Category Archives: Unjust enrichment

Gilboa and Kaplan, ‘Loser Takes All: Multiple Claimants and Probabilistic Restitution’

ABSTRACT Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this Article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution […]

Cahn and Carbone, ‘Blackstonian Marriage, Gender, and Cohabitation’

ABSTRACT In Blumenthal v Brewer, the Illinois Supreme Court held that it would not enforce an alleged agreement between a nonmarital couple that centered on their relationship. The National Center for Lesbian Rights argued that the court’s holding punished people who entered into a nonmarital relationship. Nancy Polikoff found the opinion ‘shocking’. Albertina Antognini suggests […]

Kienzle and Zuidema, ‘Unjust Enrichment in Illinois – Uncommon Confusion Over a Common Claim’

“Unjust enrichment is a common claim in civil litigation, but there is a surprising degree of disagreement among Illinois courts over whether the claim can ‘stand alone’ or whether it must be ‘tethered’ to another cause of action. This article analyzes the extent of, and possible explanations for, this split, and concludes that allowing unjust […]

Olaf Meyer, ‘Stopping the Unstoppable – Termination and Unwinding of Smart Contracts’

ABSTRACT Whether smart contracts can in fact live up to their purported potential will be examined with view to the legal issues surrounding their termination and unwinding. The revolutionary aspects of this new technology lie with the automatic execution of contractual agreements through the aid of computer codes, leaving human operators without ultimate control. Smart […]

Bernard Chao, ‘Privacy Losses as Wrongful Gains’

ABSTRACT Perhaps, nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is […]

Samuelson, Golden and Gergen, ‘Recalibrating the Disgorgement Remedy in Intellectual Property Cases’

ABSTRACT The five major US intellectual property (IP) regimes – trademark, trade secrecy, copyright, design patent, and utility patent laws – have quite different rules about the availability of disgorgement of infringer profits as a remedy. Traditional principles of restitution and unjust enrichment support awards of disgorgement of profits insofar as they are (1) levied […]

Tatiana Cutts, ‘Materially Identical to Mistaken Payment’

ABSTRACT Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’ – to be shaped through a process of abstraction from that core […]

Samuel Beswick, ‘Discoverability principles and the law’s mistakes’

INTRODUCTION … The previous article and this one form a complementary pair. The former provides a close analysis of prevailing precedent, adding a comparison with the Limitation Act’s discoverability provision for personal injuries, to demonstrate the unsatisfactory nature of extant judicial treatments of the discoverability of mistakes of law. This article, by contrast, finds, in […]

Pablo Letelier, ‘A wrong turn? Reconsidering the unified approach to unjust enrichment claims’

INTRODUCTION … This paper argues that adopting a unified scheme to analyse restitutionary claims does not necessarily entail the acceptance of a single normative justification and thus a single set of requirements applicable to every restitutionary claim. This paper is structured as follows. Part II introduces the main arguments developed by Stevens and Smith. Part […]

Acta Juridica 2019 Number 1, December 2019 – theory, contract, unjust enrichment

The challenges of private law : a research agenda for an autonomy based private law (Hanoch Dagan) The idea of a legal obligation (Nils Jansen) Remedies, repentance and the doctrine of election in South African contract law (Graham Glover) From bona fides to ubuntu : the quest for fairness in the South African law of […]