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

by Eli Ball

Overview

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'. This 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.

Product Details

ISBN-13:	9781509928880
Publisher:	Bloomsbury Academic
Publication date:	04/18/2019
Series:	Hart Studies in Private Law
Edition description:	Reprint
Pages:	256
Product dimensions:	6.14(w) x 9.21(h) x 0.53(d)

About the Author

Eli Ball is a Solicitor at Ashurst in Sydney, Australia. He was formerly a Lecturer in Law at Magdalen College and St John's College, Oxford.

Table of Contents

Foreword Justice James Edelman vii

Acknowledgements ix

List of Abbreviations xv

Table of Cases xvii

Table of Legislation xxiii

Introduction 1

A Aim 1

B Methodology 1

1 Common Law Reasoning 3

2 A Unifying Legal Concept 6

C Normativity 11

D Structure 13

E Limits 15

Part I Defining Enrichment and Loss

1 The Exchange Capacity 19

A Corrective Justice 20

1 Corrective Justice and Unjust Enrichment 20

2 The Limits of Corrective Justice 24

B Debunking Transfer of Value 25

C Value and Exchange 26

1 The Necessity of Exchange 29

2 Formal to Substantial 30

3 Adjustment to Money 32

D What Interest Engages Unjust Enrichment? 35

1 The Exchange Capacity 36

2 Free Will 38

3 Quantification 43

E The Exchange Capacity and Liability for Unjust Enrichment 43

F The Remedy for Unjust Enrichment 44

1 Personal Restitution 45

2 Specific Restitution 46

a Additional Considerations 46

b Judicial Reliance 48

G Enrichment and Loss 50

2 Enrichment 52

A Two Kinds of Enrichment 52

B Enrichment and the Exchange Capacity 54

1 Factual Enrichment and the Exchange Capacity 56

a Subsequent Exchangeability 57

b Subjectivity of Value 62

i Subjective Devaluation 63

ii Subjective Revaluation 66

2 Legal Enrichment and the Exchange Capacity 70

a Legal Enrichment by Acquisition of a Right 71

b Legal Enrichment by Release of an Obligation 73

3 Loss 77

A Must the Claimant Suffer a Loss? 77

1 Initial, not Persisting, Loss 78

2 Different Kinds of Loss 80

3 Loss and the Exchange Capacity 82

4 Loss and Opportunity 86

B Is Restitution 'Capped' by Loss? 89

1 'Loss Correspondence' and the Exchange Capacity 90

2 'Capping' and the Exchange Capacity 93

Part II Connecting Enrichment and Loss

4 Connections 99

A Single Connections 99

1 Acquisition of a Right 99

2 Discharge or Release from an Obligation 103

3 Use of Property 104

4 Performance of a Service 105

5 Satisfaction of a Request 108

B Multiple Connections 108

1 Sequential Connections: C to X to D 109

2 Concurrent Connections: C to X for D 114

3 Interceptions: X to D, instead of C 116

5 Generalisations 120

A Transfer 120

1 The Limits of Transfer 121

2 The Taxonomical Role of Transfer 122

B Causal and Counterfactual Analyses 124

1 Non-causal Counterfactuals 126

2 Causal Direction 127

3 Counterfactual Inquiry 128

4 Limiting the Counterfactual 134

C Counterfactual Inquiry and the Exchange Capacity 140

6 Transactions 143

A Following and Tracing 144

B The Nature and Rationales of Tracing 145

1 The Nature of Tracing 146

a Identification and Justification 147

b Justification Distinct from Claiming 148

c Uniform Rules of Identification 149

2 The Rationales of Tracing 150

a Tracing in Equity 151

b Tracing at Common Law 153

C Tracing and Unjust Enrichment 158

1 Common Law Claims 160

2 Equitable Claims 163

D Transactions and the Counterfactual Inquiry 167

1 Transactions are Unnecessary 167

2 Non-counterfactual Transactions 171

3 Counterfactual Connection is the Test of Attribution 173

E Tracing and Proprietary Restitution 176

Part III Qualifying Liability

7 Qualification 181

A Contract 182

1 Contract Bars Recovery 182

2 Contract Conditions Recovery 186

3 Contract and the Exchange Capacity 188

B Property 191

1 Services and Marketable Residua 191

2 Property and the Exchange Capacity 196

C Equity 198

D Insolvency 203

E Abandonment 204

F Pragmatic Considerations 205

G Generalisation 207

H Expansion and Contraction 209

Conclusion 211

Bibliography 215

Index 223