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Proprietary Remedies in Context - Craig Rotherham

Proprietary Remedies in Context

Hardcover

Published: 23rd April 2002
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There is a tension in English law between the idea that the courts might provide a remedy by creating new property rights and the understanding that the judiciary's role is limited to the protection of existing proprietary interests with the power to redistribute property residing in the legislature alone. While there are numerous instances in which the courts intervene to readjust property rights, these are disguised in metaphor and fiction. However, this has meant that the law in this area has developed without open consideration of justifications for redistributing property. The result of this is that there is little coherence in the law of proprietary remedies as a whole and a good deal of it is indefensible. The book examines redistributive processes, such as, tracing, subrogation and proprietary estoppel and the use of the constructive trust in the context of contracts to assign property, vitiated transactions, the profits of wrongdoing and the breakdown of intimate relationships. It contrasts the English treatment of this area of law with developments in other common law jurisdictions where a more dynamic understanding of property has permitted more open acknowledgement of the judicial role in redistributing proprietary rights.

Proprietary Remedies in Context is a rewarding book, with much to offer. It has a healthy radical edge and it argues with care, conviction and high intelligence. A great deal is packed into the book, but the virtues of clarity and economy of expression are very evident. David Carey Miller Legal Studies May 2003

Frequently Cited Worksp. xv
Table of Casesp. xvii
Introductionp. 1
Property and Proprietary Remedies
Exploring the Idea of Remedial Trustsp. 5
From Remedy to Property: the Development of the Trustp. 7
Different Uses of the Constructive Trustp. 10
The Remedial/Institutional Dichotomyp. 12
Rights and Remediesp. 13
The Constructive Trust as a Device for Protecting Fiduciary Relationshipsp. 16
The Content of the Constructive Trustp. 20
Is the Remedy Discretionary?p. 24
Does the Trust Arise Automatically?p. 26
Remedial Constructive Trusts as Redistributivep. 31
Redistribution and Property Ritesp. 33
Two Conceptions of Propertyp. 33
Property in English Legal Thoughtp. 34
The Absolutist Conception of Propertyp. 34
The Absolutist Conception of Property in English Lawp. 36
The Influence of these Understandings on the Law of Proprietary Remediesp. 38
The Influence of Positivismp. 38
The Persistence of Absolutist Assumptionsp. 39
Orthodox and Redistributive Proprietary Remediesp. 40
Orthodox Proprietary Remediesp. 40
Redistributive Proprietary Remediesp. 42
Reason and Ritual in the Law of Prorietary Remediesp. 42
Ritual in Legal Discoursep. 42
Property Ritesp. 44
Rituals and the Normative Framework of the Private Lawp. 46
The Cost of these Ritualsp. 47
The Legacy of Legal Realism: Instrumentalist Approaches to Propertyp. 49
Property in American Legal Thoughtp. 49
The Rise and Fall of Universal Principles of Common Lawp. 49
The Shift to a Positivist Understanding of Propertyp. 51
Notions of Property and the Law of Eminent Domainp. 52
Property and Due Processp. 53
The Disintegration of Propertyp. 54
The Influence of these Understandings on the Common Lawp. 55
Instrumentalism in Proprietary Remedies in US Lawp. 57
The Formalism of Early Remedial Constructive Trust Theoryp. 57
Realism about Proprietary Reliefp. 59
Re Omegas and the Unravelling of the Remedial Constructive Trustp. 60
Instrumentalism in other Common Law Jurisdictionsp. 63
The Liberation of the Constructive Trustp. 63
Determining when Proprietary Relief should be Availablep. 64
Formalism and Instrumentalism Contrastedp. 67
The Normative Foundations of Proprietary Claims and Remediesp. 69
Considerations of Justice and Efficiency for giving Owners Relief against Third Partiesp. 69
Rights against Remote Recipients of Misappropriated Assetsp. 69
Rights against Third Parties in Respect of Bitiated Transfersp. 73
Rights to Profitsp. 75
Should these Remedies be Specific?p. 75
Justifying Specific Reliefp. 75
To what Extent does the Law Recognise these Concerns?p. 76
Rights to Specific Recovery and Bankruptcyp. 76
Should these Remedies have Priority in Bankruptcy?p. 77
Justifying Remedies in Bankruptcyp. 77
The Swollen Assets Rationalep. 79
The Assumption of Risk Rationale: Distinguishing Contract and Restitution Plaintiffsp. 81
Redistributive Proprietary Remedies
The Metaphysics of Tracing: Substituted Title and Property Rhetoricp. 89
Analysing Tracingp. 90
Is Tracing a Claim or Remedy?p. 90
