Property, Unjust Enrichment, and Defective Transfers
Property, Unjust Enrichment, and Defective Transfers
It is widely accepted that a substantial chunk of restitutionary claims arise out of so-called defective transfers. An asset previously held by the claimant passes into the hands of the defendant, and the claimant's consent to its passing is either defective or wholly absent. But why exactly is a claim triggered on these facts? Unjust enrichment does a poor job of explaining why the law should require such gains to be given up. Appeals to corrective justice aren't much better. Instead, this chapter argues that these claims arise as a means of protecting and effectuating a claimant's interest in exclusively determining the disposition of his assets. In other words, it is because, at the outset — it was the claimant to whom the law had exclusively reserved the power to determine how and by whom that asset be used and enjoyed, and he did not (properly) consent to it being used and enjoyed by the defendant — that we recognise the defendant as liable to make restitution to the claimant. Such ‘proprietary’ theories have been given remarkably short shrift by a majority of restitution theorists. The chapter shows why their criticisms miss the mark, before concluding with an indication of how this understanding of defective transfer claims can offer principled solutions to perceived problem areas, such as indirect receipt, insolvency, and claims for services.
Keywords: unjust enrichment, restitution, property, defective transfers, private law, corrective justice, legal theory, interpretive legal theory, title, passing of title
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