The Boundaries of Proprietary Claims

Abstract

This paper examines the existing bases of proprietary claims, a pre-existing connection with property and a pre-existing fiduciary relationship, before looking at whether those requirements are properly expanded by other bases. It then suggests that the existing bases are appropriate for a traditional institutional constructive trust, but that it may be appropriate to award a remedial constructive trust on the basis of unconscionability. However, the paper suggests that such an order is not appropriate between commercial parties dealing at arms' length where there is no pre-existing equitable obligations on either party with respect to the relationship with the other.