Resulting Trusts

Abstract

'The law with regard to resulting trusts is not in doubt.' This is commonly said of the resulting trust and may explain why it has received so little attention in recent years, especially in comparison with the constructive trust. Most of the current academic writing about the resulting trust is found in the established textbooks on equity and trusts and these tend to provide little more than catalogues of the situations in which the resulting trust arises. However, these externalities mask a widespread uncertainty about the true nature of the resulting trust. There is no consensus on the principle by which the resulting trust operates, including the fundamental question whether it arises by operation of law or depends upon the presumed intention to create a trust. This uncertainty interacts with another. Although it is widely believed that equity's weapon against unjust enrichment is the constructive trust, it is not clear why this work is not at least in part ascribed to the resulting trust. This book examines the true nature of the re.suiting trust and the question whether the trusts brought into being to reverse unjust enrichment should not include resulting trusts. It then considers whether the resulting trust, when properly understood, might not be equity's contribution to reversing unjust enrichment. 1