Sunday, May 8, 2022

Article: Proprietary Restitution

Timothy Liau and Rachel Leow recently published Proprietary Restitution, in the Research Handbook on Unjust Enrichment and Restitution (2020). Provided below is the abstract:

Proprietary restitution is commonly opposed to personal restitution, reflecting a traditional division between rights in personam and rights in rem. The term ‘proprietary restitution’ conventionally encompasses a variety of examples, including trusts, powers to re-vest title, and liens. Personal rights to restitution, realisable in court as money awards, are relatively easier to understand. Our focus — proprietary restitution — is the more difficult case.

Does, and should unjust enrichment generate a proprietary response, in addition to (or instead of) a personal response? This was the fourth question to Peter Birks’ five-question analysis. Birks argued that ‘every problem in unjust enrichment can be unlocked by asking these five questions: (i) Was the defendant enriched? (ii) Was it at the expense of the claimant? (iii) Was it unjust? (iv) What kind of right did the claimant acquire? (v) Does the defendant have a defence?’

In Bank of Cyprus UK Ltd v Menelaou, Lord Neuberger accepted that ‘the standard response to unjust enrichment is a “monetary restitutionary award”’. Why then, and when should proprietary restitution be available? What case-law supports its availability? These remain perplexing questions, admitting no easy answers. This chapter surveys the state of play by considering arguments for a ‘pro-proprietary future’, and the obstacles which lie ahead.

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