William Swadling, ‘Unjust enrichment: value, rights, and trusts’

INTRODUCTION
In recent years, arguments have been made that there are two types of enrichment in the law of unjust enrichment: value and rights. The two may overlap, as rights generally have value, but they are nonetheless distinct. The leading proponent of this view is Robert Chambers. This insight has led to arguments for proprietary rights to restitution in cases where the enrichment received by the defendant consists of rights, such proprietary rights arising before judgment, when the cause of action is complete. The proprietary right in question is generally a trust arising by operation of law, though it might also be a power to rescind the transfer or rectify any document effecting the transfer. The purpose of this article is to assess the soundness of the arguments for the trust response; for reasons of space, the other proprietary rights will not be considered. The conclusion reached is that, even were it correct to distinguish between value and rights as enrichments, such distinction provides no platform for the imposition of trusts. Instead, courts should in limited circumstances be able to order defendants to reconvey rights received as unjust enrichments, ie make orders at trial for specific restitution …

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William Swadling, ‘Unjust enrichment: value, rights, and trusts’ (2021) 137 Law Quarterly Review (January) 56-76.

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