Hanoch Dagan, ‘Autonomy, Relational Justice, and the Law of Restitution’

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 prescribing what people owe to each other in the framework of social interaction. But in sharp distinction from private law’s traditionalist view, it insists that private law is not a stronghold of individual independence and formal equality. Rather, private law prescribes a set of just frameworks of interpersonal interaction conducive to self-determining individuals. It is premised – at least in its best light – on the canonical liberal commitments to individual self-determination (and not merely independence) and to substantive (and not merely formal) equality. The aim of this essay, prepared for the Research Handbook on Unjust Enrichment and Restitution, is not to offer in a comprehensive analysis of the law of restitution, or even – as I have done in The Law and Ethics of Restitution (2004) – to analyze all its paradigmatic categories. My ambition in here is more modest. After a brief sketch of the autonomy-enhancing conception of private law, I demonstrate both its explanatory power and its normative desirability through a fairly detailed discussion of the main rules of three of these categories: the law of mistaken payments, doctrines governing self-interested conferral of benefits, and rules sustaining relationships with fiduciaries and with intimates. Although many of my conclusions regarding these rules echo their discussion in The Law and Ethics of Restitution, I hope that the more principled analysis developed in this chapter reinstates them on firmer ground.

Dagan, Hanoch, Autonomy, Relational Justice, and the Law of Restitution (July 22, 2018). Research Handbook on Unjust Enrichment and Restitution (Elise Bant et al eds, 2019, forthcoming).

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