Hohfeld's Power-Liability/Right-Duty Distinction in the Law of Restitution

I argue that a debt, which is generally taken to be a standard example of a Hohfeldian right-duty relation, is actually properly understood as a power-liability relation, although a separate right-duty relation can arise in respect of it. This understanding provides a solution to a problem devised by MacCormick and discussed in the jurisprudence literature concerning a right to payment from the estate of a deceased person. In the main part of the article, I argue that a restitutionary claim to recover money or property invalidly transferred is also a Hohfeldian power, not a right correlated with a duty to return the money or property. The recipient’s liability to the exercise of the power is to be distinguished from his or her duty to return or to preserve the money or property invalidly transferred. This analysis provides a solution to the controversy in the literature over the strict liability and fault-based approaches to restitutionary claims, and it explains and supports the traditional understanding of the equitable proprietary claim and the claim for knowing receipt. The discussion leads to some consideration of the harm principle and duties of positive action.