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The Unity of the Common Law$
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Alan Brudner

Print publication date: 2013

Print ISBN-13: 9780199592807

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199592807.001.0001

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Agency and Autonomy in Unjust Enrichment Law

Agency and Autonomy in Unjust Enrichment Law

(p.237) 5 Agency and Autonomy in Unjust Enrichment Law
The Unity of the Common Law

Alan Brudner

Oxford University Press

This chapter elucidates the normative basis of unjust enrichment. It considers whether unjust enrichment fits within the formalist framework that treats the free will as the sole aspect of the human being commanding respect. It argues that this framework explains quasi-contractual obligation but that it cannot explain liability for unjust enrichment based on plaintiff’s having conferred a benefit on defendant in reasonable reliance on defendant’s assurance that she was part owner of assets legally vested in the defendant. Nor can formal right explain liability for unjust enrichment arising from mistaken payments. To understand why plaintiff succeeds in these cases, we need a conception of freedom more robust than that which animates formal right. Specifically, the courts’ concern in those contexts for the frustration of the plaintiff’s ends make sense only if we understand freedom richly as autonomy and transactional law as encompassing entitlements vis-à-vis courts to the protection of autonomy against the rigours of formalist property. The chapter argues that a significant part of unjust enrichment law vindicates, not the plaintiff’s private right against wrongdoing by the defendant, but her public-law entitlement to the court’s subordinating private property to the common good of autonomy where property and the good collide. This entitlement is correlative to the court’s duty to preserve its public character.

Keywords:   unjust enrichment, property, quasi-contract, mistaken payments, formal right, autonomy

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