Restitution: A New Perspective
Restitution: A new perspective provides a detailed critique of current and widely accepted theories seeking to unify the law of restitution on the basis of a principle of unjust enrichment. Commencing with a brief history of restitution, the book proceeds to illustrate the diverse legal problems addressed by the law of restitution. The legal doctrines now collected under this heading are demonstrated to have fulfilled a gap-filling role in our law, much like the diverse doctrines of equity have done. The book questions the underlying basis for unjust enrichment theories and demonstrates their inadequacy as descriptions and explanations of restitution. The book then sets out alternative methods of organising and rationalising the topics of restitution. The approach adopted rejects an explanation of liability in restitution on the basis of a defendant's unjust enrichment and thus challenges much of the current academic and judicial writing the in the field. Instead, the approach adopted is to emphasise the relevance of a defendant's conduct in determining the nature and extent of any liability imposed.
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A Brief History of Restitution
The Meaning of Unjust Enrichment
The Failure of Unjust Enrichment
Air Canada v British Columbia 1989 59 230
A New Perspective on Restitution
Breach of ContractLike or TortLike
The Consequences of Unprovided
146 Bath and Montagues Case 1693 3 Chanc
achieving fair outcomes agreement another's approach argued arise Australia basis Beatson Birks breach Burrows change of position circumstances claim common interest common law concept concern consequences consideration considered constructive trust context contract-like contribution courts debt defendant's conduct detrimental reliance doctrines duress duty economic advantage equity example Finn free acceptance Frustrated Contracts Act give rise Goff & Jones House of Lords Ibid identify imposed incurred innocent defendants intended intervener justifiable law of restitution liability rules Lord losses and benefits Mason & Carter mistake mistaken payment notion NSWLR NZLR obligation parties performance perhaps Pettkus plaintiff position defence possible Pty Ltd quantum meruit quasi-contract reasonable received recipient recovery relationship remedial response restitutio in integrum restitutionary remedy result sharing specific restitution Statute of Frauds Stoljar strict liability suggests tort-like transaction unconscionable unenforceable unjust enrichment theory utilised