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Philosophical Foundations of the Law of Unjust Enrichment$
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Robert Chambers, Charles Mitchell, and James Penner

Print publication date: 2009

Print ISBN-13: 9780199567751

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199567751.001.1

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Resisting Temptations to ‘Justice’

Resisting Temptations to ‘Justice’

(p.100) 5 Resisting Temptations to ‘Justice’
Philosophical Foundations of the Law of Unjust Enrichment

Mitchell McInnes

Oxford University Press

This chapter examines the danger that, without proper appreciation of the underlying philosophical foundations of the subject, courts are apt to use the action in unjust enrichment to serve individualized notions of ‘justice’. It begins with an explanation of the principle of corrective justice that generally is thought to underlie the law of unjust enrichment. It then examines the extent to which courts in different jurisdictions have adhered to those foundations. First, because English courts have remained close to the principle of corrective justice, they seldom have resolved restitutionary claims by reference to intuitive notions of fairness or justice. Second, because Canadian courts occasionally have lost sight of the principle of corrective justice, they occasionally view cases of unjust enrichment as opportunities for achieving ‘equitable’ results on the basis of judicial discretion. Third, because of the effects of the American realist movement, American courts frequently have used the principle of unjust enrichment as a means of securing largely political goals of ‘social justice’.

Keywords:   unjust enrichment, restitution, disgorgement, comparative law, England, Canada, United States, judicial discretion, Holocaust litigation, slavery reparations

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