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UNJUST ENRICHMENT: A MIDDLE COURSE?

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Abstract:

The author argues that three distinct camps are emerging within the academic debate on unjust enrichment. Two are well-known. There is a broad view of unjust enrichment, which defends an expansive theory uniting disparate areas of liability. The sceptical view denies the utility of this theory, seeking other explanations for these liabilities. The author suggests that a distinct middle ground, here called the ‘narrow view’ of unjust enrichment, is emerging. This view draws a distinction between direct restitution (where the claimant directly conferred a benefit on the defendant), and indirect restitution (where the defendant was enriched in some other way). The narrow view accepts the principle against unjust enrichment as the explanation of direct restitution. However, it also accepts the sceptical criticisms of indirect restitution, holding that those cases cannot be explained by the same concepts as the direct cases. The narrow view, the author argues, is gaining in strength, both as a position explicitly argued for, and as the de facto resort of text writers unable to explain the direct and the indirect within the same framework of ideas.

Keywords: broad view; implied contract; narrow view; proprietary liability; restitution; subrogation; tracing; unjustenrichment; wrongs

Document Type: Research Article

Publication date: January 1, 2002

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