Abstract
This article argues that claims to recover trust property from third parties arise in response to a trustee's duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of specific property. Second, it is difficult to identify a convincing justification for introducing unjust enrichment. Third, it will work to the detriment of innocent recipients. The article goes on to show how Re Diplock supports this analysis, by demonstrating that no duty of preservation had been breached and that a proprietary claim should not have been available in that case. The simple conclusion is that claims to recover specific property and claims for unjust enrichment should be seen as mutually exclusive.
| Original language | English |
|---|---|
| Pages (from-to) | 399-429 |
| Number of pages | 31 |
| Journal | Cambridge Law Journal |
| Volume | 76 |
| Issue number | 2 |
| DOIs | |
| Publication status | Published - 12 Jul 2017 |
Bibliographical note
© Cambridge Law Journal and Contributors 2017. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike licence (http://creativecommons.org/licenses/by-nc-sa/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the same Creative Commons licence is included and the original work is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use.Keywords
- knowing receipt
- proprietary claims
- Re Diplock
- restitution
- third parties
- trusts
- unjust enrichment