chapter
5 Pages

SECONDSURFACE

The present juridical confusions surrounding the implied trust, paradoxically, in great part arise from the robust attempts made by the judiciary in the past two decades to clarify both the scope of the implied trust and the basic principles upon which the details of rules are grounded. How are we to try and reconcile Lord Bridge's template for what he calls 'constructive trusts'68 with Lord Browne-Wilkinson's outline69 of the basic principles of what he calls 'resulting trusts'?70 Are we to categorise 'common intention' trusts as constructive trusts or, given one reading of the formulation made by both judges, a species of resulting trusts in which 'intention' followed by contribution, or contribution as evidence of 'intention', rather than 'contribution' without an intention to make a gift, is the key index of the presence of a trust? This is not the place to pursue the many formulations which can be gleaned from the present juridical muddle, but it is important to note two things:

(1) At some point, there is going to have to be a decision made, in the courts, as to whether it is possible to formulate and hold together a set of principles, and doctrinal detail, which cover all the contexts in which implied trusts operate.