via forensic evidence. This approach facilitates recovery in NFT by equating non-fungible tokens to unique chattels, allowing proprietary claims against exchanges or mixers that retain or dissipate assets unconscionably, despite challenges in proving knowledge. Looking ahead, predicts greater emphasis on as the core rationale for constructive trusts amid economic uncertainty, prioritizing equitable intervention in volatile markets. With and risks amplifying opportunistic enrichments, courts are likely to invoke the remedy more assertively in disputes involving breaches or , as advocated in recent recasting as an affirmative cause for proprietary relief. This shift, evidenced in 2025 analyses, positions constructive trusts as a stabilizing tool against economic inequities, potentially expanding their remedial scope in commercial and family contexts.

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  84. https://cms-lawnow.com/en/regzone/articles/2024/09/d-aloia-v-persons-unknown-english-high-court-clarifies-law-on-crypto-and-constructive-trusts
  85. https://www.californialawreview.org/print/unconscionability-as-a-sword-the-case-for-an-affirmative-cause-of-action
  86. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5125261
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