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September 2011
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22 Reads
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2 Citations
SSRN Electronic Journal
In order to understand why unjustified enrichment creates property rights it is necessary to understand what we mean by property rights in general, and trusts in particular. Confusion has been created by failing to distinguish between the different kinds of property rights there are.The paper seeks to defend the general treatment of property rights within the Restatement (Third) of Restitution and Unjust Enrichment.
July 2010
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12 Reads
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2 Citations
SSRN Electronic Journal
This paper seeks to differentiate rights from other things with which they are frequently confused. The focus is upon rights within private law, but this is used to emphasize the distinctiveness and importance of this area. The topics covered are in sequence: (i) Rights and Loss, (ii) Rights and Gains (which may be skipped by those more interested in theory), (iii) Rights and Interests, (iv) Rights and Deontology, (v) Rights and Corrective Justice, (vi) Rights and Private law.
... On a theoretical level, the approach appears to differ from 'rights-based' theories, which see contract damages as operating by way of substitution for the violated right. 89 Such analyses are not 'consequentialist' or concerned to ameliorate the ramifications of breachrather, they respond directly to the violated right itself. 90 Edelman J's approach is also arguably different from, or at least a powerful gloss on, more traditional analyses that see contract damages as compensatory in nature, seeking to place plaintiffs into the factual position they would have occupied had the contract been performed (what Adam Kramer describes as the 'non breach' position). ...
July 2010
SSRN Electronic Journal
