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Philosophical Foundations of the Law of Unjust Enrichment$
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Robert Chambers, Charles Mitchell, and James Penner

Print publication date: 2009

Print ISBN-13: 9780199567751

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199567751.001.1

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Philosophical Foundations of Proprietary Remedies

Philosophical Foundations of Proprietary Remedies

(p.281) 10 Philosophical Foundations of Proprietary Remedies
Philosophical Foundations of the Law of Unjust Enrichment

Lionel Smith

Oxford University Press

In the law of unjust enrichment, the question when a plaintiff should have access to proprietary remedies is one of the most controversial issues. This chapter attempts to expose the philosophical and historical foundations of the most important category of proprietary remedies; namely, trusts arising by operation of law, including trusts over traceable proceeds. In so doing, it also explores the historical and philosophical foundations of all trusts, and emphasises the conceptual unity between constructive trusts and express trusts.

Keywords:   unjust enrichment, tracing, constructive trusts, proprietary remedies, operation of law, trusts, traceable proceeds

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