There is a tension in English law between the idea that the courts might provide a remedy by creating new property rights and the understanding that the judiciary's role is limited to the protection of existing proprietary interests with the power to redistribute property residing in the legislature alone. While there are numerous instances in which the courts intervene to readjust property rights, these are disguised in metaphor and fiction. However, this has meant that the law in this area has developed without open consideration of justifications for redistributing property. The result of this is that there is little coherence in the law of proprietary remedies as a whole and a good deal of it is indefensible. The book examines redistributive processes, such as, tracing, subrogation and proprietary estoppel and the use of the constructive trust in the context of contracts to assign property, vitiated transactions, the profits of wrongdoing and the breakdown of intimate relationships. It contrasts the English treatment of this area of law with developments in other common law jurisdictions where a more dynamic understanding of property has permitted more open acknowledgement of the judicial role in redistributing proprietary rights.
Author(s): Craig Rotherham
Year: 2002
Language: English
Pages: 384
Preliminaries......Page 1
Contents......Page 7
Frequently Cited Works......Page 15
Table of Cases......Page 17
Introduction......Page 31
1 From Remedy to Property the Development of the Trust......Page 37
2 Redistribution and Property Rites......Page 63
3 The Legacy of Legal Realism Instrumentalist Approaches to Property......Page 79
4 The Normative Foundations of Proprietary Claims and Remedies......Page 99
5 The Metaphysics of Tracing Substituted Title and Property Rhetoric......Page 119
6 The Proprietary Consequences of a Vitiated Intention to Transfer Property An Intolerable Reproach to Our System of Jurisprudence......Page 157
7 Qualified Consent to Transfer Property The Mysterious Basis of the Quistclose Trust......Page 183
8 Obligation into Ownership Constructive Trusts and Liens in Arrangements to Assign Property......Page 195
9 Proprietary Relief for Enrichment by Wrongs the Shifting Boundary between Ownership and Obligation......Page 207
10 The Division of Assets on the Breakdown of Intimate Relationships the Limits of Private Ordering......Page 227
11 Subrogation Stepping into the Shoes of Secured Creditors......Page 275
12 Constructive Trusts over Sums Obtained from Third Parties to Prevent Over compensation......Page 305
13 Proprietary Estoppel......Page 321
14 Liens arising from the Acquisition Preservation or Improvement of Assets......Page 341
15 Proprietary Relief as Restitution......Page 355
16 Conclusion Redistributive Proprietary Remedies and the Moral Limits of Property......Page 373
Index......Page 379
