Edited by Elise Bant, Kit Barker and Simone Degeling
Chapter 8: Comparative taxonomy: an introduction
This chapter engages in a detailed, comparative examination of the way in which civilian and mixed jurisdictional systems have come to organise unjust (‘unjustified’) enrichment law and a helpful assessment of the extent to which civilian ideas have been received in common law systems and legal scholarship. Drawing extensively on the rich legal history and academic traditions of civilian systems, it depicts the complex taxonomy of unjust enrichment law in France, Germany, Scotland, South Africa and common law Canada, in each case detailing the way in which the current organisation has come about. The analysis demonstrates that the basic rules governing restitutionary recovery are often similar to those extant in common law systems (and often similar to those in other civilian jurisdictions too), although they are organised in subtly different ways. The chapter argues that civilian systems have recently been influential on the common law tradition in at least two, crucial ways – firstly, in persuading Peter Birks to abandon the traditional ‘unjust factors’ approach in favour of the ‘absence of basis’ approach; and secondly, in yielding a new wave of scepticism amongst common law writers about the extent to which it is possible to have a general unjust enrichment principle at all. On these issues, the chapter considers that, in light of its analysis, it is unlikely that approaches based ‘purely’ on unjust factors, or ‘absence of a basis’ will ultimately prove satisfactory: mixed approaches combining the analysis of both unjust factors and grounds for a defendant’s enrichment are most likely to capture the complexity of restitutionary causes of action. The chapter also explains that while civilian systems are often thought to be more strongly wedded to the recognition of general, abstract principles, recent trends in Germany have been in the opposite direction, so that it is now commonly thought important to recognise significant diversity within the field.
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