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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.
Advisory Group 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
Introduction Part One: A Restatement of the English Law of Unjust Enrichment 1. General Restitution for unjust enrichment Enrichment at the claimant's expense When the enrichment is unjust Defences Restitutionary rights Prevention of anticipated unjust enrichment 2. Enrichment at the Claimant's Expense Enrichment At the claimant's expense: general At the claimant's expense: tracing 3. When the Enrichment is Unjust Mistake Duress Undue influence Exploitation of weakness Incapacity of the individual Failure of consideration Ignorance or powerlessness Fiduciary's lack of authority Legal compulsion Necessity Factors concerned with illegality Unlawful obtaining or conferral of a benefit by a public authority Financial institutions and constructive notice 4. Defences Change of position Estoppel Agency as defence Counter-restitution Purchaser in good faith, for value and without notice Illegality as a defence Resolved disputes Limitation Special statutory defences: passing on and prevailing practice Contractual or statutory exclusion of restitution Affirmation 5. Restitutionary Rights Personal right to a monetary restitutionary award Other restitutionary rights Subrogation Part Two Commentary