Private law, public right, and the law of unjust enrichment

Jurisprudence ◽  
2021 ◽  
pp. 1-25
Author(s):  
Andrew Botterell
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
The Law ◽  
Public Right

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.

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.

A NORMATIVE ACCOUNT OF DEFENCES TO RESTITUTIONARY LIABILITY

2008 ◽  
Vol 67 (1) ◽  
pp. 92-125 ◽  
Author(s):  
Ross Grantham ◽  
Charles Rickett
Keyword(s):  
The Other ◽  
Private Law ◽  
Significant Development ◽  
Unjust Enrichment ◽  
Long Time ◽  
The Law ◽  
Principal Parts ◽  
Normative Account

The modern law of unjust enrichment is unique in many respects. In one sense, it is the newest and most significant development in the private law for a very long time. While it can claim ancient roots, as a discrete body of law unjust enrichment has only emerged from the long shadows of the law of contract in the last 20 years. The development and content of the law of unjust enrichment has, to a greater extent than perhaps anywhere else in the private law, been driven and shaped by academic rather than judicial influences. The law of unjust enrichment is also distinguished from the other principal heads of civil obligation in that its focus is on stripping the defendant of gains made rather than making good losses suffered by the plaintiff. Perhaps most controversially, the role or function of unjust enrichment may differ from the other principal parts of the private law in that the source of the entitlement protected is not found within the law of unjust enrichment, but in other areas of the law.

Unjust Enrichment and Restitution

2020 ◽  
pp. 292-308
Author(s):  
Andrew Burrows
Keyword(s):  
United States ◽  
The United States ◽  
Private Law ◽  
Journal Articles ◽  
England And Wales ◽  
Legal Question ◽  
Unjust Enrichment ◽  
The Subject ◽  
The Creation ◽  
The Law

This chapter examines the contrast between the English and U.S. approaches to the law of unjust enrichment—otherwise known as the law of restitution—over the last forty years. In England and Wales, no area of private law has been subjected to greater academic scrutiny in the last forty years than the law of unjust enrichment. The subject has spawned hundreds of law journal articles, scores of monographs and textbooks, and even the creation of a dedicated law review (the Restitution Law Review, first published in 1993). In contrast, and until the New Private Law movement, there appears to have been a decline of interest over the same period in the law of unjust enrichment/restitution in the United States. The chapter then focuses on a very specific legal question that has recently troubled the English courts—the meaning of “at the expense of”—to illustrate the English doctrinal approach epitomized in the writings of Peter Birks, and the most prominent recent challenge to it.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

scholarly journals UNSUR KERUGIAN DALAM UNJUSTIFIED ENRICHMENT UNTUK MEWUJUDKAN KEADILAN KOREKTIF (CORRECTIVE JUSTICE)

Yuridika ◽  
2018 ◽  
Vol 33 (1) ◽  
pp. 19
Author(s):  
Faizal Kurniawan ◽  
Erni Agustin ◽  
Rizki Amalia
Keyword(s):  
Corrective Justice ◽  
Private Law ◽  
Legal Doctrine ◽  
Unjust Enrichment ◽  
The Law ◽  
Unjustified Enrichment

Recent development to claim damages on the basis of either wanprestatie or onrechtmatige daad would not provide saticfactory grounds to the question of justice. There will be a situation in which that no one shall be unjustly enriched at the expense of another which all outside the scope of contract and tort. This has led to the existence of an independent legal doctrine known as unjust enrichment. It is among the most debated private law subjects today in asking for justice. Corrective justice brings to the remedial relation between the plaintiff and the defendant; it is solely concerned with the norm of justice that provides reasons to restitution. Corrective justice properly evaluates the structure of injustness to the both sides, the plaintiff and the defendant. It gives effect to restitutionary proprietary interests rather than compensatiton. This article elaborates the law of unjust enrichment as ground for restitution in conjunction with the corrective justice. Furthermore, this article focuses on the theoritical foundation of corrective justice to meet the unjustified enrichment criteria.  

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

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