Morally blameless wrongdoers and the change of position defence

This article argues that, contrary to the position taken by some judges and commentators, morally blameless defendants who have committed torts of strict liability should be able to raise the change of position defence against claimants who sue for a release fee (also known as “Wrotham Park damages”). For the defence to be available, however, release fees need to be understood not as compensatory, as many currently insist, but as gain-based. The defence should not necessarily be available in the context of restitution for wrongs to all defendants who have changed position in good faith, as is the case for unjust enrichment by subtraction. Those who changed position by dissipating wealth for their own benefit should be denied the defence if their breach of the claimant’s rights was careless. Defendants who, in contrast, altered their circumstances in such a way that they derived no net enrichment as a result of their wrong should be allowed to rely on the defence, even if they acted without care

Constructive Trusts and Theft

The Theft Act 1968 (UK) marked a major reform of United Kingdom criminal law resulting in numerous offences being superseded by a broad crime of theft. The Act explicitly provided that theft extended to interferences with equitable property rights. While the extension of the offence to express trusts might be largely unproblematic, the possibility of it applying to trusts arising by operation of law has been more controversial. This article suggests that the issue is likely to arise less often than is commonly supposed. Many rights enforced by way of a constructive trust can only properly be regarded as initially giving rise to a mere equity that will mature into a full proprietary interest only following the exercise of a power of election and/or the intervention of a court. It follows that, prior to such steps being taken, assets affected by such an equity will not be "property belonging to another" for the purposes of the definition of theft under the Act. Nonetheless, the concerns regarding the extension of theft to constructive trusts are well founded. The reasons for providing that equitable proprietary rights arise by operation of law have little to do with sound rationales for characterising conduct as theft

The Metaphysics of Tracing: Substituted Title and Property Rhetoric

Tracing is conceptualized as the following of an object through an exchange transaction and into the product of that exchange. Why is this so and what are the consequences? This article argues that the presentation of tracing in the metaphysical language of transmutation allows the doctrine to be depicted as consistent with axiomatic notions of property that understand it as pre-political and that preclude judicial readjustment of proprietary rights. However, the metaphysical conceptualization of tracing gives the remedy a conceptual structure that has resulted in the doctrine developing dysfunctionally when compared with the normative justifications that motivated its initial development. The reformation of the law of tracing necessitates understanding property as a social construct-the type of shift in perception that took place in the United States in the first half of this century. Signs of this understanding are apparent in the recent proprietary remedies jurisprudence of the Supreme Court of Canada

Property and power: the judicial redistribution of proprietary rights

This aim of this edited collection of essays is to examine the relationship between private law and power – both the public power of the state and the 'private' power of institutions and individuals. It describes and critically assesses the way that private law doctrines, institutions, processes and rules express, moderate, facilitate and control relationships of power. The various chapters of this work examine the dynamics of the relationship between private law and power from a number of different perspectives – historical, theoretical, doctrinal and comparative. They have been commissioned from leading experts in the field of private law, from several different Commonwealth Jurisdictions (Australia, the UK, Canada and New Zealand), each with expertise in the particular sphere of their contribution. They aim to illuminate the past and assist in resolving some contemporary, difficult legal issues relating to the shape, scope and content of private law and its difficult role and relationship with power

Subjective valuation of enrichment in restitution for wrongs

The received wisdom is that release-fee awards, sometimes known as “Wrotham Park damages”, are available against morally blameless defendants who have committed torts of strict liability. This article argues that such defendants who have not been incontrovertibly enriched as a result of any potential benefit gained from the wrong should be entitled to rely on principles of “subjective devaluation”, rather than having their liability assessed according to the objective value of that benefit. On the other hand, in contrast to the approach taken in cases of subtractive unjust enrichment, defendants should not be protected in this way if they were careless in breaching a claimant’s rights. In addition, this article suggests that in cases of deliberate breaches where it can be shown that the defendant attached a value to the benefit in question that exceeds its market price, the defendant should be liable at that higher level. It is apparent that it is only if release fees are treated as gain-based that the interests of morally blameless defendants can be appropriately accommodated through principles such as subjective devaluation that serve to protect the autonomy of deserving defendant

