The Unjust Enrichment Fallacy and Private Law

(2013) Vol XXVI Canadian Journal of Law and Jurisprudence 115

33 Pages Posted: 12 Mar 2021

Date Written: 2013

Abstract

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would appear, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

Keywords: restitution, unjust enrichment, doctrinal category, legal reasoning, primary and remedial rights, contract, property

JEL Classification: K10

Suggested Citation

Jaffey, Peter, The Unjust Enrichment Fallacy and Private Law (2013). (2013) Vol XXVI Canadian Journal of Law and Jurisprudence 115, Available at SSRN: https://ssrn.com/abstract=3799149 or http://dx.doi.org/10.2139/ssrn.3799149

Peter Jaffey (Contact Author)

University of Leicester ( email )

United Kingdom

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