RESCUING REMEDIALISM IN UNJUST ENRICHMENT LAW: WHY REMEDIES ARE RIGHT

Abstract

The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.