The difficulty is - and has always been - that the more "scientific" aspects of unjust enrichment are at war with the more "moral" aspects.  Up to a point that tension is always present in law, but it is particularly noticeable here. 

The question is, precisely where in the doctrine we allow the justice or injustice of the claim to have some weight.  A natural place might be in the "unjust" enquiry - but the current theory does not allow for this, merely reducing the "unjust" requirement to a bland list of situations where recovery has been allowed in the past ("unjust factors"), or alternatively to a list of situations where it has not ("just factors"). 

Another approach would be for the judges to to allow the justice of the case to influence them on a more free-wheeling basis, modifying doctrinal requirements on a case-by-case basis.  Up to a point judges actually do this, but it annoys the hell out of the more "scientific" theorists, who note that this either means giving the elements of their doctrine different meanings in different contexts, or explicitly recognising restitution as a discretionary remedy - both of which they regard as unacceptable. 

The underlying problem (as many are now pointing out) is that the topics usually assigned to "the law of unjust enrichment" are rather diverse, and the nature of the injustices it addresses are similarly diverse, even where they can be clearly stated at all (which in some instances is surprisingly difficult). Some draw the conclusion that this makes the area almost uniquely inappropriate for the more "scientific" techniques.  Others think it is salvageable. The debate continues. 

Steve Hedley

9thlevel.ie

private-law-theory.org

ssrn.com/author=32978

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Robert MacKenzie <rmlmackenzie@GMAIL.COM>
Sent: Friday, July 24, 2020 12:35 AM
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: [RDG] The Contribution To The Law of Restitution of Peter Birks

 

[EXTERNAL] This email was sent from outside of UCC.

The works of Peter Birks upon the law of restitution and the law of equity are pervaded by a thesis of the vital nature of the consideration of the law as constitutive of a science, of the vital nature of the restraint from the application in the law of convictions of morality, and of a proposition of the application in the law of convictions of morality as anathema to justice.

The amorality of the law of restitution is its most disturbing deficiency.

Robert MacKenzie, LL.B. (Manch.)

C.C.: Professor Laurence Tribe, Harvard Law School