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Unjust Enrichment$
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Peter Birks

Print publication date: 2005

Print ISBN-13: 9780199276981

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199276981.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 26 November 2020

Rights in personam

Rights in personam

(p.163) 7 Rights in personam
Unjust Enrichment

Peter Birks

Oxford University Press

This chapter considers what kind of right the claimant acquires. Above various subsets of each, the choice always lies between a right in personam (a personal right) and a right in rem (a property right), or both. In cases in which both kinds of right arise, the claimant must elect which one he wants to realize. There are two extreme positions, neither of which turns out to be correct in English law. In the civilian extreme, the only response generated by the event called unjust enrichment is a right in personam, entitling the claimant to restitution from the enrichee. The other is that every instance of unjust enrichment generates both a right in personam and a right in rem. Whatever the future of the proprietary response to unjust enrichment, the need to restrict restitution to surviving enrichment is no longer a reason for knocking out the routine personal claim. In all cases of voidable transfer, the unjust enrichment is reversed by rescission and steps taken consequentially upon rescission.

Keywords:   personal right, property right, unjust enrichment, voidable transfer, rescission, restitution, claimant, civilian extreme, personal claim, surviving enrichment

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