Unjust Enrichment, Proprietary Subrogation and Unsatisfactory Explanations
(2016) 28 SAcLJ 955
While contractual subrogation is understood as a function of agreement or common intention between the relevant parties to assign rights, justifying non-contractual subrogation has proved more difficult. The dominant view appears to be that subrogation arises as a response to what would otherwise be an unjust enrichment and for which a proprietary remedy is readily available. This article argues that non-contractual subrogation gives rise to a new proprietary right in the claimant which cannot be readily justified on the basis of unjust enrichment, nor is it simply the vindication of an existing property right. Instead, consideration of how equity normally recognises property rights shows that the intention or conscience of the defendant owner must be a crucial element of the analysis.