Non-Consensual Property Rights
Some form of classification is necessary to aid attempts to bring
order to a confusing and confused area of law. If the events from
which non-consensual property rights arise can be classified, then the
law’s response is more likely to be consistent and coherent. Yet
there are problems. The very nature of the facts that are brought
before courts in the sorts of cases that comprise this area of law
demand fairness, and legal policy considerations lurk behind every
rationalisation. This makes it more difficult to achieve coherence,
but our task is less demanding than achieving coherence in the law: we
only need to look at the sets of facts that give rise to property
rights by ‘operation of law’ (which are given effect by a declaration
that the property is held on constructive trust for the plaintiff) and
assess whether the classifications that have been suggested are
correct, if they can be improved or whether it is a lost cause and the
best cause of action is to give up and in doing so suggest that some
form of ‘pure’ discretion is the only way forward. The last
alternative, to give up and suggest that the events are impossible to
classify cannot be taken. This is because we are considering property
rights said to arise by operation of law. This suggests some
‘automatic’ nature, rules defined in advance. If the situations that
‘trigger’ this operation of law are incapable of classification, then
such automatic operation is necessarily impossible because it is
impossible to know what situations the rights arise in if we cannot
describe them sufficiently to classify them.
So we proceed on the ...
... middle of paper ...
...as a mixed
substitution. That event created the property right in the resulting
payout.
The key is to look carefully at the facts. It sounds very simple, but
it is not because the facts are often complex and the temptation to
confuse the remedy – the constructive trust with the causative event
by concentrating on an already existing trust relationship must be
overcome. It is possible to classify the events that give rise to
non-consensual property rights. What is necessary is to focus on
exactly those events, why they give rise to the rights, and not to be
confused by the eventual remedy.
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[1] E.g. in Birks, “Property, Unjust Enrichment, and Tracing” [2001]
CLP 232, at 239
[2] Millett, Bribes and Secret Commissions, [1993] RLR 7
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