Retaining or Recovering A Proprietary Interest by Operation of Law

This chapter considers the circumstances in which a person can retain or recover a proprietary interest by operation of law. It discusses the importance of intention in deciding whether title is retained at common law. It explains how rescission can be used to recover title, and the circumstances in which title is retained in equity by operation of law. It discusses how money is transferred, and its distinction from other assets. It also considers the unpaid vendor’s lien.

Tracing in Equity

This chapter discusses the requirements of tracing in equity, including the principles by which one person can trace its asset into a substitute. Possible exceptions to the principles are also discussed. It contains a detailed discussion of the cases. The chapter contains a detailed discussion of the cases. It also considers the principles for the identification of a substitute asset, including where there has been mixture with other assets. The recurring problem of the link between equitable tracing and fiduciary relationships is discussed.

Tracing at Law

This chapter explains what tracing is. Differing descriptions of the expression are discussed. Tracing does not seek to examine intention; tracing imposes a proprietary interest. The chapter discusses the principles of tracing at common law and how a person becomes a legal owner of a substitute asset. In particular, the rules as to indentification of a substitute asset are discussed. The chapter contains a detailed discussion of the case law on tracing at common law. Attempts to distinguish tracing from ‘following’ are discussed. The chapter distinguishes tracing against the wrongdoer from tracing against a third party.

Obtaining A Proprietary Interest by Express Agreement

This chapter discusses how proprietary interests are transferred at common law, including the different rules for goods, land, and intangibles. It considers how proprietary interests are transferred in equity, including the effect of agreements to transfer future assets. The similar but distinct concepts of ‘creation’ and ‘transfer’ of a proprietary interest are explained. The fundamental features of the transfer of an express proprietary interest, applicable to the transfer of all proprietary interests, are identified and discussed. It explains the importance of identifying the asset concerned, and the particular issues which arise where only part of an asset is transferred.

The Nature of Proprietary Interests

This chapter discusses the distinction between personal and proprietary rights, and why it is important where third parties are involved or there is an insolvency. It explains the difficulty of drawing the distinction between personal and proprietary rights in certain cases, including leases of goods, licences of land, and charterparties of ships. It considers the various types of proprietary interest—including legal and equitable interests; land, goods and intangibles; and outright and secured transactions. It explains the remedies available to enforce proprietary rights at common law (such as conversion) and in equity (including knowing receipt and dishonest assistance). The importance of the distinctions between personal and proprietary rights, in different types of proprietary interests, and between remedies under common law and equity are discussed.

Pari Passu Sharing

This chapter discusses the pari passu sharing principle in insolvencies, including the recent developments in determining the scope of the anti-deprivation principle. The effect of contractual provisions to divest the debtor’s interest in property on insolvency or increase a creditor’s rights are discussed. Exceptions to the pari passu principle are reviewed. It considers the importance of distinguishing between personal rights and proprietary rights in an insolvency. It discusses the limits on proprietary rights in an insolvency.

Obtaining A Proprietary Interest by Implied or Presumed Agreement

This chapter considers how proprietary interests are created or transferred by implied intention or by presumed intention. As previously explained, implied or proprietary interests are much more common in equity than at common law, and this chapter is therefore mainly concerned with the creation of equitable proprietary interests. The factors which are used by the courts to find an intention to create a proprietary interest are identified. Examples of using implied agreement to obtain a proprietary interest include where one person sells another’s asset, where money is paid for an investment and where assets are set aside by one person for another. This chapter discusses the Quistclose trust, family homes, and the different rules which apply to commercial and family arrangements.

Obtaining A Proprietary Interest in an Unconnected Asset by Operation of Law

This chapter considers the circumstances in which the courts impose a proprietary interest in favour of a claimant over an asset which is not a substitute for the claimant’s own asset. It discusses when and why a constructive trust is imposed for breach of fiduciary duty. It looks at when a trust is imposed where one person uses another’s property, information, or opportunity. It considers when proprietary estoppel arises, and what its proprietary consequences are. It discusses to what extent remedial constructive trusts are available and when common law possessory liens or equitable liens are imposed.

Retaining a Proprietary Interest by Agreement

This chapter explains the requirements for the retention of a proprietary interest. It distinguishes the creation of a proprietary interest from the retention of such an interest. It further discusses how a retained proprietary interest can be lost. The nemo dat principle is discussed. It discusses the reservation of title to goods, exceptions to the nemo dat principle, and the effect of mixing, fixing, or manufacturing assets.