This book examines the role of unjust enrichment in the contractual context, defined as contracts which are (a) terminated for breach, or (b) subsisting, or (c) unenforceable. The book makes three claims in relation to the orthodox common law account of restitution (founded on unjust enrichment) in the contractual context. Firstly, the orthodox account correctly proceeds on the basis that the restitutionary claim in the contractual context is founded on an independent cause of action in unjust enrichment, rather than some equitable notion of unconscientiousness or the law of contract. Secondly, the book departs from the orthodox account by rejecting the unjust factors approach and endorsing the absence of basis approach for the law of unjust enrichment. Finally, the book argues that the right to restitution in the contractual context should be determined by the conditionality of the transfer of the benefit rather than a requirement such as the termination of the contract, as the orthodox account dictates.
To that end the book proposes the following model, under which the right to restitution in the contractual context is determined by the resolution of the following two questions: (1) Was the transfer of the benefit (eg of money or services) conditional? (2) Was there a qualifying failure of condition? A condition can be, and often is, the other contracting party's counter-performance, but it may also be an event not promised by either party. What qualifies as a failure of condition depends on the type of contract in question. This book identifies two types of contracts, namely those which are apportioned (eg instalment contracts) and those which are unapportioned. It is only in relation to the latter that termination is required. It is a particular strength of the book that it is underpinned by detailed and original historical analysis which makes a novel and distinct contribution to the history of the laws of unjust enrichment and contract. 'Dr Baloch has produced the definitive study of the inter-relationship between contract and unjust enrichment.
This has been achieved by carefully considering the historical roots of our common law, and how this is to be understood in its best light in the modern era.' Robert H Stevens, University College, London. 'Dr Baloch's exploration of the boundary between contractual and unjust enrichment liability in the 17th to 19th centuries has important things to say about the history of ideas of 'contract' in this period.' Mike Macnair, Oxford University. 'This is an innovative and rigorous book which engages with one of the most difficult areas in the law of unjust enrichment, namely the relationship between the law of unjust enrichment and the law of contract. Baloch roots his treatment of the modern law in its history and the historical analysis throughout is very careful and well grounded in the primary sources.' David Ibbetson, Cambridge University. 'This is a valuable book, thoughtful and well researched. It is concerned to build a model that fits comfortably with the cases, and its focus is on the work of modern commentators.
Those concerned with the relationship of contract and the law of restitution whether at a theoretical level or in practice will benefit by careful study of what Dr Baloch has to say, whether or not they agree with it.' Jack Beatson, Royal Courts of Justice, 14 February 2009 (From the foreword)
Rezensionen / Stimmen
This monograph is easy to recommend to those interested in the relationship of restitution and contract. There is much to admire in the historical depth and analytical clarity that the author has brought to this subject. Craig Rotherham The Modern Law Review 2010, 73 (1) The questions this book addresses ... are fundamental and it marks a clear and important advance on orthodox accounts of law in this area. All those interested in contract law, unjust enrichment and legal history have much to take from it. Charlie Webb Law Quarterly Review April 2010, Volume 126 This monograph constitutes a new star in the every expanding galaxy of enrichment literature, and it is a star which shines brightly. Beyond the practical exposition of restitution alongside breach of contract, Dr Baloch makes important claims with respect to the general nature of unjust enrichment in English law, and indeed the historical development of the law. It is to be hoped that some of the protagonists in the field will engage with its important thesis. Daniel J Carr The Edinburgh Law Review Volume 14, 2010
Sprache
Verlagsort
Verlagsgruppe
Bloomsbury Publishing PLC
Zielgruppe
Maße
Höhe: 234 mm
Breite: 156 mm
Dicke: 18 mm
Gewicht
ISBN-13
978-1-84113-908-1 (9781841139081)
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Schweitzer Klassifikation
Tariq A Baloch is an Associate within the International Arbitration Group of Freshfields Bruckhaus Deringer in Paris; he was formerly a Lecturer in Laws at the London School of Economics and Political Science, where he is currently a Visiting Fellow.
Introduction 1. An Historical Analysis of the Independence of Unjust Enrichment III. Introduction II. Myth, Mystery and Illusion A. The Two Senses of 'Contract': a Source of Rights and as a Method of Classification B. Procedure and the Development of Indebitatus Claims III. Development of the Law before Moses v Macferlan A. Holt CJ and Indebitatus Claims B. Role of Equity in the Development of the Law C. Encouraging Indebitatus Claims IV. Lord Mansfield's Decision in Moses v Macferlan V. The Period After Moses v Macferlan A. Case Law B. Legal Discourse VI. Learning from the Past: Concluding Comments 2. Rejecting the Role of Unjust Enrichment in the Contractual Context I. Introduction II. A Critical Appraisal of the Three Models A. Kull and the Third Restatement of Restitution B. Hedley C. Jaffey III. Conclusion 3. What is the Best Organisation for the Law of Unjust Enrichment: Unjust Factors or Absence of Basis? I. Introduction II. New Birksian Approach A. Objective and Subjective Tests of 'Basis' B. Notion of Basis C. Greater Unity III. The Pyramid A. Wrong reasons: the Swaps Cases B. Wrong Basis: CTN Cash and Carry v Gallaher C. Clashing Obligations: Roxborough v Rothmans of Pall Mall Australia Ltd D. Enhancing Choice: Deutsche Morgan Grenfell v Inland Revenue Commissioners IV. Three Criticisms of the New Birksian Approach A. By-Benefits B. Negative Formulation C. Retrospectivity of Termination V. Conclusion 4. The Role of Unjust Enrichment in the Contractual Context: an Introduction to Chapters 5 and 6 I. Background II. The Model Proposed in this Book III. Overview of Chapters 5 and 6 5. Historical Foundations of the Modern Law of Unjust Enrichment in the Contractual Context I. Introduction II. Evolution of the Dominant Model A. Background: Independency B. Antecedents of Kingston and Boone C. The Boone Principle in Detail D. Reception of Boone and Establishment of the Dominant Model III. Rescission and Total Failure of Consideration A. Total Failure of Consideration B. Rescission IV. Apportioned Contracts and Quantum Meruit A. Apportioned Contracts B. Quantum Meruit V. Conclusion 6. The True Role of Unjust Enrichment in the Contractual Context I. Introduction II. Core Principles A. Meaning of 'Condition' B. A Qualifying Failure of Condition C. Accrued Rights D. Prevention III. Distinctiveness of Quantum Meruit A. Infringing the Freedom of Choice B. Entire Contracts C. Valuation IV. Unenforceable Contracts and Claims by the Party in Breach. V. Failure of Condition and Absence of Basis VI. Restitution upon Failure of Condition: Contract or Unjust Enrichment? VII. Conclusion Conclusion
