Abstract
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.
Highlights
The most dramatic recent development in private law across much of the common law world has been the appearance of a doctrinal category of unjust enrichment.[1]
The more common view amongst its many proponents is that the recognition of a doctrinal category of unjust enrichment is more significant than this: it is justified because it represents an advance in our understanding of the law, and because in consequence it has influenced and will continue to influence the development of the law for the better, making it more rational, coherent, or just than it would otherwise have been
If it is the type of remedy that characterises the law of unjust enrichment, and not a justifying principle, it is a mistake to recognise it as a doctrinal category, just as it would be a mistake, say, to unify contract and negligence on the ground that they generally involve the same remedy of compensation
Summary
The most dramatic recent development in private law across much of the common law world has been the appearance of a doctrinal category of unjust enrichment.[1]. This is, consistent with the fact that what is commonly described as the law of unjust enrichment was until recently described as the law of restitution, and developed to address the problem of explaining various types of claim that had a certain remedy in common, namely restitution, understood as the remedy of undoing a transfer, or requiring payment for a benefit.[20] If it is the type of remedy that characterises the law of unjust enrichment, and not a justifying principle, it is a mistake to recognise it as a doctrinal category, just as it would be a mistake, say, to unify contract and negligence on the ground that they generally involve the same remedy of compensation This objection gains support from the way in which the principle of unjust enrichment is often expressed, as the principle that unjust enrichments should be reversed or undone.[21] This is not a principle of liability, since it does not bear on whether an enrichment is unjust or not; it holds that if an enrichment is unjust there should be a remedy to undo it. In the end everything turns on what principle of liability is offered
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