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In Rochefoucauld v Boustead (1897), Lindley LJ said that the Statute of F auds does not ! event the !

oof of a f aud" and that it is a f aud on the !a t of the !e son to #ho$ the land is conveyed as a t ustee, and #ho %no#s it #as so conveyed, to deny the t ust and clai$ the land hi$self&' Section 53(1)(b) of the Law of Property Act 1925 provides that a declaration of tr st respectin! any land or any interest therein " st be "anifested and proved by so"e writin! si!ned by so"e person who is able to declare s ch tr st or by his will#$ S53(1)(b) indicates that in cases where there is a p rported oral declaration of tr st% it is not void witho t the ele"ent of writin!% b t "erely nenforceable a!ainst the tr stee$ &his re' ire"ent of for"ality can be traced to the forer nner of s53(1)(b)( s) of the Stat te of *ra ds 1+))$ ,t is a proof#% not a validity# for"ality( so the declaration renders the e-press tr st into e-istence and binds parties to it% however% since the beneficiary cannot prove that the tr st e-ists% there is no way for the" to force the tr stee to carry it o t (Penner% Law of &r sts)$ .owever% in Rochefoucauld v Boustead% an oral e-press tr st was enforced a!ainst the tr stee witho t f lfillin! the writin! re' ire"ent$ &he /o rt of Appeal pheld that e' ity will not allow a stat te enacted to prevent fra d to be sed as an instr "ent of fra d#$ &herefore% in order to prove the e-press tr st% parole evidence was incl ded% despite the stat tory re' ire"ent of written evidence in s53(1)(b) (Penner% Law of &r sts)$ &his is 0nown as the doctrine of Rochefoucauld v Boustead and it is reflected in this ' ote !iven by Lindley L1$ .e is essentially declarin! that e' ity abhors the prevent fra d bein! practised se of stat te as an instr "ent of fra d$ &he core f nction of the stat tory for"ality r le is to pon a tr stee by those who fabricate pon the lac0 of writin! is alle!ations of tr st$ 2 t% as Lindley L1 points o t in this case% the insistence on for"ality is not p rs ed to the de!ree that reliance allowed to facilitate fra d by the tr stee hi"self$ &herefore% by "a0in! an e-press oral declaration that fro" the "o"ent of ac' isition 3r$ 2o stead will hold the land on tr st for 3rs$ 4ochefo ca ld( it wo ld be fra d in e' ity if he were to rely on the absence of writin! in order to deny the tr st% which allowed hi" to ac' ire title in the first place$ &h s it was decided in this case% that 3rs$

4ochefo ca ld was beneficially entitled to the s rpl s of the proceeds fro" the sale of the land% after the ded ction of the p rchase price and e-penses inc rred by the tr stee (as per their a!reed condition when the e-press tr st was declared) (5ray 6 5ray% Land Law)$ S53(2) of the Law of Property Act provides that the doc "entary for"ality re' ire"ent does not affect the creation or operation of res ltin!% i"plied or constr ctive tr sts$ , will now disc ss how the i"position of these tr sts phold the doctrine of Rochefoucauld v Boustead (that stat te will not be sed as an instr "ent of fra d) and prevent fra d witho t contravenin! stat te by enforcin! a declaration of e-press tr st$ ,n Hodgson v Marks, a res ltin3! tr st was i"posed where the intentions of the transferor were not pheld$ &he co rt held that altho !h 3rs$ .od!son co ld not have clai"ed an oral e-press tr st d e to s53(1)(b)% the oral a!ree"ent did prove that she did not intend to transfer the whole of her e' itable interest and therefore for"ed a res ltin! tr st of the beneficial interest to her% which wo ld not be affected by s53(1)$ .owever% Hodgson does not fit co"fortably with the cate!ories of the res ltin! tr st$ Swadlin! ar! es that 4 ssell L1#s state"ent abo t res ltin! tr sts is obiter and contends that Hodgson is based on the doctrine of Rochefoucauld v Boustead% and since Rochefoucauld pheld the oral e-press tr st despite s 53(1)(b)% Swadlin! ar! es that Hodgson v Marks sho ld have followed s it$ A "ore convincin! ar! "ent is that Hodgson v Marks sho ld be covered by a constr ctive tr st since the case fits "ore co"fortably with a constr ctive tr st( there is no non7co"pliance of any stat tory re' ire"ents (s53(2) LPA 1925) (altho !h "any co""entators a!ree with this point% it is re!arded as fallacio s in Penner#s Law of &r sts# which clai"s that it is not possible to !ive effect to an e-press declaration of tr st for the reason that not to do so wo ld !ive rise to a fra d% and then say that the tr st is constr ctive arisin! by operation of law)( and it wo ld benefit fro" the nderlyin! ai" of the constr ctive tr st to do 8 stice on a broad scale (. dson% 9' ity 6 &r sts)$ 9' ity enforces a constr ctive tr st where so"eone has cond cted the"selves in s ch a way that it wo ld be ine' itable to allow the to deny the other party a beneficial interest in the land (5issin! v 5issin!)$ &he i"position

