Establishing Proprietary Restitutionary Claims

Abstract

Abstract Two different principles on which restitutionary claims can be founded are unjust enrichment and wrongdoing. This chapter examines the third and final principle on which such claims may be based, namely, the vindication of the claimant's property rights. All restitutionary claims which are founded on the vindication of the claimant's proprietary rights are properly classified as proprietary claims, since they are dependent solely upon the identification and protection of proprietary rights. But the restitutionary remedies by virtue of which these property rights are vindicated are not necessarily proprietary remedies, since, depending on the particular circumstances of the case, the appropriate remedy may either be proprietary or personal. The chapter discusses the nature of proprietary restitutionary claims, distinction between vindication of property rights and reversal of unjust enrichment, relationship between proprietary restitutionary claims and restitution for wrongs, nature of the restitutionary remedy, framework for analysing a typical proprietary restitutionary claim, identification of the proprietary interest, and the following and tracing rules.