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“Unjust Enrichment”

Published online by Cambridge University Press:  16 January 2009

Steve Hedley
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Extract

Restitution has always been part of the common law. Yet in recent years a startling transformation has taken place: an active and determined group of scholars have collected together the hitherto scattered materials, insisting that this is the only way in which these materials can be understood; and have claimed that despite the apparent diversity they are all bound together by a single notion, that of “unjust enrichment”. A great deal of attention has been paid to elaborating this notion, and to defending particular conceptions of it.

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The Cambridge Law Journal , Volume 54 , Issue 3 , November 1995, pp. 578 - 599
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Copyright © Cambridge Law Journal and Contributors 1995

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References

1 On attempts to divide restitution off from other areas, see Hedley, S., “Contract, Tort and Restitution; or, On Cutting the Law Down to Size” (1988) 8 L.S. 147Google Scholar; on the use of the theory within restitution, see Hedley, S., “Unjust Enrichment as the Basis of Restitution” (1985) 5 L.S. 56Google Scholar.

2 (Oxford 1985) (hereafter Birks, Introduction).

3 (London 1993) (hereafter Burrows, Restitution).

4 Burrows, Restitution, p. vii.

5 Much of the following paragraphs is based on material turned up by LEXIS searches for. UNJUST! W/10 ENRICH!, on the entire database of English cases. Other, more specific searches are indicated where relevant.

6 The precise figures for the last 10 years are: 1985, 12; 1986, 6; 1987, 5; 1988, 9; 1989, 13; 1990, 8; 1991, 21; 1992, 17; 1993, 15; 1994, 17.

7 CONTRACT! AND DATE> 1989 AND DATE< 1995 returns 6,289 cases.

8 TORT! ANDDATE> 1989 AND DATE< 1995 returns 1,132 cases.

9 NEGLIGEN! AND DATE> 1989 AND DATE< 1995 returns 2,077 cases. REST1TUT! AND DATE> 1989 AND DATE< 1995 returns 203 cases, that is about 40 per year. Obviously these are very crude indices, particularly as all of these words might be used in a wide variety of contexts.

10 E.g. Westdeutsche Landesbank Girozentrale v. Islington LBC [1994] 4 All E.R. 890, 912j. What Lord Goff actually said was that “The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle”: Lipkin Gorman v. Karpnale [1991] 2 A.C. 548, 578de. Having identified the relevant principle, Lord GofT is of course by no means averse to developing the case law in accordanceit: see ibid., 580

11 NON-MONEY W/10 BENEFIT!: no relevant cases.

12 SYMMETRY: no relevant cases.

13 SEPARAT! W/5 FACTOR! AND (ENRICH! OR RESTITUT!): no relevant cases.

14 SUBJECTIV! W/10 (ENRICH! OR DEVALU! OR VALU!): no relevant cases, except Ashman (following note).

15 (1993) 66 P. & C.R. 195, 201–202.

16 BP Exploration Co (Libya) v. Hum (No.2) [1979] 1 W.L.R. 783, 805 DE

17 Procter & Gamble Philippine Manufacturing Corp. v. Peter Cremer GmbH, The Manila [1988] 3 All E.R. 843, 855–856Google Scholar.

18 INCONTROVERTIBLE W/10 ENRICH! and OBJECTIV! W/10 ENRICH! turn up no other relevant cases.

19 (1989) 15 Construction L.R. 116. FREE! W/10 ACCEPT! AND RESTITUT! returns no other relevant casesGoogle Scholar.

20 Ibid., 127–129. His brief comments on the scope of "unjust enrichment" were regarded as "surprising" by Rattee, J. in Regalian Properties p.I.c. v. London Dockland Development Corp. [1995] 1 All E.R. 1005, 1021-2Google Scholar, who went on to distinguish them.

21 E.g. Birks, Introduction, p.7.

22 E.g., “The action is one for money had and received and is based on unjust enrichment”: Hone v. Canadian Imperial Bank of Commerce (unreported, 9 November 1989)Google Scholar.

23 Millett, P., “Tracing the Proceeds of Fraud” (1991) 107 L.Q.R. 71, 85Google Scholar. Note that while in a sense “unjust enrichment” theorists too want a “unified and comprehensive” approach, they wish to unify and to comprehend a much wider range of cases, without so much in common with one another.

