The Principle of Unjust Enrichment and Formation of Contract: The Importance of a Hidden Policy Factor

European Review of Private Law, Vol. 14, pp. 423-435, 2006

14 Pages Posted: 20 Jul 2006

See all articles by Jan M. Smits

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Abstract

The two types of situations discussed in this contribution show how the principle against unjust enrichment interrelates with formation of contract. It is defended that the wish to avoid unjust enrichment plays an important role as a policy factor in cases that are often regarded as contract cases. The situation in which goods are supplied or services are performed without a contract and the case of apparent intention are used to explain this. The contribution shows that in these cases it is the cumulative impact of reliance and enrichment that accounts for obligations coming about. Subsequently, the consequences this may have for the taxonomy of the law of obligations are discussed and a plea is made for the resurgence of a separate category of 'quasi-contract' at the European level to accommodate the cases discussed.

Keywords: restitution, contracts, comparative law

JEL Classification: K12

Suggested Citation

Smits, Jan M., The Principle of Unjust Enrichment and Formation of Contract: The Importance of a Hidden Policy Factor. European Review of Private Law, Vol. 14, pp. 423-435, 2006. Available at SSRN: https://ssrn.com/abstract=917802

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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