UNJUST ENRICHMENT AND UNJUST SACRIFICE

AuthorSamuel Stoljar
Publication Date01 Sep 1987
DOIhttp://doi.org/10.1111/j.1468-2230.1987.tb01728.x
UNJUST ENRICHMENT AND UNJUST SACRIFICE
1.
MANY
years ago
I
advanced the thesis that quasi-contract, or unjust
enrichment or restitution (the two latter now the more current
names), may be better explained by what
I
called a proprietary
theory.
*
The theory has serious limitations, or what appear to be
limitations, as we shall later see. But it also has this important
opening advantage that it helps
us
understand what, over a
significant area, the subject is really about-assuming we wish to
deal with a genuine subject, one constituting a distinctive source of
obligations, separate from but comparable to contract, tort or
trusts, a subject therefore with a core, not just a repository
of
residual unclassifieds.
Now the point
of
the proprietary theory was not that unjust
enrichment should become part
of
the “law
of
property,” neither
that quasi-contractual recovery
of
money is like the recovery of an
ordinary
res,
for clearly it is not. The point is rather that the
recovery
of
anything, whether money or land or chattels, rests on
the claimant
(P)
being able to show that what he seeks
to
recover
in fact “belongs” to him, having a better “title” to it than the
person
(D)
from whom recovery is sought.
P,
more particularly,
has to show that
D
came to the money (“had and received it”)
without any sort
of
transmissive consent from
P,
whether consent
in the form of a gift or contract or bailment or some trust
established by
P.
A
basic theme running through our private law,
perhaps any system
of
private law, surely is that, apart from assets
distributed by public allocation or by operation
of
law, things or
money cannot validly pass from one person to another without the
former’s sufficient consent either before or after the event. This is
what property essentially means, at least importantly means
amongst other things.
So
seen, a proprietary theory can better pick out the various
claims with which quasi-contract is preoccupied. Instead
of
P
claiming recovery merely on the ground that
D
is “unjustly”
enriched
(so
even incurring a charge
of
making claims based on a
“sloppy” jurisprudence, a charge still rife not
so
long ago), we can
now say
D’s
enrichment is indeed unjust: it is unjust precisely
because
D
retains money without title, having got it without
P’s
consent,
so
that
P
now has a claim on straightforward proprietary
grounds. Thus
if
D
were to dispute his claim,
P
can say:
“I
claim
this money because it is mine.” Certainly
D
is also unjustly
enriched; but in confirming that he is, we are not
so
much
activating our sense
of
justice in response to an allegedly undue
benefit (though we may do that too) as rather stating that
D
is
S.
J.
Stoljar,
The
Law
of
Quasi-Confract
(Sydney
1964),
Chap.
1
and
passim.
603

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