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Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations

Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations

By Duncan Whitmore

In this final part of our survey of libertarian law and legal systems, we will cover some remaining areas of legal liability and a few miscellaneous considerations before being in the position of sketching a final map of libertarian law.

The Standard and Burden of Proof

In Part One, we mentioned that legal procedures, adopted in order to ensure sound judgments, would be the product of entrepreneurial forces in just the same way as quality in the manufacture of, say, shoes and automobiles is guaranteed by the marketplace. We can, however, speculate upon what some of the standards are likely to be.

In contemporary legal systems the requisite standard of proof differs depending upon the type of action. The imposition of criminal sanction demands that proof of the defendant’s culpability be established beyond a reasonable doubt, whereas civil liability can be imposed by merely the balance of probabilities. The reason for this, presumably, is that criminal sanction is viewed as being a greater incursion of one’s liberty than civil remedies such as furnishing compensation. Not only could one be locked up in prison but one is usually lumbered with a criminal record so that it is impossible to disassociate oneself from the illegal act for at least a period of time. Furthermore, the traditional replacement of the victim by the state in the prosecutorial process of criminal trials is, no doubt, deemed to require stricter due process to protect the individual from persecution by the state.

Much of this is irrelevant from a libertarian point of view. Although we have not discussed in detail the different remedies that flow from criminal liability on the one hand and from civil liability on the other, the enforcement of all laws in a libertarian society risks violating an individual’s liberty if that individual is, in fact, innocent. Taking someone’s money in order to furnish compensation for a tort is as much a physical invasion of that individual’s person and property as locking him away for a crime. Low standards of proof would result in legal remedies themselves becoming de facto breaches of the non-aggression principle. Therefore, in order to legitimise the proposed legal remedy it is likely that only the strictest standards of proof will be accepted by a libertarian legal system – even for tortious as opposed to criminal liability. In other words, the fact of physical invasion, the extent of the aggression and the corresponding intent of the defendant must all be established beyond a reasonable doubt, or some equivalent that the libertarian courts devise.

Uncontroversially, the initial burden of proof should rest on the plaintiff and not upon the defendant, just as it does in our contemporary legal systems. It is up to the plaintiff to establish a prima facie case by proving the presence of aggressive behaviour rather than for the defendant to establish the more difficult proof of its absence. It is the plaintiff who is alleging the existence of a conflict arising from scarcity; the defendant, for all he knows, may be just going about his daily life unaware of it. It is therefore up to the plaintiff to demonstrate the substance of that conflict. Although the old adage “innocent until proven guilty” is of greater relevance when one is faced with the imposition of legal liability by the state, it applies equally in a libertarian world. The alternative, where the plaintiff could pursue an action without having to bear any burden of proving his case (and thus gain “compensation” merely on his say so) would allow the pursuit and sustenance of all manner of frivolous lawsuits, transforming the law from a bulwark of justice into a vehicle for wealth redistribution. Upon the establishment of a prima facie case by the plaintiff the burden may shift to the defendant, and it is then up to the latter to furnish defences or mitigating circumstances in order to either reduce his liability or absolve him completely.

Vicarious Liability

A rule that libertarian courts will almost certainly impose is that the liability should be of the true aggressor only, and that any expansionist doctrine of “vicarious liability” is unwarranted.

This problem normally arises when employees of an employer carry out an invasive act during their working day. For example, a workman who knocks a tool off of scaffolding striking a pedestrian below; or a lorry driver who runs over an old lady. Faced with a lone plaintiff who has borne an enormous loss, the urge to make the deep pockets pay has often proved irresistible to the courts. Holding employers vicariously liable for the acts of their employees, or “inflating” the terms of insurance contracts to make the insurer cough up, often ensures a greater chance of recovery for the victim rather than pursuing the employee or individual defendant who, alone, may possess few or no assets worthy of furnishing compensation.

There will, of course, be occasions when employers will be liable for their operations when those operations result in a tort. This will include instances when employees are only following a procedure specified by their employer and the employee did not know any better. This is fully in line with our analysis of the use, by an aggressor, of innocent intermediaries in committing the act of aggression, which we discussed in Part Four.  Employers are likely to lay down specific procedures and safety guidelines for their employees, the breach of which will demonstrate conclusively that the employee was at fault, although the greater hope of the employer will be to avoid any accident in the first place. A tortious situation may not generate any liability for the employer but it may nevertheless result in embarrassment and brand impairment when one’s company name is involved. Employers are also likely to specify in the contract of employment the situations in which he, the employer, will be liable and those in which the employee will be liable so that the employee is highly aware of the situations in which he is operating as an agent (i.e. as means) for his employer and when he is operating as an individual.

Generally, however, what will make the difference is where the aggression is caused by an intervening act of will of the employee that diverts him from the normal course of employment – a fresh act that is neither commanded nor directed by his employer. If there is such an intervention by the employee then he is liable.

