1 Agip (Africa) Ltd. v. Jackson [1990] Ch. 264, aff'd [1991] Ch. 547 (C.A.).

2 Brinks Ltd. v. Abu-Saleh (No. 3) The Times, 23 Oct 1995, noted R. Stevens [1996] Conv. 447.

3 Box v. Barclays Bank plc, The Times, 30 April 1998, noted L.D. Smith (1999) 14 Banking and Finance Law Review (forthcoming); McDiarmid Lumber Ltd. v. C.I.B.C. (1993) 94 D.L.R. (4th) 227 (B.C.S.C.).

4 LAC Minerals Ltd. v. International Corona Resources Ltd. (1989) 61 D.L.R. (4th) 14 (S.C.C.).

5 Attorney-General for Hong Kong v. Reid [1994] 1 A.C. 324 (P.C., N.Z.).

6 Goode, R., Commercial Law, 2nd ed. (London 1995), at pp. 48, 277–278Google Scholar.

7 Smith, J.C. and Hogan, B., Criminal Law, 8th ed. (London 1996), at pp. 358, 378Google Scholar.

8 Rt. Hon. SirMegarry, Robert, “Historical Development” in Special Lectures of The Law Society of Upper Canada 1990—Fiduciary Duties (Toronto 1991) 1, 5Google Scholar.

9 There is a narrower sense of “fiction”, well-known to Roman and English lawyers alike, which is confined to matters of pleading but which is also accurately described by the formulation in the text. This narrower sense refers to the making of a false allegation which the other party is not permitted to deny. On the two senses, see Maine, H., Ancient Law (London 1917), at pp. 15–16Google Scholar (this is a repaginated reprint of a book originally published in 1861). For another classification, see L.L. Fuller, “Legal Fictions” (1930–31) 25 Illinois L.R. 363 and 513 and 877, 366–369.

10 In fact he might allege that John Doe had been dispossessed by Richard Roe, fictional lessee of the real defendant. See Baker, J.H., Introduction to English Legal History, 3rd ed. (London 1990), at pp. 341–343Google Scholar.

11 Maine, note 9 above at p. 16; S.F.C. Milsom, “Trespass from Henry III to Edward III” (1958) 74 L.Q.R. 195 and 561, discussing (at p. 223) fictions in the narrower sense (on which see note 9 above): “The aim of fictions … is to keep records straight”; Baker, J.H., “The History of Quasi-Contract in English Law” in Cornish, W. et al., eds., Restitution[:] Past, Present and Future (Oxford 1998) 37, 40Google Scholar.

12 It should always be remembered that no contemporary lawyer was actually deceived by the fiction. This presents a fascinating question, but one which is sociological or psychological rather than legal: who are lawyers trying to fool when they use fictions? The answer seems to be, another part of themselves. See Fuller, L.L., “Legal Fictions” (1930–31) 25 Illinois L.R. 363 and 513Google Scholar and 877, 369, 518–528. Even though contemporary lawyers knew they were false, still fictions can lay dangerous traps for legal historians; see e.g. Milsom, ibid., at pp. 220–221, 586, positing that a series of actions in trespass for injuring horses “with force and arms” actually involved negligence by farriers; Baker, ibid., discussing generally how fictions conceal the development of the law of unjust enrichment.

13 Baker, ibid., at pp. 40–41; Langbein, J.H., “The Later History of Restitution” in Cornish, W. et al., eds., Restitution[:] Past, Present and Future (Oxford 1998) 57, 58Google Scholar. For more on the functions of fictions, see Fuller, ibid., at pp. 513–518.

14 Reeves v. Capper (1838) 5 Bing. N.C. 136, 132 E.R. 1057 (C.P.).

15 Constructive malice was abolished in England by section 1 of the Homicide Act 1957.

16 This, I take to be the orthodox English view; although it does not follow that the trustee of a constructive trust owes fiduciary obligations: see Smith, L.D., “Constructive Fiduciaries?” in Birks, P.B.H., ed., Privacy and Loyalty (Oxford 1997) 249, 263–267Google Scholar. In the U.S. and Canada, it is argued by some that a constructive trust is not really a trust at all. See Dobbs, D.B., Law of Remedies, 2nd ed. (St. Paul 1993), at p. 401Google Scholar: “The constructive trust is not in fact a trust, but a remedy which is explained by analogy to trusts.” Cf. American Law Institute, Restatement of the Law of Restitution, Quasi-Contracts and Constructive Trusts (St. Paul 1937), §160, comment a; Waters, D.W.M., “The Constructive Trust in Evolution: Substantive and Remedial” in Goldstein, S., ed., Equity and Contemporary Legal Developments (Jerusalem 1992), 457Google Scholar; this paper is also at (1991) 10 E.T.J. 334. On this view, “constructive trust” makes perfect sense: “it isn't [a trust], but has to be treated as if it were”.

