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ARestatement of the English Law of Unjust Enrichmentrepresents a wholly novel idea within English law. Designed to enhance understanding of the common law theRestatementcomprises a set of clear succinct rules, fully explained by a supporting commentary, that sets out the law in England and Wales on unjust enrichment. Written by one of the leading authorities in the area, in collaboration with a group of senior judges, academics, and legal practitioners, theRestatementoffers a powerfully persuasive statement of the law in this newly recognized and uncertain branch of English law. Many lawyers and students find unjust enrichment a particularly difficult area to master. Combining archaic terminology with an historic failure to provide a clear conceptual structure, the law remained obscure until its recent rapid development in the hands of pioneering judges and academics. TheRestatementbuilds on the clarifications that have emerged in the case law and academic literature to present the best interpretation of the current state of the law. TheRestatementwill be accessible to, and of great practical benefit to, students, academics, judges, and lawyers alike as they work with this area of law. The text of theRestatementis supported by full commentary explaining its provisions and roots together with its application to real and hypothetical cases. TheRestatementappears as European private law takes its first steps towards harmonization. In providing an accessible survey of the English law, the Restatement will offer an important reference point for the English position on unjust enrichment in the harmonization debates. Also appearing shortly after the United States Third Restatement on Restitution and Unjust Enrichment, thisRestatement offers an interesting contrast with American law in this area.
Andrew Burrows, MA, BCL, LLM (Harvard), QC (Hon), FBA, Barrister and Honorary Bencher of Middle Temple is Professor of the Law of England and a Senior Research Fellow at All Souls. He was formerly the Norton Rose Professor of Commercial Law and a Fellow of St. Hugh's College. He was a Law Commissioner for England and Wales from 1994 to 1999.
Lord Rodger of Earlsferry (deceased June 26, 2011), Supreme Court of the United Kingdom
Lord Walker of Gestingthorpe, Supreme Court of the United Kingdom
Lord Mance, Supreme Court of the United Kingdom
Lord Justice Moore-Bick, Court of Appeal of England and Wales
Lord Justice Etherton, Court of Appeal of England and Wales
Mr Justice Henderson, High Court of England and Wales
Mr Justice Beatson, High Court of England and Wales
Justice Edelman, Supreme Court of Western Australia
Stephen Moriarty QC, Fountain Court Chambers, London
Laurence Rabinowitz QC, One Essex Court, London
Steven Elliott, One Essex Court, London
Andrew Scott, Blackstone Chambers, London
Professor Robert Chambers, University College, London
Professor Gerard McMeel, University of Bristol
Professor Charles Mitchell, University College, London
Professor Robert Stevens, University of Oxford
William Swadling, University of Oxford
Professor Andrew Tettenborn, University of Swansea
Professor Graham Virgo, University of Cambridge
Table of Contents
Part One: A Restatement of the English Law of Unjust Enrichment
Restitution for unjust enrichment
Enrichment at the claimant's expense
When the enrichment is unjust
Prevention of anticipated unjust enrichment
2. Enrichment at the Claimant's Expense
At the claimant's expense: general
At the claimant's expense: tracing
3. When the Enrichment is Unjust
Exploitation of weakness
Incapacity of the individual
Failure of consideration
Ignorance or powerlessness
Fiduciary's lack of authority
Factors concerned with illegality
Unlawful obtaining or conferral of a benefit by a public authority
Financial institutions and constructive notice
Change of position
Agency as defence
Purchaser in good faith, for value and without notice
Illegality as a defence
Special statutory defences: passing on and prevailing practice
Contractual or statutory exclusion of restitution
5. Restitutionary Rights
Personal right to a monetary restitutionary award
Other restitutionary rights