How much of a trust is a constructive trust?

Abstract

Is the constructive trust really a trust? To answer this simple question, it is essential to understand the current meaning of the constructive term. There are many different meanings applicable to this term. Different jurisdictions (and different cases within the same jurisdiction) emphasize different aspects of the term. Outside of the USA, where a purely remedial approach is taken to the constructive trust and so it is not envisaged as a trust, then the question remains; is it a trust? In a very recent article Swadling has answered this question in the negative. However, his very important and well considered argument is not totally convincing. On balance, the constructive trust, even the Australian remedial constructive trust, remains a trust.