For instance, a workman who drives carelessly in his employer’s van between jobs and strikes a pedestrian would be liable, alone, for that invasive act. It was his will that directed the van into the path of the pedestrian, and he was not under the orders of his employer to drive carelessly (quite the opposite, in fact). Simply because he was acting during his working day and with his employer’s property does not invoke any liability on the part of the employer. Applying a reductio ad absurdum to the contrary, would we permit an employee to pursue a criminal rampage and then throw the employer in jail simply because the employee was wearing his work clothes? If not then neither should we hold employers responsible for the less culpable acts of their employees. On the other hand, if the van had faulty brakes because the employer had chosen not to service the van, then the employer would be liable for any accident caused by this fact.

Personal Rights, Proprietary Rights and Trusts

Roman Law made a distinction between the types of right or action available to a plaintiff – the rights in personam and rights in rem. This has survived into modern English law as being personal rights on the one hand and proprietary rights on the other.

A personal right exists when an individual is owed an obligation by a specific person – i.e. to pay a sum of money. The legal noose that you hold is around the neck of the individual and is not attached to any particular notes or coins that the individual might pay over. A proprietary right, on the other hand, is over a specific piece of property regardless of its current possessor – your right is attached to that property and follows that property into whosoever’s hands it goes.

With libertarian law and its focus on property we must, in the first instance, be suspicious of this distinction. For aren’t all rights in a libertarian world property rights, and aren’t all people demanding the enforcement of their property rights? Second, don’t all rights and obligations exist between individuals and not between individuals and things?

The confusion stems from the way in which contemporary legal systems, possessing no rationale as to the concept of property, understand the meaning of “title”. The reason why rights and ownership claims over property arise is to avoid conflicts arising from scarcity – conflicts which are manifest as two or more people wishing to take ultimate control and possession of the property. Any one person at any time will have physical control and possession of the property, and it is this person who has the de facto title to that property – what we might, for argument’s sake, term the possessive title. It is within his actual, physical power to dispose of that property as he wishes. However, when we say in a libertarian sense, that a person has “title” to property we mean this normatively – that the individual should have (i.e. is entitled to) possession and control of that property but may not necessarily such possession and control at this moment in time. It is by comparing the possessive and normative titles – who does and who should have control and possession respectively – that we can determine who is violating the rights of whom, if at all. A creditor, for example, has a normative title to a sum of money on its due date; the debtor has possessive title. The debtor is required to relinquish possessive title to the creditor. If he does not do so then he is violating the creditor’s normative title and may be subject to legal sanction.

In a libertarian sense, therefore, a person may have a normative title to property but this does not necessarily mean that he will be entitled to a proprietary remedy as understood by contemporary legal systems. In other words, he will not necessarily have a noose around a specific, earmarked piece of property in the debtor’s possession and will, instead, only have what is termed a “personal right”. After all, strict, proprietary rights may simply be unavailable. A defaulting debtor, for example, may owe money to numerous creditors but will have insufficient funds to pay all of them in full. The creditors cannot enjoy a proprietary title as the funds simply do not exist for them to have title over. All they have is the normative, legal force of the debtor’s obligation to transfer to them possessive title of a sum of money.

Indeed, at least when it comes to the enforcement of debts to be paid in money, the whole distinction between personal rights and proprietary rights only really becomes relevant for practical purposes at the point of a litigation in which one is dealing with an insolvent debtor. Although we are not examining specifically bankruptcy laws in a libertarian world, there will exist occasions when multiple creditors have to share between themselves an insufficient pool of assets in the debtor’s possession in order to extinguish as much of the debt as possible. Where, in such an instance, a creditor can only establish the equivalent of a personal right – i.e. no right over a particular set of the debtor’s assets – then he must take his place amongst all the other creditors, sharing out the assets that remain, and must be content to write off the unfulfilled portion of the debt. Where, however, a creditor can establish a proprietary right, it enables him to ring fence a particular good in the debtor’s possession and prevent it from being parcelled out amongst the other creditors. One is, therefore, able to leapfrog ahead of everyone else to whom the debtor owes obligations. Such a creditor with a proprietary title is said to be a secured creditor – a common example of which is a mortgagee who has the right to repossess your property ahead of any other of your creditors in the event that you default on your mortgage. There is, therefore, a strong incentive for a creditor to attempt to establish a proprietary title over a specific piece of property in the debtor’s possession because, subject to fluctuations in market price of the secured property, it almost guarantees that his debt will be paid in full.

We might say, therefore, that in keeping with the libertarian understanding of property rights and titles, the distinction will be between a personal action on the one hand and a proprietary action on the other; the former being the suing of a specific person for a thing; the latter being the suing of a person for a specific thing. How will libertarian legal systems handle these types of action and in which cases will it recognise a proprietary remedy on the one hand a less exalted personal remedy on the other? What form will a proprietary remedy take?

