New Zealand’s high rate of discretionary trust usage is mirrored by a significant number of attempts to penetrate the ring-fence created by trusts in order to provide some recourse for creditors, spouses and de facto partners of the settlors. This chapter considers a recent line of cases that has shown the courts’ willingness to recognise the application of a constructive trust to property already held subject to an express trust. The constructive trust is said to arise in response to the reasonable expectations of the third-party claimant of an interest in the property in return for various contributions made. This is so even despite one or more of the trustees having no knowledge of the expectations and/or the contributions. The courts have viewed themselves as departing from trust orthodoxy in these cases, saying that ‘traditional rules…must bend to the practical realities’. This paper will examine the cases and analyse whether they are in fact a departure from trust principles and whether such departure is justified. The author argues that there are two main objections to this development: one relating to the nature of the beneficial interest and the other to the remedy being awarded.

This chapter briefly examines contract law trends over the past 200 years or so. The chapter explores the development of the common law of contract, identifying the broad shift from the classical law of the 1800s to the neo-classical law characteristic of the second half of the twentieth century. By the second half of the twentieth century, thanks to the rise of the consumer and empirical evidence demonstrating the minor role played by contracts and contract law in business practice, the classical law model appeared to be under considerable pressure from realist and contextualist rivals that stressed the life of a contract outside its formal express terms. The shift to a more standards-based, neo-classical contract law in response to these tensions was not easily confined to consumer contracts, and there was plenty of scope for importing the broad values of ‘consumer-welfarism’ into commercial contracts. The move to a contextual method of interpretation and the willingness to relax doctrines such as consideration in response to business realities suggested further classical law disintegration. The chapter notes that this process now seems to have gone into reverse.

This chapter outlines several ways that autonomous organizations will put pressure on existing law and will perhaps require accommodations from the law in the future. In particular, legal concepts like fraud that require “intent” may become less workable as more legal action is taken by systems that lack the capacity for intent. Moreover, if perpetually autonomous organizations become more commonplace, the law will need to pay attention to the possible drift between their initial operating agreements and future states of affairs, whether because of the possibility of “hacking” or simply because general circumstances have unexpectedly changed.