Mutual intention and Quistclose trusts

Abstract

It is said that Quistclose-type trusts depend on the mutual intention of the parties. This article argues that no such requirement exists and that there are good reasons for treating the intentions of the transferor and recipient individually. By separating the first question of whether a trust was created (or would have been created) from the second question of whether the recipient took subject to a trust, we can also explain why and when Barnes v Addy personal liability will be available after breach of a Quistclose trust.