The Unjust Enrichment Insurgency

Abstract

A key theme in the debates about equity, especially in relation to trusts implied by law such as constructive trusts and in relation to tracing, has been the development of an entirely new way of explaining how many of the doctrines which are currently part of equity (and part of contract law and tort law) should be organised and understood. This has ignited debates about the organisation of ‘private law’ — that is, everything that is not criminal law nor public law. That new way of thinking has taken many different names over the years: ‘the law of restitution’, ‘the law of restitution of unjust enrichment’, ‘the law of unjustified enrichment’, and ‘the law of unjust enrichment’. The changes in name reflect two things: the evolution of that way of thinking among its adherents, and also disagreements between its adherents as to the way in which it should operate. In this book it will be referred to as ‘unjust enrichment’ for ease of reference, with many of the subdivisions of opinion being considered separately. It is given such prominence in this book because its feasibility and its structure have been such a large part of the academic debates about equity and trusts in the last three decades.