Constructive Trusts In Insolvency
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Constructive Trusts In Insolvency
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Author : Anthony J. Duggan
language : en
Publisher:
Release Date : 2016
Constructive Trusts In Insolvency written by Anthony J. Duggan and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016 with categories.
In Canada and the United States, the constructive trust is a proprietary remedy awarded mainly to prevent unjust enrichment or to deter wrongdoing; the remedy gives the plaintiff an equitable proprietary interest in the disputed asset, as opposed to simply a money claim for the value of the asset. This feature of the constructive trust is particularly important if the defendant is insolvent or, by extension, if there is a substantial risk that the defendant may become insolvent before the judgment is satisfied. A constructive trust in insolvency is analogous to a security interest: it allows the plaintiff to take the disputed asset out of the defendant's estate, with the result that the plaintiff recovers in full on its claim. This is at the expense of the estate, which is correspondingly depleted, and the claims of the defendant's unsecured creditors which are, as a result, diminished. The Canadian case law on the availability of constructive trust relief in the defendant's insolvency is unsettled and there is confusion in both the case law and the literature as to the doctrinal basis of the remedy and the relevant policy considerations. It is commonly argued that a key policy consideration is, or should be, whether the plaintiff voluntarily accepted the risk of the defendant's insolvency. But, while popular in restitution circles, this approach is deeply problematic from a bankruptcy perspective. This paper examines the current state of the case law in Canada, identifies and critically analyzes the main theoretical arguments in the literature and suggests the basis on which the courts should approach cases of this kind.
Explaining Constructive Trusts
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Author : Gbolahan Elias
language : en
Publisher: The Lawbook Exchange, Ltd.
Release Date : 2002
Explaining Constructive Trusts written by Gbolahan Elias and has been published by The Lawbook Exchange, Ltd. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2002 with Constructive trusts categories.
Concerned with "rationalizing the rules" (Preface p. v) of constructive trusts, this reappraisal of the English law of trusts discounts two major existing theses regarding the rules (first, that, based on the North American experience, they should be considered as instruments of restitution; and second, that they are disorganized) and advances Elias' new thesis that "the rules should be regarded as instruments for the rational furtherance of three good aims: (1) making disponors abide by their dispositions...(2) making those who gain through loss to others give the gains up to those others...(3) making those who inflict losses on others repair those losses..." (Preface p. v).
Restitution And Insolvency
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Author : Francis D. Rose
language : en
Publisher: Informa Law from Routledge
Release Date : 2000
Restitution And Insolvency written by Francis D. Rose and has been published by Informa Law from Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2000 with Law categories.
The application of restitution and insolvency law has increased in recent years. Theses two areas of law were discussed at the annual conference of the restitution section of the Society of Public Teachers of Law in Leeds in September 1999. The revised papers are joined here by a variety of papers from other sources and explore a range of topical subjects of common interest to restitution and insolvency from theotrical, comparative and practical perspectives.
An Analysis Of Constructive Trusts In Bankruptcy
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Author : R. L. Bunney
language : en
Publisher:
Release Date : 2006
An Analysis Of Constructive Trusts In Bankruptcy written by R. L. Bunney and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2006 with categories.
Proprietary Claims And Remedies
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Author : Malcolm Cope
language : en
Publisher: Gaunt
Release Date : 1997
Proprietary Claims And Remedies written by Malcolm Cope and has been published by Gaunt this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997 with Debtor and creditor categories.
Professor Cope, author of Australia's leading work on constructive trusts, turns his attention to a major problem area for practitioners working in fields of bankruptcy and insolvency - the nature of equitable proprietary claims, the range of such remedies and the rules and presumptions developed for tracing. The first half of his new book is devoted to analysis of these issues, highlighting the effect of claims and the prerequisites for their successful establishment, particularly as regards pre-existing interests and a fiduciary relationship. The second half of the book is devoted to tracing and tracing problems at both common law and equity, particularly the equitable rules and presumptions developed to identify the subject matter of a remedy and to identify value in unmixed and mixed property.
Constructive Trusts In Bankruptcy
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Author : Catherine Heyworth-Smith
language : en
Publisher:
Release Date : 1999
Constructive Trusts In Bankruptcy written by Catherine Heyworth-Smith and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1999 with Bankruptcy categories.
Constructive Trusts
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Author : A. J. Oakley
language : en
Publisher:
Release Date : 1997
Constructive Trusts written by A. J. Oakley and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997 with Law categories.
This edition of a book previously in the Modern Legal Studies series, has been greatly expanded for use by practitioners dealing with cases involving constructive trusts. Case law since the last edition has made the subject an important one. The first practitioner text on this fast developing aspect of trusts law. Previous edition regularly judicially cited in Australia and New Zealand, and recently in England. Includes a discussion of Commonwealth authorities.
Restitution In Bankruptcy
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Author : Hanoch Dagan
language : en
Publisher:
Release Date : 2018
Restitution In Bankruptcy written by Hanoch Dagan and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018 with categories.
Traditional doctrine allows a restitution claimant to bypass the Bankruptcy Code's system of ratable distribution by asserting a constructive trust over a piece of property in the hands of the debtor if this property was wrongfully obtained from the claimant or if it has a transactional lineage to a piece of property which was tainted in such a way. This role of constructive trust of bankruptcy has recently split the circuit courts and is the subject of a fierce academic debate.This Article studies the claims of the doctrine's detractors as well as its supporters and finds them both lacking. Critics too hastily mock the role of constructive trusts in bankruptcy and are too zealous to banish the doctrine from our legal landscape. They ignore the important normative intuition which propels constructive trusts law, namely the idea that involuntary creditors should not be pooled together with voluntary ones. And yet, the traditional defenses offered for the preferred status given to constructive trusts are also hopelessly unsatisfying because they fail to account for its inconsistency with the entrenched denial of priority to garden-variety tort victims.I conclude that the contemporary debate regarding the status of restitution claimants in bankruptcy presents an opportunity to seriously consider a statutory intervention that applies the normative lesson of the traditional role of constructive trusts in bankruptcy: the idea that involuntary claimants should constitute a preferred class.
Proprietary Rights And Insolvency
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Author : Richard Calnan
language : en
Publisher: Oxford University Press, USA
Release Date : 2016
Proprietary Rights And Insolvency written by Richard Calnan and has been published by Oxford University Press, USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016 with Bankruptcy categories.
"This topical title explains the circumstances in which a creditor of an insolvent debtor can take priority over other creditors by claiming a proprietary interest in assets held by the debtor. It focuses on the situation where the proprietary interests are created by operation of law or implied from the arrangements between the parties, rather than by express transfer or taking of security. The book clarifies the current state of the law in an important area of insolvency law (especially in times of economic crisis) where the law is not settled, taking into account the latest developments in case law, and suggesting how it might be simplified by going back to first principles, such as the way proprietary interests are transferred at common law and in equity. The book concerns both insolvency law and property law, being essentially concerned with the limits of the law of property, marking out its boundary with the law of obligations. It is of particular importance in common law systems because of the nature of equitable proprietary interests, and includes reference to Commonwealth authorities where relevant, including Australia, New Zealand and Canada. This work provides a structured and principled analysis of the topical and important area of creditors' proprietary rights in the event of insolvency of a debtor"--Provided by publisher.
The Remedial Constructive Trust
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Author : David M. Wright
language : en
Publisher: Butterworth-Heinemann
Release Date : 1998-01-01
The Remedial Constructive Trust written by David M. Wright and has been published by Butterworth-Heinemann this book supported file pdf, txt, epub, kindle and other format this book has been release on 1998-01-01 with Constructive trusts categories.
