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Jason Neyers posed several interesting questions which deserve an answer. Here is a comment on his first question, regarding Prof Birks' taxonomy and property. That taxonomy is seldom applied to the creation of property rights, but should be, for at least two reasons. First, it would help us organise and understand the sources of property rights, which tend to be organised into two categories: intention and operation of law (events other than intention). As Duncan Sheehan said earlier today, the vast majority of property rights are created by intention. However, we still need help understanding the other events which create property rights. Separating unjust enrichment and wrongs from the miscellany of other property creating events would be a step in the right direction.

Secondly, using the same taxonomy for both personal and property rights would help lawyers working in different disciplines communicate with each other. Property rights tend to be organised according to the nature of the rights (eg, estate, mortgage, easement) or the nature of the thing subject to the right (eg, land, goods, intellectual property). This inhibits meaningful comparisons with other areas of law since personal rights are different by nature and do not relate directly to things. It is possible to find common ground by looking at the creation of personal and property rights.

Property rights can be created by unjust enrichment (eg, resulting trusts, rescission, rectification) and wrongdoing (eg, bribery, breach of fiduciary duty, murder of a joint tenant). However, the majority of property rights created by events other than consent are created neither by wrongs nor unjust enrichment, but by "other" events. Taking possession of something without the owner's consent is one important event in the miscellany (eg, adverse possession, theft, finding a lost chattel). So too is detrimental reliance on expectations (eg, proprietary estoppel, secret trusts, trusts of the family home) and other instances of what Elias calls the "perfectionary" constructive trust.

An interesting question is whether any perfectionary constructive trusts should be viewed as instances of property rights created by consent. What about the constructive trust arising on a specifically enforceable contract of sale or an equitable mortgage created by a deposit of title deeds and contract of mortgage?

Robert Chambers
University of Alberta
Faculty of Law