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Unjust Enrichment$
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Peter Birks

Print publication date: 2005

Print ISBN-13: 9780199276981

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199276981.001.0001

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A Core Case

A Core Case

(p.3) 1 A Core Case
Unjust Enrichment

Peter Birks

Oxford University Press

Of the subjects which form the indispensable foundation of private law, unjust enrichment is the only one to have evaded the great rationalization achieved since the middle of the 19th century, in both England and America, by the writers of textbooks. This chapter introduces unjust enrichment through one core case. The law of unjust enrichment is the law of all events materially identical to the mistaken payment of a non-existent debt. Such a payment gives rise to a right to restitution. The law of restitution is the law of gain-based recovery, just as the law of compensation is the law of loss-based recovery. Thus a right to restitution is a right to a gain received by the defendant, while a right to compensation is a right that the defendant make good a loss suffered by the claimant. This chapter considers whether the right arising from an unjust enrichment not only is, but can only be, a right to restitution.

Keywords:   England, private law, unjust enrichment, restitution, compensation, mistaken payment, non-existent debt, right, gain-based recovery, loss-based recovery

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