Washington Law Review


There are myriad instances in the law where courts or legislatures of various states have given precise definition to a certain legal status. Such words as "trustee," "guardian," and "mortgagor" have come to have fixed meanings and definite legal incidents attached to them. Not so fortunate, however, has been the term "escrow holder," or sometimes "escrowee." While courts are generally in accord as to what circumstances will create an escrow transaction, statements of the precise legal status of the escrow holder are noteworthy for their discord rather than their harmony. As yet no court has seen fit to regard the escrow holder as sui generis. Courts persist in finding the legal incidents of the escrow holder's status in terms of other concepts which have already been delineated. This process ultimately leads to what has been called a "jurisprudence of conceptions," a phenomenon which has been assailed as unsound. It is the purpose of this article to examine the plight of the escrow holder with particular reference to a problem which has recently been before the Washington Supreme Court no less than three times, namely: upon whom does the loss fall when an escrow holder becomes insolvent or absconds with the funds of an escrow transaction?

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