Unjust Enrichment and Contract by Tariq Baloch
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.789_2.x |
| Author | Craig Rotherham |
Finally, it should be noted that one of the mostchallenging theses proposed by
Raz is interpretive pluralism.This is the idea that pluralism is an essential feature
of interpretation. For every object interpreted, there can be good innovative and
conservative interpretations. Some can be ranked as better than others. But the
most interesting claim made by Raz is that, as is the case for values, good inter-
pretations (both innovative and conservative) may also be incommensurate.This
means that for every object there are plural and undefeated reasons for interpret-
ingitindi¡erentways.
This book provides a timely re¢nement of Raz’s theoryon two points that are
of seminal importance for legal theory. It is surprising that such a rich theory has
not yet, to myknowledge, been developed seriously and systematicallyi ntoother
¢elds of the law ^ European law, for instance,or public international law. One can
only explain this absence by pointing to the rather complex language used by
Raz. However, the time has come to expand this body of theory into other legal
domains.
Marco Goldoni
n
Ta r i q B a l o c h , Unjust Enrichment and Contract,Oxford: Hart Publishing, 2009,
189 p p, hb d45.00.
This monograph explores the provision of restitution in the context of contracts
that have been breached or that are unenforceable. In the process, it seeks to iden-
tify the normative basis for awarding such relief and to explai n how the law
ensures that this does not subvertcontractual allocations of risks.
The ¢rst partof the work is devoted to a historical revaluation of thelaw’s pro-
vision of restitution through implied contracts. The author draws on a rich array
of sources to give an account of how these actions developed and were perceived
in the 17
th
and 18
th
centuries.The author argues that the legal community in this
period understood quasi-contractual actions to be based on promises that were
implied in law and not in fact: re£ecting that an understanding of contract in
terms of mutual promises emerged earlier than some legal historians have
claimed. Thus, Baloch argues, misunderstandings of the promise implied in this
context as something other than ¢ctional arose on ly in the19
th
and 20
th
centuries.
The author o¡ers a detailed account of the emergence of the action in indebitatus
assumpsit, which was favoured in large part for its procedural advantages over
actions based on an express contract. Of particular interest is his contention
that the importance of Moses vMacferlan (1760)2Burr1005hasbeenexaggerated
and the sources of Lord Mans¢eld’s analysis in that case have been largely misun-
derstood. He contends that the action in money had and received was already
widely available at the time and was already understood to be non-contractual
in nature. Furthermore, Baloch rejects the notion that Lord Mans¢eld’s analysis
was largely derived from Roman law, pointing instead to the law of equity as a
source of inspiration, particularly as conceptualised in the work of Mans¢eld’s
n
Centre for Law and CosmopolitanValues, Universityof Antwerp
Reviews
161
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(1) 155^173
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