Unjust enrichment

Dedication
Full Title
Copyright
Preface
Acknowledgements
Table of Cases
Table of Statutes
Table of Contents
	1 Unjust enrichment: history, concepts and alternative liability models
		Introduction
		History
		The common law forms of action
		The implied contract fallacy
		Equity's historical contribution
		The concept of unjust enrichment
		Elements of an unjust enrichment claim
		The role(s) of the unjust enrichment concept
		Alternative models of restitutionary liability
		Unconscionability (unconscionable retention of benefit)
		Unjustified enrichment and 'absence of basis'
	2 Locating unjust enrichment in private law
		Introduction
		Foundational aims
		Corrective justice
		Distributive justice
		Summary and reflections
		Taxonomy — mapping private law
		Approaches to taxonomy
		The scope of unjust enrichment law as a category — the broad view
		Criticisms of the broad view — the challenge of diversity
		Unjust enrichment law as a category — modern views
		Unjust enrichment as a 'Subsidiary' Doctrine
		Unjust enrichment and contract
		Unjust enrichment and property
		Subsidiarity arguments
	3 The elements of an unjust enrichment claim
		Introduction
		Benefit
		A broad conception
		Positive and negative
		Legal and factual
		Examples of types of benefit
		Objectivity, subjectivity and freedom of choice
		Legal 'tests' of benefit
		Valuing the benefit
		Unjust
		A recognised reason for restitution
		Defendant has no right to the benefit
		At the plaintiff's expense
		The minimum requirement: causation and the 'but for' test
		Recovery from indirect recipients: 'leap frogging'
		Claims in respect of assets never owned: interceptive subtraction
	4 Defects in legal capacity
		Introduction
		The effect of incapacity on the passing of title
		The incapacity of minors
		Minors' contracts at common law
		Recovery at common law of benefits conferred by a minor
		Statutory rights of restitution
		The mentally disordered
		Ultra vires transactions
		Private bodies
		Public bodies
	5 Mistake
		Introduction
		The meaning of mistake
		The reason(s) for recovery
		Mistakes of fact
		The requirement of causative mistake
		What test of causation?
		Mistaken gifts
		Mistakes of law
		Abolition of the mistake of law 'bar'
		Difficult issues: uncertain law, invalid law and changes in the law
		Limitations on recovery
		'Voluntary submission to an honest claim'
		'Good consideration' — payments to meet a valid obligation
		Contradiction of statutory regime
		Mistakes and contract
		Non-Monetary benefits
	6 'Ignorance' or 'Absence of Consent'
		Introduction
		The Argument from Mistake
		Rival property analyses
		The Common Law Position
		The Position in Equity
		The 'rule in Re Diplock'
		Personal liability for knowing receipt
		Personal liability for benefits knowingly 'retained'
		Liability in equity for the receipt of company assets withoutauthority
	7 Failure of Basis
		Introduction
		The concept of a 'Basis' ('Consideration')
		Proving 'Failure' of the Basis
		Identifying the basis of a benefit's provision
		Proving that the basis has failed
		The requirement of 'Total' Failure
		Example 1 — Contracts Discharged by Frustration
		Example 2 — Contracts Terminated for Breach
		Claims by the innocent party
		Claims by the party in breach
		Example 3 — Unenforceable and Void Contracts
		Example 4 — Incomplete or Anticipated Contracts
		Example 5 — Performances under Valid Contracts
		Escaping Bad Bargains
	8 Coercion
		Introduction
		The Concept of Coercion
		A preliminary definition
		Coercion distinguished from compulsion
		Threats distinguished from warnings
		Duress at Common Law
		The rationale of recovery
		The first requirement: 'illegitimate' threat
		The second requirement: causation
		A possible third requirement: absence of reasonable alternatives
		Equitable Duress (Actual Undue Influence)
		Legal Coercion and Compulsion
		Reimbursement
		Contribution
	9 Defects in personal capacity
		Introduction
		Constraints on relief
		Undue Influence
		Classes of undue influence
		Actual (relational) undue influence
		Presumed undue influence
		Relationships proven to be of influence
		A transaction requiring explanation
		Undue influence and third parties
		Rebutting the presumption
		Unconscionable Bargains
		A Special Disadvantage
		Knowledge of the special disadvantage
		The Basis of Equitable Intervention: Impaired Judgmental Capacity or Wrongdoing?
	10 Wrongdoing
		Introduction
		Terminology and Taxonomy
		Foundational aims
		Corrective justice?
		The protection of important social institutions?
		Deterrence and punishment?
		The Current Pattern of Recovery
		Torts and intellectual property infringements
		Equitable wrongs
		Breach of contract
		Quantification
	11 Restitution from public authorities
		Introduction
		The Woolwich Principle
	12 The change of position defence
		Introduction
		Different Models for the Defence
		Model 1 — An enrichment-related defence
		Model 2 — A detriment-related defence
		Model 3 — A hardship-related defence
		Elements of the Australian Defence
		The basic model iterated
		Detriment
		Causation ('on the faith of the receipt')
		Good faith, fault and wrongdoing
		Proprietary claims
		England and Wales
		New Zealand
		The statutory defence
		The defence at common law
	13 Other defences
		Introduction
		Estoppel
		The basis of estoppel
		The elements of estoppel
		The extent of the defence
		Estoppel and change of postion
		Bona fide purchase
		Land registration as a defence to restitutionary claims
		The Defence of Incapacity
		Counter-restitution
		Ministerial Receipt
		The doctrinal basis of ministerial receipt
		Making out the defence of ministerial receipt
		The defence of Passing On
		Delay and limitation
		The limitation statutes
		Delay in equity — laches, acquiescence and delay
		Illegality
	14 The nature and basis of tracing
		Introduction
		The Nature of Tracing
		Common Law and Equitable Tracing
		A unitary law of tracing?
		The Reasons for Tracing
		The Prerequisites for Tracing
		The Effect of Tracing
		The Rules of Tracing
		Tracing at common law
		Tracing in equity
		Tracing into discharged debts
		Tracing and Unjust Enrichment
	15 Proprietary restitution
		Introduction
		Types of proprietary remedy
		Operational differences
		Advantages and motivations
		Proprietary remedies and insolvency law
		Rival Models of Proprietary Relief
		Model 1 — No proprietary remedies
		Model 2 — 'Proprietary base'
		Model 3 — 'Initial' injustice
		Model 4 — 'Plaintiff does not take the risk of the defendant's insolvency'
		Model 5 — Remedial flexibility and discretion
		Discretionary Remedialism
		Proprietary remedies
		Constructive trusts and 'proportionate share' remedies
		Resulting trusts
		Rescission
		Subrogation
		Equitable liens
Index