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Thanks very much for your posting, Jason. To answer your question below about remedies for B and C, in English law, B and C would be the beneficial owners of the flat under a constructive trust, but this has nothing to do with unjust enrichment. It is what Elias called a "perfectionary" constructive trust, which arises to perfect an imperfectly realised intention to benefit another person. There are two events that could produce this trust in the facts you related: (1) a specifically enforceable contract of sale and (2) B and C have the transfer documents and the power to obtain legal title without A's help (Re Rose). In common law Canada, they may be out of luck on (1) thanks to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should succeed on (2).

With best wishes,
Rob Chambers
University of Alberta

On 12 Mar 2004, at 6:07 am, Jason Neyers wrote:

My apologies for the double post to RDG and ODG members

For those interested in comparative law there are some interesting articles on global jurist: see "The Canadian Constructive Trust and the French Negotiorum Gestio: Two Institutions Serving one Same Legal Concept ?" at http://www.bepress.com/gj/advances/vol3/iss3/art3; and

"The Protection of the Weak Contractual Party in Italy vs. United States Doctrine of Unconscionability. A Comparative Analysis" at http://www.bepress.com/gj/advances/vol3/iss3/art2.

The House of Lords has also recently released a decision dealing with the Scottish law of trusts in relation to claims in bankruptcy and the "unjust enrichment" that this might cause, see Burnett's Trustee (Respondent) v. Grainger and another (Appellants) http://www.publications.parliament.uk/ pa/ld200304/ldjudgmt/jd040304/ burnet-1.htm.

The facts were as follows: A, the owner, sells her flat to B and C. B and C pay the price to A and, in return, she delivers the relevant title documents to them. B and C take possession of the flat, but do not record their title in the register. A goes bankrupt and, on the basis that the flat remains part of her estate at the date of the bankruptcy, the trustee, who knows of the disposition to B and C, records a notice of title to the flat in the register. B and C then record their title. The House of Lords held that the trustee's title is to be preferred and that he can evict B and C from the flat without repaying the price since time of registry is the criteria of true ownership.

Should there be some sort of remedy for B and C? Would there be a claim in the English or Canadian version of unjust enrichment?