Constructive Trusts: Deciphering and Distinguishing 'Institutional' and 'Remedial'

This article attempts to decipher and distinguish institutional constructive trusts and remedial constructive trusts. It argues that the remedial constructive trust is workable as a principled application of unconscionability as a doctrine. The institutional constructive trust, on the other hand, looks to something more than unconscionability. There must be circumstances pointing to a relationship that provided for impairment of title or that there was a common intention to share which impairs title. Unconscionability would then stem from the fact that the defendant is disavowing the prior relationship or agreement, and instead wishes to insist on his strict legal rights. It argues that it is not acceptable to conflate the two concepts together to introduce some form of remedial discretion.