Principle Of Unjust Enrichment Research Articles

The Principle of Unjust Enrichment

The Principle of Unjust Enrichment

Corrective Justice of Constructive Trusts and Drawing upon the Constructive Trusts Institution: Take the Misappropriation of Corporate Opportunities as an Illustration

Our Corporation Law clearly provides that directors and key managers have the duty not to misappropriate the corporate opportunities and the benefits obtained from the breach of the duty should be of the corporation, that is, the corporation has the disgorgement right”. This provision over the legal remedy of the misappropriation of corporate opportunities by directors and key managers aims to incorporate the benefits into the corporation, which is based on the theory of unjust enrichment and doesn’t grant the victims with the real remedies for the breach of fiduciary duties. This cannot be sufficient to protect the victims’ rights: firstly, disgorgement of profits would be hindered, if benefits obtained by corporate fiduciaries would have been changed into other forms of property or transferred to the third party; secondly, corporate fiduciaries would not be liable to make up for the loss while the corporation hasn’t directly suffered a financial loss, but an opportunity loss; thirdly, disgorgement of profits based on the theory of unjust enrichment cannot give enough relief for such a wrong. The constructive trusts for the breach of fiduciary duty in the case of misappropriation of corporate opportunities shall have different legal effects: on the one hand, the victims can claim the disgorgement of profits by wrongdoers from the misappropriation of corporate opportunities; on the other hand, the benefits obtained by the wrongdoers can be traced by the victims through the real remedies while they have been transferred to the third party. According to the principle of the constructive trusts, the constructive trusts can be real remedy devices and personal remedy tools which can make up for the deficiency of the principle of unjust enrichment as remedy devices while the fiduciaries breach the fiduciary duty such as the misappropriation of corporate opportunities. The constructive trusts have advantages over the general creditors in the protection of rights. It is up to the parties to choose which remedy to protect themselves. The corrective function of constructive trusts is a measure of restitution of the wrongdoing from the breach of fiduciary duty. Constructive trusts have two corrective functions: disgorging the property and compensating the damages, which can provide the parties with a real remedy and a personal remedy. Especially a real remedy can offer victims a complete right protection mechanism, for it has an advantage over an ordinary creditor in the right protection. The institution of constructive trusts can fill the gap in the current statutory provisions of breach of fiduciary duties and make up for the deficiency of the rules of unjust enrichment, which cannot be substituted by other civil institutions and is worth being borrowed by our state’s trusts law. However, the conflicts among some legal ideas or concepts should be resolved when transplanting constructive trusts. The article takes the correction of the misappropriation of corporate opportunities as an illustration to study the corrective justice of constructive trusts, whose aim is to develop some theories related, promote the judicial practice, learn from constructive trusts and localize them by our state’s trusts law.

Argumentacja historyczno-prawna w orzecznictwie Izby Lordów przełomu XX i XXI wieku na przykładzie nawiązań do sprawy Moses v. MacFerlan z 1760 roku

Arguments of a Legal Historical Nature as Found in Judicial Decisions Taken by the House of Lords at the Turn of the 21st Century and Illustrated by References to the Case Moses v. MacFerlan 1760 Through an analysis of cases of unjust enrichment (law of restitution), and investigation of the lines along which the judges invoked the landmark case of Moses v. MacFerlan (1760), the author of the paper discusses the role played by legal history in disputes carried on in the House of Lords. After elaborating the details of the aforementioned case (2), he presents the doctrine of implied contract that prevailed in the 19th century (3), and discusses the opinions of the Lords articulated at the turn of the twenty-first century on the occasion of their discussing the meaning of the principle of unjust enrichment (4a). Likewise he discusses the introduction into English law of the change of position defense (4b), and comments on court decisions on interest (4c). Finally, the author investigates references to legal history as made in order to justify the overruling of precedent (5).

