Research Handbook on Unjust Enrichment and Restitution
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Research Handbook on Unjust Enrichment and Restitution

Edited by Elise Bant, Kit Barker and Simone Degeling

This comprehensive yet accessible Research Handbook offers an expert guide to the key concepts, principles and debates in the modern law of unjust enrichment and restitution.
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Chapter 10: Unjust enrichment and the forms of justice

Dennis Klimchuk

Abstract

This chapter examines a property-based form of ‘corrective justice’ underpinning the law of unjust enrichment, based on the idea that the defendant must make restitution because, even though he is now the legal owner of the money, the ‘moral’ title to it still belongs to the plaintiff. This property-based theory might explain why the defendant has a direct responsibility to pay back the money to the plaintiff. The chapter, however, also considers a different possibility, which is that the normative basis of unjust enrichment is not corrective, but rather a form of localised distributive justice that requires restitution from the defendant. If the defendant is not a ‘doer’ of any injustice such that corrective justice requires repayment, then perhaps restitution is required just because this is the fairest way of distributing the plaintiff’s loss between the plaintiff and the defendant, given the defendant’s surplus and the plaintiff’s unfortunate mistake. The key point about any distributive justice analysis is that the money in the defendant’s possession can be allocated between the plaintiff and the defendant in accordance with a criterion (fairness, autonomy, or other value) that has nothing to do with whether or not the defendant did an injustice to the plaintiff in receiving it. This ‘localised’ form of the distributive justice argument, in contrast to other types of distributive justice argument that focus on creating fairness between broader groups, is that it can still explain the bipartite form of litigation. It can explain why only the defendant is an eligible candidate to pay the plaintiff, not, for example, some wealthy passer-by.

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