Unjust Enrichment: Nearer to Tort than Contract
Stephen A. Smith
McGill University - Faculty of Law
November 6, 2008
PHILOSOPHICAL FOUNDATIONS OF UNJUST ENRICHMENT, Oxford University Press, 2009
This essay challenges the view, held by Peter Birks amongst others, that unjust enrichments and contracts are structurally similar events. They are similar, Birks held, because an unjust enrichment, like a contract, logically determines the duty or 'response' to which it gives rise (to make restitution, to perform the contract) and, further, because like a contract (but not a tort) it is a unified concept: all unjust enrichments are unjust for the same reason-because they lack a legal basis. Against this view, it is argued that unjust enrichments are structurally closer to torts than contracts. As is true of torts and damages (but not contracts and contractual obligations), the relationship between unjust enrichments and restitution is normative rather than logical. The duty to make restitution, like the duty to pay damages, is thus distinct from the event that, as a matter of law, gives rise to it. Further, the normative structures of the unjust enrichment/restitution and tort/damages relationships are similar: although an unjust enrichment is not a wrong, it is, like a wrong, a problem, and the restitutionary duty to which it gives rise is, like the duty to pay damages, a duty to remedy that problem. (One way this is shown is by considering why courts never award damages for failing to make restitution; the answer is the same as the answer to the question why courts never award damages for failing to pay damages, namely that the relevant duty is a duty to make things right, not a duty to not make things wrong.) Finally, it will be suggested, though more tentatively, that the similarities between unjust enrichments and torts should cause scholars to think carefully before agreeing with Birks that all unjust enrichments are unjust because they lack a legal basis. The essay is a chapter in a forthcoming collection from Oxford University Press entitled Philosophical Foundations of Unjust Enrichment.
Number of Pages in PDF File: 36
Keywords: unjust enrichment, restitution, contract, tort, remedies, damages
JEL Classification: K10, K12, K13Accepted Paper Series
Date posted: November 9, 2008 ; Last revised: December 10, 2008
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