Index
Australia:
proprietary estoppel, 300–1
Bankruptcy:
priority, justification for, 77–86 assumption of risk rationale, 81–7
circularity of property-based justifications, 78
contract and restitution plaintiffs distinguished, 81–7
efficiency, 78–9
fault and voluntary creditors, 83–4 justice between creditors, 80–1 justification for remedies, 77–9 restitution as corrective justice, 79–80 swollen assets rationale, 79–81 voluntary creditors, 83–5
significance of proprietary relief, 77 specific relief, 76–7
voluntary creditors, 83–5 Beneficiaries:
constructive trusts: rights, 23–4
Bills of exchange: subrogation, 266–67
Change of position defence: subrogation, 269–71
secured creditors, 270–71 unsecured creditors, 271
tracing:
actions for money had and received, 98 availability of defence, 110
normative justifications for rights against third parties, 71–4
Coke, 7 Constructive trusts:
automatic vesting of rights, 26–31
basis for institutional/remedial constructive trust distinction, 26
legal certainty, 28 merits, 29–31 requirement, 26–7
sanctity of property, interests contrary to, 28–9
timing of interest, 27–8 beneficiaries:
rights, 23–4 content, 20–4
beneficiaries rights, 23–4
innocent trustees, liability of, 22–3 trustee’s duties, 20–2
different uses, 10–12
discretionary remedy, whether, 24–6 duties of trustees, 20–2
facilitative institutions and remedies, 14–16 fiduciary relationships, protection of, 16–20 outside fiduciary relationships, use, 18–20
innocent trustees, liability of, 22–3 over-compensation, sums obtained from
third parties to prevent, 275–89, 333 assured’s rights over over-indemnified
insurer, 284–86
benefit of another, sums recovered for, 286–88
carers of tort victims rights, 288–89 insurers’ rights against indemnified
assured, 275–83 remedial:
automatic vesting of rights, 26–31 Chancery courts, development by, 8–9 content of trust, 20–4
different uses, 10–12 discretionary, whether, 24–6 distrust of notion, 7
facilitative institutions and remedies, 14–16 fiduciary relationships, protection of, 16–20 historical development, 6–10
origins, 6
Re Omegas, 60–3 redistributive, as, 31–2
remedial/institutional dichotomy, 12–33 repugnant to legal certainty, interests, 28 rights and remedies, dichotomy between,
13–16
sanctity of property, interests contrary to, 28–9
timing of interest, 27–8 United States, 60–3 uses, 10–12
remedial/institutional dichotomy, 12–33 rights and remedies, 13–16
sanctity of property, interests contrary to, 28–9 trustees:
duties, 20–2
innocent, liability of, 22–3 United States:
formalism in theory, 57–9 remedial constructive trust, 60–3
uses, 10–12
350 Index
Eminent domain, law of, 52–4 Enrichment by wrongs, 177–96, 330–31
AG for Hong Kong v. Reid, 188–95
deducing ownership from obligation, 188–95 creditors, interests of, 188–90
equity regards as done that which ought to be done, 193–94
evidential presumption of fiduciary’s intention, 191–92
divergence between formal principle and policy, 190–91
North American thought, 195–96 principle in Reid, 188
formalism, 196
Lister v. Stubbs, 182–88 ownership/obligation distinction, 182–88
divergence between formal and normative justifications, 183–86
methodology underlying, 186–88 ownership/obligation distinction, 182–88 policy concerns motivating, 183 premises underlying, 186–88
secret commissions, 182 normative analysis, 178–82
bankruptcy, justification for priority in, 178–80
identification difficulties, 180–81 reasons other than priority, 181
North American legal thought, 195–96 secret commissions, 182
Equitable liens, 314–22 meaning, 314
mistakenly improved land, 322 salvaged property, 315–16 solicitor’s, 317–22
inchoate nature of rights, 319 limitations, 322
meaning of proprietary rights, 319–20 nature of solicitor’s rights, 317–18 possessory rights, 318–19
third party protection, 320–21 trustee’s lien, 316–17
uses, 314–15
Estoppel, see Proprietary estoppel
