Constructive Trustee and Express Trustee

Constructive Trustee and Express Trustee

Constructive Trustee and Expressive Trustee

Question

The word “trust” in section 5 of the Trustee Act 1925 (NSW) includes implied and constructive trusts. Further the legislation also prescribes that references to the “trustee” has a meaning corresponding with that of “trust”. Does this mean that the duties of a constructive trustee have been equated with the duties of an express trustee for all purposes?

Introduction

The paper aims to discuss the comprehensive and significant findings of the topic that is whether the duties of constructive trustee have been equated with the expressive trustee. The paper will highlight both the trustees in a detailed discussion. This discussion will bring differentiation between both aspects. The income generated by economic activity cannot remain deposited with the people who carry them out, for the simple reason that the economic activities are inherently a source of financial risks, so if the assets remain with the person carrying out the task, the risks will be reflected on the heritage. On this basis you begin to design security by separating the subject that produces income, and runs the risk by the person who accumulates the income from the property.

It is common to involve individuals who carry out economic activities generating income from companies called "holding". This first moment of asset segregation allows the separation of incomes from operational risks. The capital accumulation is the result of the distribution of dividends from entities that accrue income in the holding company. These accrued incomes will be so protected from the risks characteristic of the business.

This is protection against risk endogenous to the group, but it is not sufficient to protect your assets from exogenous risks arising from the conduct and the commitments made to third parties by the shareholders. The behavior and the commitments made by members against third parties can challenge the social structure of the holding company acting as safe by the accumulation of capital; this possibility can be considered as a risk by all members .

For example, members of a holding company are also members of the same family, if one of the brothers runs into a divorce from his disastrous economic point of view, you will get to share in the ownership of the holding company may take over the former spouse. This possibility could be considered negatively by the other members of the family, hence the need to establish the appropriate target entity holding the property for increased security risks "exogenous" to the business.

The Trust is certainly the institution more adaptable to the ethical demands of capital protection by endogenous and exogenous risks. The proof is that in jurisdictions that practice, the courts use the trust to remedy the injustices in order to allow them to equitable relief, shall be those referred to trust Constructive trusts.

Discussion

In Anglo-American law a special form of ownership, the essence of which is that one person - a trustee manages the property transferred to it by another person the ...