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In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make
restitution The law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its b ...

restitution
, subject to defences such as
change of position Change of position is a defence to a claim in unjust enrichment which operates to reduce a defendant's liability to the extent to which his or her circumstances have changed as a consequence of an enrichment. History The historical core of the l ...
. Liability for an unjust (or unjustified) enrichment arises irrespective of wrongdoing on the part of the recipient. The concept of unjust enrichment can be traced to Roman law and the maxim that "no one should be benefited at another's expense": ''nemo locupletari potest aliena iactura'' or ''nemo locupletari debet cum aliena iactura''. The law of unjust enrichment is closely related to, but not co-extensive with, the
law of restitution
law of restitution
. The law of restitution is the law of gain-based recovery. It is wider than the law of unjust enrichment. Restitution for unjust enrichment is a subset of the law of restitution in the same way that compensation for breach of contract is a subset of the law relating to
compensation Compensation may refer to: *Financial compensation *Compensation (chess), various advantages a player has in exchange for a disadvantage *Compensation (engineering) *Compensation (essay), ''Compensation'' (essay), by Ralph Waldo Emerson *Compensati ...
.


History


Roman law

In
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
systems, unjust enrichment is often referred to as ''unjustified'' enrichment. Its historical foundation of enrichment without cause can be traced back to the Corpus Iuris Civilis. While the concept of enrichment without cause was unknown in classical Roman law, Roman legal compilers eventually enunciated the principle of unjustified enrichment based on two actions of the classical Roman period—the ''condictio'' and the ''actio de in rem verso''. The ''condictio'' authorized recovery by the plaintiff of a certain object or money in the hands of the defendant. The defendant was considered a borrower who was charged with returning the object or money. For the ''actio de in rem verso'', the plaintiff bore the burden of specifying the cause for his demand, namely, demanding the restitution of assets that had exited the plaintiff's patrimony and entered the defendant’s patrimony through the acts of the defendant’s servants. The coherent concept of unjustified enrichment then appeared in the Justinian Code, based on Roman pragmatism with equitable considerations and moral principles of Greek philosophy. In the Justinian Code, ''condictiones'' were grouped into categories, such as when the plaintiff had given a thing or money: # in contemplation of a future result that did not follow; # for a reason disapproved by law or repugnant to public policy; # by mistake because payment was not actually due; or # without a good reason for the transaction. Further, the ''actio de in rem verso'' gradually expanded to cover instances in which third parties were enriched at the expense of the impoverished obligee, and ''unjustified enrichment'' was recognized as a source of obligations under the heading of "quasi-contract".


Civil law

The interpretations of Roman law principles on unjustified enrichment, by the French Jurist
Jean Domat Jean Domat, or Daumat (30 November 162514 March 1696) was a French jurist A jurist is a person with expert knowledge of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act accordi ...
, and the German jurist
Friedrich Carl von Savigny Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian. Early life and education Savigny was born at Frankfurt, of a family recorded in the history of Lorraine (province), Lorraine, deriving its name f ...

Friedrich Carl von Savigny
, formed the respective origins of the modern French and German law on unjustified enrichment. Domat developed the French unjustified enrichment principles based on the ''actio de in rem verso'', as well as a modified version of the Roman concept of ''causa'' (cause), which renders contracts actionable even when they are not normally recognized under Roman law. In contrast, the concept of unjustified enrichment is considerably broader and more frequently invoked in Germany and Greece to address issues of restitution as well as restoration for failed juridical acts.
Equitable tracing Tracing is a legal process, not a remedy, by which a claimant demonstrates what has happened to his/her property, identifies its proceeds and those persons who have handled or received them, and asks the court to award a proprietary remedy in respe ...
is a particularly well suited remedial tool.


Common law

''See also'':
English unjust enrichment law The English law of unjust enrichment is part of the English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial ...
In systems of law derived from the English
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
, the historical core of the law of unjust enrichment lies in quasi-contract. These were common law (as distinct from Equity (law), equitable) claims giving rise to a personal liability to pay the money value of a benefit received from another. Legal scholars from University of Oxford, Oxford, University of Cambridge, Cambridge and Harvard University, Harvard at the turn of the 20th century began to rationalise these disparate actions into a coherent body of law. The principle said to underlie these actions was eventually recognized as unjust enrichment. Subsequent scholarship has sought to expand the explanatory power of the principle of unjust enrichment and it is now often said (albeit not without controversy) to encompass both common law and Equity (law), equitable claims.