17 See Jones, N., “Trusts in England after the Statute of Uses: A View from the 16th Century” in Helmholz, R. and Zimmermann, R. eds., Itinera Fiduciae (Berlin, 1998), at p. 177 n. 30Google Scholar.

18 See Lord Nottingham's Prolegomena of Chancery and Equity (in Yale, D.E.C., ed., Lord Nottingham's Two Treatises (Cambridge 1965)Google Scholar), ch. XIV, §5.

19 Ibid., ch. XIV, §§1–2.

20 See Yale, D.E.C., ed., Lord Nottingham's Chancery Cases, Vol. II, Selden Society, Vol. 79 (London 1961), at pp. 124–128Google Scholar.

21 In the Prolegomena of Chancery and Equity, note 18 above, ch. XIII is entitled “Where Trust Shall be Raised by Construction and Implication of Law, and Where Not”; its §6 shows that resulting trusts are considered an example of such, while ch. XIV, §5, to which ch. XIII, §6 refers, confirms that resulting trusts were seen to arise by operation of law. See also Nottingham's manuscript report of his judgment in Cook v. Fountain (1676) 3 Swans. 585, 591, 36 E.R. 984, 987 (also in Yale, D.E.C., ed., Lord Nottingham's Chancery Cases, Vol. I, Selden Society, Vol. 73 (London 1954), 362, 365Google Scholar). Note too that in his manuscript report of his judgment in Grey v. Grey (1677) 2 Swans. 594, 36 E.R. 742 (also in Yale, D.E.C., ed., Lord Nottingham's Chancery Cases, Vol. II, Selden Society, Vol. 79 (London 1961), 481Google Scholar), Lord Nottingham refers to what we would now call a resulting trust as a constructive trust. Whatever may be the present position, the view that resulting trusts arose by operation of law still prevailed in 1737 at the time of publication of the treatise attributed to Henry Ballow: Fonblanque, J., ed., A Treatise on Equity, vol. 2 (London 1794)Google Scholar, ch. V (for discussion of the book, see Macnair, M., “The Conceptual Basis of Trusts in the Later 17th and Early 18th Centuries” in Helmholz, R. and Zimmermann, R., eds., Itinera Fiduciae (Berlin, 1998), esp. at p. 210Google Scholar n. 9, p. 220); see too Lloyd v. Spillit (1740) 2 Atk. 148, 150, 26 E.R. 493, 494, Barn. C. 384, 388, 27 E.R. 689, 690.

22 C.D. Hening, “The Original Drafts of the Statute of Frauds and Their Authors” (1913) 61 U. Penn. L.R. 283 shows that Lord Nottingham drafted what became section 8, and that the phrase quoted in the text was essentially unchanged from his initial bill. This was first read in the House of Lords in 1673, just about the time that Nottingham was writing the Prolegomena: Yale, D.E.C., ed., Lord Nottingham's Two Treatises (Cambridge 1965) at p. 76Google Scholar. See also Costigan, G.P., “The Date and Authorship of the Statute of Frauds” (1913) 26 Harv. L.R. 329.CrossRefGoogle Scholar

23 Note 21 above. Trusts arising by implication of fact were called by Lord Nottingham “presumptive trusts”; see Yale, D.E.C., ed., Lord Nottingham's Chancery Cases, Vol. II, Selden Society, Vol. 79 (London 1961), at pp. 128–129Google Scholar. It would not make sense for section 8 to extend to trusts created intentionally; its function was to disapply the writing requirement imposed by section 7 on intentionally created trusts of land.

24 Another way of looking at this development is that the consensus as to what is connoted by “trust” has changed; it has ceased to include the idea of voluntary creation. But it is not totally clear that there is a stable consensus as to what is left. On one view (Hardoon v. Belilios [1901] A.C. 118, 123 (P.C., H.K.)), the essence of the trust is the split between beneficial title and administrative title; on another view (Westdeutsche Landesbank Girozentrale v. Islington London B.C. [1996] A.C. 669, 705–707 (H.L.), per Lord Browne-Wilkinson), more is required, namely that the trustee be subject to personal obligations similar to those of an express trustee. See P.B.H. Birks, “Trusts Raised to Reverse Unjust Enrichment” [1996] R.L.R. 3, 11–12; Smith, note 16 above, at pp. 265–266; Baker, J.H., “The History of Quasi-Contract in English Law” in Cornish, W. et al., eds., Restitution[:] Past, Present and Future (Oxford 1998) 37, 41Google Scholar.

