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My thought would be that there is no answer of principle to this question, but everything turns on a matter of inference as to the intention of the legislature. I recently wrote something which included this passage:

"Frequently the law of unjust enrichment reverses the effects that seem to be dictated by other parts of the law. In a mistaken payment, for example, the law of property says that the money belongs to the payee. Restitution for unjust enrichment reverses this. It must be right that this happens sometimes; it is the function of unjust enrichment. Unjust enrichment seems to contradict the disposition given by property law, but the contradiction is not significant because unjust enrichment is not undermining any significant policy that the property disposition protects. The property disposition makes it clear that the defendant has been enriched, and the disposition might have important implications for third parties, but it is not undermined by the existence of an obligation to make restitution of an equivalent sum. Sometimes, however, the legal disposition that creates the defendant's enrichment goes beyond that role, and also provides a legal justification for the enrichment. For example, if the plaintiff enriches the defendant by providing building services, but the contract is void due to a lack of formality, there is a serious question whether the disposition that makes the contract void should also go further and exclude any claim in unjust enrichment.

It is largely a matter of inference to determine on which side of the line a particular case falls. This phenomenon has been particularly noticed in the literature as regards illegal and unenforceable transactions, but in fact it is a general concern. It particularly applies to defective wills. The law of wills identifies, as a matter of form, what counts as the testator's intentions as to the disposition of his property. This can lead to the enrichment of the "wrong" beneficiaries. If it be proven that the testator had changed his mind before death, we might think that the enrichment was unjust. But a contrary argument would be that the legislative decision about the form of wills goes beyond determining who gets the property (in a way which might be reversed by a claim in unjust enrichment), and actually implies that this person or persons get the benefit in a way that the law of unjust enrichment is not to reverse."

Comments welcome. I think the Germans have got somewhat further along this analytical road than the common lawyers.

So in the case posited by Benedict White, it is not enough to say that B did not intend to enrich D, nor is quite enough to say that D's enrichment is justified by the Act. We have to figure out (almost certainly as a matter of inference) whether the statutory disposition which gives the result that D is enriched was intended also to proof that enrichment against the kind of claim B wants to make. The same thing happens when a person mistakenly discharges a mortgage and promotes a subsequent mortgagee. The statute clearly says the subsequent mortgagee now has priority. The Ontario CA has said this provision is not intended to oust a claim in ue and does not do so.

Lionel

At 01:03 PM 17/7/02 +0000, Benedict White wrote:

Isn't D's enrichment justified by the terms of the Housing Act?

There are two housing acts which have some effect, the 1985 and 1988 acts. D had the benefit of the property transferred to him by C as a result of a consultation process in which A took part. In order for the transfer to take place a majority of tenants had to vote yes. This led to a tenancy agreement which gave B rights in the event of A's death and so had provisions in it made with B specifically in mind. These terms are above and beyond the statutory rights under the 1988 act which then governed most of the provisions of the tenancy. So in that sense no D is not justified under the housing act.