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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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Changing Direction

Changing Direction

(p.101) 5 Changing Direction
Unjust Enrichment

Peter Birks

Oxford University Press

Is the enrichment at the expense of the claimant unjust? The answer must not wander from the logic of the core case, the most important feature of which is the negative proposition that the liability does not arise from contract or wrong. The positive is more elusive. There are competing ways of stating the reason why mistaken payment of a non-existent debt gives the payer a right to restitution. A stream of litigation about the consequences of void contracts has brought English law to a crossroads. Compelled to rethink, it has chosen a new direction. This chapter gives an account of this change of approach to ‘unjust’, of its vocabulary, and of its principal implications. Two methods are considered: the civilian approach and the common law approach. The chapter explains why the civilian approach, so different on the surface, nearly always comes to the same conclusions as the common law reaches through its list of unjust factors. In the swaps cases English law changed direction.

Keywords:   enrichment, unjust factors, liability, non-existent debt, void contracts, common law, swaps cases, claimant, mistaken payment, restitution

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