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IV PROPRIETARY RESTITUTIONARY CLAIMS

ESTABLISHING PROPRIETARY RESTITUTIONARY CLAIMS

THE NATURE OF PROPRIETARY RESTITUTIONARY CLAIMS

The examination of the law of restitution so far has concentrated on two different principles on which restitutionary claims can be founded: unjust enrichment and wrongdoing. This Part will examine the third and final principle on which such claims may be based, namely the vindication of the claimant’s property rights, a principle which was recognized by the House of Lords in Foskett v McKeown.[1]

(A) QUESTIONS OF TERMINOLOGY

A fundamental distinction should be drawn between proprietary claims and proprietary remedies.[2] All restitutionary claims which are founded on the vindication of the claimant’s proprietary rights[3] are properly classified as proprietary claims, since they are dependent solely upon the identification and protection of proprietary rights. But the restitutionary remedies by virtue of which these property rights are vindicated are not necessarily proprietary remedies, since, depending on the particular circumstances of the case, the appropriate remedy may either be proprietary or personal. [4] If a proprietary remedy is awarded the claimant may recover particular property,[5] [6] whereas if a personal restitutionary remedy is awarded the claimant will recover only the value of particular property. Personal remedies operate against one person, the defendant, who received the claimant’s property, whereas proprietary remedies operate against the property which the defendant has and in which the claimant has a proprietary interest. The key distinction between the two types of remedy, as recognized by Goode, is that personal remedies are founded on the obligation to pay, whereas proprietary remedies are founded on the continuing ownership of the relevant asset.[7]

  • [1] [2001] 1 AC 102.
  • [2] This distinction was recognized by Millett LJ in Trustee of the Property of FC Jones and Sons (a firm) vJones [1997] Ch 159, 168.
  • [3] Such a description of the underlying principle does have some judicial support. See, for example, Tinsley vMilligan [1994] 1 AC 340, 368 (Lord Lowry); Foskett v McKeown [2001] 1 AC 102, 129 (Lord Millett).
  • [4] See Boscawen v Bajwa [1996] 1 WLR 328, 334 (Millett LJ).
  • [5] For discussion of this and other proprietary restitutionary remedies, see p 632, below.
  • [6] See p 641, below.
  • [7] RM Goode, ‘Ownership and Obligation in Commercial Transactions’ (1987) 103 LQR 433.
 
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