Birks and the Absence of Basis Approach

AuthorClive Bow
S.S.L.R. Birks and the Absence of Basis Approach
Vol. 1
Birks and the Absence of Basis Approach
Clive Bow
The theoretical basis of the law of unjust enrichment can be traced back many
centuries, though the most significant developments have only occurred in the
last fifty years. Professor Peter Birks has played a pivotal role in the
development of the law of unjust enrichment, advocating its importance
alongside the other private law obligations - contract and tort. But as with any
evolving area of law, establishing a united view on most basic principles can be
difficult. A furore was generated by the publication of the second edition of
Unjust Enrichment,
1 in which Birks presented his final thesis, conflicting with
his previous position, in an attempt to rationalise the law. 2 The most
revolutionary changes to Birks‟s scheme relate to the classificatory structure,
the movement towards a civilian approach, and the redundant requirement
for the claimant‟s loss to correspond to the defendant‟s gain. The new
classificatory scheme had been previously discussed in an earlier piece by
Birks, Misnomer,3 and therefore will not add any weight to a discussion of the
revolutionary natur e of Unjust Enrichment. To facilitate a deep analysis I only
intend to address what Birks regards as 'question three': what constitutes an
unjust enrichment? The new scheme reflects the contrasting approaches in
common law and civilian jurisdictions, and Birks‟s attempts to resolve the
current inadequacies of English law by relying on their respective merits. To
conclude, I intend to assess the correctness of Birks‟ new approach, and
whether it has been accepted by English law.
o appreciate the significance of Birks‟s new scheme, one should first
consider how English law traditionally determined whether an
enrichment was unjust. The common law followed an approach that was
idealistic in its simplicity, adopting terminology that could be easily
understood. The court had to identify a positive reason why the recipient of
an item was not 'intended to have it'4 by identifying whether any such intent of
1 Birks, Unjust Enrichment (. Oxford: Clarendon Press 2005)
2 Birks, An Introduction to the Law of Restitution (Oxford University Press 1985)
3 Birks, „Misomer in Corni sh, Nolan, O'Sulli van and Virgo Restitution , Past, Present & Future:
Essays in Honour of Gareth Jones (Oxford Hart Publishing 1998) 1
4 Kelly v Solari (1841) 152 ER 24, 27.

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