Private Law Theory

Introduction:
What renders an enrichment unjust? This is the most fundamental and perplexing issue in the law of unjust enrichment – fundamental because in the absence of unjustness, one is not liable for being enriched at another’s expense and perplexing because the reference to “unjust” (or “unjustified”) enrichment provides little indication of the source of one’s liability. In the past, perplexity about this fundamental issue fueled the suspicion that unjust enrichment, if recognized as a discrete basis of liability, would be incompatible with disciplined legal reasoning. Even today, as we celebrate a new Restatement (Third) of Restitution and Unjust Enrichment, uncertainty concerning what makes a particular enrichment unjust continues to spawn both doctrinal and theoretical controversy.

This Article examines the issue from the perspective of corrective justice. Corrective justice is the theoretical notion that sets out what it means for private law to be fair and coherent. It does so by insisting that liability be based on normative considerations that embrace both parties in relation to each other. The requirement of applicability to both parties in their interrelationship is a general structural idea to which particular substantive elements of liability, whatever they are, have to conform if they are to be fair to both parties and coherent with one another. My goal is to show how this structural idea illuminates the unjustness that figures into unjust enrichment.

Ernest J Weinrib, ‘The Structure of Unjustness‘. Boston University Law Review, 92 BUL Rev 1067, May, 2012.

First posted 2012-07-06 06:03:04