of a constr ctive tr st re' ires: a bar!ain or co""on intention( a chan!e of position or detri"ental reliance and e' itable fra d or an denial of ri!hts$ &he rise of the constr ctive tr st has obsc red the principle of enforcin! the oral e-press tr st despite the stat tory for"ality provision (Penner% Law of &r sts)$ &his can be seen clearly in the case of Bannister v Bannister, which is si"ilar to Rochefoucauld as the fra d consisted of relyin! pon the lac0 of writin!$ .owever% Scott L1 described the tr st as a constr ctive tr st rather than the oral e-press tr st% which he was clearly enforcin! despite s53(1)(b)$ Altho !h he does not !ive a reason for doin! so% acade"ics believe that it is beca se constr ctive tr sts do not disre!ard stat tory for"alities$ .owever% this is dee"ed fallacio s reasonin! in Penner#s Law of &r sts# which clai"s that it is not possible to !ive effect to an e-press declaration of tr st for the reason that not to do so wo ld !ive rise to a fra d% and then say that the tr st is constr ctive arisin! by operation of law$ &he possibility of a constr ctive tr st arsin! in Rochefoucauld v Boustead is co""only debated as this wo ld prevent the se of the stat te as an instr "ent of fra d as well$ ,n Yaxley v Gotts% fra d lent behavio r relatin! to the reliance on s2 of the Law of Property (3iscellaneo s Provisions) Act 19;9 to avoid an oral a!ree"ent bein! effective led to the deter"ination that the clai"ant was entitled to relief nder the doctrine of proprietary estoppel% which was not necessarily invalidated by s2 of the 19;9 Act$ &he appellants ar! ed that the doctrine co ld not validate an a!ree"ent rendered void by s3 of the 19;9 Act$ &he principle in .alsb ry#s laws% which essentially states that the doctrine co ld not validate an a!ree"ent rendered void by s2 of the 19;9 Act% was relied on$ ,t was held% however% that the doctrine was not invalidated by the Act% beca se it wo ld be abs rd if a constr ctive tr st% which is very si"ilar to the doctrine of proprietary estoppel% co ld provide a proprietary re"edy and the doctrine co ld not$ Additionally% it was held that since Parlia"ent did not view a constr ctive tr st as nder"inin! any policy that led to the creation of the Act( the sa"e sho ld be tr e of the doctrine of proprietary estoppel where the facts co ld e' ally s pport a constr ctive tr st$ &herefore% there is scope for the application of the doctrine of proprietary estoppel in preventin! stat te nconscionable

fro" bein! sed as an instr "ent of fra d$ ,n three7party cases% where A transfers land to 2 constr ctive tr st approach "ay be bare tr st for A which prevents 2#s pon tr st for /( the sed in ways which "ost 8 stify the

circ "stances$ *or e-a"ple% in so"e cases the constr ctive tr st co ld be a n8 st enrich"ent( in others it co ld carry nenforceable e-press tr st$ o t A#s intention by incl din! the ter"s of the

&he for"er is preferable beca se as well as the bare tr st co"plyin! with stat te% it does not enforce the e-press tr st and 2#s fra d is prevented$ A constr ctive tr st in favo r of / can be fo nd when / has relied to his detri"ent either beca se of a representation by A or beca se 2 has acted to carry o t the tr st$ &his is partic larly relevant where A "a0es a self7 declaration of tr st for /% beca se A cannot defra d hi"self$ &his 8 stifies Rochefoucauld, which itself is a self7declaration case$ 2y !rat ito sly pro"isin! to b y the estates for Rochefoucauld, 2o stead co ld be held a settlor of the tr st( and the ca tionary p rpose wo ld allow hi" the findin! of a non7e-istent tr st% beca se it wo ld not be fra d pon 4ochefo ca ld if a !rat ito s pro"ise had not been f lfilled$ .owever% the co rts findin! that 2o stead had been !ivin! effect to the e-press tr st which 4ochefo ca ld had relied pon in so"e way% shows that the decision "ade to enforce the declaration of e-press tr st and the doctrine res ltin! fro" it are correct$ (Penner%Law of &r sts)$