Commutative Justice, Relativity of Title and the Priority Rules

Speaker: Dr Darryn Jensen, ANU Law School    

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The central claim of Peter Benson’s account of property law is that ‘[a] person who, through an external manifestation of will, has brought something under his or her present and exclusive control prior to others is, relative to those others, entitled to it in corrective [i.e. commutative] justice’. A commutative justice account of the priority takes this claim about property law as its starting point. Accordingly, the priority rules are based on the idea that it is just, as between any two holders of competing interests in the same thing, that the person who has done what she could reasonably be expected to do to make her interest visible to others can justly enforce that interest against others to whom it should have been visible. In relation to interests in tangible things, the order of creation of interests provides the default rule where there has been no failure on the part of the holder of the interest first in time to make the interest visible. This explains both the rule governing priority of successive equitable interests and the rule governing whether a legal purchaser is bound by an earlier equitable interest. Differences as to the detail of the rules relating to particular types of interests, such as choses in action, turn upon differences as to the capacity of the holder of the interest first in time to publicise his interest. A potential ‘fly in the ointment’ is the successive effect associated with the bona fide purchaser rule. This raises the perennial question in private law theory of whether a workable theory of the pervasive elements of a legal institution should be discarded in the face of a narrowly applicable line of precedent that the theory struggles to explain.

About the Speaker

Dr Darryn Jensen is a graduate of the University of Queensland and was an academic staff member there from 1996 to 2014. He joined ANU in 2016. He has also taught at Bond University and the University of the South Pacific Emalus Campus (Vanuatu). Dr Jensen's doctoral studies concerned the various equitable doctrines which Australian courts have used to resolve disputes arising out of informal property sharing arrangements. He has written extensively on constructive trusts and other equitable remedies and has sought to study the development of legal doctrine in these areas against the background of theoretical debates about the nature of the common law, equity and judicial decision-making. He has also written on the law affecting charitable and religious institutions. He has a developing interest in the relationship between statute law and common law in private law contexts.

Read Dr Darryn Jensen's biography and publications