If the question once was ‘what is the law of CT?’ that time has long since passed and an inquiry from that perspective is fruitless; the CT now an amorphous mass modified throughout four jurisdictions ostensibly achieving the same purpose.[1] That purpose is often oversimplified to the administration and balance of property rights writ fairness and justice, versus certainty and predictability. I argue its purpose goes far deeper, harking to the balance struck between recognition of equitable rights in Chancery and common law rights at Law.[2] CT jurisprudence and their use by practitioners and judiciary has become so disunited from its historical origins that CT was described at the International Trust Litigation Conference as “somewhere between a trust and a catchphrase”,[3] albeit one with hefty proprietary consequence and less a throwaway line. The CT of the 18th and 19th centaury was, surprisingly predictable to plead at Chancery, and a right at Equity with clearly definable bounds.[4] Texts of that era did not contain the uncertainty of this generations Equity commentary or case law.[5] Wholesale revision is needed.

[1] G. Virgo, “The Genetically Modified Constructive Trust” (2016) CJCCL 2(2) 579; specifically, Australia, New Zealand, England, and Canada. Although my thesis only focuses on the former three.

[2] See Lord Denning in Central London Property Trust Ltd v. High Trees House Ltd [1947] 1KB 130; contrast with the approach of Mackinnon LJ in Salisbury (Marquess) v. Gilmore [1942] 2KB 38 in following Jorden v. Money [1845] 5HL Cas 185; P.J. Millett “Equity – the Road ahead” (1995/96) 6 KCLJ 1, reprinted (1995) 9 Tru LI 35.

[3] Bruce Collins Q.C. Geneva 17 June 2014: Trust & Trustees 20(10) 1055.

[4]Anonymous, A Manual of Equity Jurisprudence, as Administered in England, founded on the “Commentaries of Joseph Story”, and comprising a numerous collection of points constantly occurring in “The General Practice of a Solicitor by Josiah W. Smith” (London: V. and R. Stevens and G. S. Norton, 1845) 118.

[5] I have surveyed the original editions of Story, Snell, Lewin, online and in the rare books section and compiled a list of CT and implied trust definitions. Indicating where they diverge on matters fiduciary, conscience, estate etc.