Unjust Enrichment Essay Questions

Unjust Enrichment Essay Q

Is the law of unjust enrichment better viewed as ‘quasi-contract’ after all?

Approach 1: UE can address the issues in a more honest way.

• Quasi-contract came from implied contract theory. It is a tool used by the court to cater for cases that cannot directly apply contact theory.

• It is not real but a legal fiction. In contract theory, contract is formed by mutual agreement of two parties. In implied contract theory, no one believes that there is such a contract.

• However, this implied contract theory was applied to cover many areas, almost all of the areas that UE is covering.

• ICT appeared naturally. Historically, the only available, popular and acceptable set of law to resolve dispute is contract law. Although there are cases that have no contract in existence, the court tried to create or assume that there is an implied contract or quasi-contract between or among parties. With such, the court can apply principles in contract law to resolve disputes of these cases.

• As time goes by, the world changed. The cases became more complicated. The varieties of cases increased in number. The lawyers became more sophisticated. Such fictional tool could no longer serve the purpose well. The arguments of the ICT were not so convincing and accepted to court as well as the general people. In 1996, the House of Lord began to reject ICT.

• With pushing down the old traditional approach, we could have chance to revisit the whole situation again to find a better tool to handle those areas uncovered by CT and it arose UE.

• UE is a more honest way to address this sort of matters. We break down into three requirements D’s enrichment, P’s expense and D’s unjust acts on D. It has course of action. Since the arguments are not riding on a fiction contract, they are more honest and closer to reality. They are easier to be understood. Judge can derive decision with better clarity. The Ps and Ds, the lawyers can accept more comfortably. Since it is more transparent, clearer, more predictability, more reliable and more certainty, the process can be more secure and people will have more confidence on it. The outcome will be more acceptive.

• From these, UE is better than QC for addressing these kinds of matter (to find out a way to describe these kinds of matters).

Approach 2: Overlaps and Gaps between UE and CL

• Historically, because of its origin and purpose of development, UE ties closely to the CL. It is so close that they even use the same language. There are lots of terms commonly appear in UE as well as CL.

• Among them, some of them carry the same meanings, such as duress, undue influence and unconscionable conduct. They are perfectly matched in both sides.

• However, some of them use the same terminology but carry different meanings in both sides, such as mistake. The meaning of mistake in UE is broader and that in CL is narrower. For example, mistake can be generally unilateral in UE while mistake in CL must be either bilateral or unilateral with the other side known beforehand.

• Besides, there are some terms only appear in one side and are absent in the other side. For example, legal compelling, necessity, ultra vines appear in UE but not in CL. Frustration appears in CL but not in UE.

• Two different sets of law, but with close relationship with each other, plus a very confusing set of terminologies (some sharing the term and meaning some sharing the term but not sharing the meaning, some not sharing both). Such confusion is not desirable. It will create misinterpretation or difficulties in communication. It will slow down its development.

• To resolve this, there may be several ways:

o Tidying up

 Keep the perfect overlaps – i.e. same terms with same meanings, same tests;

 Clear up the imperfect overlaps – use different terms for different meanings and tests;

 Should we revisit if those unjust factors which appear in UE should also be considered in CL?

o Should we limit the scope UE to be just as the remedy of the 2nd part of CL (i.e. the part after contract torn off, no contract and therefore cannot use CL but UE.) Treating UE is another remedy of CL (or remedy of this part of CL)?

Furthermore,

• Should we also consider the less explored areas such as necessity, gift and ultra vires with the unjust factors