• This is a type of obediential or involuntary obligation implied by law.
• It arises ex lege and imposing an obligation to pay or perform.
• It resembles both delict and contract to an extent
• It is also known as quasi-contract (‘as if’)
• Although there is no contract, the parties stand in much the same position ‘as if’ they had
voluntarily contracted.
• Consent is not needed.
• It differs from an implied contract where the law implies consent.
• It is justified in the interests of EQUITY.
Roman Law Origins
• The concept emerged under Roman Law
• Roman Law provided that where a person had been unjustifiably enriched at the expense of
another person, there was an obligation for the enriched person to restore the enrichment
to the other.
• Western society encourages individuals to become richer but draws the line at doing so by
dishonest or criminal behaviour.
• Scots Private Law recognises that some forms of enrichment, whilst not actually criminal,
arise in contexts where it is justifiable to impose an obligation on the unjustifiably enriched
person to pay back the enrichment to the person at whose expense it was gained.
Unjust enrichment and Equity
• Unjust Enrichment probably developed in Scots law because the concept of equity is not as
firmly entrenched in the Scots legal system as it is in the English legal system.
• Historically in English law, equity and the common law developed alongside each other and
the relationship between the two was clarified by the rule derived from:
The Earl of Oxford’s Case (1615) 1 Rep Ch 1
• This case was an important landmark because it clarified that in situations where common
law and equity are in conflict, equity prevails.
• The development of Scots law was influenced more by continental civil law systems and
hence looked to Roman law to provide answers to situations arising where there was no
other remedy available.
, EU Law
• “A person who obtains an unjustified enrichment which is attributable to another’s
disadvantage is obliged to reverse the enrichment.”
Draft Common Frame of Reference (DCFR) VII.- 1:101
General Principle
• Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem.
• "For this by nature is equitable, that no-one be made richer through the loss of another.”
Pomponius (quoted in Digest 12.6.14)
Example:
• The Bank of Lothian accidentally credits Julie Brown’s account with £100,000. They meant to
credit Julie Black’s account. Under this principle, Julie Brown would not be entitled to keep
the money. She has been unjustifiable enriched by the bank’s error.
Three key concepts
• Enrichment of one party (defender)
• At the expense of another party (pursuer)
• Unjustified for the first party to retain the enrichment
Categories of Obediential Obligation
• Historically to be successful in an action for unjust enrichment actions had to fall within a
defined category of enrichment.
• In Scots Law, the three main quasi-contractual obligations to offer remedies were the three
‘R’s: Repetition, Restitution and Recompense.
• Recently the courts have adapted their approach to permit a more flexible approach
• Courts now look at the events that might have triggered possible liability to make
recompense.
Enrichment and other types of loss
• Enrichment is all about a loss of one person which benefits another.
• It can therefore be distinguished from delict which is about loss caused by another’s
wrongful act.
• There are also some types of loss that are caused by trying to help another.
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