Unjust enrichment

Description

Dedication Full Title Copyright Preface Acknowledgements Table of Cases Table of Statutes Table of Contents 1 Unjust enrichment: history, concepts and alternative liability models Introduction History The common law forms of action The implied contract fallacy Equity's historical contribution The concept of unjust enrichment Elements of an unjust enrichment claim The role(s) of the unjust enrichment concept Alternative models of restitutionary liability Unconscionability (unconscionable retention of benefit) Unjustified enrichment and 'absence of basis' 2 Locating unjust enrichment in private law Introduction Foundational aims Corrective justice Distributive justice Summary and reflections Taxonomy — mapping private law Approaches to taxonomy The scope of unjust enrichment law as a category — the broad view Criticisms of the broad view — the challenge of diversity Unjust enrichment law as a category — modern views Unjust enrichment as a 'Subsidiary' Doctrine Unjust enrichment and contract Unjust enrichment and property Subsidiarity arguments 3 The elements of an unjust enrichment claim Introduction Benefit A broad conception Positive and negative Legal and factual Examples of types of benefit Objectivity, subjectivity and freedom of choice Legal 'tests' of benefit Valuing the benefit Unjust A recognised reason for restitution Defendant has no right to the benefit At the plaintiff's expense The minimum requirement: causation and the 'but for' test Recovery from indirect recipients: 'leap frogging' Claims in respect of assets never owned: interceptive subtraction 4 Defects in legal capacity Introduction The effect of incapacity on the passing of title The incapacity of minors Minors' contracts at common law Recovery at common law of benefits conferred by a minor Statutory rights of restitution The mentally disordered Ultra vires transactions Private bodies Public bodies 5 Mistake Introduction The meaning of mistake The reason(s) for recovery Mistakes of fact The requirement of causative mistake What test of causation? Mistaken gifts Mistakes of law Abolition of the mistake of law 'bar' Difficult issues: uncertain law, invalid law and changes in the law Limitations on recovery 'Voluntary submission to an honest claim' 'Good consideration' — payments to meet a valid obligation Contradiction of statutory regime Mistakes and contract Non-Monetary benefits 6 'Ignorance' or 'Absence of Consent' Introduction The Argument from Mistake Rival property analyses The Common Law Position The Position in Equity The 'rule in Re Diplock' Personal liability for knowing receipt Personal liability for benefits knowingly 'retained' Liability in equity for the receipt of company assets withoutauthority 7 Failure of Basis Introduction The concept of a 'Basis' ('Consideration') Proving 'Failure' of the Basis Identifying the basis of a benefit's provision Proving that the basis has failed The requirement of 'Total' Failure Example 1 — Contracts Discharged by Frustration Example 2 — Contracts Terminated for Breach Claims by the innocent party Claims by the party in breach Example 3 — Unenforceable and Void Contracts Example 4 — Incomplete or Anticipated Contracts Example 5 — Performances under Valid Contracts Escaping Bad Bargains 8 Coercion Introduction The Concept of Coercion A preliminary definition Coercion distinguished from compulsion Threats distinguished from warnings Duress at Common Law The rationale of recovery The first requirement: 'illegitimate' threat The second requirement: causation A possible third requirement: absence of reasonable alternatives Equitable Duress (Actual Undue Influence) Legal Coercion and Compulsion Reimbursement Contribution 9 Defects in personal capacity Introduction Constraints on relief Undue Influence Classes of undue influence Actual (relational) undue influence Presumed undue influence Relationships proven to be of influence A transaction requiring explanation Undue influence and third parties Rebutting the presumption Unconscionable Bargains A Special Disadvantage Knowledge of the special disadvantage The Basis of Equitable Intervention: Impaired Judgmental Capacity or Wrongdoing? 10 Wrongdoing Introduction Terminology and Taxonomy Foundational aims Corrective justice? The protection of important social institutions? Deterrence and punishment? The Current Pattern of Recovery Torts and intellectual property infringements Equitable wrongs Breach of contract Quantification 11 Restitution from public authorities Introduction The Woolwich Principle 12 The change of position defence Introduction Different Models for the Defence Model 1 — An enrichment-related defence Model 2 — A detriment-related defence Model 3 — A hardship-related defence Elements of the Australian Defence The basic model iterated Detriment Causation ('on the faith of the receipt') Good faith, fault and wrongdoing Proprietary claims England and Wales New Zealand The statutory defence The defence at common law 13 Other defences Introduction Estoppel The basis of estoppel The elements of estoppel The extent of the defence Estoppel and change of postion Bona fide purchase Land registration as a defence to restitutionary claims The Defence of Incapacity Counter-restitution Ministerial Receipt The doctrinal basis of ministerial receipt Making out the defence of ministerial receipt The defence of Passing On Delay and limitation The limitation statutes Delay in equity — laches, acquiescence and delay Illegality 14 The nature and basis of tracing Introduction The Nature of Tracing Common Law and Equitable Tracing A unitary law of tracing? The Reasons for Tracing The Prerequisites for Tracing The Effect of Tracing The Rules of Tracing Tracing at common law Tracing in equity Tracing into discharged debts Tracing and Unjust Enrichment 15 Proprietary restitution Introduction Types of proprietary remedy Operational differences Advantages and motivations Proprietary remedies and insolvency law Rival Models of Proprietary Relief Model 1 — No proprietary remedies Model 2 — 'Proprietary base' Model 3 — 'Initial' injustice Model 4 — 'Plaintiff does not take the risk of the defendant's insolvency' Model 5 — Remedial flexibility and discretion Discretionary Remedialism Proprietary remedies Constructive trusts and 'proportionate share' remedies Resulting trusts Rescission Subrogation Equitable liens Index