Abstract:
This article explores the justification for the defendant’s restitutionary obligation to the plaintiff consequent on an unjust enrichment. It focuses on the dominant corrective justice explanation, according to which the duty of restitution instantiates this virtue. It identifies two types of corrective justice explanation: a thin and thick version, attributed to John Gardner and Ernest Weinrib, respectively. According to the thin version, corrective justice is confined to the remedial relation between the plaintiff and the defendant; it is solely concerned with the norm of justice that provides reasons to transfer back. The thick account in contrast does not restrict corrective justice to this remedial stage. Rather, it understands it as encompassing the relationship between the parties from the outset. Both accounts fail to provide a satisfactory explanation for the duty of restitution for unjust enrichment. Their failures, however, are instructive, illuminating a possible route to a more nuanced understanding of private law’s remedial obligations and their justifications.
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Zoë Sinel, Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment. Oxford J Legal Studies (2011) 31 (3): 551-564. doi: 10.1093/ojls/gqr015 First published online: August 3, 2011.
First posted 2011-09-03 14:05:29
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