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Essence Of Unjust Enrichment Notes

Law Notes > Aspects Of Obligations Notes

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1 UNJUST ENRICHMENT (I): INTRODUCTION, ENRICHMENT AND EXPENSE

2

1. ESSENCE OF THE LAW OF RESTITUTION

1.1.

INITIAL QUESTIONS

1.1.1.

Restitution

(1.1.a)

What is it About?

*

This is the body of law defned with reference to gain-based rather than loss-based remedies

Barker - the separation of remedy from right has caused analytical problems that have not been adequately dealt with (e.g. subjective devaluation barring a whole claim). We should have a remedial analysis instead using primary and secondary rights. Primary rights are infringed and the remedy is for defendant to give back the property. The secondary right is to get a court order for this if the primary right is not remedied. This is subtly diferent from the primary remedy because it may take the form of valuation/quantum meruit etc. This is a more organised and analytically sound way of seeing things

(1.1.b)

Judicial Methodology of Unjust Enrichment Virgo - House of Lords had been waiting for this opportunity and the case was infuenced by the way it was argued. Instead of logical analysis, unjust enrichment was simply asserted

1.1.2.

Nature of Restitutionary Remedies

(1.1.c)

Personal Restitutionary Remedies

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These are remedies assessed by the value of the beneft received by the defendant. The defendant is only personally liable to pay the value of that beneft to the claimant

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(1.1.d)

You are still liable to pay these even if you have spent the money

Proprietary Restitutionary Remedies

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These are when proprietary remedies are asserted in money, and that money must be returned

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Proprietary remedies are more advantageous because if defendant goes bust, claimant gets priority over all the other creditors. Additionally, if the property increases in value the claimant will get the beneft of the increase

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