Restitution

Author: Ward Farnsworth
Publisher: University of Chicago Press
ISBN: 022614433X
Format: PDF, Docs
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Restitution is the body of law concerned with taking away gains that someone has wrongfully obtained. The operator of a Ponzi scheme takes money from his victims by fraud and then invests it in stocks that rise in value. Or a company pays a shareholder excessive dividends or pays them to the wrong person. Or a man poisons his grandfather and then collects under the grandfather’s will. In each of these cases, one party is unjustly enriched at the expense of another. And in all of them the law of restitution provides a way to undo the enrichment and transfer the defendant’s gains to a party with better rights to them. Tort law focuses on the harm, or costs, that one party wrongfully imposes on another. Restitution is the mirror image; it corrects gains that one party wrongfully receives at another’s expense. It is an important topic for every lawyer and for anyone else interested in how the legal system responds to injustice. In Restitution, Ward Farnsworth presents a guide to this body of law that is compact, lively, and insightful—the first treatment of its kind that the American law of restitution has received. The book explains restitution doctrines, remedies, and defenses with unprecedented clarity and illustrates them with vivid examples. Farnsworth demonstrates that the law of restitution is guided by a manageable and coherent set of principles that have remarkable versatility and power. Restitution makes a complex and important area of law accessible, understandable, and interesting to any reader.

Unjust Enrichment

Author: Peter Birks
Publisher: OUP Oxford
ISBN: 0191018856
Format: PDF, Kindle
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This new edition of Unjust Enrichment by the editor of the Clarendon Law Series, is a fully updated, clear and concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past. This text is the first book to insist on the switch from restitution to unjust enrichment, from response to event. It organises modern law around five simple questions: Was the defendant enriched? If so, was it at the claimant's expense? If so, was it unjust? The fourth question is then what kind of right the claimant has, and the fifth is whether the defendant has any defences. This second edition was revised and updated by Peter Birks before his death from cancer on 6 July 2004 at the age of 62. It represents the final thinking of the world's leading authority on the subject.

The German Law of Unjustified Enrichment and Restitution

Author: Gerhard Dannemann
Publisher: Oxford University Press on Demand
ISBN: 0199533113
Format: PDF, Docs
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This text provides a comprehensive description in the English language of the German law of unjust enrichment, by explaining how this works in the context of German law, and by discussing the implications this would have if the German system were implemented in an English legal environment.

The Foundations of Unjust Enrichment

Author: Peter Birks
Publisher: Victoria University Press
ISBN: 9780864734303
Format: PDF, ePub
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Six public lectures given by Peter Birks when he was the Centennial Visiting Fellow at the Victoria University of Wellington Law School in August and September 1999.

Unjust Enrichment and Contract

Author: Tariq Baloch
Publisher: Bloomsbury Publishing
ISBN: 1847314988
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This book examines the role of unjust enrichment in the contractual context, defined as contracts which are (a) terminated for breach, or (b) subsisting, or (c) unenforceable. The book makes three claims in relation to the orthodox common law account of restitution (founded on unjust enrichment) in the contractual context. Firstly, the orthodox account correctly proceeds on the basis that the restitutionary claim in the contractual context is founded on an independent cause of action in unjust enrichment, rather than some equitable notion of unconscientiousness or the law of contract. Secondly, the book departs from the orthodox account by rejecting the unjust factors approach and endorsing the absence of basis approach for the law of unjust enrichment. Finally, the book argues that the right to restitution in the contractual context should be determined by the conditionality of the transfer of the benefit rather than a requirement such as the termination of the contract, as the orthodox account dictates. To that end the book proposes the following model, under which the right to restitution in the contractual context is determined by the resolution of the following two questions: (1) Was the transfer of the benefit (eg of money or services) conditional? (2) Was there a qualifying failure of condition? A condition can be, and often is, the other contracting party's counter-performance, but it may also be an event not promised by either party. What qualifies as a failure of condition depends on the type of contract in question. This book identifies two types of contracts, namely those which are apportioned (eg instalment contracts) and those which are unapportioned. It is only in relation to the latter that termination is required. It is a particular strength of the book that it is underpinned by detailed and original historical analysis which makes a novel and distinct contribution to the history of the laws of unjust enrichment and contract. 'Dr Baloch has produced the definitive study of the inter-relationship between contract and unjust enrichment. This has been achieved by carefully considering the historical roots of our common law, and how this is to be understood in its best light in the modern era.' Robert H Stevens, University College, London. 'Dr Baloch's exploration of the boundary between contractual and unjust enrichment liability in the 17th to 19th centuries has important things to say about the history of ideas of 'contract' in this period.' Mike Macnair, Oxford University. 'This is an innovative and rigorous book which engages with one of the most difficult areas in the law of unjust enrichment, namely the relationship between the law of unjust enrichment and the law of contract. Baloch roots his treatment of the modern law in its history and the historical analysis throughout is very careful and well grounded in the primary sources.' David Ibbetson, Cambridge University. 'This is a valuable book, thoughtful and well researched. It is concerned to build a model that fits comfortably with the cases, and its focus is on the work of modern commentators. Those concerned with the relationship of contract and the law of restitution whether at a theoretical level or in practice will benefit by careful study of what Dr Baloch has to say, whether or not they agree with it.' Jack Beatson, Royal Courts of Justice, 14 February 2009 (From the foreword)