Morally blameless wrongdoers and the change of position defence

This article argues that, contrary to the position taken by some judges and commentators, morally blameless defendants who have committed torts of strict liability should be able to raise the change of position defence against claimants who sue for a release fee (also known as “Wrotham Park damages”). For the defence to be available, however, release fees need to be understood not as compensatory, as many currently insist, but as gain-based. The defence should not necessarily be available in the context of restitution for wrongs to all defendants who have changed position in good faith, as is the case for unjust enrichment by subtraction. Those who changed position by dissipating wealth for their own benefit should be denied the defence if their breach of the claimant’s rights was careless. Defendants who, in contrast, altered their circumstances in such a way that they derived no net enrichment as a result of their wrong should be allowed to rely on the defence, even if they acted without care

Property and power: the judicial redistribution of proprietary rights

This aim of this edited collection of essays is to examine the relationship between private law and power – both the public power of the state and the 'private' power of institutions and individuals. It describes and critically assesses the way that private law doctrines, institutions, processes and rules express, moderate, facilitate and control relationships of power. The various chapters of this work examine the dynamics of the relationship between private law and power from a number of different perspectives – historical, theoretical, doctrinal and comparative. They have been commissioned from leading experts in the field of private law, from several different Commonwealth Jurisdictions (Australia, the UK, Canada and New Zealand), each with expertise in the particular sphere of their contribution. They aim to illuminate the past and assist in resolving some contemporary, difficult legal issues relating to the shape, scope and content of private law and its difficult role and relationship with power

Subjective valuation of enrichment in restitution for wrongs

The received wisdom is that release-fee awards, sometimes known as “Wrotham Park damages”, are available against morally blameless defendants who have committed torts of strict liability. This article argues that such defendants who have not been incontrovertibly enriched as a result of any potential benefit gained from the wrong should be entitled to rely on principles of “subjective devaluation”, rather than having their liability assessed according to the objective value of that benefit. On the other hand, in contrast to the approach taken in cases of subtractive unjust enrichment, defendants should not be protected in this way if they were careless in breaching a claimant’s rights. In addition, this article suggests that in cases of deliberate breaches where it can be shown that the defendant attached a value to the benefit in question that exceeds its market price, the defendant should be liable at that higher level. It is apparent that it is only if release fees are treated as gain-based that the interests of morally blameless defendants can be appropriately accommodated through principles such as subjective devaluation that serve to protect the autonomy of deserving defendant

Subjective valuation of enrichment in restitution for wrongs

The received wisdom is that release-fee awards, sometimes known as “Wrotham Park damages”, are available against morally blameless defendants who have committed torts of strict liability. This article argues that such defendants who have not been incontrovertibly enriched as a result of any potential benefit gained from the wrong should be entitled to rely on principles of “subjective devaluation”, rather than having their liability assessed according to the objective value of that benefit. On the other hand, in contrast to the approach taken in cases of subtractive unjust enrichment, defendants should not be protected in this way if they were careless in breaching a claimant’s rights. In addition, this article suggests that in cases of deliberate breaches where it can be shown that the defendant attached a value to the benefit in question that exceeds its market price, the defendant should be liable at that higher level. It is apparent that it is only if release fees are treated as gain-based that the interests of morally blameless defendants can be appropriately accommodated through principles such as subjective devaluation that serve to protect the autonomy of deserving defendant

Constructive Trusts And Theft

The Theft Act 1968 (UK) marked a major reform of United Kingdom criminal law resulting in numerous offences being superseded by a broad crime of theft. The Act explicitly provided that theft extended to interferences with equitable property rights. While the extension of the offence to express trusts might be largely unproblematic, the possibility of it applying to trusts arising by operation of law has been more controversial. This article suggests that the issue is likely to arise less often than is commonly supposed. Many rights enforced by way of a constructive trust can only properly be regarded as initially giving rise to a mere equity that will mature into a full proprietary interest only following the exercise of a power of election and/or the intervention of a court. It follows that, prior to such steps being taken, assets affected by such an equity will not be "property belonging to another" for the purposes of the definition of theft under the Act. Nonetheless, the concerns regarding the extension of theft to constructive trusts are well founded. The reasons for providing that equitable proprietary rights arise by operation of law have little to do with sound rationales for characterising conduct as theft