Proprietary Remedies Research Articles

ПРИМЕНЕНИЕ СРОКА ИСКОВОЙ ДАВНОСТИ К ВИНДИКАЦИИ НЕДВИЖИМЫХ ВЕЩЕЙ В РЕСПУБЛИКЕ АРМЕНИЯ / APPLICATION OF LIMITATION PERIOD TO REI VINDICATIO OF IMMOVABLE PROPERTY IN THE REPUBLIC OF ARMENIA

The present article addresses the issue of applying a three-year limitation period to claims for the recovery possession of immovable property. The problem lies in the fact that the expiration of the short three-year period does not terminate the right of ownership to the property. As a result, when a vindication lawsuit is dismissed due to the expiration of the limitation period, the defendant continues to possess the property unlawfully, leading to dominium sine re. Furthermore, the acquisition of ownership after 10 years of possession due to acquisitive prescription poses difficulties. The acquirer must not only possess the property but also possess it in good faith and as their own, which is practically impossible for the "usurper" of someone else's property, from whom they previously demanded the property as the rightful owner. Thus, a period of uncertainty arises regarding property rights, and the article examines the established practice of Armenian courts concerning mechanisms to circumvent the three-year limitation period. In particular, the extension of the limitation period to the rei vindicatio claim has resulted in its substitution with a negatory claim, leading to a confusion of proprietary remedies. The author also discusses the feasibility of proposed scientific approaches to resolving the raised issue by harmonizing the limitation periods and acquisitive prescription.

THE NEW THINGS: PROPERTY RIGHTS IN DIGITAL FILES?

AbstractThis paper looks at the property status of digital files, such as electronic documents, under English law. We argue that, while mere information is rightly not considered property, digital files are not mere information. Instead, they are distinct virtual objects that exist at the logical – or software – layer of a computer system. Property law could recognise digital files as a new, third kind of thing, alongside things in possession and in action. Doing so might help resolve disputes over access to digital files, by providing proprietary remedies similar to those available for paper documents.

The Canadian Answer to the English Dilemma: Contribution-based Approaches over a Common Intention Constructive Trust in Family Homes

Determining each other’s proprietary interests in the shared home after relationship breakdown remains hotly debated. In Stack v Dowden, Baroness Hale stated that it was possible to impute an intention that the parties could never have had, to achieve fairness. In Jones v Kernott, imputation could only operate in quantifying interests. Also, imputation is limited to (1) presumption of resulting trusts, or (2) absence of evidence to infer common intention. This clarification limited its use in legal practice, but imputation remains controversial since it practises the court’s standard of morality. However, this can be resolved by focusing on how the defendant is benefited, rather than summoning a common intention. This is particularly important when the defendant is the sole legal owner. After Pettkus v Becker, Canada shifted from an intention-based resulting trust to a remedial constructive trust approach, based on unjust enrichment. This shift absolves the need to find or impute a common intention. Any of the claimant’s contribution received by the defendant in relation to the home, domestic or financial, already constitutes enrichment. Gender discrimination is avoided since the claimant’s contributions are not judged against a (gendered) threshold for detrimental reliance. This approach may attract criticism, since remedial constructive trusts are rejected in FHR European Ventures LLP v Cedar Capital Partners LLC. However, the focus here is the merits of a contribution-based approach. Whether a remedial constructive trust should be imposed is only part of the question. Routes to reclaim assets discussed in this article include proprietary remedies from unjust enrichment, and conventional trusts law (resulting trusts and Quistclose trusts). Shifting one’s attention away from the common intention is expected to promote fairness in asset division.

Reexamining opioid addiction as a co-occurring disorder: A clinical perspective on the “Chronic Pain Paradox”