Fiduciary relationships: constructive trusts, 16–20 North American law, 18
Formalism:
enrichment by wrongs, 196 instrumentalism contrasted, 67–9
Instrumentalism:
approaches to property, 49–69 common law jurisdictions, 63–7
availability of proprietary relief, 64–7 liberation of constructive trust, 63–4
formalism contrasted, 67–9
property, 49–69
American legal thought, 49–57 common law jurisdictions, 63–7
formalism and instrumentalism contrasted, 67–9
proprietary remedies in US law, 57–63 United States, 57–63
early remedial constructive trust theory, 57–9
realism, 59–60
remedial constructive trusts, 60–3 Intimate relationships, division of assets on
breakdown of, 197–244, 331 absolutist conception of property, 220–21 agreement or promise, requirement for,
199–201
autonomy, intimacy as loss of, 221–24 causal connection between contributions and
assets, 231–35 economics of intimacy, 225–26 evidential difficulties, 203–5 expectations of plaintiff, 202 generally, 197–99
inapplicability of conventional property norms, 212–30
absolutist conception of property, 220–21 distributive norms, 212–13
institutional considerations, 230–31 legal doctrine, 213–20
market failure, intimate relationships as, 225–30
premises, 221–25 information problems, 225 institutional considerations, 230
judicial intervention, justification for, 199–208
agreement or promise, requirement for, 199–201
commercial partnership analogy, 207–8 inadequacy, 208–12
intention of legal owner, 202–6 joint venture analogy, 207–8 objective expectations, 206
legal doctrine, 213–20 legislation, 219–20
love and irrationality, 224–25
market failure, intimate relationships as, 220–25
measure of relief, 205–6
psychological connection with property, 235–38
regulation of property in domestic sphere, 213–19
spheres of justice, 212–13 strategic behaviour, 238–40 third party interests, 240–44
creditors, 242–43 mortgagees, 240–42
purchasers, 240–42
reducing impact of proprietary remedies, 243–44
Legal realism, 49–69
instrumentalist approaches, 49–69 Licences:
proprietary estoppel, 304–5 Liens:
equitable, see Equitable liens maritime, 311–14
nature, 313–14
mistakenly improved land, 322 solicitor’s, 317–22
trustees, 316–17 Loans:
subrogation: authorised, 257–58 unauthorised, 258–60
Maritime liens, 311–14 nature, 313–14
Marshalling, 269 Mistake:
lien over mistakenly improved land, 322 proprietary estoppel:
common, 294–97 unilateral, 293–94 subrogation, 257–62
see also Vitiated intention to transfer property Moral desert:
proprietary remedies, 70–1, 73–4
Policy:
enrichment by wrongs, 183
vitiated intention to transfer property, 149–52 involuntary creditors, distinguishing
between, 150–52
involuntary restitution claimants, 149–50 Positivism:
property, influence on concept of, 38–9 Private ordering:
generally, 197–99 limits of regime, 212–30 meaning, 197
see also Intimate relationships, division of assets on breakdown of
Profits:
right to, 75 Property:
absolutist conception, 34–8 entrenchment, 36 illustrations, 37–8 implausibility, 342
intimate relationships, 220–21 new discourse, 345–47 persistence of assumptions, 39–40 rise of, 36
Index 351
American legal thought, 49–57 disintegration of property, 54–5 due process, 53–4
eminent domain, law of, 52–4 influences on common law, 55–7
instrumentalism in proprietary remedies, 57–63
positivist understanding, shift towards, 51 universal principles of common law,
49–51 analysis, 33–4
arrangements to assign, 165–75 generally, 175
incomplete property, 172–75 rights where contract is specifically
enforceable or consideration has been paid, 168–72
liens, 167–75
sale of goods transactions, 165–67 concepts, 33–4
constructive trusts. See Constructive trusts English legal thought:
absolutist conception, 34–8 instrumentalism, 49–69
American legal thought, 49–57 common law jurisdictions, 63–7
formalism and instrumentalism contrasted, 67–9
proprietary remedies in US law, 57–63 justice, 344–45
