zhou tony research essay

8/10/2019 Zhou Tony Research Essay

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Zhou Yan Kai s4265505

Why Corrective Justice Kant Explain Everything

In recent years, Weinrib has strongly pressed the idea that restitutionary remedies (i.e. gain-based monetary

remedies) are based on a single, foundational aim, namely to do corrective justice between the parties to a

dispute. The aim of this essay is twofold: firstly, it will examine the merits and weaknesses of Weinribs1

view as an explanation for the philosophical foundations of unjust enrichment law; and secondly, the author

will demonstrate an alternative plausible viewpoint as to what the foundations of unjust enrichment law

might be. Examination of the Weinribian conception of corrective justice (Weinribs Theory) reveals that

its strength emanates from the formal structural appeal, and its weakness stems largely from the Kantian

foundations upon which it was framed. The authors alternative model draws upon an Aristotelian notion of

corrective justice, and the earlier works of Drassinower and Dagan. Despite not being able to fully explore2 3

the limits of the authors own model, it is hoped that the reader is at least convinced that such an alternative

demonstrates adequate potential in describing the underpinnings of unjust enrichment.

I Unjust Enrichment and Corrective Justice

Before we explore the merits and weaknesses of Weinribs Theory, it might be useful to first give a brief

account of the theory itself. Corrective justice concerns the relationship between the two parties, the plaintiff

and defendant. Weinrib emphasised that because corrective justice as a framework is entirely interactional,every element of liability must have an effect on both parties - termed relational liability. Furthermore, the4

defendants liability should always be intelligible in light of the position of the plaintiff - termed

correlativity.5

Weinribs Theory is based on two fundamental theories developed by Aristotle and Kant, and focuses on6

understanding the immanent rationality of the law, as an autonomous discipline. Aristotles account of

corrective justice concerned maintaining a notional equality between two parties. An injustice would occur

when, relative to this baseline, one party realises a gain and another a corresponding loss. The law would7

then intervene to correct this injustice by making the defendant restore the gain which corresponded to the

loss. Kants theory of das recht provides Aristotles formal equality with normative substance. According

to Kant, individuals are self-determining agents, free to do what they like provided they respect an equalstatus in others. Liability to a particular plaintiff arises only when the defendant exercises a choice

inconsistent with anothers free will such that there is a normativegain by the exercising party and a

normativeloss by another. As this arises as a result of the defendants free choice, liability is consistent with

the defendants will.8

With respect to unjust enrichment, relying on the Hegelian notion of value and exchange, Weinrib

proposes that there are two obligation-creating conditions. Firstly, the plaintiffs non-donative transfer of9

of1 9LAWS5215 Unjust Enrichment Research Essay

The most recent having been Ernest Weinrib, Corrective Justice (Oxford University Press, 1st

ed., 2012)1

186-229; for his previous works, see e.g. Ernest Weinrib, The Normative Structure of Unjust Enrichment

in Charles Rickett and Ross Grantham, Structure & Justification of Private Law (Hart Publishing Ltd., 2008)21; Ernest Weinrib, Correctly Unjust Enrichment in Robert Chambers, Charles Mitchell and James Penner,

Philosophical Foundations of the law of Unjust Enrichment (Oxford University Press, 2009) 32.

Abraham Drassinower Unrequested Benefits in the law of Unjust Enrichment (1998) 48(4) Toronto Law2

Journal 459.

Hanoch Dagan The Distributive Foundation of Corrective Justice (1999) 98Michigan Law Review138.3

Ernest Weinrib, The Structure of Unjustness (2012) 92Boston University Law Review 1067, 1068.4

Ibid.5

Ernest Weinrib, The Idea of Private Law (Cambridge: HUP, 1995); Ernest Weinrib, Law as a Kantian Idea6

of Reason (1987) 87 Columbia Law Review 472, 473, 495.That is to say, the parties were the doer and sufferer of the same injustice.7

One can also describe this gain/loss relationship as consisting of a right and corresponding duty to be

8

entitled to and observe the self-determining agency of individuals, and hence Weinribs emphasis on

relational liability.

