scholarly journals The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 1 ◽  
Author(s):  
Mitchell McInnes
Keyword(s):  
Common Law ◽  
Relative Lack ◽  
Unjust Enrichment ◽  
The Law

In this article, the author explores the principle of unjust enrichment as formulated by courts of common law jurisdictions in Canada. He analyzes and assesses that principle in light of comparable principles applied in England, Australia and Quebec. He argues that while sound in many respects, the Canadian principle of unjust enrichment often is characterized by a relative lack of analytical rigour. He concludes by suggesting that Canadian courts might profitably consider the approaches adopted in other jurisdictions.

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

WHAT IS “LAWYERING”? THE CHALLENGE OF TAXONOMY

2006 ◽  
Vol 65 (3) ◽  
pp. 549-578
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Late Professor ◽  
Unjust Enrichment ◽  
The Past ◽  
The Law

OVER the past few years, an important legal debate has been raging, the full effects of which many lawyers have not yet felt. I am referring to the taxonomy debate and, specifically, the attempts by the late Professor Peter Birks and (the mainly academic) supporters and advocates of his and similar views to impose a coherent and logical taxonomy upon private (common) law. Much more attention should be paid to sound taxonomy, it is argued. This “great project” has been little noticed outside the backwater of the law in which it began, namely the law of restitution (or “unjust enrichment” as the theorists here under consideration would prefer).

Sinclair v. Brougham

1938 ◽  
Vol 6 (3) ◽  
pp. 305-326
Author(s):  
Lord Wright
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The Public ◽  
Unjust Enrichment ◽  
The Common ◽  
The Law ◽  
A Company ◽  
Rate Importance

The case of Sinclair v. Brougham has been generally regarded as an authority of first-rate importance. I think it has been properly so regarded, though my reasons for so thinking may not altogether agree with the reasons emphasized by some lawyers. I regard the case as primarily significant as embodying the leading principles on which the Court acts in exercising its equitable jurisdiction to give relief in order to prevent unjust enrichment, or to achieve restitution, if we accept the useful term which has been employed in the recently published American Restatement of the Law of Restitution. The word itself is only an echo of language which will be found in English judgments, indeed, in this very case of Sinclair v. Brougham. The case shows how the Court can do justice by applying equitable principles where the Common Law would have been powerless. But since every Court is now bound in the same proceeding to apply either law or equity or both as the circumstances may require, the distinction between law and equity is now only important in the sense that the differences of method and rules must be observed. In the case we are considering a company had borrowed money for purposes for which it was ultra vires for it to borrow. There could in law be no claim for money lent and no claim in law for the repayment on the ground of quasi-contract or, to use the now obsolete phrase, contract ‘implied in law’, because to allow such a claim as a merely money claim would be to sanction an evasion of the public policy forbidding ultra vires borrowing by companies. Further, as the money lent or its products could not be identified in the company's possessions, a claim in law could not be maintained. But the powers of the Court were not exhausted. The problem was further complicated by the conflicting claims of the shareholders.

created by the common law rule were addressed by Parliament in the Law Reform (Frustrated Contracts) Act 1943, considered below, but the unjust enrichment principle is also relevant in other respects in determining whether a particular event is capable of frustrating a contract. If the decision to treat a contract as frustrated might give one of the parties an undue advantage this may operate as a justification for refusing to treat the contract as frustrated. For example, in Tamplin SS Co v Anglo-Mexican Petroleum Products Co Ltd, an oil tanker was chartered for a period of five years, but was subject to government requisition when the charterparty still had nearly three years to run. In the circumstances, there was no prejudice to the charterers, since the government compensation payable to the charterers exceeded the agreed hire charges. However, the owners of the ship claimed that the contract was frustrated. The House of Lords held, by a narrow majority, that the contract was not frustrated. One explanation for the action of the owners is that they wanted to secure the increased benefit of the government compensation in replacement for the lower hire charges. In this case, it is readily understandable that the majority of the House of Lords preferred not to allow the owners to benefit in this way at the expense of the charterers. Remedies, unjust enrichment and frustration Money paid or payable before the date of frustration

1995 ◽  
pp. 382-382
Keyword(s):  
Common Law ◽  
Petroleum Products ◽  
Law Reform ◽  
Unjust Enrichment ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Government ◽  
Undue Advantage ◽  
Oil Tanker

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

scholarly journals Couvrez cette communauté que je ne saurais voir: Equity and Fault in the Division of Quebec’s Family Patrimony

