Which Side “Ought to Win”? – Discretion and Certainty in Property Law
Walker, Robert
Citation: [2008] Sing JLS 229
Viewed as a remedy, the function of the constructive trust is not to render superfluous, but to reflect and enforce, the principles of the law of equity. Thus it is that there is no place in the law of this country for the notion of 'a constructive trust of a new model' which 'by whatever name it is described ... is ... Imposed by law whenever justice and good conscience requires it.' Under the law of this country - as, I venture to think, under the present law of England - proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about 'which party ought to win' and 'the formless void of individual moral opinion.' Long before Lord Seldon's anachronism identifying the Chancellor's foot and the measure of Chancery relief, undefined notions of 'justice' and what was 'fair' had given way in the law of equity to the rule of ordered principle which is of the essence of any coherent system of rational law.