The Principles of the Law of RestitutionOxford University Press, 1999 - 800 pages 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 in fact 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 with the 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 are three 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 be invaluable to students on restitution courses at every level. |
Table des matières
Table of Cases | xxxvii |
Table of Statutes | lxvii |
The Essence of Restitution | 3 |
ii Is a Proprietary Restitutionary Claim Founded | 12 |
The Obstacles of History | 18 |
The Role of Rescission within the Law of Restitution | 28 |
Themes and Controversies | 35 |
The Nature of the Relationship between the Parties | 42 |
of Consideration | 395 |
Incapacity | 409 |
Restitution from Public Authorities | 422 |
Reform of the Law | 439 |
General Principles | 445 |
The Available Defences for Restitution for Wrongs | 469 |
Restitution for Torts | 473 |
Restitution for Breach of Contract | 498 |
The Principle of Unjust Enrichment | 49 |
The Role of the Unjust Enrichment Principle in Practice | 55 |
Enrichment | 58 |
i The Objective Test of Enrichment | 62 |
3333335 | 68 |
Methods of Overriding Subjective Devaluation | 70 |
Subjective Revaluation | 86 |
Partperformance of a Contract | 93 |
At the Expense of the Plaintiff | 105 |
The Grounds of Restitution for the Purpose | 117 |
Ignorance | 128 |
Mistake | 134 |
Compulsion | 188 |
Exploitation | 248 |
Abuse of Fiduciary Relationships of Confidence | 283 |
Necessity | 300 |
Failure of Consideration | 323 |
Total Failure of Consideration | 329 |
Partial Failure of Consideration | 373 |
Restitution for Equitable Wrongdoing | 518 |
Criminal Offences | 556 |
Establishing Proprietary Restitutionary Claims | 591 |
The Following and Tracing Rules | 642 |
Restitutionary Claims and Remedies to Vindicate Property | 656 |
The Defence of Bona Fide Purchase | 674 |
Conditions for Establishing the Defence | 677 |
Fundamental Principles and General Bars | 683 |
Defences Arising from Changes in the Defendants | 694 |
Transfer of a Benefit by an Agent to His or Her Principal | 704 |
Passing On and Mitigation of Loss | 733 |
Illegality | 740 |
Incapacity | 757 |
Should a Defence of Incapacity be Recognised? | 766 |
Limitation Periods and Laches | 767 |
779 | |
789 | |
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Expressions et termes fréquents
action arises award of restitutionary Bank plc Birks breach of contract change of position Chapter circumstances common law Consequently considered constructive trust Court of Appeal creditor crime dant defence of change defendant's unjust enrichment discharged establish estoppel example fact failure of consideration fiduciary duty free acceptance Goff and Jones ground of restitution House of Lords Ibid identified illegal law of restitution liability Lord Browne-Wilkinson Lord Goff mistake of law obtain restitution paid pari delicto payment plaintiff plaintiff's claim plaintiff's expense plaintiff's intention plaintiff's restitutionary claim profits property rights proprietary restitutionary proprietary rights reason receipt recognised relationship relevant rely rescind rescission resti restitutionary relief restitutionary remedies resulting trust simply subjective devaluation third party threats tiff tion tort total failure transaction transfer a benefit ultra vires unconscionable undue influence unjust enrichment principle vindication vitiated wrong wrongdoing