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A Normative Approach to the Quistclose Trust

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)775-811
Number of pages37
JournalModern Law Review
Volume80
Issue number5
Early online date6 Sep 2017
DOIs
Publication statusE-pub ahead of print - 6 Sep 2017

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Abstract

This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law should recognise a trust in addition to any underlying legal relationship. Four key justifications are addressed, based on respecting party intention, unconscionability, fairness, and the incentivisation of desirable transactions. It will be argued that: (i) there are difficulties with each of these justifications, although an intention-focused explanation is probably the most convincing; and (ii) the existing law and commentary lacks coherence and consistency, as seen in the mismatch between normative and doctrinal analysis, and the failure to properly address the ramifications of the Quistclose trust during insolvency.

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