The use of opioids as an anodyne for chronic pain was not prevalent before the 1980s1. Students in medical schools had learnt to avoid prescribing opioids, considered highly addictive for treatment of non-malignant chronic pain1. Yet, from the early 1990s, prescription opioids emerged as a widely accepted method of treating chronic pain and palliative care2. Previously, chronic pain was treated in multidisciplinary clinics with coordinated care which included physical exams, medication management, biopsychosocial evaluation, cognitive behavioral treatment, physical therapy, and occupational therapy2. Starting in the early 1990’s, under dubious antecedence, opioid analgesics were promoted as the proprietary remedy for chronic pain and received endorsement and support from care providers across the United States3. Non-cancerous chronic pain, as a phenomenon, was thus elevated to an ailment or a medical condition by its own right from its erstwhile status as a corollary to another medical condition. This led to an increase in opioid analgesic prescriptions, followed by a wide-ranging abuse by patients, converting opioid use disorder (OUD) to a problem of epidemic proportions4. Apart from the legal course of action initiated against Perdue Pharma, in 2020, the maker and distributor of Oxycontin that resulted in a $3.8 billion lawsuit settlement, in which Perdue Pharma pleaded guilty; since the recognition of this problem, new measures have been adopted to counter the opioid epidemic by clinicians. There has been a significant shift towards circumvention by physicians prescribing opioids for non-cancerous chronic pain. In a few instances, providers have resorted to putting a temporary moratorium on prescribing opioids to all non-cancerous chronic pain cases5. The Center for Disease Control (CDC) and various state agencies have passed protocols, installed prescription monitoring programs (PMPs), and created taskforces to rein in flagrant prescription practices by medical providers. Mental health counseling and alternative, non-prescriptive pain management procedures have been reintroduced in treatment as a new way of approaching the problem6,7. The Substance Abuse and Mental Health Administration (SAMHSA) have suggested hybrid programs such as medically assisted treatment (MAT) which utilizes the medical approach of prescribing slow releasing drugs with concomitant counseling for patients, as one of the best practices to intervene with opioid use disorders8. An integrated healthcare approach brought primary care physicians, nurses, and physician’s assistants together with addiction counselors and social workers to coordinate and implement treatment for opioid misuse9,10. These new approaches are laudable and effective, yet we argue, in this paper, for ascertaining the treatment of chronic pain as a co-occurring disorder to addiction. While acknowledging the two original transgressions of the opioid epidemic: a) the delineation and decontextualization of chronic pain as an independent medical phenomenon, and b) the over-prescription of opioid analgesics to treat chronic pain; we argue that recognizing chronic pain as a co-occurring disorder with addiction and psychological trauma could help providers contextualize it better, leading to an improved treatment protocol. Over last two decades, persistent over-prescribing has set forth a culture of righteous demand among patients to obtain opioids and receive instant pharmacological sedation as an antidote to chronic pain. This culture, which may have taken roots, could cause resistance among chronic pain patients towards any change to alternative treatment plans. This could frustrate medical providers and reformers as they usher in the new treatment procedures promulgated by SAMHSA and the CDC. Thus, a co-occurring diagnostic framework could provide a pathway to better understand this treatment dilemma. The co-occurring disorder lens of diagnosis could provide a pathway to understand this treatment dilemma. In this paper, we do a critical, non-systematic review of existing literature that explores the intersection of chronic pain and OUD to make a case that these issues should be treated as co-occurring disorders and not as disconnected, independent phenomenon. We review the scope of the problem and provide an analysis of the complex relationship between chronic pain and usage of opioids from both pharmacological and psychological viewpoints and explore the challenges to treatment. We take an ecological and exchange theory perspective to understand the co-occurrence of pain and opioids addiction from a trauma-informed lens to unpack the complexity that OUD poses in juxtaposition to chronic pain. Furthermore, we explore the strategies to develop an integrated healthcare workforce from a co-occurring disorder perspective. Furthermore, we explain the context of co-occurring pain, addiction, and psychological trauma and identify the pertinent questions that such co-occurrences pose for treatment protocols. We draw our argument from a critical review of the literature as well as the incidence and prevalence of OUD.

Proprietary Remedies for Constructive Trusts: A ’Commonwealth Yardstick’ for Malaysian Courts

In a previous article published in 2018, the authors had attempted to highlight the issues that will present themselves when a constructive trust is imposed without clear guiding principles pursuant to recent judicial pronouncements on point. Whilst the doctrine of constructive trusts in Malaysia has been accepted as a ‘remedial device’, there has been little debate on the effects of such a constructive trust on the parties in the claim as well as other parties outside the claim. There is much debate in other commonwealth jurisdictions on these but the Malaysian Courts are yet to catch up with this debate. The primary contribution of this paper is to provide some clarity on the effects of the imposition of constructive trust as a remedial device in Malaysia, some of which could have far reaching implications. This article will attempt to identify and provide some guidance from other commonwealth countries for the Malaysian courts to use as a yardstick when deciding on the imposition of proprietary remedies pursuant to constructive trust.

Current Issues in Unjust Enrichment: The 'Time Value' of Money and Proprietary Remedies for Failure of Basis

The paper examines two issues in the English law of unjust enrichment that have been considered in recent case law: whether claims lie for the value of an opportunity to use money, and if so how these should be measured, and whether proprietary remedies should be awarded to claimants who succeed in establishing a claim on the ground of failure of basis, and if so when.

