Responsibility for Gain: Unjust Factors or Absence of Legal Ground? Starting Points in Unjust Enrichment Law

Abstract:     
This piece engages a basic question about legal responsibility for gains in the common law: are the gains we make at the expense of others something we need to justify, or something which we are presumptively entitled to keep? The answer to this question holds key implications for the current debate as to whether English law should retain an approach to unjust enrichment reasoning based on a plaintiff proving defined “unjust factors”, or switch to civilian-style reasoning, which is based on the “absence of any basis” for a defendant’s enrichment. The author argues that the unjust factors approach is the appropriate one, being compatible with the basic stance taken by the common law on issues of moral and legal justification, more transparent, and more coherent in the way it expresses and balances the law’s operative concerns in unjust enrichment cases. An examination of the experience in the US, Canada and in recent English cases suggests that English law would be imprudent now to change its style of reasoning. Moreover, there are few signs that its immediately likely to do so.

Number of Pages in PDF File: 39

Keywords: Unjust Enrichment, Restitution, Responsibility, Absence of Basis

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