Private Law Theory

INTRODUCTION
If money is paid away by mistake, it is not right for the payee to keep it. The recipient is unjustly enriched as a result of the mistake that caused the payment to be made. The enrichment is by the amount of the payment received, to which there is no entitlement to possession; the lack of entitlement makes it unjust. Unjust enrichment is an ancient legal concept. The Romans had a principle – ‘it is natural justice that no one should unjustly enrich himself to the detriment of another’. Restitution provides the remedy to the payer for the mistake, and requires the money to be repaid. Natural law, derived by applying a positive system of values to human nature, dictates the money cannot be retained. It must be paid back …

Dalkie, Paul F, The difficulty with a concept of relative fault in restitution, (2021) 17 Otago Law Review 143.