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Subrogation to extinguished rights ('subrogation') describes a particular form of rights: C's new rights against D resemble X's extinguished rights against D. This thesis resolves four controversies surrounding subrogation: is subrogation redundant; what is the justification for subrogation; when should subrogation occur; and is subrogation a remedy for unjust enrichment? The thesis is divided into two parts. Part I considers what the law is and Part II considers what the law ought to be. Part I asks whether, as the law stands, subrogation is redundant. Contrary to orthodoxy, it argues that subrogation is available in different circumstances and has a different effect compared to a 'direct unjust enrichment claim'. Consequently, subrogation does not duplicate a 'direct' claim and so subrogation is not redundant. Part II asks what justifies subrogation and, in light of that, when should subrogation occur? Contrary to orthodoxy, it argues that there is not one justification for subrogation but two, each of which is sufficient on its own. Subrogation can be justified by a duty not to use a right for one’s own benefit. Alternatively, subrogation can be justified by C bearing the burden of a debt which ought to be borne by D. Each justification mandates a different test for when subrogation should occur, explaining why different subrogation cases apply apparently contradictory rules. The question of whether subrogation is a remedy for unjust enrichment is addressed in Parts I and II. Part I shows that subrogation does not duplicate a 'direct unjust enrichment claim'. Part II argues that, once the justifications for subrogation are understood, unjust enrichment is a distraction. It is therefore concluded that subrogation is not a remedy for unjust enrichment. |
