Unjust Enrichment

Unjust Enrichment is a term in English common law which is splendidly clear but not a matter of criminal law. Thus it sidesteps the nausea of proving criminal intent, beyond all reasonable doubt. Making the direct connection between the loot and the lack of value is the way to go. It is strangely unpopular in legal goings on. It is related to Unconscionability and somewhat to Quantum meruit, the amount merited.

When lawyers get there to muddy the waters it changes sad to say. It is a good basis for getting a grip of corrupt politicians like Blair who walk away and get rich suddenly. It would not be necessary to prove that the pay offs are post dated bribes which would make it easier and discourage others of the same ilk. Undue influence comes from being the prime minister for example. A counterpoint is Quantum meruit, the amount merited.

Determination of liability
Liability under the principle of unjust enrichment is wholly independent of liability for wrongdoing. Claims in unjust enrichment do not depend upon proof of any wrong. Claims are based on these questions:-

1. Was the defendant enriched?

2. Was the enrichment at the expense of the claimant?

3. Was the enrichment unjust?

4. Does the defendant have a defence?

5. What remedies are available to the claimant?

Was the enrichment unjust?
There are two established approaches to this issue. Traditionally, common law systems such as those of England and the US have proceeded on the basis of what may be termed the ‘unjust factor’ approach. Traditionally, civil law systems such as those of France and Germany have proceeded on the basis of what may be termed the ‘absence of basis’ approach. More recently, many common law systems have showed signs of a possible move towards the ‘absence of basis’ approach (see for example the law of North Dakota in the section on the United States below). Both approaches will be discussed.

The ‘unjust factors’ approach requires the claimant to point to one of a number of factors recognized by the law as rendering the defendant’s enrichment unjust. English law clearly recognises at least the following unjust factors:

1. Mistake of fact

2. Mistake of law

3. Duress

4. Undue influence

5. Total failure of consideration

6. Miscellaneous policy-based unjust factors such as ‘withdrawal within the locus poenitentiae’

It is at least arguable that English law also recognizes the following unjust factors, but some controversy surrounds each:

1. Ignorance/powerlessness

2. Unconscionability

3. Partial failure of consideration

4. Absence of consideration

‘Absence of consideration’ is particularly controversial because the cases that support its existence as an unjust factor can also be used to support the view that English law has begun to favour the ‘absence of basis’ approach (see next paragraph).

 

English Unjust Enrichment Law
Unjust enrichment is splendidly clear. The English law version may well muddy the waters in order to make lawyers richer; their own lucrative approach to enrichment.