The Principle of Unjust Enrichment
Although the unjust enrichment principle often operates positively, in the sense that the claimant must establish that the defendant has been unjustly enriched before restitution is available, sometimes the principle may operate negatively. This is because restitutionary relief may be awarded to prevent the defendant from becoming unjustly enriched. Even though the unjust enrichment principle has been clearly recognised at the highest level, the place of that principle within the law of obligations and the function of the principle still require careful justification. A number of commentators have suggested that restitutionary liability should be based on some other theoretical foundation, including proprietary theory, no unifying principle of unjust enrichment, and unconscientious retention. Possible functions of the unjust enrichment principle are discussed, namely, the formulaic function and the normative function. The approach adopted by England with respect to the function of the unjust enrichment principle is also considered.
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