Unjust Enrichment and Contract
| DOI | http://doi.org/10.1111/1468-2230.12099 |
| Date | 01 November 2014 |
| Published date | 01 November 2014 |
| Author | Peter Jaffey |
CASES
Unjust Enrichment and Contract
Peter Jaffey*
Benedetti vSawiris was concerned with the measure of a quantum meruit, and in particular
whether a ‘subjective’ or ‘objective’ measure should be preferred. The Supreme Court addressed
the issue broadly in line with the approach in the mainstream academic literature on unjust
enrichment, according to which this is a problem of how to measure benefit. The article argues
that this unjust enrichment approach is misguided because it obscures the role of agreement and
conflates transfer and exchange, and that a contractual analysis of the case would make the issues
clearer and easier to resolve.
INTRODUCTION
On the face of it, Benedetti vSawiris1(Benedetti) is a case on a narrow and technical
point on the measure of the quantum meruit in the law of unjust enrichment,
but it is significant beyond this in what it says, or implies, about the law of unjust
enrichment generally and its relationship with the law of contract.
The facts of the case are complicated, but so far as they are relevant for present
purposes they can be summarised quite simply. Benedetti approached Sawiris to
see if he would be interested in collaborating in the acquisition of a company
called Wind. The original idea was that Sawiris would become a shareholder
along with Benedetti in a new company established to take over Wind, but most
of the funding for the acquisition would come from other investors that
Benedetti would find. This was set out in the Acquisition Agreement. It seems
to have been envisaged that Benedetti would profit from the venture as an
investor or director in the new company when the Acquisition Agreement was
implemented. In the end, however, no other investors were found and so the
Acquisition Agreement was abandoned. Sawiris decided to continue with the
takeover by providing the funding himself, and Benedetti continued to work on
his behalf towards the acquisition on this new basis, though there was no longer
any written contract governing the relationship between them, and there was no
explicit agreement for Benedetti’s remuneration. The acquisition of Wind by
Sawiris was eventually successful. Although Sawiris accepted that Benedetti was
entitled to be paid for what he had done, the two parties could not agree on the
amount, and Benedetti sued Sawiris on various bases including contract and
unjust enrichment. By the time the matter reached the Supreme Court, the only
issue was the measure of recovery in unjust enrichment, Sawiris having accepted
*Brunel Law School.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(6) MLR 983–1008
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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