Understanding the Unjust Enrichment Principle in Private Law: A Study of the Concept and its Reasons

UNDERSTANDING UNJUST ENRICHMENT, Oxford, Hart Publishing, J. Neyers, M. McInnes, S. Pitel, eds., pp 79-110, 2004

University of Queensland TC Beirne School of Law Research Paper No. 08-09

29 Pages Posted: 4 Sep 2008 Last revised: 2 Oct 2015

Kit Barker

University of Queensland - TC Beirne School of Law

Date Written: 2008

Abstract

This article explores what is meant by a principle against unjust enrichment in private law and seeks to better explain courts' reasoning in unjust enrichment cases. It concludes that the idea of unjust enrichment is properly understood in the common law as both a coherent classificatory category (principle of interpretation) and as a normative legal principle, mediating at a higher jurisprudential level the reasons expressed in a broad variety of (all those) more detailed and "dispositive" legal rules which govern the action ability of gains in private law. This broad understanding of unjust enrichment law rejects essentialist approaches to classification, identifying it as set of liability rules sharing what Wittgenstein would have referred to as "family resemblances." The normative reasons underpinning such rules are centrally concerned with the doing of corrective justice, but they also include other ends, particularly ends of deterrence.

Keywords: unjust enrichment, restitution, legal reasoning

Suggested Citation

Barker, Kit, Understanding the Unjust Enrichment Principle in Private Law: A Study of the Concept and its Reasons (2008). UNDERSTANDING UNJUST ENRICHMENT, Oxford, Hart Publishing, J. Neyers, M. McInnes, S. Pitel, eds., pp 79-110, 2004; University of Queensland TC Beirne School of Law Research Paper No. 08-09. Available at SSRN: https://ssrn.com/abstract=1262579

Kit Barker (Contact Author)

University of Queensland - TC Beirne School of Law ( email )

4072 Brisbane, Queensland
Australia

HOME PAGE: http://www.law.uq.edu.au/

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