Before we proceed with this discussion it is appropriate here to discuss the trust mechanism. A trust is a specific type of property arrangement where the possessive title is held by one individual (“the trustee”) while the beneficial title is held by another (“the beneficiary”). The latter’s title is not a mere personal right over the trustee; rather, it is a full, proprietary title over the assets that form the subject matter of the trust, and these assets are segregated from the trustee’s personal assets so that in the event of the trustee’s insolvency his creditors may not touch the trust property. A trust is not an independent causative event of legal liability such as a tort or contract; rather, it is the property arrangement that results from a causative event. For example, a contract may create an “express trust” in order for a trustee to manage property on behalf beneficiaries – for example, an investment trust or a charitable trust. On the other hand, courts may impose trusts – such as “constructive trusts” or “resulting trusts” – in response to wrongs or unjust enrichment. Where, for example, an individual aggresses against a person’s property, a court might hold that the aggressed party retains a beneficial title over that property and the property is therefore ring-fenced from the aggressor’s assets1.

It is possible, indeed likely, that the trust arrangement will remain in a libertarian legal system, both as a purposeful arrangement in order to dispose of property in a prescribed way, or as the result of an outcome of litigation. Our interest here is with the latter – when and where are libertarian courts likely to award a proprietary remedy to the plaintiff and when will he gain a mere personal right?

In order to discuss this with clarity, we ought to first suggest some terminology for the different types of titles that can exist over a piece of property:

  • Possessive Title – held by the person with de facto control and/or possession of the property;
  • Beneficial Title – a proprietary title that ring-fences the property securely from the assets of the holder of the possessive title;
  • Personal Title – a title that enables a person to use legal force to demand possessive title from the holder of the latter; no specific property in the debtor’s possession is ring-fenced2.

Under pure libertarian theory, no aggressive act would be sufficient to transfer any title over property whatsoever to the aggressor and full proprietary title would remain in the hands of the plaintiff. However, as we keep stressing throughout this series, law and legal systems have to deal with the practicality of legal enforcement and recovery, the greatest consideration of which is cost. What follows is likely to be the most sensible approach of libertarian legal systems to balance libertarianism’s approach to property on the one hand with practical considerations on the other.

Where the good that is the object of aggressive behaviour is non-fungible and exists as a physically independent, stand-alone entity then the courts will award the plaintiff with a beneficial title to that property. For example, if A delivers a television set to B in advance of the payment of £100 for the set to which B agreed, possessive title of the television set passes to B. In the event of B’s default the court is likely to recognise A’s beneficial title over the television set. A’s right, therefore, extends over the television set and does not follow, for ever and a day, the particular person who presently has possessive title over the television set but may not do so in the future. The primary good that will usually be subject to proprietary remedies is, of course, land. Land is non-fungible, ring-fenced, easily identifiable and, also, immoveable – making the awarding of a proprietary remedy to the plaintiff the most desired and practical solution.

Where, however, the good is fungible and mixed with other, equally fungible units of the good so that it is neither independent nor ring-fenced then the court is likely to award the plaintiff only a personal title to that property – a right that follows the specific debtor and not the actual physical matter that is subject to dispute. The most common form of fungible good is, of course, money. If B pays A £100 in advance for delivery of a television set, that money is transferred into A’s bank account and is mixed with all of his other monetary assets. These will be used to pay other creditors and suppliers in the meantime before B’s delivery may become due. There is absolutely no way that, in the event of A’s default, it could be said that any specific quantity of notes, ounces of gold or whatever that B transferred to A were his, much less so if A has transferred a portion of those funds to pay other suppliers. The contrary would result in the absurd position where every single unit of currency would be tagged and tracked in and out of A’s possession, into his bank account, and out to third parties, then onto other parties and so. Especially as a period of time usually elapses before a legal action is pursued, one might have to go to the ends of the earth to pursue one’s actual money if it had been subject to hundreds of transfers in the meantime. Rather, the court is likely to hold simply that B possesses a personal title to £100 of A’s and it remains A’s obligation to pay that money across. A simple test of fungibility is to ask whether the plaintiff would be satisfied with payment of any unit of currency (or ounce of gold, etc.), or whether he demands back the very units or ounces that the defendant took from him. If you are owed £10 you don’t necessarily want the very note that was taken from you – you just want any £10 note, or two £5 notes, or ten £1 coins, or whatever.

Gradations between these two extremes – non-fungible, ring-fenced goods on the one hand, and fungible, mixed goods on the other – will have to be dealt with on a case-by-case basis. For example, one television set may be like any other that is manufactured just like it and a person owed a television set may be happy to take any one. These television sets may be pooled in a warehouse and not yet allocated to specific customers; indeed, there might not even have been enough television sets produced to fulfil all of the orders. In such cases only personal titles may be awarded to the plaintiffs. On the other hand, money can be easily ring-fenced by its deposit into a segregated account; other fungible goods such as shares may be held on trust by a manager for numerous investors, their proportionate share of the property remaining constant depending upon their contribution to the fund. These are the sorts of considerations that courts will be faced with when determining whether to award personal or proprietary remedies as the result of litigation.

