Academic journal article Boston University Law Review

Is Unjust Enrichment Law an Officious Intermeddler?

Academic journal article Boston University Law Review

Is Unjust Enrichment Law an Officious Intermeddler?

Article excerpt


"There's hardly a greater Pest to Government, Conversation, the Peace of Societies, Relations and Families, than officious Tale-bearers, and busy Intermeddlers," wrote Sir Roger L'Estrange in 1692.1 Controlling this "pest" of officious intermeddlers, as we will call them for short, has been a traditional concern of the common law. For example, it is still a tort - and was a crime in England until 1967 - to support the litigation of a stranger without having a just cause to do so.2

Various other ways in which officious intermeddlers could upset governments, the peace, or families are found within the area of unjust enrichment law. Officious intermeddling is feared when somebody pays the debts of another person and then seeks to recover from the debtor. Whereas Continental laws will generally allow such recovery, the common law will do so only if the payor was not acting officiously, meaning that the payor had a good reason for this interference,3 reminiscent of the "just cause" requirement for the support of somebody else's litigation. Similarly, while many other legal systems seek to encourage Good Samaritans, the common law will generally not allow them to recover for the expenses they have incurred in helping others. In the words of Lord Justice Bowen in Falcke v. Scottish Imperial Insurance Co., "Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will."4 Conferring benefits can amount to additional officious intermeddling if a service is provided in the expectance of remuneration.5 Whether, in the absence of a contract, the conferrer of the benefit can, at least in principle, claim quantum meruit on the ground of the recipient having accepted the benefit freely, is still subject to dispute.6 The traditionally hostile attitude of the common law against rewarding such intermeddling has been summed up by Baron of the Exchequer Pollock: "One cleans another's shoes; what can the other do but put them on?"7 Dawson explained in 1974 that "asserting in ringing language a proposition that is made to seem vital to a free society" was one of the ways in which the common law expressed its antipathy towards "volunteers" or "officious intermeddlers" and also that "[t]his defensive proposition is often stated with more than the needed vigor."8


The example of forced contracts leads us to the topic of the present paper. Rather than looking at the person who must be discouraged from intermeddling with the affairs of others, this paper will examine the capacity of unjust enrichment law to intermeddle officiously with other areas of law. Contract law provides an obvious potential example. If contract law tells us that the recipient of the benefit never accepted any offer of the conferrer and should thus not be liable to pay, would an alternative claim for remuneration in unjust enrichment not force the effects of a contract onto a person who did not want to enter into a contract in the first place? Unjust enrichment could thus be used or abused to outflank and outmaneuver contract law. If we use the metaphor of unjust enrichment as an area of law which mops up what other areas have spilled, for instance by cleaning up behind failed contracts, does unjust enrichment also have the capacity to knock over buckets in other areas of law? Does unjust enrichment law intermeddle in an officious way with principles which those other areas of law seek to uphold?

In our contract law example, there appears to be general agreement that unjust enrichment law should not impose liabilities behind the back of contract law,9 although this naturally leaves much room for disagreement on the details. Unjust enrichment rules, however, have been less considerate of neighbouring areas of law. The following Parts will present some examples from contract law, insolvency law, conflict of laws, tax law, and family law. …

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