Proprietary Equitable Remedies Flashcards
(12 cards)
What are 2 similar Proprietary Equitable Remedies?
- Equitable Trust
- Equitable Lien
What is ‘Equitable Lien’ also known as?
‘Equitable Charge’
What are 2 categories of Constructive Trust?
a) Involving Misappropriating of property OR acquiring property by diverting opportunity away
b) Bribery or secret commission
When is a Constructive Trust usually imposed?
When fiduciary makes a profit or obtains a benefit in breach of duty
When is an Equitable Lien imposed?
Secure plaintiff’s entitlement to a proprietary remedy
What are disadvantages of a Lien over a Constructive Trust?
Equitable Lien = FIXED AMOUNT
whereas
Constructive Trust = fluctuates in value
When will a Constructive Trust arise?
- Patent might increase in price
What is Tracing?
Not a remedy, but process used to identify a new asset as a substitute for another (e.g. Trust money)
What does Tracing allow the beneficiary to do?
Assert a personal or proprietary right over a new property (e.g. Painting bought by using Trust Money)
What events renders property ‘Untraceable?’
- Property is ‘dissipated’
- Where property is bought by a ‘bona fide’ purchaser, without notice of fiduciary’s breach of duty
Can we still ‘Trace’ Property if mixing has occured?
Yes –> Just make sure to consider what has ‘dissipated’
Can money be traced if Innocent principles have been affected?
YES –> Using Pari-Passu Method
