Book contents
- Frontmatter
- Contents
- List of contributors
- Preface
- Table of cases
- List of abbreviations
- I Introduction
- 1 Unjustified enrichment: surveying the landscape
- II Enrichment ‘without legal ground’ or unjust factor approach
- III Failure of consideration
- IV Duress and fraud
- V Change of position
- VI Illegality
- VII Encroachment and restitution for wrongs
- VIII Improvements
- IX Discharge of another person's debt
- X Third-party enrichment
- XI Proprietary issues
- XII Taxonomy
- Index
- References
1 - Unjustified enrichment: surveying the landscape
Published online by Cambridge University Press: 31 July 2009
- Frontmatter
- Contents
- List of contributors
- Preface
- Table of cases
- List of abbreviations
- I Introduction
- 1 Unjustified enrichment: surveying the landscape
- II Enrichment ‘without legal ground’ or unjust factor approach
- III Failure of consideration
- IV Duress and fraud
- V Change of position
- VI Illegality
- VII Encroachment and restitution for wrongs
- VIII Improvements
- IX Discharge of another person's debt
- X Third-party enrichment
- XI Proprietary issues
- XII Taxonomy
- Index
- References
Summary
Preliminary questions
‘Unjustified enrichment’. The expression is mysterious. So are the other terms in use for the same subject, ‘unjust enrichment’ and ‘restitution’. What is an enrichment and when is it unjustified? To state that something amounts to unjustified enrichment is merely a conclusion, that because the enrichment is unjustified it should be returned, restored or made over to the person properly entitled to it. That conclusion is in need of supporting normative argument. But what sort of argument?
Some time ago the Roman jurist Pomponius wrote the now-famous words nam hoc natura aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem, ‘by the law of nature it is right that nobody should be unjustly enriched at another's expense’. Pomponius's maxim encapsulates the key elements of enrichment liability: enrichment, which is unjust, and which is at the expense of the claimant. But it exemplifies a problem that faces modern legal systems, too: formulating the principles of a law of unjustified enrichment in a way which is clear and yet not excessively broad.
There is no doubt that Pomponius's formulation is, as a matter of classical Roman law, much too broad. There were many cases in which unjustified enrichment was simply allowed to rest where it arose. A clear instance is the claim of a possessor in good faith who improved land from which he was later ejected by the true owner.
- Type
- Chapter
- Information
- Unjustified EnrichmentKey Issues in Comparative Perspective, pp. 3 - 34Publisher: Cambridge University PressPrint publication year: 2002
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