Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

I have just finished reading Prof. Birks' very interesting article entitled: "Equity, Conscience, and Unjust Enrichment". Since the discussion group has been fairly slow recently, I thought that it might be appropriate to have a discussion on some portions of the article. The following are 4 questions/comments, which the I had about the article:

[I apologise in advance for any typographical errors. Moreover, it should be noted that I have not had the opportunity to read much of Prof. Birks' work. So I apologise if he has already answered any of these questions in any other book/article].

Question #1
I find Prof. Birks' classification of causative events (consent, wrongs, unjust enrichments, and other events) very interesting but perhaps I am missing something. Is this a taxonomy dealing with only the law of obligations? If not, where does one classify the title creating aspects of the law of property, such as first possession, within the taxonomy? Or does the taxonomy just take property for granted and move on from there? Where does Prof. Birks put breach of contract? In wrongs or consent?

Question #2
In his article, Prof. Birks criticises Prof. Jackman's conception of UE/restitution (which I have not read) because Jackman tries to use the concept of coherence to show that other "unjust factors" do not fit within the system. In response, Prof. Birks argues: "every wrong is a wrong for a slightly different reason, which is as much to say that each wrong rests on its own conception of justice. There are as many such conceptions as there are protected interests". He goes on to call the category of wrongs "heterogeneous".

My question, What does Birks mean by this? In my understanding there are only two conceptions of justice: Corrective and Distributive. Is Birks saying that each of the wrongs responds to different criteria of distribution? Or is he saying that each of the wrongs is but an instance of the idea of corrective justice doctrinally framed in slightly different manner. In other words, a manifestation of this central idea?

Question #3
This brings me to my third question. Why does Prof. Birks continue to use the concept of an "unjust factor"? Firstly, the category of unjust factors does not seem to encompass a logically unitary whole. For example, what does mistake have to do legal compulsion or failure of basis, besides the factual realisation that the courts have sometimes awarded restitution on these bases or the fact that they are grouped together in a leading casebook. Second, are some of the unjust factors really unjust in a traditional sense? For example, how can doing something you agreed to do (as in the surety example) be unjust? How is legal compulsion, that is compulsion sanctioned by the rule of law, unjust -- isn't that a contradiction in terms? As a person who believes "that rationality and justice go hand in hand" these problems surely give Prof. Birks reason for pause?

Third, aren't the majority of unjust factors accounted by, or instances/explanations of, the "Canadian civilian" concept of lack of juristic reason and the idea that non-consensual transfers of value must be given back. For example, mistake rather than being an "unjust factor" merely explains how a non-consensual transfer factually occurred. From my experience, the Canadian civilian concept is a much simpler and coherent explanation of the idea UE than that based on unjust factors.

In his article, Prof. Birks seems to retort that this conception of non-consensual transfer (as at least formulated by Jackman) can't account for the surety's ability to claim indemnity from a primary debtor. This may be right (I cannot say as I have not read the book) but there are logical views of the law that correspond to Birks classification of causative events that can explain the surety's right. For example, the Civil Law of Quebec posits that the right of the surety to sue for indemnity is based on contract and the logic of what it means to indemnify (this idea also seems to be elucidated in Mercantile Law Amendment Act as well). In light of this experience, one could argue that the surety's indemnity properly belongs to the Consent category, not to UE on the basis of some strange category (is it legal compulsion?) Before dismissing this consent characterization altogether, I would hope that Prof. Birks, as a professor of civil law, would demonstrate why this view of the situation is less persuasive/coherent/logical than the one he currently seems attached to.

On a similar note, it seems as if there have been persuasive arguments made to show why restitution for failure of consideration properly belongs in the same category as damages for breach of contract, rather than with UE. Since Prof. Birks has now acknowledged that restitution is multi-causal, these arguments at least require a demonstration as to why the orthodox position is more persuasive/coherent/logical way to order this area of law in the taxonomy.

Question #4
In his article, Professor Birks makes much of the problems of semantic bending. He rightly claims that restitution as a descriptive word is semantically bent, in that the authors who utilised the word never meant it to encompass all of what the word natural means. My question is, Why isn't "unjust enrichment" just as semantically bent as restitution? In my mind, unjust carries numerous natural meanings which the legal concept is not meant to describe (e.g., unfair, not moral, unconscionable). I am sure that very few of us mean to say that this area of law responds to intuitive fairness or that the judge should do distributive justice as between the parties when faced with a UE problem. Yet the term unjust enrichment tempts judges, especially Canadian judges, to view these types of situations as a problem of fairness or equity. Although I am hesitant to suggest another term, perhaps unjustified enrichment is more appropriate because it is narrower and attempts to focus the judge's attention on the private law, and non-distributive, reason justifying the retention of the enrichment. Which is seemingly, at some levels, what we are all speaking about.

Sincerely,

Jason Neyers