Abstract:
The most fundamental source of confusion in the law of proprietary remedies results from a disagreement as to whether it is legitimate to try to explain, justify or develop proprietary remedies by reference to policy arguments that focus on the effects such relief have in insolvency. The practice of explaining proprietary relief on this basis has been attacked on a number of grounds. It has been suggested that the justifications that are offered on this basis are analytically flawed. It has also been argued that giving proprietary relief to confer priority in insolvency would be likely to result in injustice because of unintended consequences generated by other effects that flow from the award of property rights. Finally, it has been argued that such an approach would amount to a usurpation of the legislative role. This essay examines each of these objections in turn and concludes that none of them withstands close examination. It equally notes that, far from regarding such arguments as illegitimate, the judiciary has on numerous occasions rationalized the provision of proprietary remedies on the basis of their consequences in insolvency.
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Craig Rotherham, Policy and Proprietary Remedies: Are We All Formalists Now? Current Legal Problems (2012) doi: 10.1093/clp/cus003. First published online: May 15, 2012.
First posted 2012-05-16 07:11:18
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