Concurrent Liability

It is sometimes the case in contemporary legal systems that the same facts can give grounds for a plaintiff to bring an action under different areas of the law. For example, a plaintiff may be able to bring an action under contract or under tort. This possibility stems, once more, from the divorce of contemporary legal systems from any rationale as to precisely what it is that generates legal liability. Under libertarian principles it is only a physical invasion of the person or property of another that gives grounds for liability. Nothing else will suffice. Under libertarian law, a “contract” is not, strictly speaking, a causative event of legal liability. Rather, it is an area of the law that gives a body of rules for examining the property relations that exist between the parties. Once these relations are established, the only question that determines whether there is legal liability is if there is a physical invasion of property under those arrangements.

The courts therefore face two, basic questions when it comes to the determination of the liability of the defendant:

  1. What are the property arrangements between the parties?
  2. Having established these property arrangements, did the defendant commit an act of aggression against the property of the plaintiff?

If the case is one of a simple, unilateral wrong then the first question can usually be overlooked. It is assumed that whatever each party brought to the situation belonged to him. If A punches B then it is clear that the body of A belongs to A and the body of B belongs to B, and so A may not inflict the punch that he did (barring some special circumstance such as an agreed boxing match). On the contrary, where A is trying to take property from B that B previously stole from A, A will need to adduce evidence that the property was rightfully his, and so the question of what the correct property arrangements between the parties are will have to be examined before judging A’s culpability.

One particular area of the law where this question is quite important is product liability – specifically, products that turn out to be dangerous and cause injury, as opposed to products that merely do not work or are not “fit for purpose”. In these cases, there is a contract between the parties for the transfer of the product and this contract may transfer responsibility for dangerous defects in the property to the new owner.

In the famous case of Donoghue v Stevenson3, for example, the plaintiff purchased a bottle of ginger beer from a bar. Unbeknownst to the plaintiff, this bottle contained the remains of a rotting snail. The plaintiff drank the beer and fell ill as a result of its contents, and sued the defendant in tort. Other examples include the notorious “hot coffee” cases – where plaintiffs have purchased a cup of coffee and have then sued the vendor for the medical costs when they have spilt it on themselves.

At first blush, these cases seem a little mysterious to libertarians. In Donoghue, hadn’t the plaintiff purchased the bottle of ginger beer and did she not imbibe its contents wilfully? How is it possible, at the point she was injured, for there to be any aggression on the part of the defendant? Indeed, it seems ironic that the seminal case in English tort law is one in which the plaintiff injured herself with her own actions using her own property.4

The correct analysis of the case, however, is to examine the contractual relations between the parties in order to determine the property rights first. The contract was for the transfer of a bottle of ginger beer. It was not for a bottle of ginger beer containing a snail. Thus, given that the plaintiff could be reasonably expected to imbibe the contents of what she thought was a bottle of pure ginger beer, the injuries resulting to the plaintiff were caused by the invasive action of the defendant placing the snail in the bottle. Hence the plaintiff could properly sue the defendant for an aggression.

The case would have been different had the contract specified that all defects in the product were the responsibility of the purchaser or if the contract had been for “the object in front of the parties” and not for an object of any particular description. In such an instance, the full risk of any defect in the ginger beer bottle containing the snail would have passed to the plaintiff and she would have had no action as the injury resulted from her own, subsequent actions (or, to put it another way, the terms of the contract would serve to break the chain of causation between the defendant’s act and the injury to the plaintiff). While this is theoretically possible, of course, most vendors will be keen to specify the compensatory remedies available in the contract and the discipline of the marketplace is likely to prevent them from passing on liability for their errors wholly onto the shoulders of their customers. In principle, however, it demonstrates the importance of determining the property arrangements between the parties prior to any investigation as to whether there was any aggressive action.

Similarly, in the “hot coffee” cases, the action should turn on whether the coffee served was too hot and was, therefore, a markedly different product from the one which was contracted for. If it was, then the defendant’s act of “overheating” the coffee was an aggressive act and the plaintiff would have a legal remedy. If, on the other hand, it wasn’t and the coffee was served as either the contract (or the customary and conventional definition of “coffee”) specified then the plaintiff would have no legal recourse.

Having said all of this, none of it means to say that the mere existence of a contract between two parties necessarily determines the entirety of the property relations (and, thus, the liability) between them. It is quite possible for an action that happens to be breach of contract to also be legally construed as a tort or crime in its own right. In Part Three, we suggested the following case:

[S]uppose that A agrees with B that B will pilot A in a private plane in return for a fee of £1,000. A pays B the £1,000 and the plane takes off. However, during the journey, B decides to break his contract and bails out of the plane with a parachute, leaving no one to pilot the plane. As a result, the plane crashes and A is either seriously injured or is killed. Under the principles of contract […] A should only be able to recover from B the £1,000 pilot fee, and could not sue for consequential injuries he sustained from the plane crash. However, this does not rule out the likelihood of a court finding that, regardless of the contract, B’s bailing out was an aggressive act in its own right which caused the injuries to A. Indeed, that is what the court would find if there had been no contract and B was piloting A for free. The contract merely stipulates that the journey is being made for a mutually agreed price – it is not the sole determinant of all liability that arises between the two parties. Having said that, where a contract anticipates a particular kind of breach and specifies the remedy to be provided then we can expect courts to default to that agreement rather than looking for other grounds of liability.

