Introduction:
… The explanation as to why the Restatement overcame initial resistance and gained acceptance abroad is not difficult to discern. As Lord Denning observed, “local conditions” occasionally may “lead us to reach a different solution.” For the most part, however, “our fundamental outlook is the same on all the things that really matter.” The common-law jurisdictions on either side of the Atlantic “have the same concept of justice, the same tradition of freedom, and the same hatred of oppression.” And because they share the same commitment to liberal values, individual autonomy, and personal property, they encounter the same types of disputes. Moreover, due in no small part to the Restatement, courts in all three countries came to employ essentially the same principle of unjust enrichment during the second half of the twentieth century.
In the circumstances, it might be tempting to read the existing as the inevitable. Given so much common ground, how could the common-law jurisdictions possibly employ radically different conceptions of unjust enrichment? In truth, of course, legal rules are never pre-determined. The devil is in the details, and at that level, different choices may be exercised by different minds at different times in different contexts. From that perspective, it is interesting to observe that at the same moment the Restatement (Third) of Restitution and Unjust Enrichment is about to entrench a particular conception of unjust enrichment into American law for the foreseeable future, a very different movement is afoot in Anglo-Canadian law. The issue turns on the very heart of restitutionary liability: the nature of “injustice.”
Mitchell Mcinnes, ‘The Reason To Reverse: Unjust Factors And Juristic Reasons’. Boston University Law Review, 92 BUL Rev 1049, May, 2012.
First posted 2012-07-06 06:04:01
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