Academic journal article Boston University Law Review

The Reason to Reverse: Unjust Factors and Juristic Reasons

Academic journal article Boston University Law Review

The Reason to Reverse: Unjust Factors and Juristic Reasons

Article excerpt

INTRODUCTION

The Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profound impact not only in the United States but also throughout what used to be known as the British Commonwealth.2 The project's success at home was to be expected, of course. Its impact abroad was more remarkable. Academics - and those of an academic bent3 - responded quickly and enthusiastically in both England4 and Canada.5 Bar and bench, however, proved less welcoming. It fell to Lord Denning, fifteen years after the fact, to explain why English law (and, by extension, Canadian law, which had yet to strike an independent path) was "obviously not a favourable soil in which to plant the Restatement."6 The very idea of a Restatement, he observed, was fundamentally at odds with the English legal tradition.7 The law is to be found in the cases and not in broad, bold-fonted principles.8 And whereas a textbook might helpfully serve as "a guide to the authorities but not to the law," the Restatement stated propositions unsupported by precedent.9 Worse yet, it was prepared not by a named (preferably dead) author dedicated to the cases, but rather by a committee! A committee "with a revising editor" that produced "compromised views of the members" that were "put into words by the secretary."10 Suffice to say, there was "not much to commend it in English eyes."11 Given the situation, the Restatement unsurprisingly suffered another disadvantage: it "was hard to find."12 Lord Denning was prepared to "suppose there [were] copies at Oxford and Cambridge," but he noted that even a couple of years after publication, there was "only one copy of the Restatement available to English barristers and judges" in London.13

"Small wonder then," that it took "some time for the Restatement" to become accepted into English courts.14 But accepted it was, thanks in no small part to Lord Denning's own pioneering - some might say heroic - efforts. Acting pro bono15 in United Australia, Ltd. v. Barclays Bank, Ltd.,16 he "looked for the first time at the Restatement," adopted its position regarding the nature of "waiver of tort," and provided the House of Lords with the means "to cut away the misunderstandings of the old authorities and to put the decisions on the right ground."17 The resulting judgment extended far beyond the immediate issue and "opened the way to the development of restitution as a separate branch of the law."18 Two years later, Lord Wright drew upon United Australia and, presumably, his own extra-judicial thoughts on the Restatement19 in declaring that "any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment."20 The Restatement's influence was even more pronounced in Canada. While English judges occasionally were skeptical or even dismissive of a generalized notion of unjust enrichment,21 Canadian courts routinely looked south for guidance.22 The impact of the Restatement in the Supreme Court of Canada was further heightened by the fact that the court was led, during a crucial period of restitutionary development in the 1970s and 1980s, by a former student of one of the Restatement's principal reporters.23

The explanation as to why the Restatement overcame initial resistance and gained acceptance abroad is not difficult to discern. As Lord Denning observed, "local conditions" occasionally may "lead us to reach a different solution."24 For the most part, however, "our fundamental outlook is the same on all the things that really matter."25 The common-law jurisdictions on either side of the Atlantic "have the same concept of justice, the same tradition of freedom, and the same hatred of oppression."26 And because they share the same commitment to liberal values, individual autonomy, and personal property, they encounter the same types of disputes. Moreover, due in no small part to the Restatement, courts in all three countries came to employ essentially the same principle of unjust enrichment during the second half of the twentieth century. …

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