Wrong and Remedy: A Sticky Relationship

Abstract

This article critiques Birks' "The Law of Unjust Enrichment: A Millennial Resolution." It attempts to articulate the problems inherent in Birks' proposed taxonomy for today's legal system. It puts forward an alternative model of the relationship between wrong and remedy - allowing for flexibility and the concept of appropriateness. Wrong and remedy are not completely independent from each other. They exist in a "sticky" relationship that guides the relief granted in each situation. A hard and fast taxonomy is doomed to failure. This article presents a solution to this problem where taxonomy is based on a loose and dynamic federation of remedies.

With his characteristic fervour and analytical rigour, Professor Peter Birks set out in his article The Law of Unjust Enrichment: A Millennial Resolution his argument that restitution is not solely triggered by a claim based on unjust enrichment but can equally well be a response to other causative events - Consent, Wrongs or Other Events Apart from restitution, the other goals Birks lists in his article are Compensation, Punishment, Perfection or Other Goals. Therefore the taxonomy presented by Birks has causative events on one axis and goals on another axis. This is represented by the diagram by Birks.

The article argues for the construction of a law of unjust enrichment. Importantly, it states how the law of unjust enrichment differs from the law of restitution and warned against allowing the language of unjust enrichment to be understood in a sense which would erode or eliminate those differences. This article attempts to examine as clearly as possible the Birks' article, and the Birksian thesis which comes from The Law of Unjust Enrichment (the Birksian thesis has three main parts). This article states why Birks' proposed taxonomy is incorrect and seeks to provide in a very general way an alternative taxonomy.