Principles of the Law of Restitution

Author: Graham Virgo
Publisher: Oxford University Press, USA
ISBN: 0198726384
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The third edition of The Principles of the Law of Restitution has been substantially rewritten to reflect the significant changes in the law of restitution and the expansion in the theoretical and critical commentary on the subject. It focuses on the identification and analysis of the principles which underpin the law of restitution as a whole, but with reference to its three distinct parts: unjust enrichment, restitution for wrongs, and the vindication ofproperty rights.

Unjustified Enrichment

Author: David Johnston
Publisher: Cambridge University Press
ISBN: 9781139432634
Format: PDF, Docs
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Unjustified enrichment has been one of the most intellectually vital areas of private law. There is, however, still no unanimity among civil-law and common-law legal systems about how to structure this important branch of the law of obligations. Several key issues are considered comparatively in this 2002 book, including grounds for recovery of enrichment, defences, third-party enrichment, as well as proprietary and taxonomic questions. Two contributors deal with each topic, one a representative of a common-law system, the other a representative of a civil-law or mixed system. This approach illuminates not just similarities or differences between systems, but also what different systems can learn from one another. In an area of law whose territory is still partially uncharted and whose borders are contested, such comparative perspectives will be valuable for both academic analysis of the law and its development by the courts.

Unjust Enrichment and the Law of Contract

Author: E. J. H. Schrage
Publisher:
ISBN: 9789041116550
Format: PDF, Docs
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Increasingly, in both common law and civil law jurisdictions, lawyers are seeking to formulate a law of restitution that can provide a reliable remedy in unjust enrichment actions. This pursuit has generated renewed interest in how the law of obligations should be divided. The movement can be seen as both a product of the recent calls for, and recognition of, an English law of restitution and a consequence, in civil law jurisdictions (where traditionally taxonomy has been taken far more seriously), of the modern quest for a general remedy which will overcome the widely-felt disadvantages of existing alternatives. This collection of essays is concerned with these modern developments. It identifies what constitutes unjust enrichment at the plaintiff's expense, and its available remedies, in a number of jurisdictions. Authors explore the boundaries between the law of restitution, the law of torts, and the law of contract. Their analyses reveal how the principle of restitution has permeated, hesitatingly at first and then with greater force, on a case-by-case basis, not only private law but also administrative law, criminal law, and other branches of the law. In the final analysis, unjust enrichment proves to be anything but a Trojan horse smuggled into the well-built structure of the law of obligations; it is a fully-fledged cause of action deserving an appropriate and satisfactory remedy. Scholars and jurists from thirteen countries met in Amsterdam on 18-20 October 2000, for a conference commemorating the late Professor Marcel Henri Bregstein (1900-1957). This book, which presents revised versions of the papers read during this conference, greatly clarifies the status and primary trends in this important area of legal theory and practice, and is sure to be of value to legal scholars and practitioners everywhere.

Reason and Restitution

Author: Charlie Webb
Publisher: Oxford University Press
ISBN: 0191509329
Format: PDF
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In law, gains, like losses, don't always lie where they fall. That there exists a body of law dealing with liability for gains is now settled and the circumstances in which the law requires defendants to give up their gains are well documented in the work of unjust enrichment lawyers. The same cannot be said, however, of the reasons for ordering restitution of such gains. It is often suggested that unjust enrichment's existence can be demonstrated without inquiry into these reasons, into the principles of justice it represents and invokes. Yet while we can indeed show that there exists a body of claims dealing with the recovery of mistaken payments and the like without going on to inquire into their rationale, the same cannot be said for unjust enrichment's existence as a distinct ground of such claims. For if unjust enrichment exists as a body of like cases and claims, truly independent of contract and tort, then it does so by virtue of the distinct reasons it identifies and to which these claims respond. Reason and Restitution offers an analysis of the reasons which support and shape claims in unjust enrichment and how these reasons bear on the law's application and development. The identity of these reasons matters since it establishes how, and to what extent, unjust enrichment really is independent of contract and tort, giving us a clearer understanding of unjust enrichment's relationship to these and other concepts and categories. But, more importantly, it matters to those charged with the practical tasks of deciding cases and making laws, for it is these reasons alone which can direct how judges and legislators ought respond to these claims.

Enrichment at the Claimant s Expense

Author: Eli Ball
Publisher: Bloomsbury Publishing
ISBN: 178225840X
Format: PDF, Mobi
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This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties Â? a claimant and a defendant Â? are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test Â? asking whether enrichment and loss arise 'but for' each other Â? provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.