Ernest Weinrib, Corrective Justice (Oxford University Press, 1st

ed., 2012) 197-198.9


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value to the defendant; and secondly, the defendants acceptance of the transfer of value on non-donative

grounds. Importantly, acceptance here is a juridical concept capable of imputation, and hence is

independentof the state of mind of the defendant. Where both conditions are satisfied, compelling a10

restoration of the value transferred will be consistent with the parties wills. 11

II

The Weinribian Appeal

From an empirical perspective, by and large, the corrective justice approach is the most closely followed by

the courts. Private law disputes are decided primarily by way of merit, meaning that external factors like12

the economic wealth of the parties rarely features as a concern for the courts. This does not mean that judges

are necessarily insulated from the influence of external factors in coming to their decision, but given the13

orthodox approach is to consider matters of principle, as opposed to policy, a reasonable conclusion to14

draw might be that even though judicial outcomes may sometimes, serendipitously, also align with the

promotion of certain external goals, this is merely the bi-product of doing corrective justice, as opposed to15

the aim. This general empirical claim is no weaker within the specific context of restitution: for example, if

one were to examine what makes an enrichment unjust, one would find that courts have regard to very

specific, defined, legalcategories of injustice, as opposed to the general fairness of the enrichment. 16

From a theoretical perspective, Weinribs Theory promotes an internally intelligible view of the law. Itencourages a critical approach by asking practitioners to evaluate arguments and principles found within the

law to the extent they introduce concepts foreign to the framework. This drives the law towards greater

certainty and articulacy, and directly fosters an attitude for treating like cases alike. As Smith eloquently put

it, Weinrib has built an intellectual edifice which synthesises centuries of ethical and legal philosophy into a

coherent system. Within the area of unjust enrichment law, this formal structure facilitates the17

understanding of unjust enrichment as a unifying legal concept by drawing attention to both why the law

recognises and whether it shouldrecognise an obligation to make restitution. One might think that such18

merit is purely academic, but as Priel noted, to the extent the rule of law depends on certainty, opening up

private law to questions other than corrective justice will imply the demise of private law.19

Most compellingly, from a descriptive standpoint, the composition of unjust enrichment law mapscomfortably onto the corrective justice framework. The idea of unjust enrichment itself draws undeniable

parallels with Aristotelian conceptions of correction: there is a notional baseline which is disturbed as a result

of some unjust enrichment accruing to the defendant, at the plaintiffs expense, the restoration of which

requires the return of that benefit to the plaintiff. It is this kind of mathematical symmetry that has led to


Ibid 205.10

As stated by Weinrib, The correlative situation of the parties is observed through the way that liability11

works to remedy the lack of justice in transfer. Just as the unjustness of the enrichment lies in normative

defectiveness of the transfer of value, so the correction of this injustice consists in the retransfer of the value.The retransfer that rectifies the injustice has the same subject matter, the same correlative structure, and the

same correlatively situated parties as did the defective transfer.: Ibid 228.

This was also noted by Priel in Dan Priel, The Justice in Unjust Enrichment (2014) 51(3) Osgoode Hall12

Law Journal 1, 27.

Indeed, as Hart noted, judges may very well form intuitive decisions, and then go window-shopping for13

rules: HLA Hart, The Concept of Law (Oxford University Press, 3rd Ed., 2012) 140.

As strongly advocated by Dworkin: see e.g. Ronald Dworkin, Taking Rights Seriously (Harvard University14

Press, 1st Ed., 1977) 82.

For example, wealth distribution or economic/commercial efficiency.15

Indeed, Justice Martland has commented that unjust enrichment would become a free-for-all palm tree of16

justice without the benefit of any guidelines: Pettkus v Becker [1980] 2 SCR 834, 859.Lionel Smith, Restitution: The Heart of Corrective Justice (2001) 79 Texas Law Review2115, 2121.17

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256 (per Deane J).18

Dan Priel, The Justice in Unjust Enrichment (2014) 51(3) Osgoode Hall Law Journal 1, 28.19


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remarks such as restitution is the heart of corrective justice. Furthermore, the corrective justice emphasis20

on relational reasons justifying the imposition of liability is reflected in the types of unjust categories that

have developed: consider cases of coercion or, more controversially, wrongdoing. In both cases, the

disturbance of equality brought on by the defendants conduct justifies restoration to the plaintiff because the

right which the plaintiff has been deprived of is the correlativeof the duty that the defendant failed to

observe. This congruence between corrective justice and unjust enrichment is embodied by Weinribs

insistence on corrective justice being unifying, bipolar, and expressive of transactional equality, all21

characteristics that can be seen to emanate from within a restitutionary claim.

