INTRODUCTION

SUBJECT MATTER AND SCOPE OF THE ANALYSIS

This book is concerned with the law of proprietary restitution in the context of defective transfers of property. The subject matter and scope of our inquiry shall be defined by an elementary type of case: A, the beneficial legal owner of an asset, transfers (or purportedly transfers) outright beneficial legal ownership in that asset to a transferee (B). The transaction between A and B, which may involve a sale, loan, payment, gift or something else, is impaired by some kind of a defect. The most important and certainly the most difficult type of impairment is mistake. Mistakes may be more or less serious and they may be self-induced or induced by the other party, innocently or fraudulently. The transferor might also dispose of the asset under duress or undue influence. More severe flaws may even lead to the conclusion that he has not actually consented to the transaction at all, as in cases of theft or lack of authority for example. Another – less serious – type of deficiency is “failure of consideration”, which means that the transferor's intention to dispose of the asset in question is expressly or impliedly subject to a condition that fails initially or subsequently; for example, if the transferee fails to counter-perform his part of the bargain or otherwise repudiates or breaches the parties’ contract.

In such cases of defective transfers of property, the question arises whether and to what extent the transferor retains or obtains any proprietary rights in the very asset transferred to the transferee and/or in the traceable proceeds thereof. This shall be the subject of this book. However, considering the breadth of this area of the law, it is inevitable to impose some limitations on our analysis.

First, we are only concerned with cases where the transferor (A) has held, prior to the transaction in question, absolute beneficial legal ownership in the transferred asset. We are dealing neither with cases where he has merely held a possessory legal title or a distinct equitable interest, which he purportedly assigned to the transferee (B), nor with (defective) transfers of trust property by trustees.