Unjust Enrichment

It is with this understanding that we can proceed to examine the area of the law known as unjust enrichment. Usually referred to under the wider category of the law of restitution, unjust enrichment is, like contract, not an independent causative event of legal liability, but, rather, another example of a type of property arrangement that results from the actions of the parties. The classic case is the mistaken payment of a non-existent debt, and all other cases are analogous to that. For example, A owes B £500; he pays, in error, £1,000 so that B has been “unjustly enriched” by £500. B is required to transfer the overpayment back to A.

For a long time in our contemporary legal systems discussion of unjust enrichment was buried in that of other areas of law, mostly contract. It is not difficult to see why, as most cases analogous to mistaken transfer will occur when there are pre-existing relationships between the parties. Indeed, a simple payment made in error or an overpayment is only the most basic case. Others include mistakes regarding the property that is the subject of a contract – i.e. A thinks he is purchasing a car and pays B for a car while B thinks he is selling a van and believes he is receiving money for a van – or contracts that are voided owing to the absence of some formality or of the legal competency of the parties to execute the transfer.

Once again, lacking any rationale as to what should constitute the triggering causal event of legal liability, case law and academic writing has been divided between whether the plaintiff’s case is actionable because of some “unjust factor” on the one hand – that it would, in some way, be “unjust” for the defendant to retain the property – or because the mistaken transfer had an “absence of basis” on the other. Libertarian law should be able to transcend this debate. Our first task is to examine precisely which property arrangements arise under the fact of the mistaken payment; we then have to see if the defendant aggressed against property that belonged to the plaintiff.

In all cases of unjust enrichment – whatever the facts from which the claim arises – there is, initially, no aggression. The payment is made freely and voluntarily by the plaintiff – he sends it into the defendant’s possession and voluntarily transfers to him possessive title of the property. The defendant in no way initiates any action that invades the person or property of the plaintiff. However, it is likely that the courts will recognise that the normative title to the property remains with the plaintiff from the point that the “mistaken” transfer was made. It is not the defendant’s property – the fact of “mistake” itself reveals that the plaintiff made no valid transfer of the normative title to the property to the defendant.5

Whether any situation akin to a “mistake” occurred will have to be judged from examining the actions and arrangements between the parties. Let us examine the simplest of cases – where the plaintiff alleges that there was a simple error of overpayment by him to the defendant. In order to determine the fact of mistake, the court would have to ask whether there is a valid contract for the transfer of the sum; or whether it was a gift or donation. For example, if you are presented with an invoice from your phone company for £50 and you pay £100 this would, in most cases indicate that the overpaid sum was mistaken, unless the telephone company could adduce evidence that the plaintiff was making an advance payment for future services or (more unlikely) a gift or a donation.

Having established that the property still rightfully belongs to the plaintiff and not to the defendant, we then have to determine if the defendant aggressed against that property. The initial act of transfer by the plaintiff will not be, as we have said, an act of aggression by the defendant. However, anything else that the defendant does with that property – i.e. a fresh act resulting from the intervention of the defendant’s will – is an invasion of the person or property of the plaintiff and the defendant is prima facie liable.

If this occurs after the defendant realised the mistake then the case is straightforward – it is a clear and wanton act of aggression against the person or property of another and the case simply proceeds as an ordinary case of tort or crime. The difficulty, however, is what the courts should do if the defendant should make such an intervention of will before he realises that the transfer was mistaken. He could trade it, alter it, destroy it or otherwise dispose of it entirely innocently, and all because the plaintiff voluntarily transferred the property to him.

It is likely that the courts, although sustaining the prima facie liability of the defendant, will permit the defendant to invoke the mistake of the plaintiff in transferring the sum as a defence against all acts of aggression that occur between the point of transfer and between the point that the defendant realises the mistake. The precise latter point will need to be determined by the courts and the burden will fall on the plaintiff to adduce evidence of precisely when the defendant knew that receipt of the transfer was mistaken. This gives a clear incentive for plaintiffs to communicate the fact of mistake to defendants in a timely manner as the communication itself will bring forward the point that the defendant is made aware of it. Alternatively, if the defendant is a business, producing a statement of account would likely suffice as evidence of overpayment or mistaken payment in the simplest cases.6

Whenever the point at which the defendant becomes aware of the mistake, after this time he may not commit any act of aggression against the mistakenly transferred property and is required to return it to the plaintiff. For any acts before this point he will be protected.

