Proprietary Remedies in Insolvency: A Comparison of the Restatement (Third) of Restitution & Unjust Enrichment with English and Commonwealth Law

This Article deals with proprietary remedies, in particular the constructive trust, and their application in the defendant’s bankruptcy. The Article offers a comparative analysis of English and Commonwealth law with the relevant parts of the recently completed Restatement (Third) of Restitution & Unjust Enrichment. The discussion is organized around five simple hypotheticals, each representing issues which courts in England and other parts of the Commonwealth have found particularly troubling: mistaken payments; misrepresentation in the context of land dealings; misrepresentation in other contexts; breach of fiduciary obligation; and specific performance. The aim is to identify the likely outcome in each case under both American and English/Commonwealth law and to explore the policy implications of the differences that emerge.