From this analysis, it isnt hard to agree with the basic proposition that Weinribs Theory informs the logic of

unjust enrichment. However, as McInnes pointed out, it would be nothing short of miraculous if the whole22

of the private law, formulated over centuries by the hands of countless distinct circumstances, would be

referable to any single principle. For this reason, the following section moves on to critically evaluate the

corrective justice framework.

III

Shortcomings of the Weinribian Approach

The first criticism can be introduced by reference to Maslows law of the instrument: To the man who only

has a hammer, everything he encounters begins to look like a nail. Adopting a Dworkinian approach, inorder to understand the law, one must work from the materials and abstract a seamless web of principles

embedded within them. This may seem familiar since Weinrib considers that corrective justice reflects the

immanent rationality of private law. However, upon closer examination, the supposed immanence23

disappears. Weinribs Theory draws upon a formalist understanding of equality, supplemented by an external

metaphysical truth. This conception of corrective justice colours what unjust enrichment is with what it24

ought to be because it necessarily dismisses as external, the rich social fabric upon which the law has

developed - an aspect all too important to the normatively pluralistic area of unjust enrichment law - and25

ignores the fact that what might presently be considered as some principle internal to the law was once26

something that had yet to be internalised. As Barker highlighted, Weinribs insistence on perfect27 28

coherence between the ends and means of the law sets an impossibly high standard, not least because either

can change over time and because legal doctrine has not been forged in a cast of perfect rationality.


Lionel Smith, Restitution: The Heart of Corrective Justice (2001) 79 Texas Law Review2115; see also20

Kingstreet Investments v New Brunswick (Department of Finance)[2007] 1 SCR 3, 32 and Peel (Regional

Municipality) v Canada[1992] 3 SCR 762, 804.

Ernest Weinrib, The Idea of Private Law (Cambridge: HUP, 1995) 120.21

Mitchell McInnes, Resisting Temptations to Justice in Robert Chambers, Charles Mitchell and James22

Penner, Philosophical Foundations of the law of Unjust Enrichment (Oxford University Press, 2009) 101,111.

Ernest Weinrib, Corrective Justice (Oxford University Press, 1st

ed., 2012) 26.23

The Kantian notion of a self-determining agent.24

As contended by Dagan in Hanoch Dagan, The Law and Ethics of Restitution (Cambridge University25

Press, 2004) 16, and as supported by Barker in Kit Barker, Theorising Unjust Enrichment Law: Being

Realist(ic) (2006) 26(3) Oxford Journal of Legal Studies 609, 612.

Internal because it just so happened to align with the corrective justice framework.26

For example, the tort concept of duty of care is now widely accepted as being something that is naturally27

internal to the law, but prior Lord Atkins statement inDonoghue v Stevenson [1932] AC 562, would it be

possible to make that same assertion? In fact, at the time, the decision was widely criticised for introducing

into the law foreign ideas which departed from established doctrines: see e.g. AL Goodhart, The Foundationof Tortious Liability (1938) 2Modern Law Review1, 4.

Kit Barker, Theorising Unjust Enrichment Law: Being Realist(ic) (2006) 26(3) Oxford Journal of Legal28

Studies 609, 619.


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The second criticism is that Weinribs Theory is both inconsistent and incomplete. To illustrate its

inconsistency, recall Weinribs two obligation creating conditions. One might first notice that these29

conditions presuppose the defendants knowledge of the transfer of value. This is an important observation

because, considered together with the fact that acceptance may be imputed, it can be argued that the30

defendants knowledge is made so constructive that it no longer serves to explain their liability. Given

Kantian liability depends upon the defendants exercise of free choice in a manner which deniesthe plaintiff

their status as a self-determining agent, surely an oblivious defendant could not be so implicated in liability if

they were unaware of the non-gratuitous nature of the transfer. By extension, that same defendant could not

have made a choice with respect to accepting something they didnt know was conferred unto them.

