Contemporary Property Law

Paul Jackson, David C. Wilde

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429864650
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1999, this is the first of two books based on papers given at the conference organised by the Centre for Property Law at Reading in March 1998 under the title 'Contemporary Issues in Property Law'. Speakers represented jurisdictions from around the world. Their subjects ranged from the theoretical and jurisprudential to the severely practical. No one who attended the conference – or subsequently reads the papers in this and the following book, Property Law: Current Issues and Debates – can believe in the picture of property law as archetypical, dry as dust, black letter, law. Questions of human rights, changes in social structures, technological developments are all shown to have their impact on property law, calling for careful analysis of the present law and practical proposals for reforms to reflect new developments.

PART I
GENERAL PROPERTY LAW

1 Property: the Challenge from Restitution

CHARLES RICKETT AND ROSS GRANTHAM^*

Introduction - Unjust Enrichment and Property

The advance of the law of restitution is now quite obvious to behold. Restitution, whatever concerns exist about its name, is now widely regarded at least as the third pillar of the law of obligations. But restitutionary theory is throwing up challenges to conventional understandings of legal concepts well beyond the confines of obligations. One fundamental issue which has begun to attract considerable interest, and thus far largely from scholars whose primary field is restitution, is that of the conceptual relationship between the law of unjust enrichment and the law of property, in particular personal property, although not logically limited to personal property. It is our intention in this paper to alert those who work primarily from within the law of property to the views of the most important unjust enrichment theorist on this issue, Professor Peter Birks, and to offer some initial thoughts on those views. There is little doubt, if its track record in other fields is anything to go by, that modern restitutionary theory has the potential to stimulate a quite radical rethink about the nature and role of property law. It is vital that property law theorists engage in the unjust enrichment / property debate if balance is to be maintained.

The debate has been centred on a fundamental question. It is both important and difficult to know whether a plaintiffs claim is one to vindicate an existing property right, or whether it arises from an unjust enrichment of the defendant at the expense of the plaintiff. Scholars who adhere in large measure to the dominant model of unjust enrichment¹ have given various answers. Mr Swadling, for example, suggests that there can be no unjust enrichment if title does not pass to the defendant, as it is only by the transfer of title that the defendant can be said to be enriched at the plaintiffs expense.² Professor Burrows, on the other hand, treats the interference with the plaintiffs property rights as itself an unjust factor.³

Professor Birks, having made previous sorties into this area,⁴ has recently stated his position on the matter with clarity and force in his paper “Property and Unjust Enrichment: Categorical Truths”.⁵ In essence, he offers a model of property rights which results in the diminution of “property” in favour of “obligations”, and he adopts the view that concurrency of liabilities (“property” and “unjust enrichment”) is possible.⁶ Accordingly, while accepting that the vindication of an existing property right is not in itself a case of unjust enrichment, he nevertheless maintains that the retention of title by the plaintiff does not preclude a claim in unjust enrichment. We are not entirely convinced that his position is correct or desirable, and this short paper is designed to raise some points for further debate. Our aim is, at this early stage, very modest. We provide a rough critique, but we only hint at possible answers. Our motivation, as stated above, is to kindle the interest of “property lawyers” in the debate, and to encourage those who are more learned and articulate than we to become involved.

We follow this structure. First, we outline what seem to us to be the key arguments of Professor Birks’ thesis. We will from time to time in doing that also make critical observations. Those observations are preparatory to our statement of our own view. Secondly, we try to flesh out the consequences which Professor Birks’ thesis appears to throw up for the status and role of “property rights”. Nothing terribly profound is offered.⁷ Rather, we think those consequences to be obvious. The real question which lies behind the articulation of those consequences is whether they are desirable. Thirdly, we hint at a better structural understanding of the property-unjust enrichment boundary. This part of our paper will also contain some material which is by way of critique of Professor Birks’ analysis. Lastly, we offer some observations about the consequences of both Professor Birks’ understanding and our own for the concept of “ignorance”. Although “ignorance” is not ostensibly a focal point in Professor Birks’ recent paper, it is arguably the unjust factor to which he would appeal to explain Trustee of Jones v Jones⁸ as an unjust enrichment case.⁹

The Key Points in Professor Birks’ Thesis

Professor Birks is famed for the distinction he draws between events and responses.¹⁰ This distinction has emerged as a fundamental categorical truth in all his work on the law of restitution in particular, and on private law in general. It is the notion that some parts of “the law” are concerned with defining “events”; while other parts of “the law” are concerned with defining the “responses” which are provided in respect of the events.