Aplicação do princípio de vedação ao enriquecimento sem causa no ordenamento jurídico civil brasileiro: o caso da sub-rogação das seguradoras

O presente artigo tem por objetivo analisar a figura jurídica do enriquecimento sem causa, a qual não vem tendo o destaque necessário no Ordenamento Jurídico brasileiro, em detrimento de uma análise profunda e multidisciplinar do tema. Para melhor compreender a vedação ao enriquecimento sem causa é primordial que se estabeleça o mesmo enquanto princípio informador do ordenamento jurídico civilista no Brasil, vez que tal aplicação torna exponencial os casos em é possível perquirir e utilizar a máxima de vedação ao enriquecimento sem causa. Para tanto, deve-se analisar o que a doutrina estabelece como o conceito de enriquecimento sem causa enquanto figura dúplice, ou seja, figura que atua vez como norma de direito a ser aplicada no caso concreto e vez como princípio informador a ser aplicado na interpretação das demais normas. Para além é necessário percorrer os requisitos do enriquecimento sem causa e seus pressupostos contemporâneos, no intuito de estabelecer a real incidência do enriquecimento sem causa, seja como norma, seja como princípio. Dentre os requisitos tem-se: (i) enriquecimento, (ii) empobrecimento, (iii) ausência de justa causa e (iv) nexo causal. Derradeiramente, formuladas as premissas acerca do enriquecimento sem causa é possível analisá-lo enquanto princípio à luz de uma caso paradigmático dentro do Código Civil, de 2002. É o caso da sub-rogação da seguradora no direito de ressarcimento do segurado quando de conduta alheia. O objetivo do estudo é demonstrar se tal prerrogativa viola ou não o princípio de vedação ao enriquecimento sem causa.

The Frustration of Bankers' Employment Contracts by Effect of the EU Bonus Cap

In the author's submission, an employment contract can be frustrated at common law for cessation of its commercial purpose. Relying on the courts’ construction of employment contracts in the investment banking industry, the author finds that a bonus term goes to the root of a banker’s contract, which becomes frustrated when an external event such as the EU bonus cap prevents the bank from determining the value of the bonus as the parties reasonably expected at the time of formation of the contract. It follows that by operation of Section 1(3) of the Law Reform (Frustrated Contracts) Act 1943, the benefit that the employer has enjoyed by virtue of the employee's work in consideration of the prospective bonus should then be justly restituted. Contrary to the current legal interpretation of s 1(3), the employment context provides a unique illustration that the ‘benefit’ should be assessed objectively at the point of its receipt by the employer, and not after the frustrating event in order to ensure consistency with the underlying principle of unjust enrichment.

The Principle of Unjust Enrichment

The doctrine of unjust enrichment has developed not as a principle to claim back the money received or benefits received that were not due but rather where the court can order restitution or to put it in other words where the courts can reasonably grant restitution. In Moses v. Macferlen, Lord Mansfield stated that the action for the money had and received “lies for the money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or impled); or extortion; or an undue advantage taken of the claimant’s situation, contrary to the laws made for the protection of persons under those circumstances.

The Frustration of Bankers' Employment Contracts by Effect of the EU Bonus Cap

In the author's submission, an employment contract can be frustrated at common law for cessation of its commercial purpose. Relying on the courts’ construction of employment contracts in the investment banking industry, the author finds that a bonus term goes to the root of a banker’s contract, which becomes frustrated when an external event such as the EU bonus cap prevents the bank from determining the value of the bonus as the parties reasonably expected at the time of formation of the contract. It follows that by operation of Section 1(3) of the Law Reform (Frustrated Contracts) Act 1943, the benefit that the employer has enjoyed by virtue of the employee's work in consideration of the prospective bonus should then be justly restituted. Contrary to the current legal interpretation of s 1(3), the employment context provides a unique illustration that the ‘benefit’ should be assessed objectively at the point of its receipt by the employer, and not after the frustrating event in order to ensure consistency with the underlying principle of unjust enrichment.

The Unjust Enrichment Fallacy And Private Law

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.

The Unjust Enrichment Fallacy and Private Law

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 appear, 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.

Unjust Enrichment under EU VAT

Under the principle of unjust enrichment, Member States may refuse to repay indirect taxes to traders on the ground that they have already shifted the burden of the tax to a third party and would be unjustly enriched by receiving the tax from the tax authorities. In a large number of judgments, the ECJ has described the terms and conditions under which Member States may apply the principle of unjust enrichment. In this article, the author explains that those conditions are significantly different depending on whether the tax refund concerns a tax that Member States imposed in violation of EU law or VAT charged by a trader to his customer by mistake.

