Apart from elementary taxonomical and classificatory matters, our discussion in the previous chapter mainly related to tracing, following and mixture of assets and the enforcement of existing property rights. These are issues which intellectually succeed the antecedent question of whether a claimant may identify a proprietary base at all and, if so, of what kind. In our core case where the beneficial legal owner (A) of a certain asset transfers, or purportedly transfers, outright beneficial legal ownership in that asset to a transferee (B) in circumstances where the transaction between A and B must be considered as somehow defective, the first question that arises is whether and in how far A might identify proprietary rights in the defectively transferred asset as such. To this issue we shall now turn.

This chapter* offers a general introduction to the law of defective transfers of ownership, setting out the basic doctrinal framework which is essential to understand this area of the law. It is crucial to note that the principles set forth here have rarely, if ever, been properly spelled out by the courts. They are rather the product of a careful analysis and a process of rationalisation of the extensive case law available in this context.

THREE DISTINCT LEVELS WHERE A DEFECT MIGHT OPERATE: PROPERTY, CONTRACT AND UNJUST FACTORS

If one is concerned with a (potentially) defective transfer of property, it is inevitable to strictly distinguish between three different “levels” where any particular defect – for example a mistake – might operate. In fact, it might do so on one, two, all three or on none of those levels.

The first level, with which this book is primarily concerned, is the proprietary level. A defect may be strong enough to prevent the passage of ownership – legal or equitable – or it might operate to impose some new proprietary rights (proprietary restitution). If the effect of a certain defect is to completely negative a transferor's intention to transfer away a certain proprietary interest – such as legal or equitable ownership –, those property rights will generally be retained ab initio.