RESTITUTIONARY CLAIMS AND REMEDIES TO VINDICATE PROPERTY RIGHTS

GENERAL PRINCIPLES

(A) PROPRIETARY AND PERSONAL REMEDIES

Once a claimant has established that he or she has a legal or equitable proprietary interest which can be followed or traced into property which had been received by the defendant, the claimant can establish a restitutionary claim to vindicate his or her proprietary rights.[1] The questions which need to be examined in this chapter are: what is the nature of the claim to this property and what is the appropriate remedy to vindicate this proprietary right? These remedies can take two forms. The first are proprietary remedies where the claimant is able to recover the property itself or acquire a security interest in the property which is in the defendant’s hands. The second are personal remedies where the defendant is only able to recover the value of the property received by the defendant. Typically, proprietary remedies are preferable, since they all give the claimant priority over the defendant’s unsecured creditors if the defendant becomes insolvent and enable the claimant to assert property rights even against an innocent third-party recipient, save if that recipient has provided value for the receipt,2 and some of them enable the claimant to recover the fruits of the property. But all proprietary remedies are worthless once the property in which the claimant has a proprietary interest has been dissipated. It in this situation that personal remedies become particularly attractive.

(B) DISTINGUISHING BETWEEN CLAIMS AND REMEDIES

A distinction needs to be drawn between the claim and the remedy which is available to vindicate that claim. It is assumed for the purposes of this chapter that the claimant is able to identify a proprietary base and so has a proprietary right and is able to follow or trace this proprietary right into property which is held by the defendant. The only remaining questions, therefore, relate to the nature of the claim which the claimant can bring to vindicate his or her proprietary right and then the most appropriate remedy which is available to achieve this objective.

  • [1] See Chapter 21. 2 See Chapter23.
 
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