Abstract:
Bankruptcy courts have frequently been characterized as courts of equity. Often this characterization has accompanied unusually relaxed interpretation or application of a provision of the Bankruptcy Code. However, this understanding does not exhaust the meaning of equity in bankruptcy. Historically, equity covered a large range of topics–trusts and estates, injunction, contracts, specific performance, unjust enrichment, restitution, and disgorgement. In addition, equity was not limited to particular remedies. Equity’s remedies certainly included money damages but recognized many more. The law of equity was substantive as well as remedial; it recognized primary rights as well as secondary rights of rectification. Among equity’s primary rights were equitable interests in property. And section 541(a) of Bankruptcy Code includes such equitable interests in its definition of property of the estate. If equity once boasted a substantial substantive content, what was it? The answer is found in the title of the Restatement Third, Restitution and Unjust Enrichment (R3RUE). Unjust (or unjustifiable) enrichment provides the conceptual core of this body of law. As the converse of tort law, which identifies unjustified harms to another, unjust enrichment recognizes unjustified benefits to another, at least to the extent they come at the claimant’s expense …
Pryor, C. Scott, Third Time’s the Charm: The Coming Impact of the Restatement (Third), Restitution and Unjust Enrichment in Bankruptcy (October 28, 2012). 40 Pepp. L. Rev. 843 (2013).
First posted 2013-05-08 06:31:15
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