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The Unjust Enrichment Fallacy And Private Law

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journal contribution
posted on 2019-09-27, 11:43 authored by P Jaffey
The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

History

Citation

The Canadian Journal of Law and Jurisprudence, 2013, 26 (01), pp. 115-136

Author affiliation

/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law School

Version

  • AM (Accepted Manuscript)

Published in

The Canadian Journal of Law and Jurisprudence

Publisher

Cambridge University Press

issn

0841-8209

eissn

2056-4260

Copyright date

2013

Available date

2019-09-27

Language

en

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