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Vol 22 No 11 Nov/Dec 2017

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The Law of Contract Damages

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Enrichment at the Claimant's Expense: Attribution Rules in Unjust Enrichment


ISBN13: 9781782258391
Published: October 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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+ £10.00 VAT

This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties - a claimant and a defendant - are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'.

The book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss.

These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms.

The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions.

A counterfactual test - asking whether enrichment and loss arise 'but for' each other - provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.

Subjects:
Restitution
Contents:
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS
TABLE OF CASES
TABLE OF LEGISLATION

INTRODUCTION
1. (A) AIM
2. (B) METHODOLOGY
(1) Common law reasoning
(2) A unifying legal concept
(C) NORMATIVITY
(D) STRUCTURE
(E) LIMITS

PART I: DEFINING ENRICHMENT & LOSS
CHAPTER 1: THE EXCHANGE CAPACITY
(A) CORRECTIVE JUSTICE
(1) Corrective justice and unjust enrichment
(2) The limits of corrective justice
(B) DEBUNKING TRANSFER OF VALUE
(C) VALUE AND EXCHANGE
(1) The necessity of exchange
(2) Formal to substantial
(3) Adjustment to money
(D) WHAT INTEREST ENGAGES UNJUST ENRICHMENT?
(1) The exchange capacity
(2) Freedom of will
(3) Quantification
(E) THE REMEDY FOR UNJUST ENRICHMENT
(1) Personal restitution
(2) Specific restitution
(a) Additional considerations
(b) Judicial reliance
(F) ENRICHMENT AND LOSS
CHAPTER 2: ENRICHMENT
(A) TWO KINDS OF ENRICHMENT
(B) ENRICHMENT AND THE EXCHANGE CAPACITY
(1) Factual enrichment and the exchange capacity
(a) Subsequent exchangeability
(b) Subjectivity of value
(i) Subjective devaluation
(ii) Subjective revaluation
(2) Legal enrichment and the exchange capacity
(a) Legal enrichment by acquisition of a right
(b) Legal enrichment by release of an obligation
CHAPTER 3: LOSS
(A) MUST THE CLAIMANT SUFFER A LOSS?
(1) Initial, not persisting, loss
(2) Different kinds of loss
(3) Loss and the exchange capacity
(4) Loss and opportunity
(B) IS RESTITUTION 'CAPPED' BY LOSS?
(1) 'Loss correspondence' and the exchange capacity
(2) 'Capping' and the exchange capacity

PART II: CONNECTING ENRICHMENT & LOSS
CHAPTER 4: CONNECTIONS
(A) SINGLE CONNECTIONS
(1) Acquisition of a right
(2) Discharge or release from an obligation
(3) Use of property
(4) Performance of a service
(5) Satisfaction of a request
(B) MULTIPLE CONNECTIONS
(1) Sequential connections: C to X to D
(2) Concurrent connections: C to X for D
(3) Interceptions: X to D, instead of C
CHAPTER 5: GENERALISATIONS
(A) TRANSFER
(1) The limits of transfer
(2) The taxonomical role of transfer
(B) CAUSAL AND COUNTERFACTUAL ANALYSES
(1) Non-causal counterfactuals
(2) Causal direction
(3) Counterfactual inquiry
(4) Limiting the counterfactual
(C) COUNTERFACTUAL INQUIRY AND THE EXCHANGE CAPACITY
CHAPTER 6: TRANSACTIONS
(A) FOLLOWING AND TRACING
(B) THE NATURE AND RATIONALES OF TRACING
(1) The nature of tracing
(a) Identification and justification
(b) Justification distinct from claiming
(c) Uniform rules of identification
(2) The rationales of tracing
(a) Tracing in equity
(b) Tracing at common law
(C) TRACING AND UNJUST ENRICHMENT
(1) Common law claims
(2) Equitable claims
(D) TRANSACTIONS AND THE COUNTERFACTUAL INQUIRY
(1) Transactions are sufficient, but not necessary
(2) Non-counterfactual transactions
(3) Counterfactual connection is the test of attribution
(E) TRACING AND PROPRIETARY RESTITUTION

PART III: QUALIFYING LIABILITY
CHAPTER 7: QUALIFICATION
(A) CONTRACT
(1) Contract bars recovery
(2) Contract conditions recovery
(3) Contract and the exchange capacity
(B) PROPERTY
(1) Services and marketable residua
(2) Property and the exchange capacity
(C) EQUITY
(D) INSOLVENCY
(E) ABANDONMENT
(F) PRAGMATIC CONSIDERATIONS
(G) GENERALISATION

CONCLUSION
BIBLIOGRAPHY

Series: Hart Studies in Private Law

Resulting Trusts ISBN 9781849465489
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