Event Description:
Dr. Adam Reilly, Lecturer in Private Law at the University of Glasgow, is a private law scholar, whose research focuses on Property Law, the Law of Trusts (particularly constructive trusts), Unjust Enrichment, and Private Law Theory. He has a particular interest in the conceptual analysis of equitable interests, the ‘mere equity’, and the taxonomy of Private Law remedies.
Dr. Reilly will be sharing his paper, "The ‘Plea’ of Bona Fide Purchase Equitable ‘Relief’: What Was, and What Might Have Been", in the Terrace Lounge. For virtual attendance, email Prof. Beswick to receive the Zoom link.
Abstract:
The latent risk in a system of precedent is that old rules eventually become detached from the conceptual-framework in which they were formulated, potentially sowing confusion for subsequent generations of lawyers who inherit those rules. This paper proposes that something like this has occurred in relation to the equitable doctrine of bona fide purchase. Though it is now understood as a priority rule within the body of rules labelled ‘Property Law’, this was not true for several centuries during which the rule developed. This paper sets out to examine the logic of the ‘plea’ of bona fide purchase as the doctrine was understood prior to the Judicature Reforms of 1873-75.
The claim made is that, in this period, the plea was really a defence to a particular category of equitable ‘relief’; effectively, a class of remedies the purpose of which was to remove a right or ‘advantage’ from the defendant-purchaser in specie. The exact nature of this ‘relief’ has not been examined to date, but through a Hohfeldian analysis of the remedies concerned, it is hoped that this paper will shed light on a symbiotic relationship that once existed between court-administered relief in specie on the one hand, and bona fide purchase on the other. Whereas the former consisted in Hohfeldian powers to grant remedies effective to subject the defendant’s right to the right or claim of the plaintiff, the defence of bona fide purchase operated by granting the defendant an immunity against equitable intervention.
Why does this matter? It is submitted that a particular conception of the defence of bona fide purchase combined with a particular conception of equitable interests as vested proprietary rights in the latter half of the 19th-century, with the result that a contest between successive equitable interests came to be resolved using the “first in time” priority rule. A recent suggestion by Professors McFarlane and Televantos that the defence ought to be available to purchasers of an equitable interest against a prior equitable interest can be better analysed when set within this historical context. Effectively, this paper undertakes a conceptual analysis of legal history in order to offer, if not an answer to, at least a meta-commentary upon the following question: when should bona fide purchase be available to the purchaser of an equitable interest?
- Allard School of Law
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