constructive trust
noun · Bereicherungsanspruch
No German equivalent, and the gap has a price. Equity imposes a constructive trust as a proprietary remedy that gives priority in insolvency; German law offers a personal claim, § 812 BGB, that ranks as an ordinary insolvency claim unless a right to separate the asset exists.
Which translation, when
Why
Constructive trust has no German counterpart because it is a creature of equity, and equity is the second system German law never built. In England the court imposes a constructive trust by operation of law, for instance on a fiduciary who profits or where property is held against conscience, and its bite is proprietary: the claimant has a right in the very asset, which gives priority over unsecured creditors if the holder goes insolvent. German law reaches similar situations with personal claims, above all the Bereicherungsanspruch of § 812 BGB, the claim to surrender an enrichment obtained without legal ground. But a personal claim is not a right in the asset: in the holder’s insolvency it ranks as an ordinary Insolvenzforderung and shares the loss. The only way to something proprietary is a right, real or personal, that the asset does not belong to the estate, enforced by Aussonderung under § 47 InsO or, where the asset was sold on, by Ersatzaussonderung under § 48 InsO for its still identifiable proceeds, and an enrichment claim alone does not qualify. So rendering constructive trust as though a trust or a right in the asset arose overstates the claimant’s position exactly where it matters, in insolvency.
Typical mistakes
- A constructive trust gives a proprietary claim with priority in insolvency; its German functional match, the Bereicherungsanspruch of § 812 BGB, is personal and ranks as an ordinary insolvency claim, so the priority does not carry across.
- There is no German constructive trust, so a rendering that implies a trust or a right in the asset overstates the position, priority needs Aussonderung, § 47 InsO, which an enrichment claim does not supply.
- Konstruktiver Trust and konstruktives Vertrauen are not German legal language, they are translation residue, and a German lawyer reads them as unchecked machine output.
What matters
Advising on an English judgment that imposes a constructive trust over assets held by a party now facing German insolvency: the proprietary priority does not simply transfer. German law gives a personal Bereicherungsanspruch, § 812 BGB, and priority only through Aussonderung or Ersatzaussonderung, § 47 and § 48 InsO, on a right to separate the asset, which the translation must not silently assume.
What the machine misses
Machine output renders constructive trust as konstruktiver Trust or konstruktives Vertrauen, neither of which is German law, and where it reaches for sense it suggests a trust or a right in the asset. The real German answer is a personal Bereicherungsanspruch, § 812 BGB, which in the holder’s insolvency ranks as an ordinary claim, so the proprietary priority of the English device is lost in the rendering.
Examples
| to impose a constructive trust | einen constructive trust kraft Gesetzes annehmen |
| the assets are held on constructive trust | die Vermögenswerte werden kraft Gesetzes für den Berechtigten gehalten |
| a proprietary claim | ein dinglicher Anspruch |
| a claim in unjust enrichment | ein Bereicherungsanspruch |
More notes on these sections
trust Treuhand
tracing dingliche Surrogation