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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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Rights in rem

Rights in rem

(p.180) 8 Rights in rem
Unjust Enrichment

Peter Birks

Oxford University Press

Westdeutsche Landesbank Girozentrale v Islington LBC decided, and all the other swaps cases accepted, that a claimant recovering enrichment transferred under a void contract had no right in rem. Rights in personam and rights in rem are differentiated according to their exigibility. The law of obligations and the law of property are the two great pillars of private law. The law of obligations is the law of rights in personam and the law of property is the law of rights in rem. The law as to the incidence of rights in rem in response to unjust enrichment is in a very poor state. This chapter first describes the different rights in rem which can be generated by unjust enrichment and then turns to their actual incidence. Three different proprietary responses are considered, namely, beneficial interests, powers in rem, and security interests. The right in traceable substitutes is also discussed.

Keywords:   rights in rem, rights in personam, law of obligations, law of property, swaps cases, incidence, unjust enrichment, proprietary responses, beneficial interests, security interests

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