Riddles, Remedies and Restitution: Quantifying Gain in Unjust Enrichment Law
TC Beirne School of Law
CURRENT LEGAL PROBLEMS, Freeman MA, ed. Vol. 54, pp. 255-305, Oxford University Press, 2001
University of Queensland TC Beirne School of Law Research Paper No. 08-02
Unlike tort and contract, unjust enrichment law has hitherto lacked a stable framework for the quantification of gain-based awards. This piece sets out to provide an integrated six-stage quantification framework which can be applied to all monetary restitutionary claims. These stages comprise: (1) The identification of the relevant benefit (2) The application of an evidential (defeasible) presumption of market-valuation to it (3) Measurement of its value at the time it was received (4) Establishing a factual causal connection between the benefit and the relevant injustice; and that it was appropriately (as a matter of judicial policy) attributable in law to that injustice (5) Addition of consequential gains (subject to the same requirements of causation and legal attribution, but not subject to any conceptually distinct remoteness of gain limitation) (6) Deduction of gains received by the claimant which are directly attributable to the relevant transaction; and of losses which the defendant has sustained in good faith which are again directly attributable to the transaction between the parties. Although the amount of relief available to a plaintiff will differ according to the relevant category of case, this framework will, it is argued, help to stabilise what has historically been a randomised and often unpredictable approach to the quantification of awards.
Number of Pages in PDF File: 34
Keywords: Restitution,Unjust Enrichment,Quantification, Damages, Remoteness of Gain, Valuation, EnrichmentAccepted Paper Series
Date posted: May 27, 2008 ; Last revised: June 15, 2012
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