THE DOCTRINE OF PAROL AGREEMENT TRUSTS AND FRAUD IN EQUITY: AN HISTORICAL-DOCTRINAL ANALYSIS OF EQUITY'S JURISDICTION UNDER THE HEAD OF FRAUD TO IMPOSE TRUSTS ARISING OUT OF PAROL AGREEMENTS

Abstract

This thesis examines, through the most comprehensive historical-doctrinal analysis to date, the nature and extent of equity’s jurisdiction to impose trusts arising out of parol agreements. The central argument of this thesis is that all such trusts are enforced pursuant to a single doctrine of equity which arises to prevent fraud. This doctrine, which is uncovered and elucidated in this thesis, is named ‘the doctrine of parol agreement trusts’. It is argued that the ‘fraud’ which brings the doctrine into play will occur if the recipient of property knowingly reneges on a parol agreement subject to which she took the property and upon which the other party thereto relied. Moreover, it is demonstrated that trusts arising for the prevention of fraud were, until the early twentieth century, not seen as express, resulting or constructive trusts, but that, according to modern nomenclature, they are best regarded as constructive trusts. This thesis also challenges several modern orthodoxies. It is proven that the leading case of Rochefocuauld v Boustead was reported imperfectly, and that all previously presented accounts of the facts are inaccurate. Furthermore, it is categorically demonstrated that secret trusts are enforced for the prevention of fraud, but that this is not inconsistent with the notion that secret trusts are dehors the will. The juxtaposition between parol agreement trusts and related equitable innovations such as mutual wills, proprietary estoppel and ‘common intention’ constructive trusts is also examined, as well as the doctrine’s relationship with contract law and the law of agency, with a view to providing a doctrinal solution to some modern controversies in these areas. The historical-doctrinal relationship between parol agreement trusts and other types of constructive trusts is also examined with surprising results which suggest doctrinal affinities with the liability which affects knowing recipients. Finally, it is suggested that the manner in which modern commentators and some judges have eschewed fraud as a justification for parol agreement trusts and other related trusts may represent an unwelcome development.