Category Archives: Unjust enrichment

Hanoch Dagan, ‘Autonomy, Relational Justice, and the Law of Restitution’

Abstract The thesis of this essay is that, like the other branches of private law, the law of restitution and unjust enrichment is by and large autonomy-enhancing and therefore complies with the liberal conception of just relationships. Like the traditionalist view of private law, this account of private law emphasizes private law’s freestanding significance in […]

Samuel Beswick, ‘The Discoverability of Mistakes of Law’

Abstract With unprecedented legal reforms looming upon Brexit, trouble in the drafting and application of laws seem inevitable. It may be decades before the implications are fully appreciated. Actions taken on the basis of a statutory provision that is later held to be void, or on a past precedent that is overruled, may found a […]

Ewan McGaughey, ‘Is Unequal Bargaining Power an Unjust Factor?’

Abstract National Westminster Bank plc v Morgan said there is no general doctrine of ‘inequality of bargaining power’ in English law, because statute was the appropriate tool to place ‘restrictions upon freedom of contract’. But if there is no general doctrine, could unequal bargaining power be an unjust factor in specific contracts, to cancel unfair […]

Derek Whayman, ‘Obligation and property in tracing claims’

Introduction … The central argument of this article is that this position (the ‘separation claim’) is ahistoric, false on the current law and moreover undesirable. The separation claim holds that tracing is property-based. Then, its rules are based in and justified with respect to property norms, such as pari passu apportionment of ownership of the […]

Nikolaos Davrados, ‘Demystifying Enrichment Without Cause’

Introduction … This Article explores two mysteries surrounding the theory of enrichment without cause that still bedevil scholars and the courts – the theory’s foundation and its scope of application. Part I examines the history, characteristic features, and underlying principles of enrichment without cause as a source of obligations and a special expression of the […]

Katy Barnett, ‘Gain-Based Relief for Breach of Privacy’

Abstract This paper considers why awards of gain-based relief for breach of privacy are uncommon. There are three reasons for this. First, there are arguably two possible measures of gain-based relief: the reasonable fee and the account of profits. In relation to the latter, the account of profits is a personal remedy, but the proprietary […]

Jean Fleming Powers, ‘Paying for What You Get – Restitution Recovery for Breach of Contract’

Introduction … This article begins with a brief discussion of restitution as a remedy for breach of contract under the Restatement (Second) of Contracts. It then discusses the changes the Restatement of Restitution adopts and the reasons for the changes. Next, it discusses why the changes have not only failed to achieve the goal of […]

Gilboa and Kaplan, ‘The Mistake About Mistakes: Rethinking Partial Restitution’

Abstract This Essay offers a critique of the conventional analysis of restitutionary claims. Currently, restitutionary claims are mostly analyzed under a tort-style framework; we show that this framework offers a distorted perspective, not fully capturing the unique characteristics of claims in restitution. Most importantly, the prevailing mode of analysis generates inaccurate results – by scholars […]

Mitchell Cleaver, ‘Equitable Subrogation in Australia and England’

Abstract This article examines the law of equitable subrogation to extinguished rights. Although the law of Australia and that of England and Wales share much in common in this area over the last two decades a divergence has occurred. In England, subrogation is said to form part of the law of unjust enrichment. In Australia, […]

Tatiana Cutts, ‘Dummy Asset Tracing’

Abstract Tracing is widely understood to be the process of demonstrating that two rights are connected through an exchange, such that a claim to the right given up can be transmitted to the right acquired. This has been termed ‘exchange-product tracing’, and – though its core case is the unauthorised substitution of a trust right […]