25 See generally C. Harpum, “The Stranger as Constructive Trustee” (1986) 102 L.Q.R. 114 and 267; S. Gardner, “Knowing Assistance and Knowing Receipt: Taking Stock” (1996) 112 L.Q.R. 56.

26 The phrase is avoided in Royal Brunei Airlines Sdn Bhd v. Tan [1995] 2 A.C. 278 (P.C., Brunei); and see now Paragon Finance plc v. D.B. Thakerer & Co. [1999] 1 All E.R. 400, 409g (C.A.). Recent cases which notice that the phrase sometimes refers to a situation where there is no property held in trust, but do not comment adversely upon it for that reason, include Westdeutsche Landesbank Girozentrale v. Islington London B.C. [1996] A.C. 669, 705EF, per Lord Browne-Wilkinson, and Giumelli v. Giumelli, 24 March 1999 (High Court of Australia), para. 4. For criticism of the phrase, see for example Birks, P.B.H., “Trusts in the Recovery of Misapplied Assets” in McKendrick, E., ed., Commercial Aspects of Trusts and Fiduciary Obligations (Oxford 1992) 149, 154Google Scholar; Burrows, A., The Law of Restitution (London 1993), at p. 151Google Scholar; Martin, J.E., Hanbury and Martin[:] Modern Equity, 15th ed. (London 1997), at p. 293Google Scholar; SirMillett, Peter, “Restitution and Constructive Trusts” in Cornish, W. et al., eds., Restitution[:] Past, Present and Future (Oxford 1998) 199, 200Google Scholar; Millett, Lord, “The Law of Restitution: Taking Stock” (1999) 14 Amicus Curiae 4, 6–7Google Scholar.

27 Hayim v. Citibank NA [1987] A.C. 730 (P.C., H.K.); Parker-Tweedale v. Dunbar Bank plc (No. 1) [1991] Ch. 12 (C.A.); Bradstock Trustee Services Ltd. v. Nabarro Nathanson [1995] 1 W.L.R. 1405. It is no exception to this principle to observe that the beneficiary can force the trustee to pursue a claim which the trustee holds against a third party, by suing the trustee and the third party together. This procedure is just the modern equivalent of obtaining an injunction against the trustee requiring him to sue the third party. It does not disclose any direct claim by the beneficiary against the third party; if anything, it reinforces the view that a beneficiary can generally only sue his trustee.

28 Here again we see the continuing influence of the original conceptualisation of the trust as extending only to express trusts. The idea that one's remedies should be limited by the logic of the trust makes very little sense to someone whose trust is a constructive one, arising say following a fraud. But on the orthodox view, it is still a trust, and so must have some characteristics in common with express trusts. More importantly, this plaintiff is not bound by the logic of the trust; rather, the (constructive) trust is merely one tool available to her. For example, while the beneficiary of an express trust will not generally be able to deploy a negligence theory against a third party even if the latter was aware of the trust (Parker-Tweedale v. Dunbar Bank plc (No. 1) [1991] Ch. 12 (C.A.)), the victim of a fraud can simply set aside the trust theory, or use it as an alternative, while attempting to rely on negligent causation of pure economic loss.

29 See note 25 above; and for further citations to articles, Smith, L.D., The Law of Tracing (Oxford 1997), at p. 373Google Scholar n. 16.

30 See for example P.B.H. Birks, “Misdirected Funds: Restitution from the Recipient” [1989] L.M.C.L.Q. 296; L.D. Smith, “W(h)ither Knowing Receipt?” (1998) 114 L.Q.R. 394. The most recent word from the House of Lords is that cognition is required: Westdeutsche Landesbank Girozentrale v. Islington London B.C. [1996] A.C. 669, 707D, per Lord Browne-Wilkinson.

31 Lord Nicholls of Birkenhead, “Knowing Receipt: The Need for a New Landmark” in Cornish, W. et al., eds., Restitution[:] Past, Present and Future (1998) 231Google Scholar; J. Martin, “Recipient Liability after Westdeutsche” [1998] Conv. 13.

32 Note 8 above.

33 In the context of fictions, Maine said (note 9 above, at p. 16): “I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order.”

34 Notes 25–26 above.