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Vol 23 No 6 June/July 2018

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Data protection handbook

Unjust Enrichment and the Law of Contract

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Edited by: E. J. H. Schrage

ISBN13: 9789041116550
ISBN: 9041116559
Published: November 2002
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £146.00

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Increasingly, in both common law and civil law jurisdictions, lawyers are seeking to formulate a law of restitution that can provide a reliable remedy in unjust enrichment actions. This pursuit has generated renewed interest in how the law of obligations should be divided. The movement can be seen as both a product of the recent calls for, and recognition of, an English law of restitution and a consequence, in civil law jurisdictions (where traditionally taxonomy has been taken far more seriously), of the modern quest for a general remedy which will overcome the widely-felt disadvantages of existing alternatives.

This collection of essays is concerned with these modern developments. It identifies what constitutes unjust enrichment at the plaintiff's expense, and its available remedies, in a number of jurisdictions. Authors explore the boundaries between the law of restitution, the law of torts and the law of contract. Their analyses reveal how the principle of restitution has permeated, hesitatingly at first and then with greater force, on a case-by-case basis, not only private law but also administrative law, criminal law and other branches of the law.

In the final analysis, unjust enrichment proves to be anything but a Trojan horse smuggled into the well-built structure of the law of obligations; it is a fully-fledged course of action deserving an appropriate and satisfactory remedy. Scholars and jurists from 13 countries met in Amsterdam on 18-20 October 2000, for a conference commemorating the late Professor Marcel Henri Bregstein (1900-1957). This book, which presents revised versions of the papers read during this conference, seeks to clarify the status and primary trends in this important area of legal theory and practice.

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Contract Law
Unjust enrichment - a historical and comparative overview from a European perspective, E.J.H. Schrage; memories of Marcel Henri Bregstein (1900-1957), H. Ankum; unjust enrichment alongside contracts and torts, A.S. Hartkamp; unjust enrichment in English law, D. Ibbetson; Austrian law of unjust enrichment, M. Lehmert, M. Rainer; restitution and mistaken payments, M.W. Scheltema; current questions in the German law of enrichment, M.J. Schermaier; the position of third parties in enrichment law, H.C.F. Schoordijk; unjust enrichment - the relative value of statutory provisions, W. Snijders; unjust enrichment in the relation government and citizen, I.C. van der Vlies; the policy against accumulation as an unjust factor, S. Degeling; restitutionary and disgorging proprietary awards for wrongs, J.J. Edelman; lex rhodia and unjust enrichment, V. Heutger; disgorgement for breach of contact - the search for a principled relationship, M. McInnes; restitutionary claims arising on contractual termination, P. Jaffey; compensation for improvements by tenants in South African law - some historical and comparative considerations, C.M. Jooste; unjust enrichment as a criminal law conception; retribution as restitution for victims of crime, H.J.R. Kaptein; the mutual offence against law and public policy under section 817 sentence 2 civil code, B.R. Kern; stable claims and stable defences - change of position and disenrichment in England and Germany, T. Krebs; unjust enrichment and insurance, F.H.J. Mijnssen; the interface between state aid, unjust enrichment and private international law, B.J. Rodger; restitution and maritime law, F.D. Rose; keeping it simple - New Zealand's code of contractual mistake, R. Sutton, jurisdiction over a claim for restitution of benefits conferred under a void contract - under the Brussels Convention, K. Takahashi; comment on the development of the Institution of Unjust Enrichment (contribution of Brno Law School to the Institution of Unjust Enrichment), R. Vesela; the relation of unjust enrichment to other concepts, S.M. Waddams; unjustified enrichment and obligations to undo a received prestation, H.W. Wiersma; some remarks on substitution of property and unjust enrichment in European legal history, L. Winkel.