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Remedial consistency in private law

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journal contribution
posted on 2021-06-16, 09:41 authored by Peter Jaffey

This article is concerned with the concept of ‘remedial consistency,’ the consistency of remedial rights with primary rights in the sense I explain. I argue that the requirement of remedial consistency has important implications across private law. It suggests that the ‘continuity thesis’ does not provide a justification for the right to compensation for a wrong, and I argue that rights to compensation are not generally based on wrongdoing. I also consider whether the absence of a right to specific performance is consistent with the existence of a duty of performance, and I discuss the need for alternative remedies to be mutually consistent. I also discuss the implications of remedial consistency for the concept of unjust enrichment, and I argue on the basis of remedial consistency for the general availability of proprietary claims for invalid transfers.

History

Citation

University of Toronto Law Journal, Volume 72 Issue 2, spring 2022, pp. 216-244

Author affiliation

School of Law

Version

  • AM (Accepted Manuscript)

Published in

University of Toronto Law Journal

Volume

72

Issue

2

Pagination

216-244

Publisher

University of Toronto Press

issn

0042-0220

Acceptance date

2021-05-26

Copyright date

2022

Available date

2022-10-08

Language

en

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