Subrogation, Equity and Unjust Enrichment

Abstract

Is “unjust enrichment” merely a unifying theme, or is it something more, a legal norm in its own right capable of supplying answers to particular cases? Or, if that is a false distinction, and indeed “unjust enrichment” may be either, then what approach is more likely to result in a legal system whose operation is clear, certain and coherent? This paper is directed to those questions. It notes the highly divergent approaches to a single doctrine – subrogation – in the House of Lords and the High Court of Australia, with a view to evaluating which mode of reasoning leads to clarity, transparency and coherence.

Keywords: subrogation, unjust enrichment, equity, Bofinger, Banque Financiere, Birks, Burrows, taxonomy, rationality

JEL Classification: K10, K30