Category Archives: Unjust enrichment

Paul Buckle, ‘Another wrong turn? The rule in Hastings-Bass in Guernsey’

Abstract In this article, Paul Buckle explores the way in which the jurisdiction of Guernsey has reacted to the Supreme Court’s recasting of the rule in Hastings-Bass, with particular focus on the case of M v St Annes Trustees Limited. € Paul Buckle, Another wrong turn? The rule in Hastings-Bass in Guernsey, Trusts and Trustees, […]

Nikolaos Davrados, ‘Demystifying Enrichment Without Cause’

Abstract 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 more […]

‘Fore! Wayward golf winnings, restitution of mistaken payments, and interceptive substraction’

“Last month, English golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Thomas Fleetwood had the St£120,000 (US$154,480, €133,000) winnings deposited in his bank account. There doesn’t seem anything exceptional in that story, so let’s try again. Last month, British golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier […]

Andrew Butler and Nathaniel Walker, ‘New Zealand developments in equitable tracing and subrogation: overuse and underuse’

Abstract In this article, the authors examine developments in the field of equitable tracing and subrogation. The focus is on the disputed ability of a claimant (eg a wronged beneficiary) to trace misappropriated funds that have been used to pay down debt (‘backwards tracing’). The Privy Council recently considered this issue in the context of […]

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 […]