This article is concerned with the availability of “proprietary restitution” in cases of mistaken payments. It is argued that the mistake of the claimant is an insufficient justification for proprietary restitution, but a close analysis of the case law demonstrates that the presence of additional factors can justify the availability of proprietary restitution in specific circumstances. The basis of proprietary restitution is to be found in the breach of a duty which arises separately from the claim for unjust enrichment. The significant contribution of this article is the analysis that knowledge merely creates a duty to maintain the fund until restitution is made, and that knowledge cannot establish the breach of this duty. Importantly, breach of this duty is established by a second condition which is demonstrated by the wilful misconduct of the recipient. It is this conduct which justifies the imposition of the constructive trust. By adopting this analysis, the proprietary claim in the context of mistaken transfers can be classified as forming part of the law of wrongs, rather than the law of unjust enrichment.