Therefore, to the extent imputation of acceptance is necessary in justifying restitutionary liability (e.g. in

mistake cases), the theory denies itself.31

To illustrate its incompleteness, recall the function of the obligation-creating conditions is not to show that it

is wrongful, but that, to compel a retransfer of value would not be inconsistent with the parties wills.32

However, this begs the question: why should there be a retransfer? As is evident with Weinribs Theory, fault

is a central component. If the defendant has done no wrong by accepting the transfer of value, what then

does the requisite normative work necessary to justify the defendants liability? It might seem plausible to

say that retention of the transfer of value after the point of acceptance constitutes the wrong. However, this

cannot be right as it would require accepting the fact that the defendant, upon their acceptance, alsoaccepted a duty to make restitution, the imposition of which could only be justified by having reference to33

the breach of that duty. Accordingly, it becomes difficult to maintain that theory is without gaps.34 35

The third criticism is that Weinribs Theory is unable to explain cases of mistake or cases of contractual

disgorgement. As discussed above, the very nature of the two obligation-creating conditions prevents an

adequate explanation of the mistake cases. With respect to disgorgement in response to breach of contract,

the theory also falls short in explanatory power because the gain which is disgorged from the defendant

doesn't necessarily correlate with the loss suffered by the plaintiff. Unlike cases of disgorgement in response

to the commission of proprietary torts, the plaintiff cannot be said to have a rightto the subject matter of36

the contract. However, the author acknowledges the weight of this criticism is discountable if one37

considers cases likeAttorney General v Blake as instances of hard cases making bad law.

38 39


The first is the plaintiffs non-donative transfer of value to the defendant, and the second is the defendants29

acceptance of the transfer of value on non-donative grounds.

Imputation is possible because acceptance is a juridical concept: Weinrib, above n 9, 206-207.30

This point was expressed in more detail in Matthew Doyle, Corrective Justice and Unjust31

Enrichment (2012) 62 (2) University of Toronto Law Journal, 229-254.Consistent with Lord Bowens famous dictum in Falcke v Imperial Insurance Co. (1886) 34 Ch D 234,32

248: liabilities are not to be forced upon people behind their backs.For there can be no wrong without a prior duty.33

This point was briefly discussed in Dennis Klimchuk, Normative Foundations of Unjust Enrichment in34

Robert Chambers, Charles Mitchell and James Penner, Philosophical Foundations of the Law of UnjustEnrichment (Oxford University Press, 2009) 82.

Upon reflection, it would seem that even Weinrib himself was unsettled as to whether restitutionary35

liability could be fault-independent. Note the inconsistencies in Weinribs initial work: Ernest Weinrib, The

Idea of Private Law (Cambridge: HUP, 1995) 134, 140, 141.

Cases of disgorgement involving property was justified in Ernest Weinrib, Restitutionary damages as36

corrective justice (2000) 1 Theoretical Inquiries in Law 1.Nor could it be said they have a right to the situation that would result from the performance of the37

contract, or a right to the defendants loyalty: see Ernest Weinrib, Punishment and disgorgement as contract

remedies (2003) 78 Chicago-Kent Law Review 55, 67.

[2001] 1 AC 268.38

This is the authors own position, and is reflected in current Australian authority see e.g.Hospital Products39

Ltd v US Surgical Corp (1984) 156 CLR 41, 124-125 (per Deane J);Hospitality Group Pty Ltd v Australian

Rugby Union Ltd [2001] FCA 1040, [159];Brambles Holdings Ltd v Bathurst City Council (2001) 53

NSWLR 153, 155-156.