Framework

Cases of unjust (or unjustified) enrichment can be examined in the following way: * Was the defendant ''enriched''? * Was the enrichment ''at the expense of the claimant''? * Was the enrichment ''unjust''? * Does the defendant have a ''defense''? * What ''remedies'' are available to the claimant? These questions are a familiar part of the modern English unjust enrichment law, English law of unjust enrichment, having been popularised by the writing of Peter Birks, Professor Peter Birks and expressly endorsed by English courts. The framework provides a useful taxonomical function in Australian law, though the concept of unjust enrichment has been subject to inconsistent treatment by Australian courts, as discussed below. Stated at this level of abstraction, the framework is a useful grounding for comparative study between common law and civil law jurisdictions.


The meaning of ''unjust'': unjust factors vs. absence of basis

Generally speaking, the mere receipt of a benefit from another is unobjectionable and does not attract legal consequences. The exception is where such receipt is "unjust" or "unjustified". Both Civil law (legal system), civil and
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
legal systems have bodies of law providing remedies to reverse such enrichment. A conceptual split, albeit one not necessarily coextensive with the common law - civil distinction, is between systems based on an "unjust factor" approach and systems based on an "absence of basis" approach. * Common law systems such as those of English law, England, Law of Australia, Australia, Law of Canada, Canada and the Law of the United States, United States typically adopt the "unjust factor" approach. In this analysis, the claimant must point to a positive reason why the defendant's enrichment is unjust. Examples of "unjust factors" that ground a claim for restitution include: mistakes of fact or law; Failure of consideration, total failure of consideration, Duress in English law, duress, undue influence, and the Woolwich Building Society v IRC, ''Woolwich'' ground. * Civil law (legal system), Civil law systems such as those of Law of France, France and Law of Germany, Germany typically adopt an "absence of basis" approach. On this analysis, the defendant is obliged to make restitution if there is no "basis" for his receipt: for example, because the contract under which the defendant received the benefit was void ''ab initio''. Some common law systems have shown signs of a possible shift towards this approach. In most cases, the conceptual approach does not affect the outcome of a case. For example, suppose that A makes an oral contract with B under which A will pay $100 for certain services to be provided by B. Further suppose that A pays the money but B discovers that, pursuant to legislation, contracts for such services are void unless in writing. B refuses to perform. Can A recover his payment? On both approaches, B is unjustly enriched at A's expense. On the "absence of basis" approach, B's enrichment has no legitimate explanatory basis because the contract was void. On the "unjust factor" approach, there has been a total failure of considerationthat is, A has received no part of the bargained-for counter-performance; restitution follows automatically from the fact of invalidity.


Remedies for unjust enrichment: personal and proprietary restitution

The remedy for unjust enrichment is
restitution The law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its b ...

restitution
: the restoration of what was conferred to the claimant. In short, the correcting of the injustice that occurred when the claimant suffered a subtraction of wealth and the defendant received corresponding benefit. Restitution can take the form of a personal or a proprietary remedy. Where a personal remedy is awarded, the defendant is ordered to pay the money value of the benefit received. This personal money award is the typical form of restitution ordered. Where a proprietary remedy is awarded, the court recognises (or declares) that the defendant has a beneficial or security interest in specific property of the defendant. Whether proprietary remedies can be awarded depends on the jurisdiction in question. * In English law, the orthodox view is that unjust enrichment generally triggers personal, rather than proprietary remedies. This is because the law of quasi-contract only generate personal money awards: either a liquidated debt (as in actions for money had and received or money paid) or a sum assessed by a civil jury or the court itself (as in quantum meruit or quantum valebat). Scholars seeking to expand the explanatory power of unjust enrichment have argued that other areas of the law such as subrogation and claims to traceable substitutes form part of the law of unjust enrichment. This view has been accepted, though its implications remain unclear. * In Australian law, actions derived from the common money counts continue to generate only personal remedies. The doctrinal basis of subrogation is not unsettled: it has nothing to do with unjust enrichment. Claims to traceable substitutes are a part of the law of property, not unjust enrichment.


