Unjust enrichment and the remedial constructive trust

Abstract

A common misperception, particularly endemic in Irish law but not confined to it, is that unjust enrichment is somehow equal to the remedial constructive trust. It is not. These are both important concepts in the modern law, but they are largely unconnected. Nevertheless, the recent decision of Barr J. in the High Court in Kelly v Cahill 1 [ [2001] 2 I.L.R.M.205 (H.C.; Barr J.); noted Hourican, “The Introduction of ‘New Model’ Constructive Trusts in this Jurisdiction”(2001) 6 (2) C.P.L.J. 49; Peart, “Do The Right Thing” (2001) 95 (4) Law Society Gazette 18. ] has replicated the erroneous equation of these distinct concepts. To (re)establish their separation, section 2 describes the strict, legal and personal nature liability in unjust enrichment; section 3 describes the entirely distinct equitable proprietary remedial constructive trust, and demonstrates that it is necessarily largely unrelated to unjust enrichment; whilst section 4 discusses the reasoning in Kelly v Cahill and considers whether rectification or a more traditional constructive trust could have provided a sounder route to the same result. The conclusion will therefore be that unjust enrichment does not equal the remedial constructive trust,that you can indeed have one without the other.