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The final criticism is that the elements of unjust enrichment lends itself to expression as a strict liability area

of law, and because of this, cannot be properly accounted for by Weinribs Theory. Liability is strict in three

senses: (1) the cause of action is complete upon acceptance of the transfer of value, reflected in the fact that

interest accrues upon the date of receipt; (2) the obligation to make restitution is only ever aprimary40

obligation, as the courts do not award compensatory damages in response to a defendants failure to make

restitution; and (3) establishing a prima facie restitutionary claim does not depend upon the proof of41 42

fault. As has been canvassed before, underlying Weinribs Theory is the notion of relational liability and43

fault: because of this feature, one cannot conceive of duty as being the mere reflex of a right.

IV Alternative Foundation to Unjust Enrichment?

Having exposed the weaknesses in Weinribs Theory, one might ask are there any other theories capable of

more adequately explaining the philosophical foundations of unjust enrichment?. A distributive justice

approach would be the next best option, but our purpose here is not to examine that framework in any depth,

suffice to say it would also struggle to adequately encapsulate the philosophical foundations of unjust

enrichment. How then might this dilemma be resolved? A potential solution emerges once we adopt a44

more flexible perspective. Up to this point, it has been assumed that only one single theory could be used to

explain the underpinnings of unjust enrichment, but who is to say that such a basis must be homogenous?Some would in fact advocate against monistic approaches, given the normative pluralism of unjust

enrichment. Consequently, two options present themselves: (1) to explain as much of unjust enrichment on45

a corrective justice framework as possible, and then leave the rest to an alternative framework; or (2) to

develop a hybrid framework with which one can incorporate the whole of unjust enrichment. In light of

Saprais cautioning against the first option, the author will ambitiously endeavour to pursue the second.46

As was outlined in Section II, it is clear that although the formal structure promoted by corrective justice is

something to be desired, the Kantian substance is questionable. Yet, in the absence of some notion to give a

formalist account of corrective justice any content (i.e. without anything to inform the substance of the

baseline), the theory is at too high a level of abstraction to be of any use. What then can pull the normative

weight that would otherwise be borne by the Kantian conception of das recht?


Sandeman v Wilson(1880) 1 LR (NSW) Eq 1.40

As distinct from the courts awarding of compensatory damages in cases of wrongdoing as an alternative to41

restitution.

This is not to say that it could not be relevant to proof of some unjust factors.42

On this point, Birks has noted that the court, in making a judgement for restitution, is not attempting to43

redress the defendants failure to do his duty, but is simply ordering him to do it: Peter Birks, Rights,

Wrongs and Remedies (2000) 20 Oxford Journal of Legal Studies 1, 14-15; see also, Lionel Smith,Restitution: The Heart of Corrective Justice (2001) 79 Texas Law Review2115, 2134; Stephen Smith,

Justifying the Law of Unjust Enrichment (2001) 79 Texas Law Review 2177, 2181.

One of the greatest advocates of distributive justice is Dagan, who provides a compelling but not entirely44

convincing theory in his article, Hanoch Dagan, Restitutions Realism in Robert Chambers, Charles

Mitchell and James Penner, Philosophical Foundations of the law of Unjust Enrichment (Oxford University

Press, 2009) 55, 64-70. For a critique on Dagans approach, see e.g. Dennis Klimchuk, Normative

Foundations of Unjust Enrichment in Robert Chambers, Charles Mitchell and James Penner, Philosophical

Foundations of the Law of Unjust Enrichment (Oxford University Press, 2009) 82; Kit Barker, Theorising

Unjust Enrichment Law: Being Realist(ic) (2006) 26(3) Oxford Journal of Legal Studies 609. For a critique

on the instrumentalist approach generally, see Ernest Weinrib Can Law Survive Legal Education (2007) 60

Vanderbilt Law Review 401-438.See e.g. Kit Barker and Ross Grantham, Unjust Enrichment(LexisNexis Butterworths, 2008) 62; Peter45

Cane, Distributive Justice and Tort Law (2001) 4New Zealand Law Review 401-420.

