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RE-EXAMINING CONTRACT AND UNJUST ENRICHMENT: ANGLO-CANADIAN PERSPECTIVES. Ed by Paula Giliker Leiden/Boston: Martinus Nijhoff Publishers (www.brill.nl), 2007. xxx + 341 pp. ISBN 9789004155633. €133.

Document Cited authorities 2 Cited in Related
Vincent
Published date01 September 2009
Pages535-537
DOI10.3366/E1364980909000730
Date01 September 2009
AuthorRobin Evans-Jones

This collection is of papers given at a conference under the auspices of the British Association for Canadian Studies. It examines aspects of the law of contract and unjust enrichment in Canada and England from a comparative perspective. These are chosen as the basis of the comparison mainly, it seems, because they are conceived to overlap and the analysis of the boundaries of each – where they most overlap? – informs us to a significant degree as to the nature of each.

Part 1, “The Boundaries of Contract and Unjust Enrichment”, contains eight of the total of fifteen chapters. That the two areas of the law interact in private law when it is conceived as a system is beyond doubt. Whether there should be overlap is a different matter. The very idea offends against the principle of economy of means and presents too many possibilities for competition between each regime. In his chapter, “The Relation between Contract and Unjust Enrichment”, Stephen Waddams suggests that in the Common Law there is properly an overlap between contract and unjust enrichment. For example, he states that “a valid claim for restitution should not be defeated by the mere presence of a contract between the parties” (19). Examples he suggests are where there has been a mistaken overpayment “under a contract” and where an event has occurred that was not within the contemplation of the terms of the agreement (17). The former example seems unproblematic, if we accept that an overpayment cannot be governed by the contract and is reversible by the law of unjust enrichment.

In the second chapter, an interesting discussion of a number of recent high-profile Canadian decisions, Mitchell McInnes seems to take the opposite view to Waddams, stating that “[t]here is … little doubt that in awarding restitution, the Supreme Court of Canada disturbed the fine balance of benefits and burdens to which the parties had agreed” (48). At issue for McInnes seems to have been the second example referred to by Waddams – what to do where the basis on which a contract was concluded later significantly changes (thus, in the Civil Law, situations concerning the clausula rebus sic stantibus/Wegfall der Geschäftsgrundlage) or (at 45) where an extra-contractual basis upon which a contract was concluded fails (condictio causa data causa non secuta?). Another interesting feature of this chapter, in the light of the influence of Peter Birks on the choice of formulation of the cause of action in unjustified enrichment...

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