Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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JUSTIFYING UNJUST ENRICHMENT

Rohan Havelock *

Notwithstanding its recognition and acceptance in private law, the notion of “unjust enrichment” has faced both academic and judicial criticism, scepticism and denial. Such treatment raises to the fore the fundamental but controversial question of the normative justification for this liability, by which the common law governs restitution in respect of defective transfers. This article evaluates the two primary accounts given of this normative justification: corrective justice, and so-called “property-based” accounts. After concluding that a version of the property-based account best coheres with the nature of a defective transfer, the implications of this account for the form and operation of the elements of unjust enrichment are examined. It is argued that a reorientated principle of “unintended disenrichment” would better align the liability with its most plausible normative justification.

* Senior Lecturer, Faculty of Law, University of Auckland and Barrister & Solicitor of the High Court of New Zealand. I am very grateful to Charles Rickett, Lionel Smith, Peter Watts QC and Peter Devonshire for their comments on a draft.

The following abbreviations are used in the footnotes:

Birks, Introduction: P Birks, An Introduction to the Law of Restitution (Clarendon, Oxford, 1985);

Birks, UE: P Birks, Unjust Enrichment, 2nd edn (OUP, Oxford, 2005);

Burrows: A Burrows, The Law of Restitution, 3rd edn (OUP, Oxford, 2011);

Grantham & Rickett: R Grantham and C Rickett, Enrichment and Restitution in New Zealand (Hart, Oxford, 1999);

Jaffey: P Jaffey, Private Law and Property Claims (Hart, Oxford, 2007);

Klimchuk (2004): D Klimchuk, “Unjust Enrichment and Corrective Justice”, ch.6 of J Neyers et al (eds), Understanding Unjust Enrichment (Hart, Oxford, 2004);

Klimchuk, “Normative”: D Klimchuk, “The Normative Foundations of Unjust Enrichment”, ch.3 of Philosophical Foundations;

Lodder: AVM Lodder, Enrichment in the Law of Unjust Enrichment and Restitution (Hart, Oxford, 2012);

McFarlane (2012): B McFarlane, “Unjust Enrichment, Rights and Value”, in D Nolan and A Robertson (eds), Rights and Private Law (Hart, Oxford, 2012) 581;

Philosophical Foundations: R Chambers et al (eds), Philosophical Foundations of the Law of Unjust Enrichment (OUP, Oxford, 2009);