Prince Saprai, Restitution Without Corrective Justice' (2006) 14Restitution Law Review41, 53-54.46


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The author proposes the following: drawing upon the earlier works of Drassinower and Dagan, the47 48

baseline is to be informed by the principle that each individual is entitled to the security of autonomous use,

and from this, the freedom of exchange regarding their resources. Therefore, cases in which restitutionary

causes of action are available can be explained by reference to a departure from this baseline. In response49

to this departure, the question as to the availability and form of remedy that could be afforded naturally

emerges. Respecting the fact the law doesnt operate in a vacuum, the appropriate remedy will depend upon

the degree of security and freedom of exchange attributed to the exact resource, which itself is representative

of the prevailing background ethos of society, and its conceptions of self. The more closely a particular

resource is attached to the holders identity, the more important the protection of baseline entitlements

associated with that resource (e.g. emphasising negative liberty) and accordingly, the greater the protections

afforded at law.50

This model can be seen as an instantiation of the concept of freedom of self, and is essentially dual-tiered: at

the higher level of abstraction is the principle that informs the baseline, and at the lower level of abstraction,

societys background ethos attributes varying dimensions of weight to the protection of that principle. From

this brief account presented above, the model appears to overcome the difficulties with cases of mistake and

the general fault requirement inherent in Kantian liability by shifting the focus of inquiry from the requisite

wrongdoing necessary to implicate liability, to the denial of another individuals security of autonomous use

and freedom of exchange of what is theirs. The model also manages to rationalise the availability and awardof different remedies in response to different kinds of unjust enrichments by reference to the web of social

morality within which the law is inexorably entangled.

However, despite the models face-value appeal, three criticisms could be levelled against it. These will now

be addressed in turn. Firstly, one might argue that a hybrid account is untenable because corrective justice

and distributive justice are mutually irreducible theories, and hence, cannot be combined without51

threatening the integrity of the other. However, this criticism fails to appreciate the fact that corrective

justice and distributive justice answer different theoretical questions: Aristotelian corrective justice

(employed by the author as theformalisticbasis of the alternative model) addresses the question of the

justificatory internal structure of claims, whereas distributive justice addresses the external social context of

that structure. Only by combining these approaches can one hope to paint a complete picture of the law.

52

Secondly, one might argue that a hybrid account fails to observe sufficient correlativity necessary to justify

the imposition of liability onto the defendant. An initial response could be to concede that correlativity

serves a function in the place of private law, but only insofar as correlativity requires the defendants liability

and remedy correspond to the plaintiffs entitlement. Beyond that, it is both unhelpful - in obscuring social53


Abraham Drassinower Unrequested Benefits in the law of Unjust Enrichment (1998) 48(4) Toronto Law47

Journal 459.

Hanoch Dagan The Distributive Foundation of Corrective Justice (1999) 98Michigan Law Review138.48

For example, where person A is coerced into giving person B a benefit, person A has lost their security of49

autonomous use and freedom to exchange their resources. Similarly, where there has been a failure of basis,the freedom to exchange resources will have been undermined.

For example, unjust enrichment involving infringements of property rights typically result in a remedy of50

account of profits (e.g. in cases of conversion: Colbeam Palmer v Stock Affiliates Pty Ltd (1968) 122 CLR

25) or a reasonable license fee (e.g. in cases of trespass: Strand Electric Engineering v Brisford

Entertainments[1952] 2 QB 246) whereas unjust enrichment involving taking the benefit of money not

intended to be transferred typically result in a money had and received type remedy (see e.g. Kleinwort

Benson Ltd v Lincoln City Council[1999] 2 AC 349).

The distributive justice aspect of the authors model emanates from the prevailing background social ethos.51

A potential second ground might be that since Weinribs model depended, in part, on the Hegelian52

concepts of value and exchange, distributive factors have already been incorporated (since value

presupposes a market within which a thing is valuable, and exchange presupposes social and moral notionsof fairness and equality).

It is one thing to recognise that law is an autonomous discipline and that coherence is desired, but another53

entirely to suggest autonomy and coherence is the be-all-end-all.


