Restitutionary Claims and Remedies to Vindicate Property Rights

Abstract

Abstract Once a claimant has established that he or she has a legal or equitable proprietary interest which can be followed or traced into property which is in the defendant's possession or under the defendant's control, the claimant can establish a restitutionary claim to vindicate his or her property rights. This chapter examines the nature of the claim to this property and the appropriate remedy to vindicate this proprietary right. These remedies can take two forms. The first are proprietary remedies where the claimant is able to recover the property itself or at the very least acquire a security interest in the property in the defendant's hands. The second are personal remedies where the defendant is able to recover only the value of the property received by the defendant. The chapter discusses common law proprietary claims and remedies, personal claims and remedies at common law, personal claims and remedies in equity, and the future of personal claims and remedies.