The Characterization of Unjust Enrichment In the Conflict of Laws

Abstract

Choice of law for unjust enrichment is impossible without a clear understanding of the law of unjust enrichment and the boundaries between it and other areas of law. This article is divided into three main sections. The first briefly outlines the current law on characterization, the process through which choice of law rules are selected and applied. The second proposes a definition of the law of unjust enrichment to be used in the characterization process. The third analyses the parameters of unjust enrichment, looking at the boundaries between it and contract, wrongs and property. Throughout the article, the focus is on English law, though some Canadian and Australian law is considered for comparative purposes. Choice of law rules must be formulated for the cause of action to reverse unjust enrichment. Those choice of law rules should focus on the three elements of the cause of action: the enrichment of the defendant, the expense of the claimant and the unjust factor justifying the reversal. The characterization process, by which the correct choice of law rule is selected, has to differentiate between unjust enrichment claims and other types of claim. It will do so according to the law of the forum. The scope of the law of unjust enrichment therefore must be as clear as possible, allowing claims to be characterized with a minimum of difficulty.