Tracing as Part of a Remedial "Process"p. 91
Do Rights to Proceeds Arise Automatically?p. 93
Does Tracing Create New Property Rights?p. 96
The Metaphysics of Tracing: The Denial of the Remedial Nature of Tracing in Legal Discoursep. 98
Tracing Thingsp. 98
Tracing as Ratificationp. 100
The New Orthodoxy: Tracing Valuep. 101
An Explanation of Tracing Rhetoric: The Reconciliation of Tracing with Axiomatic Notions of Property Rightsp. 106
The Function of Tracing Rhetoricp. 106
The Power of Tracing Rhetoricp. 107
The Normative Basis for Substituted Titlep. 108
Reasons for Allowing the Assertion of Proprietary Rights over Substitutesp. 108
Dissonance Between Tracing's Normative Foundations and the Positive Lawp. 110
The Consequences of Tracing Discourse for the Substantive Law: The Dangers of the Metaphysics of Tracingp. 114
The Privileging of Transactional Tracingp. 115
The Suppression of Normative Analysisp. 117
Illustrations of the Dangers of Formalismp. 120
Some Realism About Tracingp. 125
Conclusionp. 126
The Proprietary Consequences of a Vitiated Intention to Transfer Property: "An Intolerable Reproach to Our System of Jurisprudence"?p. 127
The Possible Legal Responses to a Vitiated Consent to Pass Titlep. 127
Transfers Void at Lawp. 127
Voidable Transfersp. 129
Transfers Giving Rise to a Beneficial Interestp. 130
Transfers Pursuant to which Title Passes but a Right to Personal Relief Arisesp. 131
Transfers where Title Passes and the Transferor is Denied Any Remedyp. 131
Vitiated Intent and Equitable Title: Doctrinal Responsesp. 132
The Availability of Proprietary Relief: Millett J's Framing of the Issue in El Ajou v. Dollar Land Holdingsp. 132
Three Attempts to Determine the Availability of Proprietary Relief in Response to a Vitiated Intention to Transfer Propertyp. 133
Millett J's analysis in El Ajou: The Proprietary Consequences of Rescissionp. 140
Millett's New Analysisp. 146
Proprietary Relief for Vitiated Transfers: Relevant Policy Considerationsp. 149
The Importance of Identifying Involuntary Restitution Claimantsp. 149
Distinguishing between Involuntary Creditorsp. 150
Qualified Consent to Transfer Property: The Mysterious Basis of the Quistclose Trustp. 153
Conceptualising the Quistclose Trustp. 153
Barclays Bank v. Quistclose Investmentsp. 153
Interpretations of the basis of the Quistclose Trustp. 154
Proprietary Remedy or Orthodox Trust?p. 160
Considerations of Justice and Efficiencyp. 161
Obligation into Ownership: Constructive Trusts and Liens in Arrangements to Assign Propertyp. 165
The Distribution of Entitlements in Sale of Goods Transactionsp. 165
The Passage of Title in Equity: Constructive Trusts and Liens arising in the Context of Contracts of Salep. 167
Equitable Interests Arising in Anticipation of a Legal Conveyance of Property where the Contract is Specifically Enforceable or Consideration has been Paidp. 168
Equitable Proprietary Interests in Incomplete Propertyp. 172
Conclusionp. 175
Proprietary Relief for Enrichment by Wrongs: the Shifting Boundary between Ownership and Obligationp. 177
Proprietary Relief for Enrichment by Wrongs: a Normative Analysisp. 178
Justifications for Priority in Bankruptcyp. 178
Limitations in the Law's Ability to do Justice: Difficulties in Identifying Unjust Enrichmentp. 180
Proprietary Relief Sought for Reasons other than Priorityp. 181
Lister v. Stubbs and The Ownership/Obligation Distinctionp. 182
Secret Commissions and the Limits of Proprietary Reliefp. 182
Policy Concerns Motivating the Principlep. 183
Divergence between the Formal Principle and Normative Justificationsp. 183
The Premises and Methodology Underlying the Principle in Lister v. Stubbsp. 186
Deducing Ownership from Obligation: AG for Hong Kongv. Reidp. 188
The Principle in Reidp. 188
The Interests of Creditorsp. 188
Divergence between Formal Principle and Policy Concernsp. 190
The Premises and Methodology Underlying Reidp. 191
Proprietary Relief for Enrichment by Wrongs in North American Legal Thoughtp. 195
Conclusion: The Limits and Price of Formalismp. 196
The Division of Assets on the Breakdown of Intimate Relationships: the Limits of Private Orderingp. 197
Introductionp. 197
From Contract to Status: Justifications for Judicial Interventionp. 199
"The Cold Legal Question": the Requirement of an Agreement or Promisep. 199
A Shift Away from the Intention of the Legal Owner: Restitution and Estoppelp. 202
Focusing upon Objective Expectationsp. 206
Analogies with Joint Ventures and Commercial Partnershipsp. 207
The Inadequacy of Justifications Offered for Intervention in this Areap. 208
The Limits of the Private Ordering Paradigm: the Case against Applying Conventional Property Norms in the Context of Intimate Relationshipsp. 212
Spheres of Justice: Distributive Norms in Intimate Relationsp. 212
