What Is The Driver Behind The Family Homes Cases Notes

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What is the Driver behind the Family Homes Cases?
Intention?

• Fits with the requirement for genuine agreement (albeit inferred) • Problem 1: This would seem to constitute an express trust o Gardner: D's act of conferment will constitute either a declaration of an express trust of land (in the single name scenario),  or a disposition of a subsisting beneficial interest (in the joint names scenario).  The law requires that acts taking these particular forms must be done in writing. • Writing is characteristically missing from the cases in which we are interested. • Therefore, w/o writing, we cannot argue that the law should give effect to D's act nonetheless, and that doing so is a proper mission for the jurisdiction under discussion, without more. • Problem 2: Equity as an instrument of fraud cannot help this o No need for reliance  Under the suggestion, C needs to rely on the common intention. • This was a requirement of earlier decisions (e.g. Pettit), but was omitted from the account given in Stack v Dowden and Abbott v Abbott. o Problem with the redress  Even if reliance is present, why is right to give effect to that?

• We could give effect to a reliance loss, but it should track C's actual loss, not the whole thing D purported to confer. Reliance loss?

• Fits more easily with the cases - no need for invented agreements • Problem 1: Does not fit the remedy o Gardner: Under our jurisdiction, a genuine common intention that C should have such-and-such a beneficial interest will result in his gaining that interest.  If the project were to redress C's reliance loss, this would be a surprising result • If C only contributed £10,000 to the house, why should they get 50% of it?

• Only sometimes will C's reliance loss be the promised share of the house (e.g. if forewent getting a different house) Redressing Unjust enrichment • What is it? o Gardner:  Unjust enrichment occurs where C enriches D without basis • It's commonly thought that C needs to be aware of the enrichment, but per Birks, it could work if we don't require some "unjust" factor (e.g. mistake) but simply enrichment w/o basis o To enrich another w/o thoughts at all would be enrichment w/o basis • Draws a line between C and D when strangers and when communal relationship o Gardner: Where C and D are strangers, we are disinclined to perceive a transaction between them as having no basis in this way,

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