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Birks’ Absence Of Basis Applied To A Number Of Cases

BCL Law Notes > Restitution of Unjust Enrichment Notes

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1. Birks identifies three models of enrichment whereby his absence of basis can be understood by:

2. NON-PARTICIPATORY ENRICHMENTS a) where C ignorant of D being enriched. Non-participation means there is no basis at all so rest is prima facie rewarded

3. OBLIGATORY ENRICHMENTS a) enrichments where the C paid due to a belief in a valid obligation that turns out to be false - so payments made under a mistake as to liability, taxes exacted by a public authority ultra vires b) In each of these cases the basis - that the money was due - was absent so prima facie rest c) This is the most common head according to Birks

4. VOLUNTARY ENRICHMENTS a) covers contracts, trusts or gifts where C confers a benefit on the basis of something occurring. Where that thing doesn't occur, no basis so prima facie rest b) So a payment on basis that contract will be made or trust will be constituted ? where trust fails or contract never comes into being basis is no longer present c) Similarly, rest is prima facie warranted where a gift is invalid d) Birks has a wide definition of gift e) Whether an enrichment is a gift is determined with a view to risk-taking according to Birks: 'The busker wants to be paid but takes the risk of getting nothing' f) This definition of gifts also includes by-benefits: which are incidental benefits to another as a result of actions taken in one's self-interest (such as heat rising from the claimant's flat to the defendant's) g) Burrows - highlights how peculiar it is that Birks includes By-benefits in non-participatory enrichments (which rely on C's ignorance)


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