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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.
Rev. ed. of : Handbook on the law of remedies. 1973.
In law, gains, like losses, don't always lie where they fall. That there exists a body of law dealing with liability for gains is now settled and the circumstances in which the law requires defendants to give up their gains are well documented in the work of unjust enrichment lawyers. The same cannot be said, however, of the reasons for ordering restitution of such gains. It is often suggested that unjust enrichment's existence can be demonstrated without inquiry into these reasons, into the principles of justice it represents and invokes. Yet while we can indeed show that there exists a body of claims dealing with the recovery of mistaken payments and the like without going on to inquire into their rationale, the same cannot be said for unjust enrichment's existence as a distinct ground of such claims. For if unjust enrichment exists as a body of like cases and claims, truly independent of contract and tort, then it does so by virtue of the distinct reasons it identifies and to which these claims respond. Reason and Restitution offers an analysis of the reasons which support and shape claims in unjust enrichment and how these reasons bear on the law's application and development. The identity of these reasons matters since it establishes how, and to what extent, unjust enrichment really is independent of contract and tort, giving us a clearer understanding of unjust enrichment's relationship to these and other concepts and categories. But, more importantly, it matters to those charged with the practical tasks of deciding cases and making laws, for it is these reasons alone which can direct how judges and legislators ought respond to these claims.
"This book discusses developments in scholarship dedicated to reinvigorating the study of the broad domain of private law. This field, which embraces the traditional common law subjects-property, contracts, and torts-as well as adjacent, more statutory areas, such as intellectual property and commercial law, also includes important subjects that have been neglected in the United States but are beginning to make a comeback. The book particularly focuses on the New Private Law, an approach that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement is resuscitating the notion of private law itself in United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The book embraces a broad range of perspectives to private law-including philosophical, economic, historical, and psychological- yet it offers a unifying theme of seriousness about the structure and content of private law."--
This inter-disciplinary volume brings together scholars from across the globe to challenge the dominant position of unjust enrichment and suggest more satisfactory alternatives. Rethinking Unjust Enrichment includes a broad range of voices from the UK, US, Australia, Canada, China, Singapore, Germany, Ireland, New Zealand, Hong Kong, and South America. The book includes voices of sceptics who think that the current unjust enrichment doctrine must be seriously qualified and others who think that it should be eliminated altogether. The contributions cast doubt on the various parameters of unjust enrichment from an analytical standpoint, representing four interrelated perspectives: history, sociology, doctrine, and theory. The four-limb structure of the book provides readers with a clear understanding of the current problems of unjust enrichment at the deepest levels of its history, sociological forces, doctrinal fallacies, and normative deficiencies. This treatment of the subject serves as the basis for a comprehensive reform across jurisdictions. Comprehensive and multi-faceted, Rethinking Unjust Enrichment is interesting to both sceptics and supporters of the unjust enrichment. It facilitates a critical and constructive dialogue between the two.
This ambitious book grapples with the complex debates ongoing on the structure of unjust enrichment, proving to be a major contribution to the field. Responding to the subject's critics, it presents a clearly articulated structure for this branch of private law, arguing that while unjust enrichment has the function of reversing defective enrichments (whether by performance or in another way) there is scope for normative pluralism in how the law achieves this. Drawing heavily on comparative material from Germany, Scotland and South Africa the book then argues for a legal framework which combines elements of the absence of basis and unjust factors approaches. It assesses how that structure can be mapped against the causes of action that make up unjust enrichment, arguing that some are performance claims - reversing a deliberate, intentional performance - and some are non-performance claims. Other claims, often included in books on unjust enrichment, such as “necessity” should be excluded from the subject area. The book concludes with a treatment of defences.
This comprehensive Research Handbook provides an unparalleled overview of contemporary private law theory. Featuring original contributions by leading experts in the field, its extensive examinations of the core areas of contracts, property and torts are complemented by an exploration of a breadth of topics that cross the divide between private and public law, including labor law and corporate law.
New Directions in Private Law Theory brings together some of the best new work on private law theory, reflecting the breadth of this increasingly important field. The contributions interrogate a wide range of topics including aspects of private law doctrine, its development, ordering and application. The authors adopt a variety of different approaches and contribute to ongoing and important debates about the moral foundations of private law, the individuation of areas of private law and the connections between private law and everyday moral experience. Questions addressed include: Does the diversity identified amongst claims in unjust enrichment mean that the category is incoherent? Are claims in tort law always about compensating for wrongs? How should we understand parties’ agreement in contract? The contributions shed new light on these and other topics, and the ways in which they intersect and open up new lines of scholarly enquiry. The book will be of interest to researchers working in private law and legal theory, but it will also appeal to those outside of law, most notably researchers with an interest in moral and political philosophy, economics and history.
p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; font: 10.0px Arial} This Research Handbook comprehensively and authoritatively reviews the contemporary challenges in research regarding remedies in private law. The Research Handbook on Remedies in Private Law focuses on the most important issues throughout contract, equity, restitution and tort law as they have arisen in the major common law jurisdictions, touching upon those of other jurisdictions where pertinent.
This collection celebrates the immense contribution of Sarah Worthington to the field of private law. Defining the subject broadly, experts from the judiciary and the academy address contemporary challenges arising in the fields of agency, company law and insolvency, contract law, equity, the law of money, personal property, restitution and unjust enrichment. The breadth of the contributors' expertise and their willingness to offer innovative and insightful solutions to difficult problems perfectly mirror Sarah Worthington's rigorous and inspirational approach to private law scholarship.