normative discourse, need for, 344–47 positivism, influence of, 38–9 redistribution, see Redistribution of property use of term, 33
vitiated intention to transfer property, see Vitiated intention to transfer property
Proprietary estoppel: Australia, 300–1 basis of intervention:
common mistake, 294–97 informal transfers, 293 unilateral mistake cases, 293–94
common mistake, 294–97
consensual arrangements, enforcement of, 293–97
conventional interests in land, 305–7 current judicial practice, 302 detriment-focused approach, 298 English courts, 299–300
evidential rule, whether, 291–92 informal transfers, 293 licences, 304–5
mistake:
common, 294–97 unilateral, 293–94
nature of plaintiff’s rights prior to judicial declaration, 307–9
352 Index
Proprietary estoppel (cont.): remedial discretion, 297–304
measure of relief, 298–303
personal or proprietary relief, 303–4 substantive doctrine, whether, 291–92 third parties, 304–7
unilateral mistake cases, 293–94 United States, 301–2
Proprietary remedies: bankruptcy, 76–86
assumption of risk rationale, 81–7 contract and restitution plaintiffs
distinguished, 81–7
fault and voluntary creditors, 83–4 justice between creditors, 80–1 justification for remedies, 77–9 restitution as corrective justice, 79–80 swollen assets rationale, 79–81 voluntary creditors, 83–5
moral desert, 70–1, 73–4 normative foundations, 69–87
bankruptcy, 77–86
assumption of risk rationale, 81–6 justification for remedies, 77–9 swollen assets rationale, 79–81
justice and efficiency, 69–75 misappropriated assets, 69–73 moral desert, 70–1, 73–4 profits, right to, 75
specific remedies: bankruptcy, 76–7 justification, 75–6 recognition of concerns, 76
utilitarian justifications, 71–2, 74 vitiated transfers, 73–5
profits, right to, 75 property rites, 44–6
proprietary bases as explanation for, 335–36 reason and ritual in, 42–9
redistributive, 42 restitution, as, 325–39
Birks’ account, 326–35 enrichment by wrongs, 330–31
over-indemnification or over-compensa- tion, rights preventing, 333
proprietary estoppel, 334–35 quasi-matrimonial property relief, 331 subrogation, 331–33
tracing value, 326–29 vitiated transfers, 329
ritual, 42–9 cost, 47
legal discourse, in, 42–4
normative framework of private law, 46–7 utilitarian justifications, 71–2, 74
Quistclose trust, 153–63
absence of intention to benefit borrower, 158
basis, 153–63 conceptualisation, 153–60 constructive trust analysis, 160 efficiency, 161–63
express trust analysis, 154–56 interpretation of basis, 154–60 justice, 161–63
nature, 160–61 personal rights, 158–60
private purpose trust analysis, 156–57 proprietary remedy or orthodox trust,
whether, 160–61 quasi-trust analysis, 157
personal rights, 158–60 resulting trust analysis, 156–57
absence of intention to benefit borrower, 158
Redistribution of property: conceptions of property, 33–4 jurisprudence, 347
orthodox proprietary remedies, 40–2 redistributive proprietary remedies, 42
Redistributive proprietary remedies: diversity of property, 343
enrichment by wrongs, see Enrichment by wrongs
Quistclose trust, see Quistclose trust tracing, see Tracing
vitiated intention to transfer property, see Vitiated intention to transfer property
wrongs, enrichment by, see Enrichment by wrongs
Registration: subrogation, 272–73
Remedial trusts:
constructive trusts, see Constructive trusts development of trust, 7–10
hostility towards, 7 terminology, 7
see also Property Restitution:
proprietary remedies as, 325–39 Birks’ account, 325–35 enrichment by wrongs, 330–31
over-indemnification or over-compensa- tion, rights preventing, 333
proprietary estoppel, 334–35 quasi-matrimonial relief, 331 subrogation, 331–33
tracing value, 326–29 vitiated transfers, 329
rationalising, 336–38 subrogation as, 249–50, 331–33
Ritual:
legal discourse, 42–4 proprietary remedies, 42–9
cost, 47–9
legal discourse, in, 42–4
normative framework of private law, 46–7 property rites, 42–4