The same distinction permeates his recent paper. It is central to the foundational argument in that paper, under the heading “The Formal Relation”. In two key paragraphs, under sub-heading 1(2) “A categorical error”, he outlines the following steps of reasoning:¹¹

• (a) The law of obligations and the law of property are both categories of consequence, by which he means response (see (d) below);
• (b) The law of obligations is about (the response of recognising) personal rights;
• (c) The law of property is about (the response of recognising) proprietary (property) rights;
• (d) Both sets of rights are “creatures of events”, or, in Professor Birks’ terminology, “responses”;
• (e) Obligations (personal rights) arise from a series of events -consent, wrongs, unjust enrichment, and other events;
• (f) Property (property rights) arises from an identical series of events - consent, wrongs, unjust enrichment, and other events.¹²

These propositions are presented as if they are all-embracing truths. For present purposes, we are content to adopt, in large measure, this analysis. However, it will be seen herein that we believe the characterisation of the nature and place of property rights within these propositions does not tell the whole story. The characterisation is deficient because of what it leaves out, and that in turn leads to consequent inaccuracies. But, before the critique takes over, let us return to Professor Birks’ thesis.

Professor Birks continues on to say that, as a matter of logical truth, whatever the empirical position, it is not arguable that unjust enrichment is never a category of event which can give rise to a response of property rights.¹³ We agree with this observation, as it stands. But Professor Birks makes it as part of an argument which concludes thus:¹⁴

The nature of property as a category of response to events, and the nature of unjust enrichment as a causative event, combine to identify the logical danger of any statement that purports to draw a clean contrast between the two.

Of course, one must not contrast animals and insects, or, here, responses and events. But there is nothing wrong in contrasting animals with animals, or insects with insects. And so, while we certainly agree with Professor Birks that unjust enrichment is always an insect, and can never be an animal,¹⁵ we do not think it is established, unless we simply assert it to be so, that “property” is always an animal and can never be an insect. That is to say, if we define property to be nothing but response, then it cannot meaningfully be juxtaposed to unjust enrichment.¹⁶ So there cannot be a claim in property, because property is not an event. But we think property can have two dimensions, that of response and that of event. Property is unlike the other component parts of events and/or responses because it fits into both categories. Accordingly, the categorical position is a little more complex than Professor Birks would perhaps like it to be. And there are good reasons why that complexity exists, as we shall see below.

It is in that part of his recent paper headed “Where No Property Passes” where Professor Birks faces what appears to us to be the point at which the nature of the relationship between unjust enrichment and property is most transparent:¹⁷

Our question is whether, on facts of this kind [ie, where there is a preexisting and still subsisting property right in the plaintiff], there can come into existence alongside the pre-existing proprietary right another right which is attributable to and hence the product of the defendant’s unjust enrichment at the plaintiffs expense.

Professor Birks presents a model of three overlapping claims available where a person (“the claimant”) retains a pre-existing property right in an asset in the possession of another. First, he suggests that a vindicatio may lie, where the claimant asserts in respect of an asset in the other’s possession, “That thing is mine”.¹⁸ Secondly, he suggests that there might be a personal claim for wrongful interference with the asset. “You ought to pay me damages because you have misappropriated my thing.”

Thirdly, however, he suggests that there might also be a personal claim arising from unjust enrichment. “You ought to make restitution to me of the value of the enrichment you received [by having that asset which remains mine].” He recognises that some jurists argue that to recognise an unjust enrichment claim in this context is “doctrinally unsound”. Amongst such jurists, he accurately identifies us. We have to say that we remain of that view, no matter that we may now appear to be somewhat charred jurists in the afterburn of Professor Birks’ arguments. So let us turn to those arguments.

Professor Birks says:¹⁹

The objection is that in all cases within our premiss [ie, where there is a pre-existing and still subsisting property right in the plaintiff) the defendant is not and cannot be enriched at the plaintiffs expense. The premiss supposes that the plaintiff remains the owner of the assets in question. The defendant possesses them but, in the eye of the law, has no property in them. Therefore, the argument goes, the value remains vested in the plaintiff, and the defendant’s wealth cannot be said to be enhanced at his expense.

This view, says Professor Birks, “is neither necessary nor in accordance with the practice or...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• Part I General Property Law
• Part II Land Law
• Part II Landlord and Tenant