ABSTRACT
There are two forms of remedy available here: some personal and others proprietary. It is important to understand the distinction between the two. A personal remedy requires the defendant to make good any loss suffered by the beneficiary out of the defendant’s own funds. This gives the beneficiary no effective remedy if the defendant does not have sufficient wealth to make good that loss or if the defendant is bankrupt. Therefore, as will emerge, the beneficiary will frequently seek to bring a number of claims at once until she finds a person with sufficient wealth to compensate her for her loss. A proprietary response, usually in the form of a trust, is very different from a personal remedy in that the beneficiary will acquire a right against an item of specific property. In circumstances in which the defendant does not have sufficient funds to make good the claimant’s loss, a proprietary claim will enable the beneficiary to seize specific property and thus the beneficiary will not be at a disadvantage even if the defendant is bankrupt.