24 BURROWS AND (RESTITUT! OR UNJUST!) returns 4 relevant cases; a search for BIRK.S returns 11 relevant cases. A search for Goff and Jones would be likely to produce more; the less theoretical approach, the more popular with the judges.

25 Burrows, Restitution, p. 280.

26 Burrows, Restitution, p. 38.

27 Burrows, Restitution, p. 351.

28 Birks, P., “Property in the Profits of Wrongdoing” (1994) 24 University of Western Australia Law Review 8, 12Google Scholar.

29 Loc. cit., p. 16.

30 Millett, P., “Bribes and Secret Commissions” [1993] Restitution Law Review 7, 15–16Google Scholar. Millett, L.J. was criticising the views expressed in R. Goode, “Property and Unjust Enrichment”Google Scholar, in Burrows, A. (ed.), Essays on the Law of Restitution (Oxford 1991), p. 215Google Scholar, which in all but a few details adopts the same analysis as Birks: see Ibid. p. 221 n. 19.

31 Loc. cit., p. 18.

32 The Times, 15 April 1995.

33 [1993] Q.B. 429.

34 [1994] Q.B. 404. The European Court has now declined to rule on the point, saying that it is for national courts: Kleinwort Benson v. City of Glasgow DC, The Times, 17 April 1995.

35 [1993] A.C. 70.

36 McKendrick, E., “Restitution of Unlawfully Demanded Tax” [1993] L.M.C.L.Q. 88, 99Google Scholar.

37 Burrows, Restitution, p. 351.

38 McKendrick, E., “Restitution of Unlawfully Demanded Tax” [1993] L.M.C.L.Q. 88, 96–97Google Scholar.

39 See Beatson, J., “Restitution of Taxes, Levies and other Imposts: Defining the Extent of the Woolwich Principle” (1993) 109 L.Q.R. 401Google Scholar.

40 [1991] 2 A.C. 548.

41 Ibid., at 560a; so, for that matter, does Lord Goff, at 572f.

42 Ibid., at 566g.

43 Criticised by Birks, P., “The English Recognition of Unjust Enrichment” [1991]L.M.C.L.Q. 473, 482–483Google Scholar.

44 Birks, P., “The English Recognition of Unjust Enrichment” [1991]L.M.C.L.Q. 473, 475Google Scholar.

45 Burrows, Restitution, p.141Google Scholar.

46 McKendrick, E., “Restitution, Misdirected Funds and Change of Position” (1992) 55 M.L.R. 377, 380–381Google Scholar. I have doubts over the merits of the claim, though they are not directly relevant to my thesis here. Why was the plaintiff firm's own negligence irrelevant? And why does a simple plea of “illegality” defeat the club's bona fide purchaser defence, given the 50-year-long tendency to treat executed illegal contracts as perfectly valid, at least in their proprietary consequences? Nothing was proved by way of knowledge against the club, despite strenuous efforts at first instance. “… [O]ne must not let one's mind be prejudiced by the gambling context that there is behind the solicitors' claim against the club. The latter was licensed under the relevant statutes and its gambling activities were entirely lawful”: Lipkin Gorman v. Karpnale [1989] 1 W.L.R. 1340, per May L.J. at 135OD.

47 E.g. Burrows, Restitution, pp. 424–431Google Scholar.Burrowson concentrates on private law issues; the case law has so far not only failed to resolve these issues, but has added some public law issues for good measure: see South Tyneside M.B.C. v. Svenska International p.l.c. [1995] 1 All E.R. 545; Kleinwort Benson Ltd v. South Tyneside Metropolitan Borough Council (unreported, 12 March 1993); R v. Secretary of State for the Environment, ex parte London Borough of Camden (unreported, 17 February 1995).

48 London 1993.

49 4th ed., by Jones, Gareth (London 1993)(hereafter Goff and Jones)Google Scholar.

50 Tettenborn, A., Law of Restitution (London 1993)Google Scholar; only chapter 1 can be said to involve itself in theory to any significant extent.

51 The theory here is almost entirely in chapters 1 and 2, being little in evidence in the remaining 41 chapters.

52 For example at p. 242. The earlier parts of that chapter avoid the matter. See further at note 59 below.

53 Garner, M. “The Role of Subjective Benefit in the Law of Unjust Enrichment” (1990) 10 O.J.L.S. 42Google Scholar.

54 For example Burrows, Restitution, pp. 1–6Google Scholar

55 Burrows, Restitution, p. 4Google Scholar.

56 In Birks' terminology, my claim is that if restitution is rightly to be regarded as a category at all, it is a contextual category: see Birks, , Introduction, pp. 73–74Google Scholar.

