
Contents
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1. The Nature of Proprietary Restitutionary Claims 1. The Nature of Proprietary Restitutionary Claims
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(A) Claims and Remedies (A) Claims and Remedies
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(B) The Nature of the Restitutionary Remedy (B) The Nature of the Restitutionary Remedy
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(i) Personal Restitutionary Remedies (i) Personal Restitutionary Remedies
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(ii) Proprietary Restitutionary Remedies (ii) Proprietary Restitutionary Remedies
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(C) The Nature of the Claim (C) The Nature of the Claim
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(i) Distinguishing between Vindication of Property Rights and Reversal of Unjust Enrichment (i) Distinguishing between Vindication of Property Rights and Reversal of Unjust Enrichment
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(ii) The Relationship between Proprietary Restitutionary Claims and Restitution for Wrongs (ii) The Relationship between Proprietary Restitutionary Claims and Restitution for Wrongs
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(D) The Role of Discretion (D) The Role of Discretion
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(E) A Framework for Analysing a Typical Proprietary Restitutionary Claim (E) A Framework for Analysing a Typical Proprietary Restitutionary Claim
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2. Identification of the Proprietary Interest 2. Identification of the Proprietary Interest
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(A) Retention of a Proprietary Interest (A) Retention of a Proprietary Interest
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(i) The General Rules for the Passing of Title at Law (i) The General Rules for the Passing of Title at Law
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(ii) Circumstances in Which Legal Title Will Not Pass (ii) Circumstances in Which Legal Title Will Not Pass
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(1) Ignorance (1) Ignorance
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(2) Mistake (2) Mistake
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(3) Misrepresentation (3) Misrepresentation
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(4) Powerlessness (4) Powerlessness
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(5) Compulsion (5) Compulsion
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(iii) Particular Circumstances in Which Legal Title Will Pass (iii) Particular Circumstances in Which Legal Title Will Pass
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(1) Failure of Basis (1) Failure of Basis
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(2) Illegality (2) Illegality
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(3) Incapacity (3) Incapacity
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(4) Exploitation (4) Exploitation
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(iv) Particular Circumstances in Which Legal Title Will Be Revested in the Claimant (iv) Particular Circumstances in Which Legal Title Will Be Revested in the Claimant
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(v) Retention of Equitable Title (v) Retention of Equitable Title
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(B) Creation of a Proprietary Interest (B) Creation of a Proprietary Interest
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(i) The Express Trust (i) The Express Trust
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(ii) The Resulting Trust (ii) The Resulting Trust
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(1) The Essence of the Resulting Trust (1) The Essence of the Resulting Trust
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(2) Theoretical Foundations of the Resulting Trust (2) Theoretical Foundations of the Resulting Trust
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(3) The Recognized Categories of Resulting Trust (3) The Recognized Categories of Resulting Trust
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(iii) The Constructive Trust (iii) The Constructive Trust
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(1) The Nature of the Constructive Trust (1) The Nature of the Constructive Trust
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(2) Circumstances When an Institutional Constructive Trust Will Be Recognized (2) Circumstances When an Institutional Constructive Trust Will Be Recognized
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(3) The Remedial Constructive Trust (3) The Remedial Constructive Trust
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3. Following and Tracing 3. Following and Tracing
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(A) The Function of Following and Tracing (A) The Function of Following and Tracing
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(i) The Essence of Following (i) The Essence of Following
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(ii) The Essence of Tracing (ii) The Essence of Tracing
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(1) Attribution Rather Than Causation (1) Attribution Rather Than Causation
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(2) Tracing Value Rather Than Identifying Property (2) Tracing Value Rather Than Identifying Property
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(3) Intention of the Parties (3) Intention of the Parties
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(iii) Tracing into Substitute Assets (iii) Tracing into Substitute Assets
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(iv) Distinguishing between Tracing and Claiming (iv) Distinguishing between Tracing and Claiming
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(v) Distinguishing between Tracing at Common Law and in Equity (v) Distinguishing between Tracing at Common Law and in Equity
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(B) Following (B) Following
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(C) Tracing at Common Law (C) Tracing at Common Law
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(i) Tracing into Pure Substitutes and Products (i) Tracing into Pure Substitutes and Products
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(ii) Tracing into Profits (ii) Tracing into Profits
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(iii) Tracing into Mixed Products (iii) Tracing into Mixed Products
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(D) Tracing in Equity (D) Tracing in Equity
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(i) The Fiduciary Requirement (i) The Fiduciary Requirement
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(ii) Unmixed Funds (ii) Unmixed Funds
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(iii) Mixed Funds (iii) Mixed Funds
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(1) Mixing with the Fiduciary’s Money (1) Mixing with the Fiduciary’s Money
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(2) Mixing with the Money of an Innocent Third Party (2) Mixing with the Money of an Innocent Third Party
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(iv) Restrictions on Equitable Tracing (iv) Restrictions on Equitable Tracing
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(1) Dissipation of the Asset or Fund (1) Dissipation of the Asset or Fund
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(2) Lowest Intermediate Balance (2) Lowest Intermediate Balance
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(3) Backwards Tracing (3) Backwards Tracing
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(4) Inequitable to Trace (4) Inequitable to Trace
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(v) A Move to a More Pragmatic Approach? (v) A Move to a More Pragmatic Approach?
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(E) The Future of the Tracing Rules (E) The Future of the Tracing Rules
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21 Establishing Proprietary Restitutionary Claims
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Published:April 2024
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Abstract
This chapter is concerned with restitutionary claims relating to the vindication of proprietary rights. It considers the justifications for the recognition of such a claim and then the requirements to establish the claim. It is first necessary to establish that the claimant had a proprietary base in property received by the defendant. This might be a property right recognized at Law or a proprietary right created in Equity. Equitable property rights might be created by an express trust, by a resulting trust, or by a constructive trust. Once the proprietary base is established, it is necessary to follow or trace the value of property into the defendant’s hands. The tracing rules are considered at Law and in Equity, including rules about backwards tracing. Finally, the future of the tracing rules is assessed.
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