Contracts for the sale of land and personal property: the equitable interests of the purchaser

Mark Pawlowski, James Brown

Research output: Contribution to journalArticle

Abstract

As property lawyers, we are all familiar with the general principle that a contract for the sale of land, which is capable of specific performance, operates in equity so as to confer a trust on the purchaser pending completion of the sale. Although some controversy exists as to the exact nature of the trust, it is well established that, upon exchange of contracts, equity will ‘‘treat that as done which ought to be done’’1 with the consequence that the purchaser acquires equitable ownership even though full (legal) title to the land will not pass until completion (and registration).
As land is unique, specific performance is readily available in the context of sales of land where damages would, clearly, not be an adequate remedy. The same cannot be said for contracts for the purchase of personal property where invariably the subject matter is not unique and where a substitute can easily be acquired in the open market.
In circumstances, however, where the property is unique or scarce (for example, a rare painting or vintage car), the maxim that ‘‘equity treats as done that which ought to be done’’ may be invoked so as to confer on the seller an equitable obligation to transfer the property to the purchaser in fulfilment of the contract. Where, therefore, the contract is specifically enforceable in this way, the seller, it is submitted, will again hold the property on trust for the purchaser where, as in a contract for the sale of land, there is an interval between the date of the contract and completion of the sale. The notion that a seller holds personal property upon trust for the purchaser pending completion of the sale is admittedly controversial, but this article seeks to argue that the same principles governing equity’s intervention in sales of land should apply in the context of sales of personalty. It is submitted that equity’s role in imposing a trust on the vendor both in relation to sales of land and personalty may be important in safeguarding the interests of the purchaser prior to, as well as after, completion of the transaction.
Original languageEnglish
Pages (from-to)38-48
Number of pages11
JournalNottingham Law Journal
Volume20
Publication statusPublished - 2011

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