Vendor-Purchaser Constructive Trusts, Transfer of Risks, and Specific Performance
Date & Time: 26 March 2026 (Thursday), 1:30 – 2:30 PM Hong Kong Time
Venue: Rm 723, Cheng Yu Tung Tower, The University of Hong Kong
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The vendor-purchaser constructive trust (or ‘VPCT’) arising from a contract for the sale of a legal estate in land is ancient. In Frenkel v LA Micro Group (UK) Ltd [2024] UKSC 42, [2025] 2 WLR 1, Lord Briggs expressed (by way of dicta) that the VPCT is a constructive trust ‘which typically arises whenever there is an agreement for the sale of property of which equity would grant specific performance’ [emphasis added]. The inference is that the operation of the VPCT is conditioned on the grant of specific performance. Although such linkage between remedy and institution has been challenged repeatedly, given the Supreme Court’s reiteration of the ‘orthodoxy’ in Frenkel, those challenges do not seem to have made much headway. A different approach may, perhaps, be more productive. This seminar re-examines two of the clearest judicial statements supporting the conditional linkage between the VPCT and specific performance availability: Howard v Miller [1915] AC 318 and Central Trust and Safety Deposit Co v Snider [1916] 1 AC 266. It suggests that the law on the VPCT arising from contracts of sale of an estate may be better understood by separating cases where specific performance is refused into two groups: those where the contract never formed or is no longer extant (‘no-contract’ cases), and others; and by according more weight to the proposition that grants of equitable remedies within the court’s exclusive and concurrent equitable jurisdictions should be commensurate. The conclusion is that continued reference to specific performance as had been done in Frenkel should be avoided as it occludes understanding of the VPCT.
Prof Chee Ho THAM is a Professor of Law at the Yong Pung How School of Law, Singapore Management University. Chee Ho researches a wide range of private law topics, including contract remedies, cross-border insolvency, and assignment. His monograph entitled Understanding the Law of Assignment was published by the Cambridge University Press, and he contributes half the chapters in The Law of Contract in Singapore published by Academy Publishing under the general editorship of Justice of Appeal Andrew Phang. Apex courts in the UK, Australia, and Singapore have cited Chee Ho’s work, as has the UK Law Commission. By invitation, Chee Ho acted pro bono as Independent Counsel (formerly ‘amicus curiae’) in DGJ v Ocean Tankers (Pte) Ltd [2024] SGCA 57 to assist the Singapore Court of Appeal. Given Chee Ho’s expertise on the intersection of common law and equity, he was invited to join an initiative of the Malaysian Prime Minister’s Office to reform the Malaysian Contracts Act 1950.
Moderator: David Winterton, Associate Professor, The University of Hong Kong Faculty of Law
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