57 So Goff and Jones now contains much material that “unjust enrichment” theorists would not regard as parttheir subject: ch. 27, 29, 30, 34 and 37.

58 Burrows, Restitution, p. 6Google Scholar.

59 See for example Burrows, Restitution, ch. 5, 9 and 10: it is hard to find anything in these chapters that even the most passionate opponent of “unjust enrichment” could object to, except of course for the jargon of the theory, which adds little and could be edited out without changing the substance. In ch. 6 and 11, we see short theoretical introductions, and then the body of the text follows the same pattern.

60 Burrows, Restitution, p.250Google Scholar.(restitution for benefits in kind conferred by a contract-breaker on the other party). The “symmetry” is with the equivalent case where the benefit is money.

61 Burrows, Restitution, p.276Google Scholar.

62 Burrows, Restitution, p.34Google Scholar.

63 Burrows, Restitution, p.95Google Scholar.

64 Birks, P., “Civil Wrongs: A New world”, Butterworth Lectures 1990–1991 (London 1992), pp. 74–77Google Scholar, criticising Stoljar's “unjust sacrifice” theory.

65 Burrows, Restitution, pp.393ffGoogle Scholar, criticising Sharpe and Waddams' “compensation” theory (see Sharpe, R.J. and Waddams, S.M., “Damages for Lost Opportunity to Bargain” (1982) 2 O.J.L.S. 290)Google Scholar.

66 E.g. Burrows, Restitution, p. viiGoogle Scholar.

67 Birks, Introduction, p. 74Google Scholar.

68 Birks, Introduction, p. 73Google Scholar.

69 Birks, Introduction, p. 74Google Scholar.

70 Birks, Introduction, pp. 261–264Google Scholar.

71 E.g. Cane, P., Tort Law and Economic Interests (Oxford 1991)CrossRefGoogle Scholar; Hedley, S., “Contract, TortRestitution: or, On Cutting the Legal System Down to Size” (1988) 8 L.S. 137Google Scholar.

72 Burrows, Restitution, p. 361Google Scholar.

73 See e.g. Birks, Introduction, p. 39Google Scholar; Birks, P., “Civil Wrongs: A New world”,Butlerworth Lectures 1990–1991 (London 1992) p. 55Google Scholar

74 For fuller treatment of this point see Beatson, J., “Benefit, Reliance, and the Structure of Unjust Enrichment” [1987] C.L.P. 71Google Scholar. It is not entirely clear whether Burrows goes as far as Birks on this issue, though his insistence that there is a difference between contract, on the one, hand and unjust enrichment based on a “bargained-for enrichment”, on the other (Restitution, p. 15), certainly suggests that he takes a rather rigid view of contract.

75 Fried, C., Contract as Promise, Harvard 1981, p.6Google Scholar.

76 For a review of competing theories generally seeCoote, B., “The Essence of Contract” (1988) 1 J.C.L. 91Google Scholar.

77 Burrows, Restitution, pp. 21–22Google Scholar.

78 Burrows, Restitution, p.77Google Scholar.(discussing subrogation)

79 Scott, S.R., “The Remedial Constructive Trust in Commercial Transactions” [1993] L.M.C.L.Q. 330, 353Google Scholar.

80 Burrows, A., “Free Acceptance and the Law of Restitution” (1988) 104.L.Q.R. 576; Burrows, Restitution, pp. 12–15, ffGoogle Scholar.

81 Mead, G., “Free Acceptance: Some Further Considerations”(1989) 105 L.Q.R. 460Google Scholar.

82 E.g. Burrows, , Restitution, p.274, criticising Dies v. British and International Mining and Finance Corporation [1939] 1 K.B. 724Google Scholar.

83 Birks, Introduction, pp. 19, 178Google Scholar.

84 Atiyah, P. S., Promises Morals and Law (Oxford 1981)Google Scholar.

85 E.g. In re Sigsworth [1935] Ch.89Google Scholar.

86 So Burrows does not consider this to be part of restitution: Burrows, , Restitution, p. 380Google Scholar. He gives two reasons: first, that the murderer is prevented from enriching himself, rather than having an unjust enrichment removed from him; and secondly, that the enrichment is not at the expense of anyone in particular.

