Category Archives: Unjust enrichment

David Salmons, ‘Claims Against Third-Party Recipients Of Trust Property’

Abstract: This article argues that claims to recover trust property from third parties arise in response to a trustee’s duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of […]

Tim Dornis, ‘The Doctrines of Contract and Negotiorum Gestio in European Private Law: Quest for Structure in a No Man’s Land of Legal Reasoning’

Abstract: The field of negotiorum gestio is perplexing. In civil law, its doctrinal, policy, and economic foundations are far from clear. In common law, the concept even seems to be inexistent. Nevertheless, in common-law as under civil-law doctrine, certain situations of intervention in another’s affairs are acknowledged as establishing claims of an intervening party against […]

Cornell and Light, ‘Wrongful Benefit and Arctic Drilling’

Abstract: The law contains a diverse range of doctrines — ‘slayer rules’ that prevent murderers from inheriting, restrictions on trade in ‘conflict diamonds’, the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or […]

Andrew Burrows, ‘“At the Expense of the Claimant”: A Fresh Look’

Abstract: Unjust enrichment has been subjected to a new wave of academic scepticism. This paper argues that to protect the subject from needless attack, there is a need to tighten up what is meant by ‘at the expense of’. Drawing on the Wilburg-Von Caemmerer taxonomy of German law, the paper argues that it is helpful […]

Anthony Niblett, ‘On the efficiency of the common law: an application to the recovery of rewards’

Abstract: Richard Posner’s influence on the field of law and economics cannot be overstated. Among his many contributions, Posner offered an early conjecture that remains fascinating and controversial to this day: the idea that common law rules are more likely than legislative codes to be concerned with efficiency. In this paper, I compare the efficiency […]

Aimite Jorge, ‘Unjustified enrichment: should South Africa venture into the thick forest of passing-on defence?’

Abstract: There is usually a tension in the law of unjustified enrichment when it comes to sanctioning a defence of passing on. The concept ‘passing on’ in the law of unjustified enrichment essentially entails that the claimant has shifted onto a third party the ‘financial’ burden that is consequent upon the defendant’s unjustified enrichment. Several […]

Postdoctoral Research Fellowship: Comparative Unjust Enrichment: McGill University, Montréal

The Paul-André Crépeau Centre for Private and Comparative Law intends to appoint a Postdoctoral Research Fellow with effect from August 2017 or other agreed date. The position is funded by an Insight Grant from the Social Sciences and Humanities Research Council of Canada. The principal investigator is Professor Lionel Smith, researcher at the Crépeau Centre, […]

Andrew Trotter, ‘The Double Ceiling On Unjust Enrichment: Old Solutions For Old Problems’

Abstract: Unjust enrichment is not calculated to strip defendants of gain at all costs, but rather to restore to the claimant the value or rights he has unjustly lost. It can therefore only justify restitution to the extent of the claimant’s ultimate expense, or the defendant’s ultimate enrichment, whichever is lesser. Although that ‘double ceiling’ […]

Just Published: Degeling and Varuhas (eds), Equitable Compensation and Disgorgement of Profit

This collection of essays interrogates significant issues at the forefront of scholarship and legal practice in the field of money remedies in equity. Chapters address the contentious and developing field of equitable compensation, including: the nature of equitable compensation; the relevant causation inquiry for equitable compensation; whether notions of contribution apply to multiple agents; accessorial […]

Porat and Scott, ‘Can Restitution Save Fragile Spiderless Networks?’

Abstract: This Essay examines the dramatic increase in business networks in recent decades and considers whether the law can play a useful role in supporting the efficient functioning of these inter-firm relationships for coordination and cooperation. Repeat play, reputational sanctions, and norms of trust and reciprocity are the common explanations for the flourishing of networks […]