Remedial Consistency and Constructive Trust Claims

Abstract

This article applies the concept of remedial consistency – consistency of a remedial right with a primary right – to the case of proprietary claims in the form of a constructive trust. The article explains how the concept of remedial consistency applies to the trust and to the constructive trust and the difference between breaches of duty and invalid transfers with respect to remedial consistency, and it applies the approach to three types of case: mistaken and unauthorised payments, fiduciary profits, and proprietary rights of cohabiting partners in the family home. It argues that the suggested approach can resolve some longstanding academic controversies and some practical problems in these areas.