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This book analyses proprietary restitution, at law and in equity,
and inquires whether proprietary relief is available in defective
transfers of property, such as mistaken payments. Refining the
Birksian event-based classification of rights, it offers a coherent
and rationalised approach to the transfer, creation and tracing of
proprietary rights in general. The book sets out the current state
of the law and discusses a vast body of case law. It is argued that
the scope of proprietary relief following defective transfers of
property is quite limited. Legal or equitable title in the
transferred property remains vested in the transferor if his
intention to execute the transaction is virtually absent
altogether. If only equitable ownership is retained, a resulting
trust comes into being. If legal and equitable ownership passes,
the law of rescission might provide a power in rem which equips the
respective party with a proprietary interest. Apart from that,
however, no proprietary relief is available in defective transfer
cases. In particular, constructive trusts have no role to play in
this context. Proprietary Consequences in Defective Transfers of
Ownership is a comprehensive work of interest to academic and
professional readers alike.
This book analyses the mechanics of how legal ownership in tangible
movable property is transferred from one person to another and
whether certain kinds of defects, particularly mistakes, may
prevent its passage. Though this area of the law may well be
regarded as a core area of English private law, it has not yet
received much attention in academic literature. It is argued that
English law, on its best interpretation, and contrary to the
traditionally accepted approach, adopts a principle of separation
(i.e. that the underlying contract or other transaction is
notionally distinct from the conveyance of title) and abstraction
(i.e. that the conveyance of title is not dependent on the validity
of the underlying contract or other transaction). This applies for
transfers by delivery, transfers by sale and transfers by deed.
Further, it is very rare for mistakes to prevent the passage of
ownership. In fact, title passes unless the transferor's intention
to transfer property is virtually absent altogether. For this
purpose, an analogy is drawn with the distinctions made in Shogun
Finance Ltd v Hudson.
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