The use value of money in the law of unjust enrichment

In Sempra Metals Ltd v Inland Revenue Commissioners, the House of Lords, by a majority, recognised the right to recover compound interest for the ‘use value of money’, an independent benefit from the principal sum. This right is based in the principle of unjust enrichment. Nevertheless, the House of Lords could not agree on the proper understanding of ‘use value of money’ and left many important questions unaddressed which are crucial for paving the way forward for a claim for the ‘use value of money’. This paper will meet the following challenges – to justify the majority's position in Sempra Metals in recognising a right to compound interest for the ‘use value of money’; deal with the theoretical basis of ‘use value of money’; and recommend a model as the way forward for this newly recognised claim.

The Emergence of the Concept of Unjust Enrichment in New Zealand, Its Relationship to the Remedial Constructive Trust and the Development of the Status of Joint Ventures in Equity

From the 1970s onward there have been numerous attempts to persuade the courts of New Zealand that unjust enrichment might be an acceptable basis for imposing equitable remedies. The foundation for this proposition rests upon the supposed existence of a broad principle that the imposition of a constructive trust is justified in any circumstances where it would be against equity or good conscience to allow the retention of property by one who has an ostensible legal title. So the unjust enrichment, once established, becomes the cause of action and the constructive trust follows as an equitable remedy of a proprietary nature which is available to prevent the unjust enrichment. This has important ramifications for the development of the law pertaining to restitution in this country. This paper will show that the acceptance of the remedial constructive trust is linked to the development of a law of restitution founded upon the principle of unjust enrichment. It will also be shown that, while the roots of the conceptual distinction between law and equity remain intact, in many courts the practical ramifications of that distinction are being eroded, particularly in commercial cases.

The Principle of Unjust Enrichment and Formation of Contract: The Importance of a Hidden Policy Factor

The two types of situations discussed in this contribution show how the principle against unjust enrichment interrelates with formation of contract. It is defended that the wish to avoid unjust enrichment plays an important role as a policy factor in cases that are often regarded as contract cases. The situation in which goods are supplied or services are performed without a contract and the case of apparent intention are used to explain this. The contribution shows that in these cases it is the cumulative impact of reliance and enrichment that accounts for obligations coming about. Subsequently, the consequences this may have for the taxonomy of the law of obligations are discussed and a plea is made for the resurgence of a separate category of ?quasi-contract? at the European level to accommodate the cases discussed.

La notion d'enrichissement sans cause en droit administratif québécois

The problem of unjust enrichment has often been raised in recent years with reference to litigation concerning contracts with public authorities. Many times, parties to such contracts have invoked this principle to obtain compensation for services provided under contracts later declared irregular or void. The courts have then attempted to apply in the context of administrative law the conditions laid down by civil law doctrine for unjust enrichment. The transposition to administrative law of the civil concept of unjust enrichment does not, however, appear to have been adequate. To begin with, the principle of unjust enrichment is difficult to dissociate from the quasi-contract of negotiorum gestio in administrative law. Further, the material and legal conditions of unjust enrichment cannot be applied as a whole to administrative law. In this field, unjust enrichment appears as a true quasi-contract in the sense that it requires the assent of the person enriched. Furthermore, the enrichment must have resulted in a real benefit in the general interest of the administration. These special conditions require a different approach toward the notion of unjust enrichment in administrative law. This approach may be elaborated from the Common Law notion of quantum meruit or from the theory of unjust enrichment in French administrative law. A new concept of unjust enrichment in Quebec administrative law would lead to finding, in the field of quasi-contracts, a solution which would provide for the protection of both public finances and the individual interests of co-contractants.

