Principles of the Law of Restitution

Principles of the Law of Restitution

Principles of the Law of Restitution

Principles of the Law of Restitution

Synopsis

This new textbook outlines the general principles of the rapidly developing subject of the Law of Restitution. Restitution is concerned with the reversing of unjust enrichment and was recently recognized as a discrete body of law by the House of Lords although restitutionary principles have infact been evolving for over 200 years. Rather than taking the traditional approach which assumes that restitutionary remedies will be awarded against a defendant only where it can be shown that the defendant has been unjustly enriched at the expense of the plaintiff. The book asserts that the law of restitution is simply concerned withthe question of when restitutionary remedies may be awarded, that is remedies which are assessed by reference to a benefit obtained by the defendant. But in determining whether restitutionary remedies are available it is necessary to identify the causes of the action which triggers them. There arethree such causes of action, namely the reversal of the defendants unjust enrichment, the commission of a wrong by the defendant, and the vindication of the defendants property rights. The state of the law is examined through analyses of the statutory provisions and key cases demonstrating the way the law is used to resolve a wide variety of legal problems. The very different views of academics as to the nature and ambit of the subject are also identified. This book will beinvaluable to students on restitution courses at every level.

Excerpt

The Law of Restitution is like a mountain. From a distance it may appear somewhat insignificant, indeed some have dismissed it simply as a hill, a minor bump on the legal landscape. But on closer inspection, it is definitely a mountain. It is big and complex and it is very easy to get lost on its slopes. It has been explored many times recently. Some explorers have recorded the mountain's features in great detail. Others have sought to understand how the mountain was formed and why its various features have developed. Others have simply tried to find the safest and quickest routes to the summit. But although many explorers have visited the mountain recently, it has been inhabited for a much longer time. These inhabitants know the mountain well, even though they may not understand all its features, because they work on it every day. They know the quick routes to the summit. the explorers have created new routes, which may be better. But for explorers and inhabitants alike, there is only one true objective: to reach the summit safely. This textbook seeks to provide a map for those who are trying to climb to the top of the mountain. in doing so it attempts to identify the best routes to the summit, where restitutionary remedies can be awarded to the conqueror. But it also seeks to explain the features which are passed on the way and identify the holes and swamps which will catch the unwary.

This book owes a great deal to those who have explored the subject before, particularly the works of Lord Goff, Professor Gareth Jones, Professor Peter Birks and Professor Andrew Burrows; but it does seek to do something different. It does not seek to describe the law in an encyclopaedic way as Goff and Jones have done in each of the five editions of their seminal work 'The Law of Restitution'. Neither does it solely seek to identify a theoretical structure to assist in the organisation of the subject, particularly if such a structure has not been expressly recognised in the cases. This is what Birks sought to do in his book 'An Introduction to the Law of Restitution'. But neither of these works can be characterised as textbooks. the very nature of the law of restitution requires the textbook writer both to describe the law and to identify a coherent and consistent structure which assists in the description and understanding of the subject. This is what Burrows sought to do so successfully in his work on the subject, which was explicitly founded on the theoretical structure identified by Birks.

A particular problem for any textbook writer is whether he or she should simply seek to follow the law, by stating it as it is, or seek to lead it on by suggesting the direction in which the law should go. It is both an . . .

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