Perspectives on Property and Unjust Enrichment

Abstract

It is now almost a truism that the mysteries of the inter-relationship of property and unjust enrichment will soon be solved, and, in particular, that there will be a stable set of principles on which to base proprietary remedies for unjust enrichment. This confidence is engendered in part by two important monographs which claim that the resulting trust and subrogation proprietarily reverse unjust enrichments, and by contemporary House of Lords decisions, which, though they do not speak with one voice, seem largely in tune with that academic work. The main aim of this thesis is to demonstrate that this development is misconceived. Having set the scene in the introductory Chapter 1, Chapter 2 argues that the resulting trust arises by operation of law on the basis of one of two essential facts (apparent gifts, and trusts which fail), though they may be rebutted by the donor’s intention to make a gift, Chapter 3 argues that the Quistclose trust responds not to the defendant’s unjust enrichment but to the mutual intentions of the parties, and Chapter 4 also argues that subrogation arises by operation of law having regard to the intentions of the parties. In all these cases, intention-based explanations work; and in none does the doctrine respond to unjust enrichment. Nevertheless, there may be other doctrines which provide proprietary responses to unjust enrichment: the equitable salvage lien discussed in Chapter 5 is probably one; and a strict understanding of the remedial constructive trust discussed in Chapter 6 might be another, if, in addition to the defendant’s unjust enrichment at the claimant’s expense, it is shown both that the claimant did not take the risk of the defendant’s insolvency and that the defendant was aware of the circumstances of the claimant’s claim.