How can we justify this defence? The simplest answer is the plaintiff’s material contribution to the act of aggression by sending his property into the possession of the defendant. It seems unjust to hold the defendant liable when he, the defendant, has had the property of the plaintiff forced upon him (or, at least, the transfer was completed at a time when both parties believed that it was valid). Each individual person is responsible for all of those acts which he initiates. This includes ensuring that it does not aggress against any other individual but it also means that you are responsible for your own mistakes with your property. Whatever you do, whether you produce it, consume it, destroy it, or trade it, you cannot compel others to pay you for losses arising from any mistaken appreciation of carrying out these actions. If you cannot hold anyone responsible for your unilateral mistakes with your property then it follows that you should not, as a plaintiff, hold them responsible when the mistake is bilateral but wholly of your origination. Indeed, “mistake” itself is a very broad category and can involve anything from hitting an incorrect digit on a keyboard all the way to having a complete misunderstanding about the market environment for a particular business venture. Your losses in both instances are “mistakes” yet we would never suggest that a loss making businessman is not responsible for his losses; in turn, he should also be responsible when he makes an error when transferring a payment. Such mistakes are also a natural part of life – not only through absent-mindedness, but misinformation, misunderstanding and also where payments are initiated before a change in circumstances becomes apparent. And as we said in our discussion on liability for wrongs, the responsibility for these events remains with the property owner. In short, if you throw your sheep to the wolves, do not expect that you will be able to get it back automatically. At the very least we can say that this defence is consistent with the approaches towards aggression we have discussed previously.

Second, consider the situation where the mistake is, in fact, never realised by the parties. What happens then? Legal rights and obligations arise only when individual parties recognise a conflict arising from scarcity. Absent any realisation of a conflict then there is simply no substance for legal rights and responsibilities. During the point between the transfer and the realisation of the mistake, each of the parties believes that everything is sound and nothing untoward has occurred; both parties go about their daily lives as if nothing had happened. In short, at this point, there simply is no conflict. Indeed, both may go forward from that point in total ignorance that the mistake had ever occurred and it will go with them to the grave. Both parties will proceed with their lives unmolested by the law while they remain in this state.

Compare mistaken payment with other acts of physical invasion of which the parties are not immediately aware – particularly noise, light, odours, etc. emitting from the defendant’s property onto the plaintiff’s. Whether or not these are aggressive depends upon the plaintiff enforcing his rights. If he does so within a timely fashion, then the actions of the defendant are held to be aggressive from their commencement (not just from the point the plaintiff realised they were occurring) as it is assumed the plaintiff would have always regarded it as a conflict if he knew about it earlier. Stronger considerations may apply with unjust enrichment, however. As the plaintiff made the transfer himself voluntarily then, by this very act, he demonstrates explicitly a situation of no conflict from the point of transfer up until the point he realises the mistake. Therefore, it would be an injustice to the defendant for the fact that the mistake becomes realised at a later date to change the ex-ante position of no conflict.

Matters are likely to be different in cases where the defendant initiates the transfer (i.e. if he causes the overpayment by accidentally making an invalid charge to the plaintiff’s credit card, or collects the sum by Direct Debit from the plaintiff’s bank account) and each party is, similarly, unaware of it until a later date. Here any lack of awareness of the mistake will not absolve the defendant as the act of aggression was wholly of his making.

What is the extent of this defence? Much of this question is likely to depend on whether the courts vest in the plaintiff a proprietary title over the mistakenly transferred property or merely a personal one. If it is a personal one – as in the case of fungible, unsegregated goods such as money – the defendant is likely to be liable to make the repayment even if he transferred the very notes paid over to him in error out of his possession. The strongest likely defence in this instance will be that of “change of position” – where the defendant can adduce evidence that he changed his financial plans as a result of the mistaken payment, assuming innocently that he had more funds available to him than he really he did. This has occurred in cases where banks have mistakenly paid sums into the wrong bank account. Genuinely assuming that they had more money than they were really entitled to, the recipients proceeded to increase their spending. Should such a change of plans be evidenced then the banks should forfeit the loss.

On the other hand, if the title is proprietary then the plaintiff’s claim follows the particular piece of transferred property. Anything that the defendant does to the property before the mistake is realised the plaintiff will have to live with – if this includes alteration or degradation then he will receive it back in its altered and degraded state. If it is transferred out of the defendant’s hands to a bona fide third party the plaintiff may have to forfeit the property entirely.

Finally we can compare and contrast the situation of a mistaken payment with that of the transfer of sums of money in advance for the performance of a service or in exchange for another good. Here, a normative title over the money remains in the hands of the transferor at all times. Although the act of aggression only occurs once the defendant fails to perform his half of the bargain, this does not mean he can invoke any defence if he trades or otherwise disposes of the money before that time. For here, the parties are aware of the correct property distribution between themselves, and will very much be aware of a conflict should the defendant abscond with the money. On the other hand, if we have the case of A paying money to B in advance mistakenly believing that the contract is for a car whereas B believes that the contract is for a van (and B delivers the van) the mistake of A’s will allow B to assert a defence against A’s claim for his money back if he dealt with it before the mistake was realised.

We must conclude this section by restating that all of this may be wrong and may be courts will hold defendants liable for knowing what they are receiving. Indeed in many cases the mistake may be mutual rather than wholly one-sided, and courts may, as a result, choose to place liability on the enriched party in such instances. However, it seems that, at least in the classic, core case of unjust enrichment the approach outlined here is the most consistent with libertarian principles.

