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1 UNJUST ENRICHMENT (II): UNJUST FACTORS
1. ABSENCE OR PRESENCE OF BASIS?
ABSENCE OF BASIS
Birks's Absence of Basis Scheme
Birks - it is sufcient for the claimant to establish that there was no explanatory basis for the receipt of an enrichment (e.g. if there was a contract/statute, that is used instead). Therefore all potentially void contracts potentially give restitution, but defences restrict these
Baloch - German approach of only treating some void contracts as yielding restitution is more direct, but Birks's approach fits in with common law better
Burrows - because you have to look at, e.g. contract law, to see whether a basis exists or not, the pyramid might be thought to push unjust enrichment into other areas of law
Westdeutsche Landesbank Girozentrale v Islington (1996) (HL) - obiter - voidness of the swap contract triggered unjust enrichment and meant there was an absence of consideration Kleinwort Benson v Lincoln (1999) (HL) - Lord Hope - it is unjust for a person to retain a benefit which he has received at the expense of another, without any legal ground to justify its retention, which that other person did not intend him to receive (1.1.c)
Normative Judicial Support
Deutsche Morgan Grenfell Group v IRC (2006) (HL) - Lord Walker - The recognition of "no basis" as a single unifying principle would preserve ... the purity of the principle on which unjust enrichment is founded, without in any way removing (as this case illustrates) the need for careful analysis of the content of particular "unjust factor" such as mistake. But this was not the right case in which to do it, and there should be a period of reappraisal Lord Hoffmann - absence of a basis for payment is a ground which generalises and subsumes all separate categories of situation where a payment of money not due was recoverable
Participatory and Non Participatory Enrichments Participatory
Claimant pays money
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