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Vol 21 No 10 Oct/Nov 2016

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Criminal Injuries Compensation Claims

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Proprietary Remedies in Context

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ISBN13: 9781841131658
ISBN: 1841131652
Published: April 2002
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £72.00



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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.

This 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. In doing so, it contrasts the English treatment of this area of law with developments in other common law jurisdictions.

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Subjects:
Property Law, Remedies and Damages
Contents:
PART I PROPERTY AND PROPRIETARY REMEDIES
1. Exploring the Idea of Remedial Trusts
2. Redistribution and Property Rites
3. The Legacy of Legal Realism: Instrumentalist Approaches to Property
4. The Normative Foundations of Proprietary Claims and Remedies

PART II REDISTRIBUTIVE PROPRIETARY REMEDIES
5. The Metaphysics of Tracing: Substituted Title and Property Rhetoric
6. The Proprietary Consequences of a Vitiated Intention to Transfer Property
7. Qualified Consent to Transfer Property: The Mysterious Basis of the Quistclose Trust
8. Obligation into Ownership: Constructive Trusts and Liens in Arrangements to Assign Property
9. Proprietary Relief for Enrichment by Wrongs: the Shifting Boundary between Ownership and Obligation
10. The Division of Assets on the Breakdown of Intimate Relationships: the Limits of Private Ordering
11. Subrogation: Stepping into the Shoes of Secured Creditors
12. Constructive Trusts over Sums Obtained from Third Parties to Prevent Over-compensation
13. Proprietary Estoppel
14. Liens arising from the Acquisition, Preservation or Improvement of Assets

PART III RESTITUTION AND PROPERTY RITES
15. Proprietary Relief as Restitution

PART IV CONCLUSION
16. Conclusion: Redistributive Proprietary Remedies and the Moral Limits of Property
Index.