Category Archives: Unjust enrichment

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 […]

Samuel Beswick, ‘Error of Law: An Exception to the Discoverability Principle?’

ABSTRACT Limitation statutes can become instruments of injustice when they foreclose civil recourse before plaintiffs could reasonably discover their injury. For this reason, reform has swept Canadian provinces to align the commencement of limitation with plaintiffs’ ‘discoverability’ of their claims. Canadian common law nevertheless maintains that ‘[d]iscoverability refers to facts, not law. Error or ignorance […]

Norman Otto Stockmeyer, ‘Three Faces of Restitution’

ABSTRACT During the first half of the 20th century, three mainstays of the required first-year law school curriculum were Contracts, Torts, and Restitution. Today Restitution has disappeared as a separate course and is offered, if at all, only as part of an optional Remedies course. This disappearance is particularly ironic to Michiganders, as the two […]

Caspar Bartscherert, ‘Two Steps Forward, One Step Back: One Step (Support) Ltd v Morris‐Garner and Another

ABSTRACT One Step is an important decision that deals with the circumstances in which a claimant may recover damages in contract on the so‐called Wrotham Park basis, valued as the amount that would hypothetically have been negotiated between willing parties to release the defendant from his obligation. This note argues that, although the Supreme Court […]

Struan Scott, ‘Sinclair v Brougham and Change of Position’

ABSTRACT This article questions the application of the change of position defence in the context of an ultra vires transaction similar to that encountered in Sinclair v Brougham. To modern eyes, Sinclair v Brougham is a ‘bewildering’ authority but the author argues that the decision was the ‘just outcome’ on the facts of that case […]

Katy Barnett, ‘Chasing will-o’-the-wisp: the English courts’ impossible quest for “certainty” in constructive trusts over bribes’

ABSTRACT After years of uncertainty, FHR v Mankarious has sought to impose a ‘simple answer’ in relation to remedies regarding bribes made in breach of fiduciary duty, namely that a constructive trust will always be imposed. The English approach can be contrasted with the approach in many other common law jurisdictions, including Australia and the […]