scholarly journals The Defence of Illegality in Private Law

2021 ◽  
Author(s):  
Nathan Tamblyn
Keyword(s):  
Private Law ◽  
Unjust Enrichment

AbstractThe defence of illegality is invoked across private law, but has a reputation for being confused. This article argues that the defence can be rendered intelligible and sharply focused by understanding its underlying rationale, and applying that discretely and to different effect in each of tort, contract, unjust enrichment, and trusts.

Defenses

2020 ◽  
pp. 528-546
Author(s):  
Robert Stevens
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
Single Thing ◽  
Normative Justification ◽  
Monist View

This chapter focuses on defenses. A considerable number of theories has grappled with the normative justification(s) for the various claims that arise in private law. This focus on the rights and powers in private law is understandable. After all, without a claim there is nothing much further to discuss. What has gone underexamined are the justifications for the various defenses that exist—the ways of resisting otherwise good claims. Defenses pose a challenge to any monist theory of private law. If private law, or a part of it, is all about efficiency or independence or utility or any other single thing, why not deal with all the elements of what justifies the plaintiff’s claim as an element of the cause of action? Why do people need defenses at all? Either the claim is justified or it is not. On the monist view of private law—that it is only concerned with One Big Thing—what is the need or role for any separate “defenses” that concern countervailing considerations? The chapter then describes what a defense is before looking at pleading and proof and distinguishing between justification and excuse. It also considers the form of reasons and details the general defenses, defenses in contract, defenses to torts, defenses in unjust enrichment, and equitable defenses.

Oxford Studies in Private Law Theory: Volume I

2020 ◽  
Keyword(s):  
Full Range ◽  
Private Law ◽  
Unjust Enrichment ◽  
Methodological Approaches

This is the inaugural volume of Oxford Studies in Private Law Theory. OSPLT is a series of biennial volumes showcasing the best article-length work across private law theory. The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as private law in general.

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

scholarly journals Materially Identical to Mistaken Payment

2020 ◽  
Vol 33 (1) ◽  
pp. 31-57
Author(s):  
Tatiana Cutts
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Powerful Effect ◽  
Starting Point ◽  
Central Characteristic ◽  
The Law

Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’.In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.

RESCUING REMEDIALISM IN UNJUST ENRICHMENT LAW: WHY REMEDIES ARE RIGHT

1998 ◽  
Vol 57 (2) ◽  
pp. 301-327 ◽  
Author(s):  
KIT BARKER
Keyword(s):  
Private Law ◽  
Theoretical Level ◽  
Unjust Enrichment ◽  
Conceptual Apparatus ◽  
The Subject ◽  
Primary Focus

The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.

Introduction

2018 ◽  
Author(s):  
John Gardner
Keyword(s):  
Personal Life ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Law ◽  
Monist View

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, believe, want, etc.) apart from the law. The chapter discusses a ‘monist’ view that what private law would have us do is best understood by reflecting on what we should be doing, quite apart from private law, which entails reflection on the reasons why we should be doing it. As to ‘private law’, this chapter and the book as a whole primarily refer to the law of torts and the law of contract. This definition excludes a few similar but unrelated concepts such as unjust enrichment, breach of trust, and breach of confidence.

Peter Brian Herrenden Birks 1941–2004

2008 ◽  
Author(s):  
Alan Rodger ◽  
Andrew Burrows
Keyword(s):  
Legal Reasoning ◽  
Private Law ◽  
Unjust Enrichment ◽  
Innovative Thinking ◽  
The Law

Peter Birks was one of the most influential legal scholars of his generation. He owed that influence to the admiration in which his rigorous and innovative thinking was held by lawyers and judges, not only in this country, but throughout the Commonwealth and in Europe. Birks was most widely known through his writings, but in Oxford, in particular, his reputation also rested on his teaching, especially in the famous restitution seminars that he conducted with various colleagues over three decades. He had an enormous impact on the law of restitution/unjust enrichment both in the universities and in the courts. The ‘Birksian school of thought’ has pursued, and will continue to pursue, rational transparency and elegant coherence in legal reasoning, not only in the law of restitution, but across English private law generally.

Concerns about Corrective Justice

2013 ◽  
Vol 26 (1) ◽  
pp. 137-155
Author(s):  
Zoë Sinel
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Private Law ◽  
Unjust Enrichment ◽  
Guiding Principle ◽  
The Law ◽  
The One ◽  
Justice Theories

According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law (the law of torts, contract, and unjust enrichment) is to put the aggrieved party in the position s/he would have been in had the complained of conduct not occurred. The connection between corrective justice and private law’s remedies thus appears analytic. My article challenges this orthodoxy. I argue that, on the one hand, if corrective justice is treated narrowly, as an exclusively remedial principle, it severs the connection between right and remedy that lies at the heart of the corrective justice theories of private law. On the other, if it is interpreted broadly to encompass as well the parties’ original (pre-wrong or pre-unjust enrichment) relationship, it becomes otiose.

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