Date: 2014
Type: Article
Unjust factors or legal ground? : absence of basis and the English law of unjust enrichment
European journal of legal studies, 2014, Vol. 7, No. 2, pp. 109-127
NEUMAYER, Nathalie, Unjust factors or legal ground? : absence of basis and the English law of unjust enrichment, European journal of legal studies, 2014, Vol. 7, No. 2, pp. 109-127
- https://hdl.handle.net/1814/34389
Retrieved from Cadmus, EUI Research Repository
Traditionally, there are two main approaches to enrichment by transfer, the common law ‘unjust factors’ approach and the civilian ‘absence of basis’ approach. In the aftermath of the so-called ‘swaps cases’, Peter Birks proclaimed the dethronement of the unjust factors in the English system, said that English law has embraced a German-style absence of basis approach, and proposed a new system of unjust enrichment. This article proceeds in two steps. Firstly, it asks whether one of the two systems is superior to the other. Concluding that the ‘absence of basis’ approach may be conceptually clearer, it then argues that the English system should nonetheless be careful to adopt this approach for two reasons. First, this new approach may not be suited to neighbouring fields of law (especially contract), and secondly, unjust enrichment does not occupy the same place in the legal landscape in Germany and England, it is of a different normative quality.
Additional information:
Published online: 08 January 2015
Cadmus permanent link: https://hdl.handle.net/1814/34389
ISSN: 1973-2937
External link: https://ejls.eui.eu/
Publisher: European University Institute