By Peter Jaffey
Lately there was huge, immense curiosity within the legislation of restitution, with many new books and educational articles and a few vital judgements within the courts. despite the fact that, there is still nice controversy and a few confusion, partially for ancient purposes and partially because of carrying on with adjustments over the rules underlying the sector. there are specific problems over the relation of the legislation of restitution to different parts of legislations, together with agreement and estate legislation. during this new and leading edge paintings the writer advances a view of the frameword of primary rules underlying the legislation of restitution which deals a method of figuring out the tangle of conflicting specialists, after which proceeds to ascertain the case legislation in mild of it. As a part of his research, the writer indicates new ways to figuring out the components of overlap among restitution, agreement, trusts and estate legislation.
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Extra resources for The Nature and Scope of Restitution: Vitiated Transfers, Imputed Contracts and Disgorgement
The justification for giving effect to an exchange of payment for benefit here is not that it was impossible for the parties to negotiate and that they would have done if they had been able to; generally they could have negotiated, but the 24 See below, Chap. 5. 12 Introduction plaintiff would not have permitted the defendant to use his property, or not at a price that the defendant would have been willing to pay. In this type of case, because the benefit is taken unilaterally rather than conferred unilaterally, fairness to the plaintiff requires that he be paid.
33 34 Vitiated Transfers, Imputed Contracts, and Disgorgement 15 contractual or restitutionary. This has been one source of the controversy mentioned above over the relationship between the contractual claim for payment and the restitutionary or non-contractual claim for payment. Two opposite errors have emerged. First, there seems to be a continuing risk that the implied contract fallacy will be revived to deny a quantum meruit in circumstances where an actual contract is excluded, even though the claim is not actually contractual.
The various claims within unjust enrichment, in other words, are merely given a facade of uniformity by subsuming them under an indeterminate concept of “injustice” or the “unjust factor”. One might make a comparison with what appears to be an analogous definition of tort as the law of “unjust harm” or “unreasonably-caused harm”. Here, by contrast, the broad nature of the issue of injustice at stake is reasonably clear: it is the conflict between the defendant’s interest in freedom of action and the plaintiff’s interest in freedom from harm, and this at least provides a 64 Holdsworth (1939), 43.