Cultural Perceptions of Africans in Diaspora and in Africa on Atlantic Slave Trade and Reparations

Abstract This study examines the cultural perceptions of Africans in Diaspora on the Atlantic slave trade and reparations. It uses a cultural centered model to analyze the perception of Africans in Diaspora about the issue of slavery and reparations. The paper also uses a survey method to explore the perceptions of African-Americans in the United States, Africans living in Europe, and Africans living in the African continent about reparations. It argues that the environmental, religious, occupational, social and political conditions that Africans in Diaspora currently live in will determine their perception of slavery and reparations. Despite this argument, the paper stresses that it is a violation of the established precedence in law that is based on the principle of unjust enrichment to not pay some reparations to the present generation of Africans. This principle stipulates that if a person, a corporation or a country profit from the criminal treatment of a group of people, such a person, corporation or country is subject to the payment of reparations on the basis of unjust enrichment. The study further attempts to explain why it has been difficult for the western industrial world to agree to pay reparations to the children of over 25,000,000 Africans who were wrenched out of Africa as slaves. The concluding section of the paper suggests different reparation methods that would help create a permanent solution that might be acceptable to all.

Unjust Enrichment in Heartbreak Cases

The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an equitable interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is surprising in light of the generally rule-oriented approach to restitution endorsed in the initial sections of the Restatement. It also carries with it a number of dangers, which are evident in the context of cohabitant claims.

PROPERTY RIGHTS AS A LEGALLY SIGNIFICANT EVENT

There is at present something of a schism between restitution scholars. There are those who maintain that restitution may arise as a response, inter alia, to rights in rem and there are those who maintain that it may not. At one level, this is a debate about the internal boundaries of the law of restitution, principally about whether restitution arises exclusively as a response to the principle of unjust enrichment, or whether it may also arise as a response to a number of other causes of action. More fundamentally, however, the schism rests on a difference of view as to whether it is logically and conceptually possible to say that a right in rem is an event that gives rise to or generates other rights, such as to have the asset restored, to have restitution made, or to be compensated for loss suffered, or whether a right in rem can only ever arise as itself a response to other events.

Restitution and Equity: An Analysis of the Principle of Unjust Enrichment

The law of restitution is said to embody a against unjust enrichment: one person should not be unjustly enriched at the expense of another. This article is a study of the against unjust enrichment and its connection, if any, to The against unjust enrichment can be understood in at least three ways. First, it can be interpreted as a of Aristotelian equity, providing correction when normally sound rules produce unjust results in particular cases. Second, the against unjust enrichment can be characterized as a principle incorporating a broad ideal of justice, from which courts can deduce solutions to particular restitution problems. Finally, the can be understood simply as expressing a common theme of restitution cases; on this view, unjust enrichment is a descriptive and organizational concept, which plays no direct role in judicial decision-making. The first two interpretations associate unjust enrichment, and hence the law of restitution, with equity. The third view does not imply a special affinity between restitution and equity, in contrast to other areas of law. The article concludes that restitution should not be confused with Aristotelian equity, because there is nothing both unique to restitution and common to all instances of restitution that justifies courts in according less respect to rules than they would in other areas of law. Although the second interpretation of the against unjust enrichment, as a from which courts can deduce outcomes, is more plausible, it seems unwise to confer authoritative legal status to a notion as vague as unjust enrichment. Accordingly, the third interpretation is the most appealing.

The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution

In this article, the author explores the principle of unjust enrichment as formulated by courts of common law jurisdictions in Canada. He analyzes and assesses that principle in light of comparable principles applied in England, Australia and Quebec. He argues that while sound in many respects, the Canadian principle of unjust enrichment often is characterized by a relative lack of analytical rigour. He concludes by suggesting that Canadian courts might profitably consider the approaches adopted in other jurisdictions.

“At the Plantiff's Expense”: Quantifying Restitutionary Relief

THE issue addressed in this article pertains to the proper measure of relief to which Pam is entitled in an action in unjust enrichment. There is no doubting her ability to establish the constituent elements of that action. Dave was enriched by the receipt of an incontrovertible benefit because he realised a financial gain from the services rendered. That enrichment was derived at Pam's expense (at least in part) because she paid for the repairs. And Dave's enrichment was unjust because Pam's intention in rendering the benefit was vitiated by her mistaken belief that the car was hers. However, it is unclear whether she should be awarded £1000 (reflecting Dave's gain) or £250 (reflecting her loss). The specific question that arises is whether the second element of the principle of unjust enrichment (“at the plaintiff's expense”) merely determines Pam's standing to sue or whether it also limits her measure of relief. It is suggested, contrary to a growing body of opinion, that the latter alternative is preferable.