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Lookup NU author(s): Dr Derek WhaymanORCiD
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The theoretical basis of knowing receipt is still disputed. There are three competing theoretical models of liability, based on: (i) the underlying trust obligations and its property; (ii) the recipient’s fault; and (iii) unjust enrichment. All of these would draw that liability differently, particularly in respect of quantum. This paper argues the fault model is now the dominant one. This is due to two structural changes in equity: first, the classification of accessories (knowing recipients and dishonest assistants) as non-fiduciaries; and second, the application of limiting principles such as causation to breaches of non-fiduciary duty. Recent cases are analysed which turn out to be either consistent with or expressly in agreement with this thesis. Since a fault basis makes dishonest assistance and knowing receipt very similar, the remaining differences are analysed and found to be minor; further anomalies resulting from adherence to the property model of knowing receipt identified; and the authorities which hold them as separate actions are shown to be weak. Accordingly, it is submitted that given the changes, the two actions are better seen as one and the same.
Author(s): Whayman D
Editor(s): Cooper, S
Publication type: Conference Proceedings (inc. Abstract)
Publication status: Published
Conference Name: Society of Legal Scholars Annual Conference
Year of Conference: 2014
Publisher: Society of Legal Scholars
Notes: (to be published, in revised form, in the Journal of Business Law as 'Remodelling Knowing Receipt as a Gains-Based Wrong')