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Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law, Anthony Duggan
Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law, Anthony Duggan
Washington and Lee Law Review
This Article deals with proprietary remedies, in particular the constructive trust, and their application in the defendant’s bankruptcy. The Article offers a comparative analysis of English and Commonwealth law with the relevant parts of the recently completed Restatement (Third) of Restitution & Unjust Enrichment. The discussion is organized around five simple hypotheticals, each representing issues which courts in England and other parts of the Commonwealth have found particularly troubling: mistaken payments; misrepresentation in the context of land dealings; misrepresentation in other contexts; breach of fiduciary obligation; and specific performance. The aim is to identify the likely outcome in each case …
Reconceptualizing Present-Value Analysis In Consumer Bankruptcy, Rafael I. Pardo
Reconceptualizing Present-Value Analysis In Consumer Bankruptcy, Rafael I. Pardo
Washington and Lee Law Review
During the three decades following the enactment of the Bankruptcy Code, courts and commentators have been vexed by the problem of determining the present value of future payments to creditors proposed in a debtor’s repayment plan. The issue central to this problem has been the discount rate to be applied when conducting present-value analysis. While the Code unmistakably requires the discounting of future payments as part of the process for confirming a repayment plan, the Code does not explicitly specify the rate itself or the manner in which the rate should be calculated. No uniform rule of decision has emerged …