National systems


Australia

Whether there is a distinct body of law in Australia known as the law of unjust enrichment is a highly controversial question. In ''Pavey & Matthews Pty Ltd v Paul, Pavey & Mathews v Paul'
(1987) 162 CLR 221
the concept of unjust enrichment was expressly endorsed by the High Court of Australia. This was subsequently followed in numerous first instance and appellate decisions, as well as by the High Court itself. Considerable skepticism about the utility of the concept of unjust enrichment has been expressed in recent years. The Equity (law), equitable basis for the action for money had and received has instead been emphasised and i
''Australian Financial v Hills'' [2014
HCA 14] the plurality held that the concept of unjust enrichment was effectively 'inconsistent' with the law of restitution as it had developed in Australia. It is worth noting that the analytic framework had been expressly endorsed by the High Court just two years before i
''Equuscorp v Haxton'' [2012
HCA 7]. For the moment, the concept of unjust enrichment appears to serve only a taxonomical function.


Belgium

The acceptance of the unjust enrichment has been confirmed multiple times in Belgium by the Court of Cassation (Belgium), Court of Cassation, which has ruled that the unjust enrichment is a general principle of law. The Court has stated that the legal basis for the unjust enrichment is Equity (law), equity. According to the Court, five elements constitute the unjust enrichment: #an enrichment; #an impoverishment; #a connection between the enrichment and the impoverishment; #an absence of a cause of the enrichment; #the person trying to invoke the unjust enrichment cannot invoke the negotiorum gestio or the undue payment.


United Kingdom

The English unjust enrichment law, law of unjust enrichment in England rapidly developed during the second half of the 20th century. It has been heavily influenced by the writings of jurists from University of Oxford, Oxford and University of Cambridge, Cambridge. England adopts the "unjust factor" approach. In Scotland, the law developed in a piecemeal fashion through the twentieth century, culminating in three pivotal cases in the late 1990s. The most crucial of these was Shilliday v Smith, in which Lord Roger essentially laid the bedrock for what is now considered modern Scots unjustified enrichment law, bringing together the fragmented law into one framework, drawing from the principles of Roman Law upon which Scots Law as a whole is based (note the term "unjustified" is preferred to "unjust" in Scotland). Unjustified enrichment is more established as a fundamental part of the Scots law of obligations than unjust enrichment is in English law.


United States

The ''Restatements of the Law, Restatement (Third) of Restitution and Unjust Enrichment'' states that unjust enrichment is enrichment that lacks an adequate legal basis. It results from a transfer that Law of the United States, the law treats as ineffective to work a conclusive alteration in ownership rights. The North Dakota Supreme Court has ruled that five elements must be established to prove unjust enrichment: * An enrichment * An impoverishment * A connection between enrichment and the impoverishment * Absence of a justification for the enrichment and impoverishment * An absence of a remedy provided by the law Effectively, the civil law doctrine is now in effect in North Dakota, as it has been in Louisiana and in Puerto Rico; both of which are mixed jurisdictions. In Massachusetts, there are some decisions denying recovery in restitution by the breaching party although this is not generally the rule in the United States. In 1999, unspent funds incorrectly deposited during 1998 into a wrong bank account were frozen when a judge ruled it was ''unjust enrichment''; the unintended recipient sued.


Canada

The doctrine of unjust enrichment was definitively established as a fully fledged course of action in Canada i
Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980
/nowiki> 2 SCR 834] To establish unjust enrichment, the Plaintiff needs to show: (i) enrichment; (ii) deprivation; (iii) causal connection between enrichment and deprivation; and (iv) absence of juristic justification for the enrichment. The concept of deprivation and enrichment are extremely broad. Deprivation refers to any loss of money or money's worth in the form of contribution while A is enriched if B contributes to the acquisition of assets in A's name. The causal connection between enrichment and deprivation must be "substantial and direct". The absence of juristic reason is satisfied if a Plaintiff establishes a reason why the benefit ought not be retained, or if the Defendant demonstrates a convincing argument in favour of retention of the property. Remedy for unjust enrichment is frequently an imposition of constructive trust over the property unjustly retained.


See also

*Restitution, Law of restitution *Quasi-contract *Other parts of the law of obligations: **Contract, Law of contract **Tort law, Law of tort **Trust law, Law of trusts *Leading scholars on the English English unjust enrichment law, law of unjust enrichment; ** Robert Goff, Baron Goff of Chieveley ** Gareth Jones (lawyer), Professor Gareth Jones ** Peter Birks, Professor Peter Birks ** Andrew Burrows, Professor Andrew Burrows ** Graham Virgo, Professor Graham Virgo ** Charles Mitchell (professor), Professor Charles Mitchell


References

{{DEFAULTSORT:Unjust Enrichment Unjust enrichment, Civil law (common law) Contract law Legal doctrines and principles Restitution