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 16: Impaired intention unjust factors?

Mindy Chen-Wishart and Rory Gregson


This chapter critically examines the foundations for the general consensus that impaired intention plays an important role in justifying some cases of restitution for unjust enrichment, such as mistake, incapacity, duress, undue influence, non-commercial guarantees, unconscionable bargains, and legal compulsion. According to this explanation, an unjust factor is a reason why the defendant’s enrichment is unjust, while an impaired intention unjust factor locates that reason in the impairment of the plaintiff’s intention to enrich the defendant. Contrary to this general position, the chapter contends that within the impaired intention unjust factors themselves, the law takes into account more than just the plaintiff’s impaired intention. Indeed, with the unjust factors of undue influence, non-commercial guarantees, unconscionable bargains, and legal compulsion, impaired intention plays little or no role at all. In undue influence and non-commercial guarantee cases, restitution is awarded to protect the social form of trusting relationships. In unconscionable bargain cases, restitution is justified by the protection of vulnerable parties from oppressive transactions. In legal compulsion cases, the law looks to distribute properly the burden of a common liability. The chapter identifies a need to develop a pluralist taxonomy which is realistic and respectful of the norms and realities of the position and relationships of the parties. The analysis has implications for the content and unity of the law of unjust enrichment as conventionally conceived.

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