Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - RESTITUTION (2ND EDITION)
RESTITUTION (2nd Edition). G.H.L. Fridman, Q.C., F.R.S.C., M.A., B.C.L., LL.M., Barrister-at-Law, Professor of Law, University of Western Ontario. Carswell, Scarborough (1992) lxxxv and 475 pp., plus 13 pp. Index. Hardback Can. $110.
THE LAW OF RESTITUTION (4th Edition) Lord Goff of Chieveley, P.C., D.C.L., F. B.A., Lord of Appeal in Ordinary, and Gareth Jones, Q.C., LL.D., F.B.A., Downing Professor of the Laws of England, Fellow of Trinity College, Cambridge; edited by Gareth Jones (1993) cxxv and 780 pp., plus 4 pp. Appendix and 35 pp. Index. Hardback £98.
Despite its championship by such great judges as Lords Manfield, Wright and Denning, the law of restitution for unjust enrichment has long been a largely unrecognized subject in the common law world and has had to content itself with surfacing on the edges of other legal categories. Curiously, this seems to have been its fate more recently in the United States, where it had its Restatement in 1937 and was a flourishing subject in law schools but has now slipped in prominence, coincidentally with the demise of Professor Jack Dawson, its most distinguished American scholar. That may be pure coincidence but it is nevertheless the case that human activity is primarily dependent on human beings. This is particularly evident with the law of restitution. Its first comprehensive English textbook was the work of two individuals, whose qualities are recognized in the stature which they have acquired along with their subject. Able interpreters have been essential. Restitution is a demanding subject, the more so since its fragmentation has required the ironing out of a multitude of complexities. The challenges have attracted scholars of ability and industry, who have released a great deal of practical energy. For the subject concerns all lawyers and all business people. Essentially it is concerned with the most contentious and the most self-interested issues: how to get money and other property from others. As the veils have been drawn from the underlying principles, practitioners have reacted with vigour. The case law has become a tide which has swept the world. It has, in the Restitution Law Review (reviewed [1994] LMCLQ 131) provided sufficient material for a dedicated journal supported by a leading firm of practitioners. And, of course, it has encouraged the publication of further textbooks in other jurisdictions. Like Goff & Jones, they are now appearing in further editions. Coincidentally, the new edition of the first Canadian text with Restitution in its title (Fridman & McLeod), like the new Goff & Jones, now appears under the name of a sole author.
The importance of individual personalities in the growth of the law of restitution is reflected in the books under review, both of which pay more than traditional regard to the view of other writers, not simply as commentators on the law but as acknowledged sources of and catalysts to its development. This reflects the scholarly approach of both books. Both begin with extensive overviews of general principles. Fridman has a somewhat broader and more open textured approach which in some ways reflects the attitudes of the Canadian courts, which have tended to accept a fluid principle of unjust enrichment, including an uncertainty inducing, plaintiff orientated principle of recovery in the absence of a juristic reason for the enrichment. Such an approach is of interest to those who might seek to build upon recent dicta considering restitution in the case of lack of (which might not be the same as failure of) consideration.
Characteristically, the opportunity for such development receives firm handling from Goff & Jones. The book is more mature, and more exhaustive and detailed; and (in part no doubt, though not exclusively, manifesting the particular professional concerns of one of its
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