Proprietary Restitution

Published as 'Proprietary Restitution' in Elise Bant, Simone Degeling, and Kit Barker (eds), Research Handbook on Unjust Enrichment and Restitution (Edward Elgar Publishing 2020) 476. https://www.elgaronline.com/view/edcoll/9781788114257/9781788114257.00035.xml

23 Pages Posted: 18 Nov 2021

See all articles by Timothy Liau

Timothy Liau

London School of Economics - Law School

Rachel Leow

London School of Economics - Law School

Date Written: October 23, 2021

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.

Keywords: proprietary restitution, restitution, unjust enrichment, trusts, powers, liens, property

Suggested Citation

Liau, Timothy and Leow, Rachel, Proprietary Restitution (October 23, 2021). Published as 'Proprietary Restitution' in Elise Bant, Simone Degeling, and Kit Barker (eds), Research Handbook on Unjust Enrichment and Restitution (Edward Elgar Publishing 2020) 476. https://www.elgaronline.com/view/edcoll/9781788114257/9781788114257.00035.xml, Available at SSRN: https://ssrn.com/abstract=3948372

Timothy Liau (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Rachel Leow

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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