A Dream Case?

Wilmot-Smith, Frederick

doi:10.2139/ssrn.2911502

Cited by 1 publication

(1 citation statement)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…Finally, the subject matter of a defective transfer may not be property. 61 In a typical mistaken payment case, what is transferred is not a property right, but a personal claim against a bank. We do not 'own' the money in our bank accounts; we merely have a right, the same as an ordinary debtor's right, to be paid this money by the bank.…”

Section: Restitution As a Response To An Injusticementioning

confidence: 99%

Injustices

Smith¹

2019

Rights, Wrongs, and Injustices

View full text Add to dashboard Cite

Chapter 8 explores the most controversial of the three private law causes of action discussed in the book: injustices. For the purposes of remedial law, an injustice is, roughly, an unfair loss or gain that has arisen from a transaction between the claimant and defendant. The chapter argues that an injustice is the cause of action for, inter alia, orders to make restitution following defective transfers (‘restitutionary orders’) and orders to pay damages for consequential pecuniary losses (‘compensatory orders’). This argument rests primarily on two propositions: (1) restitutionary and compensatory awards are duty-creating (and therefore the law governing them is remedial, not substantive); and, (2) notwithstanding that claimants who obtain restitutionary and compensatory orders have often suffered a wrong (particularly in the case of compensatory awards), the cause of action for such awards is neither a rights-threat nor a wrong. Chapter 8 also argues that the cause of action for restitutionary and compensatory orders is appropriately characterized as an injustice. But this argument is relatively brief because, assuming the above propositions are accepted, it is difficult to describe the cause of action for these orders without invoking injustice or a closely related concept.

show abstract

Section: Restitution As a Response To An Injusticementioning

confidence: 99%

Injustices

Smith¹

2019

Rights, Wrongs, and Injustices

View full text Add to dashboard Cite

show abstract

A Dream Case?

Cited by 1 publication

References 0 publications

Injustices

Injustices

Contact Info

Product

Resources

About