The Impact of Equity and Restitution in Commerce

Description

Commercial relationships give rise to diverse forms of legal obligation in private law, including contract, tort, agency, company law and partnership. More controversially, equity and the law of restitution have a less defined and somewhat ambulatory role in regulating the affairs of commercial parties. Nevertheless, their impact is manifest in the commercial arena through the distinct types of liability they engender and the remedies that are imposed. This collection draws together the views of leading international scholars and judges to explore the nature and extent of this impact from two perspectives. Five chapters primarily address this impact at a macro-level, focusing on the roles of equity and the law of restitution in terms of legal taxonomy, doctrine and policy. In contrast, the remaining five chapters primarily address this impact at a micro-level, focusing on selected liabilities and remedies within equity and the law of restitution in the context of commerce. This bifocal approach enables a holistic appreciation of some important ways in which equity and the law of restitution affect or may affect commerce, with a view to fostering further debate over the fundamental issues at stake. Preface Table of Contents Table of Cases Table of Legislation List of Contributors 1. Introduction: The Macro Level I. Overview II. An Analytical Framework and the Scope of Proprietary Relief III. Perceptions of Unjust Enrichment IV. Equity and Commercial Certainty V. Conclusion 2. Introduction: The Micro Level I. Overview II. Fiduciary Law in Commerce III. Third-party Liability IV. Conclusion 3. The Commercial Triple Helix: Contract, Property and Unjust Enrichment I. Introduction II. Terminology III. Property Questions and Liability Questions: Location then Liability IV. The Interface between Property and Unjust Enrichment: Resulting Trusts and Proprietary Restitutionary Remedies V. Consent and Intention in Private Law: When is a Claim in Unjust Enrichment Available? VI. Liability Rules: Focus on the Parties or Focus on the Underlying Asset VII. Conclusion 4. Proprietary Claims to Recover Mistaken or Unauthorised Payments I. Introduction II. Explaining Tracing III. The Common Law Claim for Restitution IV. Conclusion 5. Restitution: A New Start? I. The Problem II. The Way Forward III. Conclusion 6. Rivalry over Liability for Defective Transfers I. Introduction II. Unjust Enrichment in Australia III. The Turning of the Tide in Australia IV. Unjust Enrichment in Australia: Dead or Alive? V. The Australian Adherence to 'Equitable Principles' VI. The Extent of the Rivalry VII. Implications for Commerce VIII. Conclusion 7. Equity and the Value of Certainty in Commercial Life I. Introduction II. Equity's Imposition of Norms on Commercial Parties III. Judicial Discretion in Equity IV. Conclusion 8. Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience I. Introduction II. What, and So What? III. Who, When and in What Respect? IV. Concluding Reflections 9. Deemed Performance in Account of Profits I. Introduction II. The Principle of Deemed Performance III. Disgorgement of Gains IV. Conclusion 10. Forfeiture of Agents’ Remuneration I. Introduction II. A First-Principles Approach to Forfeiture III. Imageview Management v Jack IV. The Twentieth-century Case Law V. The Post-Imageview Case Law VI. Conclusion 11. Third-Party Liability of Recipients of Trust Property I. Introduction II. The Commercial Significance of Akers III. Conclusion 12. Account of Profits for Accessory Liability: Still in the Thrall of Fiduciary Doctrine? I. Introduction II. Secondary Liability III. The Remedial Focus IV. Gains Directly Attributable to Participation in a Breach of Fiduciary Duty V. Gains Indirectly Attributable to Participation in a Breach of Fiduciary Duty VI. Conclusion Index