Description

In recent years, arguments have been made that there are two types of enrichment in the law of unjust enrichment: value and rights. The two may overlap, as rights generally have value, but they are nevertheless distinct. The leading proponent of this view is Robert Chambers. This insight has led to arguments for so-called ‘proprietary rights’ to arise where the enrichment received by the defendant consists of rights, such rights arising either at the point when the cause of action is complete. The ‘proprietary right’ in question is generally a trust arising by operation of law, though powers to rescind and rectify have also been mentioned.
The purpose of this seminar is to assess the validity of arguments for a trust. For reasons of space, arguments for other ‘proprietary rights’ will not be considered. The conclusion reached is that though it is undoubtedly correct to distinguish between the rights and value, this provides no reason for a pre-judgment trust. The model instead proposed is that courts can in certain circumstances make orders that defendants reconvey rights, though that is a different thing altogether.

About The Speaker
Professor William Swadling is Reader in the Law of Property at the University of Oxford and a visiting professor at the National University of Singapore, teaching an intensive course on Restitution. At Oxford, he chairs the faculty’s teaching groups in Restitution and Personal Property. He is particularly interested in the intersection between trusts/property and restitution, and a number of his articles on this topic have been cited in the English courts, most notably in Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669. He is a contributor to Halsbury’s Laws of England (4th ed, reissue), and wrote the section entitled ‘Property’ in Burrows (ed), English Private Law (3rd ed, 2013). He is a founding editor of the Restitution Law Review and has held visiting professorships at the University of Hamburg, Seoul National University, the National University of Singapore, University of Paris II (Panthéon-Assas), and the University of Leuven. He is an academic associate at One Essex Court (chambers of Lord Grabiner QC), a Senior Fellow at the University of Melbourne, an elected member of the American Law Institute, and an academic member of the Chancery Bar Association.