Private Law Theory

ABSTRACT
A steadily increasing number of Australian cases have recognised that a victim of theft has a right at common law to a personal restitutionary remedy against a volunteer recipient of her stolen money. The basis for such a right, however, remains under-explored. This article assesses the two leading justifications for the victim’s claim against an innocent volunteer: that it is directed towards the reversal of unjust enrichment and that it vindicates a pre-existing property right. This article concludes that the second offers the more compelling account and illustrates the practical importance of that conclusion by demonstrating its impact on the calculation of the ultimate remedy.

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Rachael Short, A common law ‘vindicatio’?: Property rights as an independent basis for restitution, Australian Bar Review, volume 51, no 2, June 2022, 264-291.

First posted 2022-07-02 11:00:20