Unjust enrichment and contract Tariq A. Baloch.

Format:

Book

Author/Creator:

Baloch, Tariq A. (Tariq Ali), 1978- author.

Language:

English

Subjects (All):

Unjust enrichment.

Unjust enrichment--Great Britain.

Contracts.

Contracts--Great Britain.

Physical Description:

1 online resource (232 p.)

Edition:

1st ed.

Place of Publication:

Oxford Portland, Oregon Hart Publishing 2009.

Language Note:

English

Summary:

This book examines the role of unjust enrichment in the contractual context, defined as contracts which are (a) terminated for breach, or (b) subsisting, or (c) unenforceable. The book makes three claims in relation to the orthodox common law account of restitution (founded on unjust enrichment) in the contractual context. Firstly, the orthodox account correctly proceeds on the basis that the restitutionary claim in the contractual context is founded on an independent cause of action in unjust enrichment, rather than some equitable notion of unconscientiousness or the law of contract. Secondly, the book departs from the orthodox account by rejecting the unjust factors approach and endorsing the absence of basis approach for the law of unjust enrichment. Finally, the book argues that the right to restitution in the contractual context should be determined by the conditionality of the transfer of the benefit rather than a requirement such as the termination of the contract, as the orthodox account dictates. To that end the book proposes the following model, under which the right to restitution in the contractual context is determined by the resolution of the following two questions: (1) Was the transfer of the benefit (eg of money or services) conditional? (2) Was there a qualifying failure of condition? A condition can be, and often is, the other contracting party's counter-performance, but it may also be an event not promised by either party. What qualifies as a failure of condition depends on the type of contract in question. This book identifies two types of contracts, namely those which are apportioned (eg instalment contracts) and those which are unapportioned. It is only in relation to the latter that termination is required. It is a particular strength of the book that it is underpinned by detailed and original historical analysis which makes a novel and distinct contribution to the history of the laws of unjust enrichment and contract. 'Dr Baloch has produced the definitive study of the inter-relationship between contract and unjust enrichment. This has been achieved by carefully considering the historical roots of our common law, and how this is to be understood in its best light in the modern era.' Robert H Stevens, University College, London. 'Dr Baloch's exploration of the boundary between contractual and unjust enrichment liability in the 17th to 19th centuries has important things to say about the history of ideas of 'contract' in this period.' Mike Macnair, Oxford University. 'This is an innovative and rigorous book which engages with one of the most difficult areas in the law of unjust enrichment, namely the relationship between the law of unjust enrichment and the law of contract. Baloch roots his treatment of the modern law in its history and the historical analysis throughout is very careful and well grounded in the primary sources.' David Ibbetson, Cambridge University. 'This is a valuable book, thoughtful and well researched. It is concerned to build a model that fits comfortably with the cases, and its focus is on the work of modern commentators. Those concerned with the relationship of contract and the law of restitution whether at a theoretical level or in practice will benefit by careful study of what Dr Baloch has to say, whether or not they agree with it.' Jack Beatson, Royal Courts of Justice, 14 February 2009 (From the foreword)

Contents:

Introduction

1. An Historical Analysis of the Independence of Unjust Enrichment

III. Introduction

II. Myth, Mystery and Illusion

A. The Two Senses of 'Contract': a Source of Rights and as a Method of Classification

B. Procedure and the Development of Indebitatus Claims

III. Development of the Law before Moses v Macferlan

A. Holt CJ and Indebitatus Claims

B. Role of Equity in the Development of the Law

C. Encouraging Indebitatus Claims

IV. Lord Mansfield's Decision in Moses v Macferlan

V. The Period After Moses v Macferlan

A. Case Law

B. Legal Discourse

VI. Learning from the Past: Concluding Comments

2. Rejecting the Role of Unjust Enrichment in the Contractual Context

I. Introduction

II. A Critical Appraisal of the Three Models

A. Kull and the Third Restatement of Restitution

B. Hedley

C. Jaffey

III. Conclusion

3. What is the Best Organisation for the Law of Unjust Enrichment: Unjust Factors or Absence of Basis?

II. New Birksian Approach

A. Objective and Subjective Tests of 'Basis'

B. Notion of Basis

C. Greater Unity

III. The Pyramid

A. Wrong reasons: the Swaps Cases

B. Wrong Basis: CTN Cash and Carry v Gallaher

C. Clashing Obligations: Roxborough v Rothmans of Pall Mall Australia Ltd

D. Enhancing Choice: Deutsche Morgan Grenfell v Inland Revenue Commissioners

IV. Three Criticisms of the New Birksian Approach

A. By-Benefits

B. Negative Formulation

C. Retrospectivity of Termination

V. Conclusion

4. The Role of Unjust Enrichment in the Contractual Context: an Introduction to Chapters 5 and 6

I. Background

II. The Model Proposed in this Book

III. Overview of Chapters 5 and 6

5. Historical Foundations of the Modern Law of Unjust Enrichment in the Contractual Context

II. Evolution of the Dominant Model

A. Background: Independency

B. Antecedents of Kingston and Boone

C. The Boone Principle in Detail

D. Reception of Boone and Establishment of the Dominant Model

III. Rescission and Total Failure of Consideration

A. Total Failure of Consideration

B. Rescission

IV. Apportioned Contracts and Quantum Meruit

A. Apportioned Contracts

B. Quantum Meruit

6. The True Role of Unjust Enrichment in the Contractual Context

II. Core Principles

A. Meaning of 'Condition'

B. A Qualifying Failure of Condition

C. Accrued Rights

D. Prevention

III. Distinctiveness of Quantum Meruit

A. Infringing the Freedom of Choice

B. Entire Contracts

C. Valuation

IV. Unenforceable Contracts and Claims by the Party in Breach.

V. Failure of Condition and Absence of Basis

VI. Restitution upon Failure of Condition: Contract or Unjust Enrichment?

VII. Conclusion

Conclusion

Notes:

Description based upon print version of record.

Includes bibliographical references (pages 191-201) and index

ISBN:

9786612263125

9781472560407

147256040X

9781282263123

1282263129

9781847314987

1847314988

OCLC:

438036089