87 For debates here see for exampleBeatson, J., “The Nature of Waiver of Tort”, in Use and Abuse of Unjust Enrichment (Oxford 1991), 206Google Scholar; O'Dair, R., “Remedies for Breach of Contract: A Wrong Turn” [1993] Restitution Law Review 31Google Scholar.

88 CfFreiberg, A., “Confiscating the Literary Proceeds of Crime” [1992] Crim. L. R. 96Google Scholar. See also Birks, P., “Civil Wrongs: A New World”, Bulterworth Lectures 1990–91 (London 1992) p. 80ff, opposing discretionary remedies in restitutionGoogle Scholar.

89 McBridge, N. J. and McGrath, P., “The Nature of Restitution” (1995) 15 O.J.L.S. 33Google Scholar.

90 Burrows, , Restitution, pp. 38, 54–56Google Scholar;Birks, , Introduction, pp. 18–19, 22–25Google Scholar.

91 For a rare attempt to introduce a little more theory here see Burrows, Restitution, 141.

92 E.g.Burrows, , Restitution, pp. 23–27Google Scholar

93 See Burrows, , Restitution, pp. 12–13Google Scholar

94 Burrows makes occasional reference to the concept: e.g. Restitution, pp. 13, 16Google Scholar.

95 Birks, , Introduction, p. 324Google Scholar.

96 E.g. Birks, P., Restitution—The Future (Sydney 1992), ch. 4Google Scholar.

97 E.g. Birks, , Introduction, pp. 110–114Google Scholar.

98 See review of theories in Burrows, , Restitution, pp. 8–9Google Scholar. See also Mead's attempt to fuse objective and subjective aspects of benefit into a single theory: "Restitution within Contract?" (1991) 11 L.S. 172, 187.

99 Goff and Jones, p. 23Google Scholar.

100 See for example Birks, , Introduction, pp. 116–128Google Scholar.

101 See for example the criticisms of Burrows, , Restitution, p. 10Google Scholar.

102 E.g.Burrows, , Restitution, p. 232Google Scholar.

103 E.g.Burrows, , Restitution, p. 164–165Google Scholar.

104 Goff and Jones, pp. 18–22Google Scholar.

105 Mead, G., “Free Acceptance: Some Further Considerations”(1989) 105 L.Q.R. 460Google Scholar.

106 Burrows, , Restitution, pp. 11–15, 315–320Google Scholar.

107 See especially “In Defence of Free Acceptance” in Burrows, A. (ed.), Essays in Restitution (Oxford 1991)Google Scholar, ch. 5; Restitution—The Future (Sydney 1992) pp. 56–60Google Scholar.

108 Birks, P., Restitution—The Future (Sydney 1992) pp. 53–54Google Scholar, and Introduction, pp. 270–271Google Scholar; Burrows, , Restitution, p.15Google Scholar.

109 Birks, P., “The English Recognition of Unjust Enrichment” [1991] L.M.C.L.Q. 473, 475Google Scholar.

110 Theorists tend to discuss this issue under the rubric of the “generalised right to restitution”, a bugbear to them: see for example Burrows, , Introduction, p.27Google Scholar. Early editions of Goff and Jones supported a general right, but Jones now seems to require “scrupulous [conceptual” analysis” as well (Jones, “The Law of Restitution: the Past and Future”, in Birks, (ed.), Essays on the Law of Restitution (Oxford 1991), p. 3)—a position not obviously different from Birks’Google Scholar.

111 Per Sir Donald Nicholls V-C, CTN Cash & Carry v. Gallaher [1994] 4 All E.R. 714, 720dGoogle Scholar.

112 See Value Added Tax Act 1994, s. 80(3); Finance Act 1994, Sch. 7, para. 8(3); Finance Act 1989, s. 29(3); Torts (Interference with Goods) Act 1977, s. 7(4).

113 See for example Colter v. Minister of Social Welfare [1991] I.R.L.R. 380Google Scholar.

114 (Oxford 1979). The passage critical of “unjust enrichment” theory is at p. 768Google Scholar.

115 Birks, P., “The English Recognition of Unjust Enrichment” [1991] L.M.C.L.Q. 473Google Scholar.

116 Cornish, W.R., “‘Colour of Office’: Restitutionary Redress against Public Authority"” (1987)14 Journal of Malaysian and Comparative Law 41, 56Google Scholar.