The Treatment of Intimate Relationships in Legal Doctrinep. 213
The Premises of the Absolutist Conception of Private Propertyp. 220
The Premises Controvertedp. 221
Intimacy as Market Failurep. 225
Institutional Considerationsp. 230
Is Proprietary Relief Justified?p. 230
The Significance of a Causal Connection between Contributions and Assetsp. 231
Plaintiffs' Psychological Connection with Propertyp. 235
The Danger of Strategic Behaviourp. 238
The Interests of Third Partiesp. 240
Conclusionp. 244
Subrogation: Stepping into the Shoes of Secured Creditorsp. 245
Explaining Subrogrationp. 245
The Function and Effect of Subrogation Reasoningp. 245
Traditional Explanations for the Provision of Proprietary Reliefp. 248
Subrogation as Restitutionp. 249
Shifting the Focus to Third Party Creditorsp. 250
Identifying Creditors' Enrichment in Subrogation Casesp. 253
Determining whether Creditors would be Unjustly Enriched I: Cases in which the Plaintiff may be Characterised as an Involuntary Unsecured Creditorp. 255
Where Plaintiffs' Property is Used without their Consent to Discharge a Secured Debtp. 255
Subrogation and Mistakesp. 257
Practical Compulsion as a Ground for Subrogationp. 262
Determining whether Creditors would be Unjustly Enriched II: Cases in which the Plaintiff Cannot Readily be Characterised as an Involuntary Unsecured Creditorp. 263
Sureties' Acquisition of the Rights of Secured Creditorsp. 263
Bills of Exchange: An Indorser's Right to a Holder's Securitiesp. 266
Subrogation of Creditors of a Trust Business to the Trustees' Lienp. 267
Subrogation and the Doctrine of Marshallingp. 269
Protecting Third Parties: Defences and Registrationp. 269
A Change of Position Defence?p. 269
Subrogation and Registrationp. 272
Conclusionp. 273
Constructive Trusts over Sums Obtained from Third Parties to Prevent Over-compensationp. 275
Insurers' Rights Against an Indemnified Assuredp. 275
The Nature of Insurer's Rights against an Indemnified Assuredp. 275
Justifying the Insurer's Proprietary Interest in Money Recovered by the Assured from Third Partiesp. 276
Rights Arising from an Overpayment by the Insurerp. 283
An Assured's Rights against an Over-indemnified Insurerp. 284
Lonhro v. Export Credit Guarantee Departmentp. 284
Formal Justificationsp. 285
Policy Argumentsp. 286
Constructive Trusts over Sums Recovered for the Benefit of Anotherp. 286
Constructive Trusts arising in Favour of Carers of Tort Victims over Damages due from Tortfeasorsp. 288
Proprietary Estoppelp. 291
Rule of Evidence or Substantive Doctrine?p. 291
The Basis for Intervention: is Proprietary Estoppel Limited to the Enforcement of Consensual Arrangements?p. 293
Enforcing Informal Transfersp. 293
Estoppel in Unilateral Mistake Casesp. 293
Estoppel in Common Mistake Casesp. 294
Remedial Discretionp. 297
The Measure of Reliefp. 298
Personal or Proprietary Relief?p. 303
The Proprietary Status and Effect of these Remediesp. 304
Proprietary Estoppel and Third Partiesp. 304
The Nature of Plaintiffs' Rights Prior to any Judicial Declarationp. 307
Conclusionp. 310
Liens arising from the Acquisition, Preservation or Improvement of Assetsp. 311
Maritime Liensp. 311
Liens in Maritime Lawp. 311
The Nature of the Maritime Lienp. 313
Equitable Liens: "A Themeless Ragbag"?p. 314
Introductionp. 314
A General Right to a Lien over Salvaged Property?p. 315
Particular Equitable Liens arising from the Acquisition, Preservation or Improvement of Assetsp. 316
Restitution and Property Rites
Proprietary Relief as Restitutionp. 325
Birks' Account of Proprietary Remediesp. 325
Tracing Valuep. 326
Vitiated Transfersp. 329
Enrichment by Wrongsp. 330
Quasi-Matrimonial Property Reliefp. 331
Subrogationp. 331
Rights Preventing Over-indemnification or Over-compensationp. 333
Proprietary Estoppelp. 334
The "Proprietary Base" as an Explanation for Proprietary Remediesp. 335
Rationalising Restitution: the Limits of the Projectp. 336
Conclusionp. 338
Conclusion
Conclusion: Redistributive Proprietary Remedies and the Moral Limits of Propertyp. 343
Redistributive Proprietary Remedies and the Absolutist Paradigm of Propertyp. 343
The Diversity of Property and the Implausibility of the Absolutist Paradigmp. 343
The Obfuscation of Redistribution and its Consequencesp. 343
The Need for a Normative Discourse of Propertyp. 344
Property and Justicep. 344
From the Absolutist Paradigm to a New Discoursep. 345
The Nature of the New Discoursep. 346
Toward a Jurisprudence of Redistributionp. 347
Indexp. 349
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131658
ISBN-10: 1841131652
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 384
Published: 23rd April 2002
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 25.4 x 16.51  x 2.54
Weight (kg): 0.7
Edition Number: 1