As detailed below, ex ante review would be tied to later presumptions of constructive fraud
, would be performed by an independent third party, and would provide opportunity for opposition from existing creditors.
As discussed above, the Bankruptcy Code only limits recovery of transfers to charitable organizations under a constructive fraud
theory thus, under 54a, when transfers were made with "actual intent to hinder, delay, or defraud" (9) any creditor, a charitable organization is not permitted to retain transfers.
is that a constructive fraud
case may insulate some, or all, of a
As a result of Zuckerberg's constructive fraud
, all consideration received by him or was promised to him in exchange for the General Partnership's assets, including, but not limited to, cash, stock, stock options, restricted stock units and/or any other consideration, were received, and continue to be held, by him in constructive trust for the benefit of the General Partnership and Ceglia as a 50% owner of the General Partnership.
The court also found that the manufacturer merely made statements of opinion about how the product would perform in the future, which could not be the basis for actual or constructive fraud
Unlike actual fraud, which requires a dishonest purpose or intent to deceive, constructive fraud
is the "breach of a duty that--irrespective of moral guilt--the law declares to be fraudulent because of its tendency to deceive others.
Although there may be no consensus on the precise normative basis for avoiding transfers of property or the incurrence of obligations by an insolvent debtor for less than reasonably equivalent value, there does seem to be a general consensus that fraudulent transfer law, including the constructive fraud
rules, should be retained.
Elliot and Willingham (1980) state that the law distinguishes between actual fraud, which is intentional, and constructive fraud
, which is not deliberate.
A North Carolina court of appeals ruled that shareholders of a corporation could maintain a constructive fraud
action against an accounting firm.
would include a transfer of assets for less than fair consideration, which leaves the transferor either insolvent with an unreasonably small amount of capital, or unable to pay its debts when they become due .
Paul Oetken let stand the fraud, breach of contract, negligent misrepresentation and constructive fraud
charges against Charlotte, N.
The CU also charged Reynolds with fraud, constructive fraud
, breach of fiduciary duty and unjust enrichment.