Lessons to Be Learned?
This chapter examines whether the comparison between German and English law of unjust(ified) enrichment can be used for developing the law in both legal systems. It first looks at those other areas of law which can provide the legal basis for enrichments under an absence of basis approach, and in particular contract law. Existing differences between English and German contract law imply that an absence of basis approach should not simply be transplanted into English surroundings without a careful examination as to the effects which these differences in contract law can have on unjust enrichment law. Having thus placed an absence of basis approach in context, the chapter looks at the modifications which would then become necessary or advisable within unjust enrichment law. This concerns some English case law which cannot be reconciled with an unjust enrichment approach. It includes issues of taxonomy, in particular whether switching to an absence of basis approach should also entail the adoption of the performance/non-performance divide eventually adopted by German law in the 1960s, or whether English law would do better without this divide and operate a general absence of basis approach more similar to the pre-1960 system in Germany. Finally, the chapter looks at what German law could learn from the comparison with English law.
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