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Unjust enrichment as the basis of Restitution — an overworked concept*

Published online by Cambridge University Press:  02 January 2018

Steve Hedley
Steve Hedley*
Affiliation:
St Hugh's College, Oxford
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Extract

The proposition that ‘Restitution is based on unjust enrichment’ is usually the first that a student of Restitution is presented with. It is a claim at several different levels: as to the terminology we should use in discussing Restitution; as to the sort of rules the subject contains; and as to the way these rules have been developing or should develop in the future. Nor is this confusion of claims particularly surprising. Much of the work of the academic lawyer consists of interpreting the judgements of the higher courts; it is not really very odd when those courts’ ambivalent approach to whether they are making the law, or simply applying it, rubs off. ‘Restitution is based on unjust enrichment’ is really a collection of subsidiary propositions about Restitution; and it is clear that, of those who believe that Restitution is so based, not all would subscribe to every one of the subsidiary propositions.

Type
Research Article
Information
Legal Studies , Volume 5 , Issue 1 , March 1985 , pp. 56 - 66
Copyright
Copyright © Society of Legal Scholars 1985

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Footnotes

*

This article draws heavily on my paper to the first meeting of the SPTL Restitution Group at Edinburgh on 19 September 1984. My thanks to Jacqueline Alderton, who made helpful comments on an earlier draft; also to the members of the Group, several of whom made valuable contributions. Responsibility for the views here expressed is entirely my own.

References

1. 2nd edn, 1978; hereafter ‘Gofi’ and Jones'. See especially ch 1.

2. See especially Birks ‘Restitution and the Freedom of Contract’ [1983] CLP 141, passim; though note the author's qualification at p 143.

3. See for example Morris v Tarrant [1971] 2 QB 143, 162fh per Lane J; Greenwood v Bennett [1973] QB 195, 202df per Lord Denning MR; Orakpo v Manson Investments Ltd [1978] AC 95, 104cf per Lord Diplock; BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 799d per Robert Goff J.

4. Goff and Jones pp 43–44 and passim.

5. ‘Restitution and Wrongs’ [1982] CLP 53.

6. ‘Contract, Tort and Restitution - A satisfactory division or not?’ (1983) 99 LQR 217, 233.

7. Loc cit p 234.

8. Orakpo v Manson Investments Ltd [1978] AC 95, 104cd.

9. Burrows, , loc cit at pp 232–234 Google Scholar.

10. Atiyah, P. S. The Rise and Fall of Freedom of Contract (1979), p 768 Google Scholar.

11. Birks ‘Restitution and the Freedom of Contract’ [1983] CLP 141, 143–146 and 149–156.

12. See especially Birks ‘treatment of Atiyah's concept of’ benefit-based liability, loc cit at pp 147–149.

13. Loc cit at p 145.

14. Atiyah op cit at pp 765–766; Birks loc cit at p 141.

15. (1868) LR 3 HL 330.

16. On which see Goff and Jones ch 3.

17. On which see Goff and Jones chs 3, 4, 9–12, and 14.

18. On which see Goff and Jones pp 16–18.

19. On which see Goff and Jones chs 5 and 6.

20. On which see Goff and Jones chs 9–11.

21. On which see Goff and Jones chs 18–22.

22. On which see Goff and Jones ch 27. I say ‘most’ because this analysis does not truly describe cases of subrogation of creditors to the assets of a trust business: see Goff and Jones pp 428–429.

23. On which see Goff and Jones pp 111–115.

24. Birks Restitution and Wrongs [1982] CLP 53.

25. Burrows, loc cit passim.

26. See generally Goff and Jones pp 15–18, 116–117, 297–301; Jones ‘Restitutionary Claims for Services Rendered’ (1977) 93 LQR 273.

27. ‘Restitution for Services’ [1974] CLP 13, 15.

28. For the concept of ‘remoteness of gain’, see generally Birks ‘Restitution and Wrongs’ [1982] CLP 53.

29. The example was suggested by Robert Goff J in BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 803bd. His theoretical discussion of ‘benefit’, while ostensibly concerned with the interpretation of the Law Reform (Frustrated Contracts) Act 1943, seems to me to be representative of the broader framework accepted by ‘unjust enrichment’ theorists generally.

30. A further difficulty for this ‘subjective valuation’ approach is that it plays into the hands of the self-styled ‘classic liberalists’ who would deny that there is such a thing as ‘objective benefit’: P. Matthews ‘Freedom, Unrequested Improvements and Lord Denning’ [1981] CLJ 340, 355–358.

31. [1936] 2 KB 403.

32. [1941] AC 1.

33. [1941] AC 29.

34. (1883) 24 Ch D 439.

35. By the Law Reform (Miscellaneous Provisions) Act 1934, s 1.

36. Eg Goff and Jones pp 476–477; Burrows, loc cit pp 237–238 Google Scholar.

37. [1932] AC 562.

38. See generally A. Coleman ‘The Concept of Unjust Enrichment in English Law’ (1979) 10 Cambrian LR 8.