Finally, of course, parties that are already familiar to each other may choose to vary their respective liability for an unjust enrichment by contract – for example if an existing customer makes an overpayment, the contract may specify a procedure for returning these funds or for allocating them towards future services.

Restrictive Transfers and Perpetuities

One further interesting topic is how restrictive transfers of property would be handled by a libertarian legal system. A restrictive transfer is any transfer that does not vest ownership of the property absolutely in the transferee. For example, A transfers the ownership of a car to B providing that B uses it only to travel to or from work; C transfers to D a house provided that he lets Mrs E, an elderly widow, have residence for life; F transfers a strip of land to G provided that G permits a right of way to F.

All of these cases vest in someone other than the owner a residual title to the property that may be enforced under the terms of the transfer. Usually the transferee will have paid a lower purchase price than he would have done for outright title – after all, you would not pay the same price for a house with a restrictive covenant than you would for a house that confers upon you the right to do whatever you liked.7 In simple cases of restriction (such as the doing or not doing something on a property) then this residual title will remain with the transferor. Should the transferee proceed to carry out the prohibited act he has now violated the transferor’s residual title and the latter may sue. In cases where the contract confers a benefit upon a third party – e.g. the widow who may stay in residence for life – it is the third party who holds the residual title.

This brings us to the question of wills, bequests and trusts that are set up in apparent perpetuity for the benefit of certain beneficiaries or to carry out certain purposes. For example, a person may decide to bequeath all of his wealth to his eldest son, provided that the latter bequeaths it to his eldest son and then to the next eldest son, and so on forever. Or a person may stipulate that he will transfer land provided that neither the transferee nor his successors in title ever build on the land for the rest of eternity, even after the transferor is long dead.

In all of these cases can the so-called “dead hand” of the settlor command rights and obligations over property for all eternity? Our contemporary legal systems have invoked perpetuity rules in order to prevent property from being tied up unreasonably into the distant future. Usually, the interests bequeathed by all such transfers must vest in the beneficiaries within a period of “lives in being” plus twenty-one years. Hence, inserted into bequests are bizarre “Victoria” or “Kennedy” clauses stipulating that the directions for the property will remain valid for as long as the lifespan of the youngest living descendant of Queen Victoria (or of Joseph P Kennedy) plus a period of twenty-one years. Any specified interest in the bequest vesting after that time would be invalid.

Libertarian law has no need for such an absurd and artificial rule. All rights and obligations belong to living, individual human beings, and the courts will not enforce a stipulation laid down long ago by a deceased person. How then are directions stipulated in wills or bequests enforced beyond the lifetime of the settlor?

In the simple case of a restriction upon property – for example, a person bequeaths money to a hospital for the sole purpose of providing care to the terminally ill – the restriction, as we noted above, vests in the transferor a residual title to enforce that restriction. While the transferor is still alive he is likely to enforce it, of course. When he dies, however, that title passes to his heir who may decide to continue to enforce it or may negotiate with the hospital for its relinquishment. Should he choose to continue it – perhaps out of respect for the original transferor – it will then pass to his heirs, and so on. As long as the heirs continue to enforce the residual title then the desire to use that property in the manner stipulated by the original transferor is not the desire of some long dead settlor but is, rather, that of real, living human beings.

Such considerations are also relevant for cases where there is a restriction upon land. Let’s say, for instance, that A bequeaths land to B on the condition that B does not build any structure on the land higher than two storeys. The heirs of A will continue to enforce this restriction upon B (and upon B’s own heirs) for as long as it matters to them that such enforcement remains in place. As time moves on, however, some of the later heirs may care not for this restriction and arrange for its relinquishment. Indeed, the restriction may become forgotten and unexercised – succeeding heirs of A, after a few generations, may be completely unaware of their right to enforce the restriction, and, indeed, B’s heirs, in the same state of ignorance, may proceed to build tall structures on their burdened land with no alarm from its supposed beneficiaries. In this case, the courts may take this as evidence of abandonment of the residual title by A’s heirs and full, beneficial use of the restricted property would revert to B’s heirs. This is a similar approach to that which courts are likely to take when determining whether there has been an aggressive action against property in the first place. If the right was not exercised for a period of time then it demonstrates that the actors have no conflict in their minds and the defendant’s act, while physical in nature, generated no substantive invasion of rights. Hence we should also not have any problem of people “digging up” ancient documents, discovering long forgotten titles and then suddenly demanding their enforcement.

With the bequeathing of all other rights and interests over property into the distant future, the likely approach of a libertarian court is that the beneficiaries of such interests must be actual, living persons at the time the interest is created. This is because the effect of the creation of an interest is to vest a right in the beneficiary to enforce the interest. As we stated in part two, rights cannot be held by hypothetical or non-existent persons. Rights are the response to conflicts over tangible property, and if a being is not alive he cannot perceive any conflict. A fortiori, this invisible being cannot make any claim to a right that competes with that of the possessor of the property.

