Rethinking Restitution: Will Unjust Enrichment Lawyers Join In?

34 Pages Posted: 25 Aug 2020

Date Written: July 17, 2020


In a recent article Lionel Smith has argued that there is no normative unity in most restitutionary claims that are currently thought of as being part of the law of unjust enrichment. This leads him to conclude that the generally accepted test for unjust enrichment liability is inapplicable with respect to those claims. This article looks at Smith’s arguments and at two early responses to them from unjust enrichment lawyers and concludes that, whatever the rights and wrongs of Smith’s position, these responses do not engage with Smith on his own ground, and, to that extent, do nothing to counter a new wave of increasing academic scepticism concerning the very existence of the legal category we call unjust enrichment.

Suggested Citation

Silver, Jonathan, Rethinking Restitution: Will Unjust Enrichment Lawyers Join In? (July 17, 2020). Available at SSRN: or

Jonathan Silver (Contact Author)

De Montfort University ( email )

The Gateway
Leicester, LE1 9BH
United Kingdom

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