Category Archives: Unjust enrichment

Francesco Paolo Patti, ‘The Denial of Restitution Under Italian Law: A Perspective on Patel v Mirza

ABSTRACT An important difference between the Italian system and the German and English systems concerns the scope of application: Article 2035 Italian Civil Code is limited to immoral contracts, ie contracts that are against good morals. Thus, if the parties acted unlawfully (but not immorally), the contract is void and ordinary restitutions apply. The rationale […]

Call for Papers: The Place of Restitution in the Modern Law: 30 Years after An Introduction to the Law of Restitution: Leeds Law School, 11 June 2019

“There will be two themes explored by the conference. The first is a comparative theme. Canadian law for example has taken a significantly different tack in its development from other common law jurisdictions in that it uses the formulation ‘absence of juristic reason’ as the underlying rationale and trigger for restitution while other common law […]

Cooter and Porat, ‘Torts and Restitution: Legal Divergence and Economic Convergence’

ABSTRACT This Article explores the divergence in law and convergence in economics in dealing with harms and benefits. While tort law usually makes the injurer internalize wrongful harms through damages, restitution law does not enable the benefactor to internalize the benefits she confers on others without their request. In both harm and benefit cases, however, […]

Rachel Leow, ‘Enforcing Unjust Enrichment Rights: The Recovery of Mistaken Payments in Practice’

ABSTRACT This article examines the recoverability of mistaken payments made by bank transfer in practice in Singapore. It is now clearly established under Singapore law that a mistaken payor has a claim in unjust enrichment to recover his mistaken payment. However, it is not so easy for the mistaken payor to enforce his rights. In […]

Halaby and Kelly, ‘Disgorgement of Profits as a California Breach of Contract Remedy: Intellectual Property and Other Guideposts’

ABSTRACT … Here, Patrick Kelly and I examine the history of, and limitations on, the new disgorgement-of-profits remedy for breach of contract under Restatement (Third) of Restitution and Unjust Enrichment §39. We suggest that up to the ‘cost of modification’ – the figure the breacher hypothetically would have had to pay to ‘buy out’ its […]

Just published: The Impact of Equity and Restitution in Commerce (Devonshire and Havelock eds)

Commercial relationships give rise to diverse forms of legal obligation in private law, including contract, tort, agency, company law and partnership. More controversially, equity and the law of restitution have a less defined and somewhat ambulatory role in regulating the affairs of commercial parties. Nevertheless, their impact is manifest in the commercial arena through the […]

Tatiana Cutts, ‘Dummy asset tracing’

Introduction … I argue here that efforts to subsume bank payments within an homogenous law of tracing have been misguided: a bank transfer does not involve a rights-substitution of the kind envisaged by exchange product tracing. Rather, the process that we have called ‘tracing money’ through a bank transfer involves two steps: (i) converting bank […]

‘The Latest Word on Unjust Enrichment’

“This is an important decision for everyone who comes across equitable relief in their practice. In March 2017 a divided panel of the Ontario Court of Appeal in Moore v Sweet overturned a finding of unjust enrichment on the ground there was a ‘juristic reason’ for the enrichment. The decision was appealed. On 23 November […]

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd

“The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed […]

Jo Braithwaite, ‘Thirty years of ultra vires: Local authorities, national courts and the global derivatives markets’

Abstract Between 1987 and 1989, Hammersmith and Fulham London Borough Council entered into nearly 600 derivatives transactions. In 1991, the House of Lords held that it lacked the capacity to do so and the contracts were therefore void. Taking this landmark litigation as its starting point, this article seeks to explain the persistence and evolution […]