Proprietary Claims to Recover Mistaken and Unauthorised Payments

Abstract

Should a proprietary claim to recover a transfer be available only for transfers made in breach of fiduciary duty, or should a proprietary claim be generally available to recover unauthorised or mistaken payments, which have traditionally given rise, in the absence of a breach of trust or fiduciary duty, only to a personal claim at common law? This is an important and controversial question for commercial practice. It has received attention in various contexts, for example in connection with equitable property, resulting trusts and remedial constructive trusts, tracing and bankruptcy, the treatment of money as property and the passage of title at common law, and the nature of the common law claim. I shall consider the approaches to the problem that have been advanced in the literature and explain and defend my own solution, which focuses in particular on how property should be understood in private law, and on the relationship between primary and remedial rights.