2018 ◽  
Vol 25 (4) ◽  
pp. 569-603 ◽  
Author(s):  
Nicholas Kasirer
Keyword(s):  
Common Law ◽  
Civil Code ◽  
Judicial Discretion ◽  
Unjust Enrichment ◽  
Unequal Division ◽  
The Family ◽  
Civil Code Of Quebec ◽  
The Law ◽  
Matrimonial Law

An inquiry into the role of fault in divorce may be taken as an invitation, for the Quebec jurist, to evaluate the place of misconduct in petitions for unequal “partition'' of the family patrimony. The author proposes an analysis of article 422 of the Civil Code of Québec based on a comparison with the law of family property in common law Canada. He observes a disinclination, felt in Quebec legal circles, to explore the connections between recourses under Quebec law for unjust enrichment in marriage and parallel remedies in common law. Basing himself principally on a review of rules similar to article 422 in Ontario law, he contends that a court should not allow ordinary measures of spousal misconduct to influence petitions for the unequal division of the family patrimony. Connecting the family patrimony to the statutory remedies for unjust enrichment in Ontario matrimonial law reveals a narrow idea of economic fault that underlies the judicial discretion at article 422 C.C.Q.

A Duty to Make Restitution

2013 ◽  
Vol 26 (1) ◽  
pp. 157-179 ◽  
Author(s):  
Stephen A. Smith
Keyword(s):  
Common Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Legal Consequence ◽  
The Common ◽  
The Law

The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer (for example, a transfer made by mistake or as a result of fraud or compulsion). Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence of a mistaken payment is that the recipient is liable to be judicially ordered to repay a sum of money equal to the payment. Second, it matters that the law governing impaired transfers imposes only liabilities, and not duties, because, inter alia, explaining and justifying liabilities is different from explaining and justifying duties. In particular, certain well-known objections to attempts to explain impaired transfer law can be avoided once it is recognized that this law is concerned exclusively with liabilities. In summary, then, this essay argues that the distinction between duty-imposing and liability-imposing rules has important implications for understanding the foundations of the law governing impaired transfers.

The Policies against Leapfrogging in Unjust Enrichment: A Critical Assessment

2018 ◽  
Vol 22 (1) ◽  
pp. 55-85
Author(s):  
Hendrik L E Verhagen
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Critical Assessment ◽  
Comparative Approach ◽  
Unjust Enrichment ◽  
Legal Problems ◽  
Important Policy ◽  
General Rules ◽  
The Law ◽  
A Performance

This article critically examines the merit of the policy reasons against leapfrogging one's contractual counterparty in unjust enrichment. Where the benefit of a performance, which is rendered by someone (C) pursuant to a contract with his counterparty (T), ends up with someone (D) who is not a party to that contract, will the law of unjust enrichment then allow the performer (C) to recover that benefit directly from its recipient (D)? The utility of allowing the leapfrog arises where recovery by C from T under general rules of contract becomes impossible (mainly) due to the insolvency of T. The most important policy reasons brought forward against leapfrogging are insolvency-related. These policy reasons are assessed in this article with reference to Dutch and English cases in particular. In past decades the comparative approach has proven to be extremely fruitful for unjust enrichment. As I hope to illustrate with this contribution, also after ‘Brexit’ it will continue to be important and exciting to examine legal problems on a comparative basis in common law and civil law (and mixed) jurisdictions.

Unjust Enrichment Claims: A Comparative Overview

1995 ◽  
Vol 54 (1) ◽  
pp. 100-126 ◽  
Author(s):  
Brice Dickson
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Unjust Enrichment ◽  
The Common ◽  
The Law ◽  
Characteristic Features ◽  
Struggle For Recognition

This article examines a variety of legal systems with a view to assessing the role currently played within each of them by the principle of unjust enrichment. By focusing on the characteristic features of unjust enrichment claims it seeks to demonstrate that, although there are significant differences between the ways in which different countries handle such claims, there is also much that those systems have in common. While under the common law the principle of unjust enrichment has endured a long struggle for recognition, in civil law systems it has been acknowledged for centuries. This may be because in civil law countries the principle has been expected to play only a residual, and therefore non-threatening, role in the law of obligations while in common law countries it has been called upon, if at all, to serve as the basis for the whole of the law of restitution. We should not assume, however, that all common law systems share one set of characteristics while all civil law systems share another. In some respects there is more in common between systems drawn from each category than there is between systems drawn from the same category. Mixed legal systems, as one might expect, tend to display characteristics drawn from both.

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