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(iv) Justifying the Award of Restitutionary Remedies to Vindicate Property Rights

The justification for the award of restitutionary remedies to vindicate the claimant’s property rights stems from the fundamental principle of English law that property rights are of such importance that they are deserving of particular protection.88 But, despite this, it might be thought that it does not matter whether the restitutionary claim is analysed with reference to the vindication of property rights or unjust enrichment. It is certainly true that in many cases the same result will be achieved regardless of how the claim is analysed. But the proper analysis can matter for practical reasons, such as whether the defence of change of position should apply, 9 what the elements of the respective causes of action might be and which remedies are potentially available. It also matters for intellectual reasons, since it is the legitimacy of the vindication of property rights principle which has become the battleground for vital theoretical discussion amongst commentators and increasingly judges about the proper classification of rights and remedies both at Law and in Equity.

 
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