I think that before you studied unjust enrichment, the answer would have been obvious to you too. No doubt the reason is capable of elaboration in words if some purpose were served by it. But what we are discussing is whether digesting the "unjust enrichment" theory has made our under- standing of the legal system better (as you contend) or worse (as I contend). If it were *not* obvious to a particular person that the money should be returned, why should they be any more convinced on hearing that the return was mandated by some "principle of unjust enrichment" ?

By the way, how *do* you explain the fact that when a criminal conviction is quashed, we let the defendant out of jail ? Is that "unjust enrichment", too ? And what would you say to someone who didn't find it obvious that he should be let out ?

The Germans would, I think, say 1. We say 2. In either case, the claim is one where the law raises a right of recovery in order to prevent the defendant being unjustly enriched.

The English legal system got by for most of its history without invoking the idea of "unjust enrichment". How does describing it as "unjust enrichment" improve our understanding of it ? Or are you falling back on saying that *that* is obvious ?

The mere fact that the older cases mentioned by Charles Mitchell did not use the words "unjust enrichment" hardly vindicate Hedley's view that the cases had nothing to do with that well-recognised (though only recently articulated) principle.

I am afraid that in a precedent-based system, the "mere fact" that the concept is not mentioned cannot be dismissed so easily. You should be more wary of citing cases for propositions which were not mentioned in them. I realise that some introductory textbooks cite Moses v. Macfarlane as providing some support for the theory of unjust enrichment, but that argument is a rather tortuous one. It is wrong to cite the case as if it provided unequivocal support for the theory; the "mere facts" are against this.

So we return to the point at which we started. I say that the right of recovery is raised by the law in order to reverse the defendant's unjust enrichment. He says that the explanation of the obligation is so obvious it does not need explaining.

Isn't it interesting that you keep on attacking me for saying it is obvious, yet you don't deny that it *is* obvious ?

I say again : If it were not *already* obvious to a given person that the money is recoverable, how would a reference to "unjust enrichment" help ? Bear in mind, in answering, that most people who talk about "unjust enrichment" are not making a moral judgment, but merely saying that the enrichment is reversible. What, then, does "unjust enrichment" add ?

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
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