For example, let’s say that A bequeaths his estate first to B, his son, and then to C, his grandson, upon B’s death. Both B and C are living at the time their interests in the estate are created. If B attempts to violate C’s interest in the estate – by, say, attempting to pass it to D – C is there to perceive the conflict and will sue for the vindication of his rights. If, however, C is not alive at the time his interest is created, and B proceeds with his attempt to pass the property to D, then there is nothing to stop this from proceeding. C, not being alive, can perceive no conflict with the transfer to D and, thus, there can be no right that can trump that of D to receive the property from B. There is, therefore, no distinct problem of perpetuities in a libertarian legal order.

This does not mean to say, however, that people cannot make arrangements for the dealing of their property in a certain way long after they have passed away – merely that the solution should be a market, rather than a legal one. If people are desperate to donate their wealth to good causes or for specific purposes after they die, and wish to immunise this from the flippancies of anyone who comes into possession of the property in the future, then suppliers of this need will be hot on their trail. Companies could offer to receive an individual’s money upon that person’s death and devote it to whichever purpose that individual wished. Legally, title to the property vests in the company absolutely but the discipline of the marketplace will ensure that they do not misuse it. If they do breach the wishes of the deceased testator, people will, in the future, turn to more reliable competitors to which they can make their bequests, and the abusive company will go bankrupt.

Through this mechanism it would also be possible to enforce grants to people not living at the time the bequest is made. For example, let’s say that A bequeaths his estate to B, his son, with the property then passing to all of B’s children in equal shares upon B’s death. When A dies, B’s living children would be able to benefit, but any children of B’s born after this date would not. If, however, A arranged for a specialist company to enforce the rights he stipulates, then this would create a residual title in the company to ensure that all children of B, regardless of when they were born, would benefit from A’s legacy.

A Final Map of Libertarian Law

Having concluded our survey of causative events of legal liability in a libertarian legal system, we are now in a position to sketch an outline of the map of libertarian law and it categories.

There will be specific areas of the law devoted to determining what the property rights between the parties are, based upon libertarian principles. Among these will be:

  • The law of self-ownership;
  • The law of original appropriation;
  • The law of contract;
  • The law of unjust enrichment;

We might also include in this list the law of trusts although, as we indicated above, a trust is a property mechanism that results from various events and does not necessarily sit neatly in the above list. There might also be specific areas of the law devoted to incorporated associations such as companies.

All of these categories of law that determine the property distribution between the parties then feed into the central area of law which is the law of wrongs (torts and crimes). The previous categories having established what the property rights are, this area of the law determines whether there was an aggression against that property as we outlined in part four. Notice that there is no separate procedure for criminal and tortious acts as there is in our contemporary legal systems – the investigation of aggression is a unified whole and proceeds in one direction; the distinction between crime and tort is only one question to be examined in this process.

These areas mark the extent of that which we have investigated thus far. There will also be specific areas of the law that determine appropriate remedies for an aggression against property, part of which, in addition to theories of compensation and restitution, will have to examine libertarian theories of punishment and the viability of introducing punishment as a response to an invasion against property.

We can conclude by noting that nothing in this brief sketch includes any mention of “public law” or laws that apply only to state, government, administrative or statutory bodies. All law in a libertarian society is “private law”; all legal rights and obligations exist between individual human beings, and all of this law rests upon the same principles that are binding upon everyone regardless of their societal status and function. No individual human will be either privileged or persecuted by a libertarian legal system.


1However, the precise causative events that give rise to some of these trusts appear relatively unclear in the case law, probably because trusts were developed in Equity which was based on much more vague and loose principles than the common law. “Unconscionable behaviour” seems to be a favourite phrase that courts use to justify the imposition of a constructive trust.

2None of this terminology need necessarily be used in a libertarian legal system – we are using it here only for conceptual clarity.

3(1932) UKHL 100.

4Actually, the bottle was not purchased by the plaintiff but by her friend who was accompanying her; it is also the case that the plaintiff sued the manufacturer of the bottle, not the immediate vendor. We will remove these complications for the sake of simplicity but suffice it to say that they do not present any problem to the analysis.

5This may sound similar to the “absence of basis” approach of contemporary legal systems, but whereas this concept is vague and unanchored in the crucial libertarian concept of property, our doctrine is certain – either there is a “mistaken” transfer of property or there is a valid declaration of transfer. Only one or the other can occur and they are mutually exclusive.

6Considerations as to whether a defendant “should” have made himself aware of the mistake are likely to be irrelevant. A court cannot force an individual or entity to look after its financial or proprietary affairs with any particular degree of care. Other, extra-legal considerations are likely to bring this about – businesses will want to keep accurate records in order to keep customers satisfied by stating accurately the contractual relations and the accounts between them.

7In some circumstances, however, such a covenant may serve to increase the value of a property. For example, a covenant may apply to all properties in, say, a housing development programme and will be designed to restrict and curtail specific activities in order to give a neighbourhood a certain quality and attractiveness.

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