Category Archives: Unjust enrichment

Visser and Whitty, ‘The Role of Interest in Unjustified Enrichment Claims’

ABSTRACT This essay addresses the question: when should pre-citation interest be awarded in actions for unjustified enrichment in Scots law? The answer depends mainly on the definition of the elements of enrichment liability, the manner of acquiring the enrichment, the type of enrichment-debtor, and his or her state of mind. The essay argues that (a) […]

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

ABSTRACT Under Canadian common law, the limitation principle of discoverability applies to errors of fact, but not to errors of law. This error-of-law exception is a problematic doctrine. It appears to resurrect the ostensibly defunct fact/law distinction in civil claims. It stands in contrast to contemporary English precedent on the discoverability of mistakes of law. […]

Sabrina Nanchahal, ‘“But We’ve Spent the Money”: Defending Overpaid Tax Claims under English and German Law’

ABSTRACT Despite extensive litigation concerning restitution claims against the tax authority in the English courts, the role and parameters of the change of position defence have not been satisfactorily established in this context. German law provides a clear example of how these issues can be addressed within a public law restitution framework. This article explores […]

English and Hafeez‐Baig, ‘Tracing, Mixing, and Innocent Claimants’

ABSTRACT Faced with the problem that arises where multiple innocent claimants have contributed to a mixed fund that is now insufficient to meet all of their claims, English and Australian courts have suggested three solutions: (i) the rule in Clayton’s Case; (ii) the ‘simple pari passu’ approach; and (iii) the ‘rolling charge’ or ‘North American’ […]

Andreas Televantos, ‘Trusts, limitation periods, and unauthorised gains’

ABSTRACT This article examines the relationship between trustees’ duties and the statutory limitation regime that applies to claims for breach of trust. It argues that, historically, limitation period did not apply to claims against express trustees, because express trustees incurred continuing accounting obligations for trust assets simply by receiving them upon trust, and that this […]

‘Three reflections on the role of policy in the law of restitution for unjust enrichment’

“The recent decision of the Court of Appeal for England and Wales in Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 (09 December 2020) has prompted me to reflect, briefly, on the role of policy in the law of restitution for unjust enrichment. In this post, I will consider that role in the […]

Niamh Connolly, ‘Counterfactual Arguments in Unjust Enrichment’

“In Vodafone Ltd and Others v Office of Communications [2020] EWCA Civ 183, the Court of Appeal has considered – and rejected – counterfactual arguments advanced by the defendant in an unjust enrichment action grounded on the Woolwich unjust factor. The action was brought by mobile network operators to recover licence fees paid to Ofcom […]

Pablo Letelier, ‘Another Civilian View of Unjust Enrichment’s Structural Debate’

ABSTRACT This article seeks to illustrate the kinds of difficulties that may follow from renouncing a unified approach to restitutionary claims for unjust enrichment. To do so, it draws on the experience of the French legal system, where the notion of unjustified enrichment describes a maxim inspiring various doctrines which have evolved in relative isolation […]

Tatiana Cutts, ‘Unjust Enrichment: What We Owe to Each Other’

ABSTRACT In some quarters, the focus of unjust enrichment scholarship has shifted from loss and gain towards the defendant’s ‘involvement in the story’ – what she has done to warrant liability. The goal of this shift is to fit unjust enrichment within the ‘doer-sufferer’ template of ‘corrective justice’ theories of private law. I argue that […]

Lior Jacob Strahilevitz, ‘Data Security’s Unjust Enrichment Theory’

INTRODUCTION Remijas v Neiman Marcus Group, LLC, is Judge Diane Wood’s most famous data security opinion, and for good reason. The opinion is elegantly written and refreshingly pragmatic with respect to an issue that has prompted other courts to fall into the trap of empty formalism. Yet the opinion is not perfect, and this Essay […]