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I agree with Andrew. The court treated the question of injustice as essentially discretionary:

'Defining a given situation as either just or unjust is subjective and not necessarily open to a clear and decisive answer; as one court explained, "[t]he notion of what is or is not 'unjust' is an inherently malleable and unpredictable standard." ... '

In deciding this issue, the main factors in the defendants' favour seem to have been:

* that they did not act improperly; and

* that they had suffered considerable losses at Network's hands.

But this was apparently outweighed by the points that:

* they had not paid Network on this particular contract; and

* their losses 'were "soft" losses of additional profits they might have made, rather than quantifiable losses (due, for example, to theft)'.

I would be very surprised if an English court had as much, or indeed any, sympathy for the plaintiff. Both parties voluntarily gave credit to an individual who turned out to be a fraudster. Both lost as a result. There is nothing to show that the defendants were any more at fault than the plaintiff. And the defendants can only be presented as having 'gained' by arbitrarily confining our attention to the transactions the plaintiff seeks to focus attention on; overall, the defendants lost considerably, as the court acknowledged. I do not understand the argument about the type of loss; but then I have never understood the argument that a claim to redress an unjust enrichment is more worthy or deserving than a 'merely' contractual claim.

At 15:11 28/01/02 +0000, Andrew Tettenborn wrote:

My instinct is that this must be wrong. Isn't the answer here the fact that there's nothing unjust about BSI's enrichment? The first reason, which is admittedly controversial, is that there's nothing wrong about accepting a benefit from someone who took the risk of a third party's solvency. But quite apart from that, we have here a provision of Ohio law that allows the employer of a dishonest agent to keep his services for nothing. That may or may not be a good thing (no doubt in England some trumpery argument might be raised against it on human rights grounds and the Wilson case). But surely the effect of such a law is to legitimise BSI in paying nothing, even Reisenfeld's share, for the benefit of having got a tenant for the K mart store.