Chapter 6. The Fiduciary Concept, Contract Law, and Unjust Enrichment: a Functional Comparison

2007 ◽  
pp. 87-108
Keyword(s):  
Contract Law ◽  
Unjust Enrichment

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

1. Introduction

2020 ◽  
pp. 1-28
Author(s):  
Jack Beatson ◽  
Andrew Burrows ◽  
John Cartwright
Keyword(s):  
Contract Law ◽  
Property Law ◽  
Unjust Enrichment ◽  
Different Types ◽  
English Law ◽  
The Law ◽  
Contractual Obligations ◽  
And Function

This introductory chapter first considers the nature and function of contract. It then discusses the contractual obligations in English law; the content of the contract law as set out in this book, which is concerned with the ‘general principles’ of contract rather than the detailed rules applicable to different types of contracts; the location of contract as part of the law of obligations and its relation to other parts of the law of obligations, tort and restitution of an unjust enrichment, and property law.

Overlap of Termination Terms and Principles of Contract Law: The Toba Trading Case

2019 ◽  
pp. 1-16
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Contract Law ◽  
Business Practices ◽  
Unjust Enrichment ◽  
Comprehensive View ◽  
Anticipatory Breach ◽  
Advance Payment ◽  
Contract Termination

A buyer company has an advance payment stuck with the seller company and acts cautiously in not paying further till they get control over the goods. Claiming this to be a breach, the seller terminates the contract and makes claim for the damages. The seller picks all legal points it could in the routine business practices to escape the unfortunate situation. The judgment in the Toba Trade Case gives a comprehensive view of several legal themes including, payment and delivery, variation of contract, termination, anticipatory breach, award of damages and unjust enrichment.

1. Introduction

2021 ◽  
pp. 1-14
Author(s):  
Richard Taylor ◽  
Damian Taylor
Keyword(s):  
Contract Law ◽  
Legal Knowledge ◽  
Unjust Enrichment ◽  
Economic Context ◽  
Key Points ◽  
English Law ◽  
The Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment and restitution. It also explains the wider range of situations covered by the law of contract, and puts the law of contract into its social and economic context.

The Restitutionary Conditional Transfer Analysis and the Death of Contract

1998 ◽  
Vol 2 (1) ◽  
pp. 23-55
Author(s):  
Peter Jaffey
Keyword(s):  
Contract Law ◽  
Important Distinction ◽  
Unjust Enrichment ◽  
Transfer Theory ◽  
Complete Failure ◽  
Benefit Principle ◽  
The Law ◽  
Work Done ◽  
Perverse Effect ◽  
Limited Scope

There is an important distinction in the law of restitution between a claim for restitution for unjust enrichment by subtraction, where the plaintiff has made a transferto the defendant that is non-voluntary, and a claim under the benefit principle for reasonable paymentfor a benefit conferred. The benefit principle has a limited scope ofapplication, because generally payment for benefits conferred is governed by the law of contract. The restitutionary conditional transfer analysis, by mischaracterising a transfer made subject to a condition as an example ofsubtractive restitution, and treating performance ofa contract as a conditional transfer, has the perverse effect ofimporting the benefit principle into contract law. This subverts the remedial rules ofcontract law by allowing the court to assess a reasonable payment for work done rather than relying on the contract to determine the appropriate liability. The claims on contractual termination that are regarded as restitutionary— the quantum meruit for work done and the claim for repayment of a pre-payment— can be explained without reference to the conditional transfer theory. The claim for repayment of a pre-payment should be limited to cases of complete failure of consideration, which should be understood to mean complete absence ofreliance by the defendant on the contract, not complete absence ofbenefit to the plaintiff.

1. Introduction

2019 ◽  
pp. 1-14
Author(s):  
Richard Taylor ◽  
Damian Taylor
Keyword(s):  
Contract Law ◽  
Legal Knowledge ◽  
Unjust Enrichment ◽  
Economic Context ◽  
Key Points ◽  
English Law ◽  
The Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment and restitution and also explains the wider range of situations covered by the law of contract and puts it into its social and economic context.

1. Introduction

2017 ◽  
Author(s):  
Richard Taylor ◽  
Damian Taylor
Keyword(s):  
Contract Law ◽  
Legal Knowledge ◽  
Unjust Enrichment ◽  
Economic Context ◽  
Key Points ◽  
English Law ◽  
The Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment and restitution and also explains the wider range of situations covered by the law of contract and puts it into its social and economic context.

Privity

2020 ◽  
pp. 480-496
Author(s):  
Mark P. Gergen
Keyword(s):  
Economic Loss ◽  
Tort Law ◽  
Contract Law ◽  
Third Parties ◽  
Property Law ◽  
Unjust Enrichment ◽  
Pure Economic Loss ◽  
Bona Fide ◽  
The Law ◽  
Negligence Law

This chapter discusses privity rules. Privity rules in contract law prevented obligations created by a contract from protruding on third parties, while privity rules in tort law prevented obligations to third parties that might otherwise be imposed by tort law from “indenting” upon a contract. Contract no longer is an impregnable circle of obligation. But contract law still has a privity requirement that prevents a contract from protruding negatively on nonparties. Meanwhile, in tort law, the function of preventing negligence law from indenting upon a contract has devolved to rules that preclude a negligence claim for pure economic loss. Moreover, there are rules in property law and the law of restitution that perform the same functions as the old privity rules in contract law and negligence. These include bona fide purchaser rules in property law and rules in the law of restitution that preclude claims for indirect enrichment and that preserve the priority of contract as a mechanism for resolving problems of unjust enrichment.

scholarly journals The Unjust Enrichment Fallacy And Private Law

2013 ◽  
Vol 26 (1) ◽  
pp. 115-136
Author(s):  
Peter Jaffey
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Contract Law ◽  
Property Law ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Common

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

Sign in / Sign up

Export Citation Format

Share Document