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values - and unnecessary - because the need for relational reasons ignores the convergences of justification

for restitutionary liability. However, a more persuasive response would highlight that the notion of security54

of autonomous use and freedom of exchange is necessarily relational. Neither party can claim to have an

interest in those values without also recognising that the other party also has a right to those values being

respected. As a result, within the bipolar structure of unjust enrichment, the defendants obligation to make

restitution when there has been a departure from the baseline is as much an obligation he owes to the plaintiff

as it is an obligation he owes to himself. 55

The third, and potentially most damaging criticism is that this model doesnt adequately encompass cases of

restitution for services. In a classic sense, resources represent something tangible. From this perspective,

resources can be substituted for wealth. Clearly the concept of a service does not fall within the traditional

concept of wealth. But in a modern market that facilitates for the exchanges of wealth for services, it56 57

would be ill-considered to refuse to classify services as a resource. This position finds support in the way

unjust enrichment identifies benefits - conferral of a benefit is not limited to the granting of wealth, but

extends to services and the discharge of debts. Consequently, the author considers that, consistent with the58

values informing the baseline, anything that has a market forexchangecan be classified as a resource. 59

It is acknowledges that the account of the model presented here could only be considered cursory at best.

However, given the breadth of the law of unjust enrichment, an in-depth critique is simply beyond the scopeof what could be achieved by this brief essay. Hopefully, the reader is at least content that an alternative

philosophical foundation to unjust enrichment has been demonstrated to be prima facie plausible.

V Conclusion

Any attempt to determine the philosophical underpinnings of an area of law will be challenging, and the

journey taken thus far has not proven to the contrary. This essay aimed to analyse the merits and weaknesses

of Weinribs Theory as an explanation for the philosophical foundations of unjust enrichment law, and then

proceeded to offer an alternative explanatory model. Undeniably, Weinribs Theory has its merits, as

examined in Part II: indeed, one of Weinribs greatest contributions in recent years has been to promote an

understanding of unjust enrichment and restitution as restoring normative entitlements. However, Part IIIwent on to expose that the greatest strength of Weinribs Theory was also one of the features to which

attracted the most criticism. Following the critique, Part IV presented an alternative justificatory model

which drew upon the merits of corrective justice but looked elsewhere for the normative content necessary to

help it function as a useful theory. Despite not being able to examine the alternative model in great detail,

taken at face-value, the weaknesses of Weinribs Theory which it manages to overcome and the criticisms it

is capable of standing up to reflects that it is at least a step in the right direction.


This point was strongly put by Dagan in Hanoch Dagan, Restitutions Realism in Robert Chambers,54

Charles Mitchell and James Penner, Philosophical Foundations of the law of Unjust Enrichment (Oxford

University Press, 2009) 55, 69-70.

This may seem to unnecessarily burden the defendant, but if, colloquially put, the shoe was on the other55

foot, the plaintiff would be equally obliged to do the same.

See Jack Beatson, Benefit, Reliance and the Structure of Unjust Enrichment (1987) 40 Current Legal56

Problems71, 74.

For example, a building contractor and developer can enter into a contract whereby the contractor provides57

the man-power necessary to build the design envisaged by the developer, and in return, the developer pays

the contractor a sum of money for the provision of their service. To both the contractor and the developer,

there has been an exchange (otherwise, neither would want to contract in the first place). Logically, this

means that both ends obtained something of the same nature, hence why tangible and intangible things can

both be considered resources.

See e.g. Peel (Regional Municipality) v Canada [1992] 3 SCR 762, 790;Brenner v First Artists58

Management Pty Ltd [1993] 2 VR 221, 257-258.Put another way, anything which is capable of conferring a benefit to an individual when applied to them59

is capable of being considered a resource in the hands of the plaintiff. Whether or not that resource has a

precise translatable monetary value is another question entirely.


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Word Count: 3272

Bibliography

A Articles/Books/Reports

Barker, Kit, Theorising Unjust Enrichment Law: Being Realist(ic) (2006) 26(3) Oxford Journal of Legal

Studies 609

Barker, Kit, and Ross Grantham, Unjust Enrichment(LexisNexis Butterworths, 2008)

Beatson, Jack, Benefit, Reliance and the Structure of Unjust Enrichment (1987) 40 Current Legal Problems

71

Birks, Peter, Rights, Wrongs and Remedies (2000) 20 Oxford Journal of Legal Studies 1

Burrows, Andrew, The Law of Restitution (LexisNexis Butterworths, 2nd ed., 2002)

