ABSTRACT
In English law a constructive trust arises by operation of law. That statement implies two things. First, that the constructive trust is imposed by a court in accordance with established principle and not purely at the court’s own general discretion. This English constructive trust is dubbed an ‘institutional’ constructive trust by comparison with the discretionary (or ‘remedial’) constructive trust used in the USA: this distinction is considered below. Secondly, that the constructive trust is imposed regardless of the intentions of the parties involved. This further statement should be treated with some caution because constructive trusts are often enforced in accordance with the intentions of one or other of the parties but without the necessary intention or formality to create an express trust. The term ‘constructive trust’ itself arises from the fact that the court construes that the defendant is to be treated as a trustee of property and it is in this sense that we can say that a constructive trust does not accord with the intentions of the parties because it may be imposed by the court contrary to what they may otherwise have wished if the court considers that to be a necessary response to the defendant’s unconscionable behaviour.16