Sale of goods transactions: distributions of entitlements, 165–67
Secured creditors: subrogation, see Subrogation
Solicitor’s lien, 317–22 Subrogation, 245–73, 331–33
authorised loans, 257–58 bills of exchange, 266–67
change of position defence, 269–71 discretionary proprietary remedy, 253 effect, 245–48
express right, 245 fault, 260–61
function of rhetoric, 245–48
identifying creditors’ enrichment, 253–55 involuntary unsecured creditor, plaintiff as,
255–63 mistakes, 257–62
practical compulsion as ground, 262–63 use of property without consent to
discharge secured debt, 255–57 involuntary unsecured creditor, plaintiff not
readily characterised as, 263–73 bills of exchange, 266–67 marshalling, 269
sureties’ acquisition of rights of secured creditors, 263–66
trust business, creditors of, 267–69 literal interpretation, 246–48
loans:
authorised, 257–58 unauthorised, 258–60
marshalling, 269 meaning, 245 mistake, 257–62
obscuring creation of new rights, 245–46 practical compulsion as ground, 262–63 registration, 272–73
restitution, as, 249
sureties’ acquisition of rights of secured creditors, 263–66
third party creditors, 250–52 traditional explanation, 248–49 unauthorised loans, 258–60
unjust enrichment, determining, 255–63 involuntary unsecured creditor, plaintiff as,
255–63
involuntary unsecured creditor, plaintiff not readily characterised as, 263–73
subrogation as remedy for unjust enrichment, 250–51
Tracing, 89–126
analysis, 89–97
Index 353
claim or remedy, whether, 90–1
new property rights, creation of, 96–7 proceeds, rights to, 93–6
remedial process, as part of, 91–3 automatic vesting of contingent rights, 94–6 Birks, 327–29
claim or remedy, whether, 90–1 consensually created rights, 120–22 contingent upon exercise of power, 93–4 explanation of rhetoric, 107–8
function of rhetoric, 106–7 intermediate remedy, as an 92–3 metaphors, 106–8, 326–27 neutral process, as, 102–4
new property rights, creation of, 96–7 normative foundations:
positive law, dissonance with, 111–14 reasons for allowing assertion of
proprietary remedies, 108–10 primary and secondary remedies, 91–2 proceeds of debt, 122–25
proceeds, rights to, 93–6 ratification, tracing as, 100 realism, 125–26
remedial nature, denial of, 98–106 ratification, tracing as, 100 things, tracing, 98–100
value, tracing, 101–5
remedial process, as part of, 91–3 restitutionary, whether, 327–28 retention of proprietary base, 328–29 rhetoric:
function, 106–7 power of, 107–8
substantive law, consequences of discourse for, 117–25
formalism, dangers of, 120–25 privileging of transactional tracing,
115–17
suppression of normative analysis, 117–20
things, 98–100 value, 101–5, 326–29
Trustees: constructive trusts:
duties, 20–2
innocent, liability of, 22–3 innocent, 22–3
liens, 316–17
United States:
American legal thought, 49–57 due process, 53–4 instrumentalism, 57–63
early remedial constructive trust theory, 57–9
realism, 59–60
remedial constructive trusts, 60–3
354 Index
United States (cont.): property:
instrumentalism:
proprietary remedies, 57–63
Uses, 8
Utilitarian justifications: proprietary remedies, 71–2, 74
Value:
tracing, 101–5, 326–29
Vitiated intention to transfer property, 127–52
Birks, 329
consent to pass title, 127–31 policy considerations, 149–52
involuntary creditors, distinguishing between, 150–52
involuntary restitution claimants, 149–50 possible legal responses, 127–32
beneficial interest, transfers giving rise to, 130–31
title passing but right to personal relief, 131 void at law, transfers, 127–29
voidable transfers, 129–30 proprietary relief , 132–49
availability of proprietary relief, 132 determining availability, 133–40
Millett’s analysis, 132–49
rescission, proprietary consequences of, 133–40
title passing but right to personal relief, 131 void at law, transfers, 127–29
voidable transfers, 129–30 Voluntary creditors:
bankruptcy, 83–5
Wrongs, enrichment by, see Enrichment by wrongs