This chapter responds to leading arguments about contract remedies, including the theory of efficient breach, contract interpretation, rules of disclosure (or permitting nondisclosure), consideration, and other topics in contract law. It shows how little progress the law-and-economics movement has made in understanding most areas of contract law, despite the obvious connections between contracts and economics.

This chapter does not purport to provide an exhaustive account of proprietary remedies. It proves a brief remedial overview of how proprietary remedies work. Because proprietary remedies are enforceable against property rather than a specific person, they are advantageous to plaintiffs in the following ways:

• Proprietary remedies are enforceable against third parties (except bona fide purchasers for value of the legal title without notice).

• Some proprietary remedies (constructive trusts) allow plaintiffs to enjoy appreciations in value of property, or to trace into exchange products

• Specific property may be able to be returned (important if property has special value to the plaintiff)

• Proprietary remedies confer advantages in insolvency by conferring priority to the plaintiff or taking property out of the insolvent estate.

Nos. 18604, 18605.Argued April 9, 1965.Decided August 11, 1965.

J. SKELLY WRIGHT, Circuit Judge: J. HOUH, Circuit Judge.***

Appellants in these consolidated cases, Ms. Ora Lee Williams and Mr. and Mrs. William and Ruth Thorne, are residents of predominantly Black and lower-income neighborhoods in the District of Columbia’s northeast and northwest quadrants, respectively. Appellee Walker-Thomas Furniture Company operates retail furniture stores in neighborhoods like appellants’ throughout the District. Over the course of several years, appellants purchased several household items, large and small, from appellee in a series of transactions, the terms of which were set forth in the many written contracts signed by appellants. Each of these written contracts described the items purchased in each transaction and their value.

This chapter examines when a trust becomes fully constituted. It considers the maxim of equity 'equity will not assist a volunteer'. A trust is fully constituted when the settlor either conveys the property to a trustee or declares that he holds the property on trust for named beneficiaries. The trust will only be enforceable when a settlor has done everything in his power to transfer the property according to the nature of the property. In some limited circumstances a trust will be enforceable even where the settlor has not done everything in his power if it would be unconscionable not to enforce it. An incompletely constituted trust may be enforceable by the benficiaries either under teh rules of contract or unusually as a trust of a promise. There are three main exceptions to the rule that equity will not assist a volunteer: the rule in Strong v Bird; a donatio mortis cause and proprietary estoppel.

This chapter considers constructive trusts which are the second type of implied trusts. They arise by operation of law and are imposed in a variety of situations. The chapter considers the difficulties in defining a constructive trust. Some writers consider that they fill a gap in the law and definition is unnecessary. There is a further debate aboutthe use of constructive trusts in England and Wales which is to respond to a number of well-defined situations [an institutional constructive trust] as opposed to other jurisdictions which use constructive trusts as a remedy to reverse unjust enrichment. Constructive trusts have been imposed as a way of enforcing contracts for the sale of land and enforcing rights in the family home. They are also used to address unauthorised gains by a fiduciary which has been a controversial use for many years aswell as an explanation of rights arising under secret trusts and mutual wills. The debate as to why England and Wales does not use the remedial constructive trust is explored in some detail and concludes that in spite of increasingly sympathetic leanings towards the remedial constructive trust it has yet to be adopted in courts in England and Wales.

This chapter examines the circumstances when a stranger to a trust becomes liable as if he is a trustee because he has become involved in some way with a trust. The stranger will be liable to compensate the trust fund for any losses suffered. This is relevant where the trustees canot be found or where a trustee is bankrupt and therefore has no funds with which to compensate the trust fund. There are three instances where a stranger will become liable as if he were trustee: either acting as a trustee de so tort, or knowingly receiving trust property or knowingly assisting in a breach of trust. The test for liability where a third party receives trust property has varied over the years . The test today is based on unconscionability. The test for dishonest assistance is based on an objective test for dishonesty. This is more in line with the criminal test of dishonesty and replaces a combined test which involves a subjective element on behalf of the wrongdoer. Where a third party holds himself as if he were a trustee but intermeddles with the trust property then he may be liable.

Consumer protection law is notoriously imbalanced with respect to the superior ability of sellers to process information as compared to their customers. Yet despite the resulting comprehension asymmetries, the design of consumer contract law and disclosure requirements regularly fail to encourage sellers to communicate meaningfully with the target audience. This chapter explores how consumer protection law tacitly encourages incomprehensibility and proposes reforms which would provide increased incentives for meaningful communication between buyers and sellers.

Consumer protection law is notoriously imbalanced with respect to the superior ability of sellers to process information as compared to their customers. Yet despite the resulting comprehension asymmetries, the design of consumer contract law and disclosure requirements regularly fail to encourage sellers to communicate meaningfully with the target audience. This chapter explores how consumer protection law tacitly encourages incomprehensibility and proposes reforms which would provide increased incentives for meaningful communication between buyers and sellers.