This is a welcome addition to unjust enrichment scholarship, as the study of defenses and the change of position defense in particular has been central to the development of this area of law in recent years. The essays share some common themes, but mostly stand on their own.
LAWS0037: Unjust Enrichment
In his essay, Lionel Smith revisits the question of unity in unjust enrichment, observing it through the back-end perspective of defenses. Smith highlights the fact that many defenses only apply to some types of claims in unjust enrichment, which suggests the varied claims are based in different causes of action, that is, in different types of normative justifications. If indeed unjust enrichment cannot be constructed as a single cause of action, Smith sees the way forward in conceptualizing multiple causes of action within unjust enrichment.
In another essay, Andrew Kull discusses defenses between different victims of a common fraud. For instance, in a Ponzi scheme scenario, earlier victims of the scheme sometimes make significant profits — profits that originate with the contributions of the later victims all this unbeknownst to any of the victims.
In such circumstances, the earlier victims can be said to have been unjustly enriched at the expense of the later victims; Kull discusses the possible defenses the earlier victims may raise in response to this type of argument. For instance, an under-age defendant who received a mistaken payment and spent some of it should not be made liable for the full sum, even if said minor may have been aware of the mistake.
These, and the other contribution in the volume, offer timely and rigorous analysis of some of the core problems currently debated by unjust enrichment scholar. As a full report on each of the essays would defeat the purpose of a short review, in the following paragraphs I shall focus on the distinction between denials and defenses , proposed by the Editors as an overarching theme, and adopted in a number of the essays.
This is a substantive rather than procedural distinction, meaning it does not pertain to the allocation of burdens of proof between the parties. Studying the difference between denials and defenses thus promises to contribute towards a better understanding of the elements comprising a claim in unjust enrichment.
This is surely a useful exercise in the present context, as the components of the action are not universally clear. Scott points out that scholarly orthodoxy i. Yet, this view seems less convincing in light of the language found in judicial opinions and arguably the logic of the claim.
This would suggest some form of commensurability between the mistake and the fact the enrichment was owed, and Scott does not find this type of commensurability to be sufficiently defined in the literature. In this way, the questions discussed by Scott and the other contributors, following the framework suggested by the editors, go to the very core of unjust enrichment theory, and pose some fundamental conceptual questions.
Property, Unjust Enrichment, and Defective Transfers - Oxford Scholarship
Still, from a pragmatic perspective the distinction between denials and defenses may appear overly metaphysical, especially when disconnected from the practical and observable issue of the burden of proof. Lord Reed offers eloquent skepticism concerning excessive scholarly aspirations for logical consistency, and the text is definitely worth a read on its own. The distinction turns on conceptual arguments, defining specific elements as internal or external to the cause of action, and the inquiry tends to be highly abstract.
Thus, the various contributions in this volume provide the reader with state-of-the-art academic analysis of the law of unjust enrichment, together with the most relevant critique of this type of intellectual project. Together, they make for a thought-provoking collection for any reader interested in the fundamental problems of private law theory. Your response:. Notify me of follow-up comments by email. Notify me of new posts by email. Your Email Address.
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- LAWS0037: Unjust Enrichment.
- Understanding unjust enrichment.
- About Understanding Unjust Enrichment;
This book is a collection of articles based on Understanding Unjust Enrichment,a symposium held at the University of Western Ontario in January The articles, written from the perspective of English, Australian, Canadian, German and Jewish law, deal with numerous theoretical and practical issues that surround restitution and unjust enrichment. The articles outline recent developments across the Commonwealth, explain the unjust enrichment principle and its component parts, and address discrete issues such as tracing, choice of law, disgorgement damages for breach of contract, and the use of unjust enrichment in the cohabitation context.
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