Publication Type
Journal Article
Version
publishedVersion
Publication Date
1-2025
Abstract
In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology is unhelpful for approaching constructive trusts and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided on the basis of pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign their methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.
Discipline
Asian Studies | Estates and Trusts
Research Areas
Private Law
Publication
Asian Journal of Comparative Law
First Page
1
Last Page
15
ISSN
2194-6078
Identifier
10.1017/asjcl.2025.8
Publisher
Cambridge University Press
Citation
TANG, Hang Wu and LIEW, Ying Khai.
Constructive trusts in Malaysia: A methodological reappraisal. (2025). Asian Journal of Comparative Law. 1-15.
Available at: https://ink.library.smu.edu.sg/sol_research/4649
Copyright Owner and License
Authors-CC-BY
Creative Commons License
This work is licensed under a Creative Commons Attribution 3.0 License.
Additional URL
https://doi.org/10.1017/als.2024.22