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On Rob's question, perhaps the Irish case of Re Barrett Apartments [1985] IR 350 is of some relevance. The case is seen as establishing that a purchaser of land gets an equitable lien to secure the return of purchase money paid if the contract is unenforceable through no fault of his own. This gives the purchaser priority as a secured creditor if the vendor is insolvent. However, the Sup Ct did not give the same favourable treatment to an intending purchaser who had paid a booking deposit to the developer of a housing estate to reserve a house. The Supreme Court required a "legally enforceable" contract but not a specifically enforceable contract.

On a different point, I was interested by Lionel's comment that the beneficial interest passes "if and to the extent that the purchaser has paid the purchase price to the vendor". If this refers to the traditional category of vendor as (modified form of) constructive trustee, then, on my understanding, this represents Irish law (Tempany v Hynes [1976] IR 101; a much criticised decision of the Irish Supreme Court) but not English law. Under English law, the beneficial interest is regarded as passing prior to the payment of the purchase price (with some debate as to whether it passes at the date of the contract or at the time at which the contract is shown to be specifically enforceable by the vendor showing good title or the purchaser agreeing to accept what title the vendor can show; if the latter is the case, then the constructive trust is seen as retrospective to the date of the contract, thus reducing the significance of the distinction between the two options).

Was Lionel addressing a different situation (perhaps the one to which Rob's question refers) - or is the effect of the dicta in Semelhago v Paramadevan [1996] 2 SCR 415 (mentioned by Rob) to suggest that Canadian law differs from English law (and is along the lines of Irish law) on the vendor-as-constructive-trustee point?

Regards
John

-----Original Message-----
From: Rob Chambers
Sent: 13 March 2004 16:53
Subject: [RDG:] Comparative Law

Perhaps this discussion should be continued outside the RDG, but I have one further question. I appreciate that the relationship changes once the purchase price has been paid in full (or perhaps tendered) and the purchasers are in a position to call for conveyance of legal title, but would payment of the purchase price generate a constructive trust if the contract was not otherwise specifically enforceable?