基本説明
Publication delayed (Originally scheduled in June 2001). The book examines redistributive processes such as tracing, subrogation and proprietary estoppel and contrasts the English treatment with developments in other common law jurisdictions.
Full Description
There is a tension in English law between the idea that the courts might provide a remedy by creating new property rights and the understanding that the judiciary's role is limited to the protection of existing proprietary interests with the power to redistribute property residing in the legislature alone. While there are numerous instances in which the courts intervene to readjust property rights,these are disguised in metaphor and fiction. However, this has meant that the law in this area has developed without open consideration of justifications for redistributing property. The result of this is that there is little coherence in the law of proprietary remedies as a whole and a good deal of it is indefensible. The book examines redistributive processes such as tracing, subrogation and proprietary estoppel and the use of the constructive trust in the context of contracts to assign property, vitiated transactions, the profits of wrongdoing and the breakdown of intimate relationships.
It contrasts the English treatment of this area of law with developments in other common law jurisdictions where a more dynamic understanding of property has permitted more open acknowledgement of the judicial role in redistributing proprietary rights
Contents
Part 1 Property and proprietary remedies: exploring the idea of remedial trusts - from remedy to property - the development of the trust, different uses of the constructive trust, the remedial/institutional dichotomy; redistribution and property rites - two conceptions of property, property in English legal thought, the influence of these understandings on the law of proprietary remedies, orthodox and redistributive proprietary remedies, reason and ritual in the law of proprietary remedies; the legacy of legal realism - instrumentalist approaches to property - property in American legal thought, instrumentalism in proprietary remedies in US law, instrumentalism in other common law jurisdictions, formalism and instrumentalism contrasted; the normative foundations of proprietary claims and remedies - considerations of justice and efficiency for giving owners relief against third parties, rights to profit, should these remedies be specific?, should these remedies have priority in bankruptcy?. Redistributive proprietary remedies: the metaphysics of tracing - substituted title and property rhetoric - analysing tracing, the metaphysics of tracing - the denial of the remedial nature of tracing in legal discourse, an explanation of tracing rhetoric - the reconciliation of tracing with axiomatic notions of property rights, the normative basis for substituted title, the consequences of tracing discourse for the substantive, some realism about tracing, conclusion; the proprietary consequences of a vitiated intention to transfer property - "an intolerable reproach to our system of jurisprudence"? - the possible legal responses to a vitiated consent to pass title, vitiated intent and equitable title - doctrinal responses, proprietary relief for vitiated transfers - relevant policy considerations; qualified consent to transfer property - the mysterious basis of the quistclose trust - conceptualising the quistclose trust, considerations of justice and efficiency; obligation into ownership - constructive trusts and liens in arrangements to assign property - the distribution of entitlements in sale of goods transactions, the passage of title in equity - constructive trusts and liens arising in the context of contracts of sale, conclusion; proprietary relief for enrichment by wrongs - the shifting boundary between ownership and obligation - proprietary relief for enrichment by wrongs - a normative analysis, Lister v. Stubs and the ownership/obligation distinction, deducing ownership from obligation - AG for Hong Kong v. Reid, proprietary relief for enrichment by wrongs in North American legal thought, conclusion - the limits and price of formalism; the division of assets on the breakdown of intimate relationships - the limits of private ordering - introduction, from contract to status - justifications for judicial intervention, the inadequacy of justifications offered for intervention in this area, the limits of the private ordering paradigm (Part Contents).
