The Policies against Leapfrogging in Unjust Enrichment: A Critical Assessment

Abstract

This article critically examines the merit of the policy reasons against leapfrogging one's contractual counterparty in unjust enrichment. Where the benefit of a performance, which is rendered by someone (C) pursuant to a contract with his counterparty (T), ends up with someone (D) who is not a party to that contract, will the law of unjust enrichment then allow the performer (C) to recover that benefit directly from its recipient (D)? The utility of allowing the leapfrog arises where recovery by C from T under general rules of contract becomes impossible (mainly) due to the insolvency of T. The most important policy reasons brought forward against leapfrogging are insolvency-related. These policy reasons are assessed in this article with reference to Dutch and English cases in particular. In past decades the comparative approach has proven to be extremely fruitful for unjust enrichment. As I hope to illustrate with this contribution, also after ‘Brexit’ it will continue to be important and exciting to examine legal problems on a comparative basis in common law and civil law (and mixed) jurisdictions.