In Defence of Quasi-Contract
Modern Law Review, 2012
30 Pages Posted: 30 Sep 2011 Last revised: 21 Oct 2014
Date Written: September 29, 2011
Restitution scholars are almost unanimous in rejecting the term quasi-contract. This essay challenges this view. It first shows that many debates among restitution scholars are in fact debates about the boundaries of consent-based liability. This point serves as introduction to the main thesis advanced in this essay, which is that the idea of quasi-contract, which is supposed to cover cases in which the parties would have made a contract if conditions allowed them to do so, helps understands and explain the doctrine better than the conclusory language of unjust enrichment. The essay concludes by situating the argument within the growing literature on the normative foundations of restitution. It argues that quasi-contractual liability should be understood not as part unjust enrichment, but as a different basis of liability that can help us see what liability for unjust enrichment might be: liability grounded in notions of fairness.
Keywords: unjust enrichment, restitution, quasi-contract, fairness
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