Proprietary Remedies in Context: A Study in the Judicial Redistribution of Property Rights
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.
What people are saying - Write a review
We haven't found any reviews in the usual places.
analysis approach argued Bank bankruptcy basis beneﬁcial beneﬁciary beneﬁt Birks characterised claim common law conception context contract corrective justice defendant defendant’s difﬁcult DLR 4th doctrine effect enforce entitled equitable lien equity favour ﬁctions ﬁnd ﬁrst Goldcorp House of Lords Ibid identiﬁcation inﬂuence infra insurer intention involved judicial justiﬁcation law of proprietary Law of Restitution lender liable lien Lloyds Bank London Lord Browne-Wilkinson Millett mortgage normative notion NZLR obligation owners ownership Oxford Peter Millett plaintiff position principle priority proceeds proﬁts property rights proprietary base proprietary estoppel proprietary interest proprietary relief proprietary remedies proprietary rights Quistclose trust recognised redistribution reﬂects remedial constructive trust rescission resulting trust risk signiﬁcance solicitors speciﬁc subrogation sufﬁcient suggests supra swollen assets text accompanying nn third parties tion tracing transactions transfer trusts law University Press unjust enrichment unsecured creditors Westdeutsche Landesbank