Foundations

Abstract

Abstract The account offered is not simply a description of the law in any particular jurisdiction. Rather it seeks to draw out the kinds of claim that any properly constructed legal system ought to recognise. Before embarking on a careful discussion of the law’s substance, it is necessary to clear the theoretical ground. Claims for restitution are commonly said to be a form of, or justified by, ‘corrective justice’. This idea has been given several different meanings. For the purposes of this work, the most important is that the reasons justifying an obligation owed by one party to another must relate the two parties together. That the defendant is enriched, the plaintiff has suffered a correlative loss, and this was caused by a mistake of the plaintiff cannot suffice because this does not establish any reason of the requisite form. The austere range of reasons sufficient to justify interpersonal obligations is narrower than those that may justify the defences that may excuse the defendant from performance, such as illegal conduct, the defendant’s incapacity, or the expiry of a limitation period. The law may be categorised in a number of different ways, but the most important is by reference to the different kinds of reason that may justify obligations (eg ‘we agreed’, ‘you wronged me’). ‘Unjust enrichment’ fails to provide a reason of the requisite form.