Published online by Cambridge University Press: 31 July 2009
Introduction
In much of enrichment law, the question of ‘proprietary restitution’ can hardly arise. If P renders medical services to D, without a contract, P's claim will be a simple personal claim. Moreover, the civil-law tradition generally rejects ‘proprietary restitution’ in any circumstances. So is there really any value in discussing the matter from a comparative standpoint? I think that there is. Possibly a lawyer from a mixed system is well placed for the task. On the other hand, it may be that the task is impossible, especially since the English law in this area is complex, controversial and changing, and, of course, has that difficult dimension: equity.
‘Proprietary’
‘Proprietary’ is a term not generally used in Scots law. In Scots law rights are (following the ius commune) divided into real and personal. ‘Real’ and ‘proprietary’ do not coincide: the latter is broader than the former. Equitable rights in rem are proprietary in English law, but such rights are not real rights from the civilian standpoint.
A difficulty lies in the fact that in the common-law tradition a specifically enforceable claim to a thing is itself normally proprietary so that the claimant already has an equitable right in rem. That equity regards as done that which ought to have been may be a tired maxim but is still good law (or equity). If P has a right against D for the specific performance of an obligation to convey an identifiable thing, P will be considered the equitable owner.
To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.