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Vol 21 No 11 Nov/Dec 2016

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Criminal Injuries Compensation Claims

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Unjust Enrichment in Commercial Law

Edited by: Simone Degeling, James Edelman

ISBN13: 9780455225043
Published: October 2008
Publisher: Thomson Reuters Australia
Country of Publication: Australia
Format: Hardback
Price: £188.00



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This new book is in the tradition of Equity in Commercial Law, earlier essays also edited by Degeling and Edelman. Writing of the earlier book in the Modern Law Review, Kit Barker said: “The vigorous debates which rage throughout the book about the role of equity in commerce are…not simply historic and abstract, but concrete, salient and imminently important…There can be no doubt that this book refines and redefines the debate about fusion in commercial law and beyond. It is fascinating throughout not least because of the difficulty and intensity of the controversies that it addresses.”

This superb collection of essays from the world’s leading minds offers insight into a difficult area in commercial law. The authors include judges from the House of Lords, High Court of Australia, intermediate Australian appellate courts, leading practitioners and professors of law from all across the Commonwealth.

As Lord Rodger writes in his chapter, unjust enrichment “is little over 40 years old…we are still groping for a satisfactory analysis of the law of negligence 75 years after Donoghue v Stevenson…The analysis of unjust enrichment will [likewise] mature further over the coming decades and generations”. This book, spanning many of the controversial issues at the cutting edge of unjust enrichment, is an indispensable guide through this area of law for all commercial practitioners.

Edited by Drs Simone Degeling and James Edelman, the book draws on papers presented at the Restitution in Commercial Law Conference in Sydney in August 2007.

Subjects:
Commercial Law, Restitution, Australia
Contents:
INTRODUCTION
James Edelman and Simone Degeling
PART I: THE NATURE AND THEORY OF UNJUST ENRICHMENT
Robert Stevens
Is there a Law of Unjust Enrichment?
Lionel Smith
Unjust Enrichment: Big or Small?
Adrian Briggs
Misappropriated and Misapplied Assets and the Conflict of Laws
PART II: ENRICHMENT
John McGhee
The Nature of Enrichment Inquiry
Steve Hedley
Enrichment
PART III: AT THE EXPENSE OF THE CLAIMANT
Mitchell McInnes
Hambly v Trott and the Claimant’s Expense: Professor Birks Challenge
Charles Mitchell
Liability Chains
Graham Virgo
Causation and Remoteness within the Law of Unjust Enrichment
PART IV: UNJUST FACTORS
James Edelman and Simone Degeling
What is an Unjust Factor?
Marilyn Warren
Mistake and Unjust Enrichment—The Double Life of the Law and its Progress
Carmel McLure
Failure of Consideration and the Boundaries of Restitution and Contract
Kenneth Hayne
Anticipated Contracts that Fail to Materialise
Robert Chambers and James Penner
Ignorance
Keith Mason
Economic Duress
Michael Bryan
Unconscionable Conduct as an Unjust Factor
Alan Rodger
An Introduction to Sempra Metals Ltd
PART V: PROPRIETARY REMEDIES
Andrew Burrows
The Relationship between Unjust Enrichment and Property: Some Unresolved Issues
William Swadling
Policy Arguments for Proprietary Restitution
PART VI: DEFENCES
John McCamus
Wrongful Conduct and Change of Position
Bret Walker
The Defence of Illegality to a Claim in Unjust Enrichment
Peter Watts
Imputed Knowledge in Restitutionary Claims—Rationales and Rationes