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Mapping the LawEssays in Memory of Peter Birks$
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Andrew Burrows and Alan Rodger

Print publication date: 2006

Print ISBN-13: 9780199206551

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199206551.001.0001

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Unjust Enrichment, Discharge for Breach, and the Primacy of Contract

Unjust Enrichment, Discharge for Breach, and the Primacy of Contract

(p.223) 12 Unjust Enrichment, Discharge for Breach, and the Primacy of Contract
Mapping the Law

Gerard McMeel

Oxford University Press

This chapter examines the relationship between contract and claims for unjust enrichment (principally for failure of consideration) and argues that, on its true construction, a contract can rule out or limit a restitutionary claim for unjust enrichment even when the contract has been discharged and even where there is no direct contractual link between the claimant and defendant. Focusing on three different contexts (where there is a subsisting contract, where there is a discharged contract, and where there is a mere ‘contractual setting’ between the claimant and defendant), it views the central question about the relationship between contract and unjust enrichment as being whether a contract, as a matter of construction, ousts an otherwise arguable restitutionary claim. This is referred to as a ‘construction’ approach, although one might equally perhaps call it a ‘contracting-out of restitution’ approach.

Keywords:   contract, unjust enrichment, restitutionary claim, law of restitution, construction approach

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