Category Archives: Unjust enrichment

Pietro Sirena, ‘The Rules about Restitution in the Proposal on a Common European Sales Law’

ABSTRACT Under the point of view of restitution law, the proposal on a Common European Sales Law, Part VII, draws a parallel between terminated and avoided contracts, which is much more convincing that the binary model followed by the Draft Common Frame of Reference (DCFR). It is, however, necessary to make this set of rules […]

Ellen Gordon-Bouvier, ‘Crossing the boundaries of the home: a chronotopical analysis of the legal status of women’s domestic work’

ABSTRACT Women’s domestic work is largely deemed to be a ‘labour of love’ and lacking any value outside the private family. This reflects an ‘ideology of domesticity’, whereby women’s natural place is deemed to be in an imagined private sphere. In this paper, I examine the status of housework in the context of asserting property […]

KV Krishnaprasad, ‘Unjust Enrichment in the “Fairchild Enclave”: International Energy Group Ltd v Zurich Insurance Plc [2015] UKSC 33′

ABSTRACT  In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI Ltd, insurers could be held liable for […]

Micah Rankin, ‘The Improbable Rise and Fall of Auckland Harbour Board v The King

ABSTRACT The question of whether courts can order the Crown to spend public monies in the absence of an appropriation has been a source of perennial legal controversy in Canada. Although a number of scholars have argued in favour of public funding orders, relatively limited attention has been paid to the underlying issue of whether […]

Adam Hofri‐Winogradow and Gadi Weiss, ‘Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform’

ABSTRACT Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings‐Bass to rescission in equity. The article argues that this advantage is normatively unjustified, and recommends a uniform […]

Samuelson and Gergen, ‘The Disgorgement Remedy of Design Patent Law’

ABSTRACT … This Article scrutinizes the legislative history of the total profit disgorgement remedy and offers guidance about how the disgorgement remedy in design patent cases should be analyzed and applied going forward. ‘Total profit’ disgorgement on end products may have been an appropriate remedy when patented designs covered the overall appearance of end products […]

‘Mistake of law as a basis for extending the limitation period?’

“Common law countries have long determined that discoverability governs limitation on actions ‘grounded on’ mistake (as the former Alberta statute put it) or that seek ‘relief from the consequences of’ mistake (as the English Limitation Act provides). Back when the law of unjust enrichment was thought to allow restitution only for mistakes of fact, discoverability […]

Karmen Lutman, ‘Change of Position as a Defence in Unjust(ified) Enrichment: Slovenian Law in a Comparative Perspective’

ABSTRACT If one person is enriched at the expense of another and there is no legal ground for retaining this enrichment, the law imposes an obligation of restitution upon the unjustly enriched recipient, which is subject to various defences. One of them is the defence that the defendant is no longer enriched (change of position). […]

Just Published: Sanctity of Contracts in a Secular Age: Equity, Fairness and Enrichment by Stephen Waddams

The phrase ‘sanctity of contracts’ implies that contracts should always be strictly enforced. But when this objective is relentlessly implemented ruinous burdens are sometimes imposed on one party and extravagant enrichments conferred on the other. Despite recognition of the need to control highly unreasonable contracts in various particular contexts, there remain many instances in which […]

Francis Facciolo, ‘Unauthorized Payment Transactions and Who Should Bear the Losses’

ABSTRACT … This article examines five of the most common payment systems – checks, debit cards, ACH debits, wire transfers, and credit cards-and their general rules for allocating losses prior to and after execution of a payment transaction. The final section of this article considers recent developments in society and technology, notably the problems of […]