Philosophical Foundations Of The Law Of Unjust Enrichment

This volume takes stock of the rapid changes to the law of unjust enrichment over the last decade. It offers original contributions from leading private law theorists examining the philosophical foundations of the law.

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.

Introduction /Robert Chambers, Charles Mitchell, and James Penner --Correctively unjust enrichment /Ernest J Weinrib --Restitution's realism /Hanoch Dagan --The normative foundations of unjust enrichment /Dennis Klimchuk --Resisting temptations to 'justice' /Mitchell McInnes --The nature of responsibility for gain : gain, harm, and keeping the lid on Pandora's box /Kit Barker --Unjust enrichment : nearer to tort than contract /Stephen A. Smith --The meaning of loss and enrichment /James Edelman --Two kinds of enrichment /Robert Chambers --Philosophical foundations of proprietary remedies /Lionel Smith --Value, property, and unjust enrichment : trusts of traceable proceeds /James Penner --Property, unjust enrichment and defective transfers /Charlie Webb --'Mistakes of law' and legal reasoning : interpreting Kleinwort Benson v Lincoln City Council /Aruna Nair --Unjust enrichment and the idea of public law /Charles Mitchell and Peter Oliver --Unconscionable enrichment? /Prince Saprai.

This comprehensive yet accessible Research Handbook offers an expert guide to the key concepts, principles and debates in the modern law of unjust enrichment and restitution. Written by leading experts drawn from a wide range of common law, civilian and mixed jurisdictions, chapters cover the complex history, scope and philosophical foundations of the subject, its organisational structure, main liability principles, defences and remedies. Utilising a broad array of legal authority and academic commentary, contributors engage with the key concepts and debates in a way that offers a direct route into the field for new researchers, as well as a source of original thinking for those already familiar with the subject. Throughout, the learning of both civilian and common law legal systems is juxtaposed and integrated, offering useful comparative insights and lessons for the future development of this still young, but critically important field of law. Engaging and thought provoking, the Research Handbook on Unjust Enrichment and Restitutionwill prove indispensable to academics and researchers in the field of private and commercial law. Judges and practitioners will also have much to gain from the clear presentation of authorities, principles and useful comparative perspectives. Contributors include:E. Bant, K. Barker, K. Barnett, M. Bryan, A. Burrows, M. Chen-Wishart, H. Dagan, S. Degeling, J. Gordley, R. Grantham, R. Gregson, B. Häcker, L. Ho, D. Ibbetson, D. Klimchuk, T. Krebs, A. Kull, R. Leow, T. Liau, M. McInnes, C. Mitchell, C. Rotherham, H. Scott, G. Virgo, S. Watterson, E. Weinrib, C. Wonnell, T.H. Wu

Enrichment is key to understanding the law of unjust enrichment and restitution. This book provides a comprehensive analysis of the concept of enrichment and its implications for restitutionary awards. Dr Lodder argues that enrichment may be characterised either factually or legally, and explores the consequences of that distinction. In factual enrichment cases, the measure of enrichment is the objective value received. This is the basis of many awards of money had and received, quantum meruit, quantum valebat and money paid. In legal enrichment cases, the benefit is the acquisition of a specific right or the release of a specific obligation. The remedy is restitution of that right or reinstatement of that obligation. It is demonstrated that specific restitution of the defendant's legal enrichment is often the basis for resulting trusts, rescission, rectification and subrogation. This book has profound implications for understanding restitutionary awards and the relationship between the enrichment inquiry and other aspects of the law of unjust enrichment, including the 'at the expense of' inquiry and the defence of change of position.

This volume brings together new essays in law and philosophy on a broad range of topics in children's and family law. It is the first volume to bring together essays by legal scholars and philosophers for an integrated, critical analysis of key issues in this area, marking the 'coming of age' of a comparatively new field of family law. Debates in children's and family law are at once theoretical and empirical in nature. Not only does children's and family law have significant consequences for individuals' intimate lives, the field's impact on lived experience highlights the socially constructed nature of law. Approaching this area of law often involves exploring a legal concept familiar from daily life, such as the very notion of 'marriage' or 'family', and examining it within its social, economic, and historical context. The normative basis for law regulating intimate personal and family life extends beyond any narrow legal philosophy or social context to its broader foundations in theories of morality or justice. The chapters included bring together a representative and broad range of pieces that engage with long-standing and contemporary debates. A wide range of perspectives is represented on topics such as same-sex marriage, polygamy and polyamory, alimony, unmarried cohabitation, gestational surrogacy and assisted reproductive technologies, child support, parental rights and responsibilities, children's rights, family immigration, religious freedom, and the rights of paid caregivers. There is also philosophical discussion of concepts such as care, intimacy, and the nature of family and family law itself.

Fiduciary law is one of the most important areas of law, governing a wide range of relationships that affect people in their daily lives. These new and innovative essays explore the foundations of fiduciary relationships and the duties of loyalty fiduciaries owe to their beneficiaries.

Foundations of Private Law is a treatise on the Western law of property, contract, tort and unjust enrichment in both common law systems and civil law systems. The thesis of the book is that underlying these fields of law are common principles, and that these principles can be used to explain the history and development of these areas. These underlying common principles are matters of common sense, which were given their archetypal expression by older jurists who wrote in the Aristotelian tradition. These principles shaped the development of Western law but can resolve legal problems which these older writers did not confront.

In the law of unjust enrichment, the question when a plaintiff should have access to proprietary remedies is one of the most controversial issues. This paper attempts to expose the philosophical and historical foundations of the most important category of proprietary remedies; namely, trusts arising by operation of law, including trusts over traceable proceeds. In so doing, it also explores the historical and philosophical foundations of all trusts, and emphasises the conceptual unity between constructive trusts and express trusts.

Exploring the philosophical foundations of discrimination law as it exists in several jurisdictions, this collection of all new essays bridges the gap between abstract philosophical work on justice and fairness and legal work on specific types of discrimination.