The Liability Rule, Proprietary Remedies and Body Parts

Sometimes courts and commentators disavow a proprietary approach to excised body parts in the belief that non-proprietary remedies are adequate to the task. A belief of this sort, this type of conceptual resistance to the application of property law to body parts, is allegedly captured in the compendious expression known as the liability rule. Moore v Regents of the University of California clearly illustrates this type of opposition. Some recent scholarship has also tried to ground this sort of exclusive non-proprietary approach to body parts in the liability rule component of the analytical framework developed by Calabresi and Melamed. This piece interrogates the idea that nonproprietary causes of action should exclusively furnish the applicable theory of liability in relation to body parts; it suggests an understanding of the theoretical framework of Calabresi and Melamed which facilitates a proprietary approach to body parts along with current non-proprietary approaches. I argue that property, liability and inalienability rules basically serve the same purpose (protection of an entitlement in the nature of a property interest) and that the difference amongst them is one of degree rather than nature; also, none of the triad applies separately and independently of one another. Thus, I suggest that the liability rule is not essentially non-proprietary and could be used to protect a proprietary entitlement. I tested my understanding of Calabresi and Melamed’s framework against a case that involved damaged kidney in order to show the difference the framework, as conceived by me, could make to the remedial fortunes of a claimant in body parts’ litigation.

Equity’s new darling and the pitfalls of remedial absolutism

This article considers the protection afforded to unsecured creditors in the context of equitable proprietary remedies. First, it argues that recent attempts to cater for hypothetical unsecured creditors when formulating a general rule are unprincipled and result in the interests of other innocent third parties being overlooked. Secondly, it is argued that the best way to accommodate third-party concerns in the context of fiduciary wrongdoing is through the exercise of remedial discretion. Such a framework would match the approach taken to discretionary considerations in the context of other equitable remedies such as injunctions and specific performance.

Constructive Trusts in Insolvency: A Canadian Perspective

In Canada and the United States, the constructive trust is a proprietary remedy awarded mainly to prevent unjust enrichment or to deter wrongdoing. The remedy gives the plaintiff an equitable proprietary interest in the disputed asset, as opposed to simply a money claim for the value of the asset. This feature of the constructive trust is particularly important if the defendant is insolvent or, by extension, if there is a substantial risk that the defendant may become insolvent before the judgment is satisfied. A constructive trust in insolvency is analogous to a security interest: it allows the plaintiff to take the disputed asset out of the defendant’s estate, with the result that the plaintiff recovers in full on its claim. This is at the expense of the estate, which is correspondingly depleted, and the claims of the defendant’s unsecured creditors which are, as a result, diminished. The Canadian case law on the availability of constructive trust relief in the defendant’s insolvency is unsettled and there is confusion in both the case law and the literature as to the doctrinal basis of the remedy and the relevant policy considerations. It is commonly argued that a key policy consideration is, or should be, whether the plaintiff voluntarily accepted the risk of the defendant’s insolvency. But while popular in restitution circles, this approach is deeply problematic from a bankruptcy perspective. This article examines the current state of the case law in Canada, identifies and critically analyzes the main theoretical arguments in the literature and suggests the basis on which courts should approach cases of this kind.

Distributive justice and proprietary remedies over bribes

It is often said that distributive justice has no place in private law. However, distributive justice considerations feature strongly in cases involving the remedies imposed over bribes gained in breach of fiduciary duty. This paper argues that courts should exercise structured discretion, guided by principles of distributive justice, in ascertaining the appropriate remedy. The distributive factors of desert, needs and equality should inform the determination of what remedy is apposite to provide justice in the circumstances.

Extending The Scope Of Proprietary Remedies To Recovery Of Pure Profits From Successful Investment Of Bribes: The Endgame In Lister V Stubbs

For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the rule and show how the judges of the English courts were prepared to act on policy ground, in comity with other common law jurisdictions in upholding justice in a borderless world. Keywords: breach of Fiduciary duty; Accounts of profits; Proprietary interests; Recovery of pure profits.

Ariadne's Skein again: secret profits in Sinclair v Versailles and FHR v Mankarious

The question whether a gain received by a fiduciary in breach of duty is held by him on constructive trust for his principal from the moment of its receipt was answered by Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453, where the Court of Appeal (declining to follow a decision of the Privy Council) held that a proprietary remedy was not available. This decision was examined in a special issue of Trusts & Trustees (Vol. 18, No. 10, November 2012). The question is going to be finally answered—providing welcome clarification—by the Supreme Court in FHR European Ventures LLP and other companies v Mankarious and other companies at a hearing listed to commence on 17 June 2014. This article looks at the background of the Sinclair and Mankarious cases and the issues facing the Supreme Court.

Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract?

The operation of the remedies for breach of the equitable duty of confidence are confused, largely because of a recent tendency to treat the action as a tort, with a consequent lack of emphasis of the equitable origins of the action for breach of confidence. This paper places the action and the available remedies in its equitable context. It surveys the operation of the pecuniary remedies which are available, with particular reference to negotiating damages and breach of confidence. Principles are identified to determine when each remedy should be available, including two fundamental principles of but for causation and conscience. The paper also considers whether profits made from breach of confidence should be held on constructive trust. Whilst it is argued that it is now time to recognise a principled remedial constructive trust in English law, the role of such a trust as a remedy for breach of confidence is likely to be very limited.

The Properties of the Law: Restoring Personal Property Through Crime and Tort

Why are the civil remedies at common law which delivery up specific moveable property to another with greater right to possess so narrow in English law? Historically the equitable remedy of specific restoration returned property more easily than even the rule today; the common law remedy remains discretionary, with the claimant having to show the value to the property that cannot be found equally easily in the market. There may be a number of reasons behind this. The purpose of this chapter is to show the role played by the widely available proprietary remedies in the criminal law, as well as the role of the conceptual structure of property law in England focussing on relative title to possess. The argument being tested is that there was less pressure to develop a civil law restoration remedy because significant practical results were being achieved by the criminal mechanisms. It is all the more interesting that specific restoration has been more significant than compensation in the criminal law (when the reverse has been true in the civil law).

FIDUCIARY DUTIES AND PROPRIETARY REMEDIES: ADDRESSING THE FAILURE OF EQUITABLE FORMULAE

AbstractThis article proposes a new framework for determining the availability of proprietary remedies for breach of the fiduciary duty of loyalty. It examines the alternative and conflicting arguments put forward in the leading cases, and suggests that they fail to justify their conclusions, either under- or over-estimating the incidence of proprietary relief for fiduciary disloyalty. These shortcomings appear to be the result of inappropriate reliance on familiar equitable formulae, in particular the routine equitable duty to account, the seemingly inescapable maxim that “equity treats as done that which ought to be done”, and the potent rules of tracing.

Third Time's the Charm: The Coming Impact of the Restatement (Third) Restitution and Unjust Enrichment in Bankruptcy

Bankruptcy courts have frequently been characterized as courts of equity. Often this characterization has accompanied unusually relaxed interpretation or application of a provision of the Bankruptcy Code. However, this understanding does not exhaust the meaning of equity in bankruptcy.Historically, equity covered a large range of topics – trusts and estates, injunction, contracts, specific performance, unjust enrichment, restitution, and disgorgement. In addition, equity was not limited to particular remedies. Equity’s remedies certainly included money damages but recognized many more. The law of equity was substantive as well as remedial; it recognized primary rights as well as secondary rights of rectification. Among equity's primary rights were equitable interests in property. And section 541(a) of Bankruptcy Code includes such equitable interests in its definition of property of the estate.If equity once boasted a substantial substantive content, what was it? The answer is found in the title of the Restatement Third, Restitution and Unjust Enrichment (R3RUE). Unjust (or unjustifiable) enrichment provides the conceptual core of this body of law. As the converse of tort law, which identifies unjustified harms to another, unjust enrichment recognizes unjustified benefits to another, at least to the extent they come at the claimant’s expense. Notwithstanding the merger of law and equity, in the mid-1990’s the American Law Institute appointed Andrew Kull as the reporter for the R3RUE. With final approval in 2010, we can expect to see the R3RUE affect the legal landscape in the near future. It is that impending impact in bankruptcy that constitutes the burden of this article.Part I briefly summarizes the substantive law of equity as expressed in the R3RUE. It addresses the substantive core of law of equity. Distinct categories of operative facts such as benefits conferred by mistake or without request, pursuant to a voidable contract, or as a result of wrongful interference with the rights of a claimant ground unjust enrichment.Part II surveys the remedial aspects of the R3RUE comprising the four so-called proprietary remedies–constructive trust, equitable lien, subrogation, and the paired set of rescission and restitution. These proprietary remedies are the equitable interests in property that are part of the property of the estate.Finally, Parts III–VI focus on these four remedies in greater depth and examine how courts operating under the Bankruptcy Code have (mis)applied them. I conclude with specific observations about how the R3RUE can and indeed should affect the development of equitable interests by firmly recognizing their place as property of the estate.

Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (in Administration) Court of Appeal [2011] EWCA Civ 347

THE PURSUIT OF PROPRIETARY REMEDIES FOR BREACH OF FIDUCIARY DUTYThere is an old adage that if an opportunity looks too good to be true, then it almost certainly is. Despite this, the law reports are filled with examples of people seeking redress for the fallout from “get rich quick” schemes that have gone wrong. One type of scam, exemplified by the fraudulent investment scheme run by Bernard Madoff from the United States and which collapsed in 2008, is known as a “Ponzi1 scheme”.2 The wrongdoer in such a scheme invites “investments” promising a high rate of return. The funds subscribed are not in fact invested (or if they are, they are invested in vehicles which produce a lower rate of return than that promised). Instead, the money from new subscribers is used to pay the rewards to earlier subscribers. In due course the scheme is bound to collapse, because there will be a point at which the new funds coming in are insufficient to make the payments to existing subscribers, and the bubble of new investment can continue only for as long as there is confidence on the part of subscribers, encouraging fresh deposits. When the scheme begins to unravel, it falls apart very quickly, since the assets held by the wrongdoer are inevitably inadequate to reimburse all of the subscribers in full. In the ensuing insolvent liquidation, subscribers stand to recover only a small fraction of their subscription as unsecured creditors unless they can demonstrate that they have a proprietary interest in some of the remaining assets. Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd is a case involving what the judge at first instance called a “classic Ponzi scheme”.

Policy and Proprietary Remedies: Are We All Formalists Now?

Policy and Proprietary Remedies: Are We All Formalists Now?

A fatal case of potential chronic overdoses of prescribed and proprietary remedies

A 33-year-old man was found in a state of cardiopulmonary arrest. He was transported to an emergency hospital but was pronounced dead. He had suffered from depression for about 8 years and had attempted suicide repeatedly. A search by the police found 645 empty Press Through Package (PTP) sheets. They had included neuroleptics, antidepressants, hypnotics, proprietary antitussives containing caffeine, proprietary cold remedies containing caffeine, and other unidentified drugs. An autopsy showed higher rectal temperature (38 degrees C), severe pulmonary edema (left: 681 g, right: 821 g), and a large amount of urine in the bladder (about 760 mL). Toxicological analyses using gas chromatography-mass spectrometry (GC/MS) and high performance liquid chromatography (HPLC) demonstrated that doses of clomipramine hydrochloride (a tricyclic antidepressant), chlorpromazine (a phenothiazine), and caffeine (a methylxanthine derivative) were within the toxic range (0.68, 0.64, and 34.24 [microg/mL], respectively). Histological examination showed centrilobular necrosis of the liver with small fat droplets. We concluded that he had died of pulmonary edema due to combined drug intoxication including proprietary antitussives and cold remedies. Furthermore, there was a strong possibility that he had habitually taken overdoses of those drugs. Herein, the risk of misuse of prescribed and proprietary drugs, especially for people with psychological problems, should be reemphasized.

Unjust Enrichment Claims Against the Estate Based on the Provision of Services to the Deceased

Unjust enrichment claims often feature in estate litigation. Given that succession law prizes adherence to formalities and strives for certainty, it is not surprising that disappointed beneficiaries turn to the private law to seek a share of the estate. If a properly made and executed Will governs how the deceased’s available wealth is to be distributed and the disappointed beneficiary is either not included or not included to the extent he or she thinks appropriate, then succession law provides no opportunity for relief outside the equalization claim of a spouse and a Dependants’ Relief application for support. Hence the use of unjust enrichment principles, most typically raised in relation to benefits conferred on the deceased which sound as claims for as quantum meruit damages or proprietary remedies. These are often difficult cases to litigate given that the relevant principles seem to resonate both in unjust enrichment and some more conventional action. One natural result is the well-founded suspicion that uncertainty as to the nature and extent the unjust enrichment action provides an opportunity for spurious claims to be made against in the Estate in the expectation that the Estate Trustee and beneficiaries may wish to settle rather than engage in costly and unpredictable litigation. In this paper, I examine some recent law and the underlying principles which assist in identifying a method and criteria for evaluating potential claims. The key is to follow the mandated manner of inquiry in setting out either those traditional categories of juristic reason that allow for the benefits to be retained or given up, or, to properly articulate what the reasonable expectations of the parties were in the facts of the case with reference to the developing principles law of unjust enrichment set in an appropriate public policy context. In this way, sensible results can be achieved in individual cases and the law respecting unjust enrichment claims in the succession law context can develop in a principled manner.