18. Proprietary Claims and Remedies

Abstract

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses proprietary claims and remedies, which are based upon a claimant’s property rights. Proprietary claims require the claimant to have a right that can be identified in property in the defendant’s hands either through the process of following or that of tracing. Where a breach of trust or fiduciary duty has involved the transfer of property in which the beneficiary or principal has an equitable proprietary interest, the beneficiary or principal may wish to bring a claim to assert his or her proprietary interest in assets that are now in the hands of another person. Such claims are founded on the beneficiary’s equitable interest in the property, and so are properly characterized as proprietary claims. However, although the claim is founded on the beneficiary’s proprietary rights, the remedy awarded is not necessarily a proprietary one.