Cane, Peter, Distributive Justice and Tort Law (2001) 4New Zealand Law Review 401

Dagan, Hanoch, Restitutions Realism in Robert Chambers, Charles Mitchell and James Penner,

Philosophical Foundations of the law of Unjust Enrichment (Oxford University Press, 2009) 55

Dagan, Hanoch The Distributive Foundation of Corrective Justice (1999) 98Michigan Law Review138

Dagan, Hanoch, The Law and Ethics of Restitution (Cambridge University Press, 2004)

Doyle, Matthew, Corrective Justice and Unjust Enrichment (2012) 62 (2) University of Toronto Law

Journal, 229

Drassinower, Abraham, Unrequested Benefits in the law of Unjust Enrichment (1998) 48(4) Toronto Law

Journal 459

Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1st Ed., 1977)

Edelman, James, and Elise Bant, Unjust Enrichment in Australia (Oxford University Press, 2006)

Friedmann, Daniel, Restitution of Benefits Obtained through the commission of a Wrong (1980) 80(3)

Columbia Law Review 504

Goodhart, AL, The Foundation of Tortious Liability (1938) 2Modern Law Review1

Hart, HLA, The Concept of Law (Oxford University Press, 3rd Ed., 2012)

Klimchuk, Dennis, Normative Foundations of Unjust Enrichment in Robert Chambers, Charles Mitchell

and James Penner, Philosophical Foundations of the Law of Unjust Enrichment (Oxford University Press,

2009) 82

McInnes, Mitchell, Resisting Temptations to Justice in Robert Chambers, Charles Mitchell and James

Penner, Philosophical Foundations of the law of Unjust Enrichment (Oxford University Press, 2009) 101

Priel, Dan The Justice in Unjust Enrichment (2014) 51(3) Osgoode Hall Law Journal 1

Saprai, Prince, Restitution Without Corrective Justice' (2006) 14Restitution Law Review41



9/9


Smith, Lionel, Restitution: The Heart of Corrective Justice (2001) 79 Texas Law Review2115

Smith, Stephen, Justifying the Law of Unjust Enrichment (2001) 79 Texas Law Review 2177

Weinrib, Ernest, Can Law Survive Legal Education (2007) 60 Vanderbilt Law Review 401

Weinrib, Ernest, Corrective Justice (Oxford University Press, 1st ed., 2012)

Weinrib, Ernest, Correctively Unjust Enrichment in Robert Chambers, Charles Mitchell and James Penner,

Philosophical Foundations of the law of Unjust Enrichment (Oxford University Press, 2009) 32

Weinrib, Ernest, Law as a Kantian Idea of Reason (1987) 87 Columbia Law Review 472

Weinrib, Ernest, Punishment and disgorgement as contract remedies (2003) 78 Chicago-Kent Law Review

55

Weinrib, Ernest, Restitutionary damages as corrective justice (2000) 1 Theoretical Inquiries in Law 1

Weinrib, Ernest, The Idea of Private Law (Cambridge: HUP, 1995)

Weinrib, Ernest, The Normative Structure of Unjust Enrichment in Charles Rickett and Ross Grantham,

Structure & Justification of Private Law (Hart Publishing Ltd., 2008) 21

Weinrib, Ernest, The Structure of Unjustness (2012) 92Boston University Law Review 1067.

B Cases

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

Colbeam Palmer v Stock Affiliates Pty Ltd (1968) 122 CLR 25

Donoghue v Stevenson [1932] AC 562

Falcke v Imperial Insurance Co. (1886) 34 Ch D 234

Hospital Products Ltd v US Surgical Corp (1984) 156 CLR 41

Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040

Kingstreet Investments v New Brunswick (Department of Finance)[2007] 1 SCR 3

Kleinwort Benson Ltd v Lincoln City Council[1999] 2 AC 349

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221

Peel (Regional Municipality) v Canada[1992] 3 SCR 762

Pettkus v Becker [1980] 2 SCR 834

Sandeman v Wilson(1880) 1 LR (NSW) Eq 1

Strand Electric Engineering v Brisford Entertainments[1952] 2 QB 246


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