Abstract

This is a review article of Peter Birks, Unjust Enrichment (OUP, 2003) , criticising the argument for the introduction into English law of a doctrinal category of unjust enrichment, and discussing the role of justificatory and formal categories in the law and the nature of Birks's classification. It discusses restitution in property law and Birks's core case of the claim to recover a mistaken payment, and in contract law.

Highlights

  • One of the most striking changes in academic research and teaching in recent times has been the appearance of a new subject under the name of restitution or unjust enrichment

  • One reason why Birks finds the no legal basis approach appealing is that it appears to give unjust enrichment a unity that is lacking in the unjust factor approach, which appears to consist in a miscellany of different grounds for a claim (p 93). He does not put it in this way, to say that the unjust factors are a miscellany is best understood to mean that unjust enrichment claims arising from different unjust factors do not belong in the same justificatory category.[69]. By contrast, in appearing to offer a single unifying formula, the no legal basis approach suggests that unjust enrichment claims do constitute a justificatory category.[71]

  • Unjust Enrichment is a contribution to a longstanding project of establishing a category of unjust enrichment claims in the law, analogous to the categories of contract or tort, involving the reorganisation and reinterpretation of parts of the traditional common law

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Summary

Introduction

One of the most striking changes in academic research and teaching in recent times has been the appearance of a new subject under the name of restitution or unjust enrichment.

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