Annual Miegunyah Lecture: Equity, Conscience, and Unjust Enrichment
![handle is hein.journals/mulr23 and id is 19 raw text is: ANNUAL MIEGUNYAH LECTURE:
EQUITY, CONSCIENCE, AND UNJUST ENRICHMENT
PETER BIRKS*
[This paper seeks to present a revised picture of the relationship between unjust enrichment and the
law of restitution. That picture then shows that it is an error to deny the utility and unity of the law
of unjust enrichment by pointing to undoubted discontinuities within the law of restitution. The
paper also attempts to show that the law of unjust enrichment must draw on the law derived by the
Court of Chancery, just as it cannot but draw on the law derived by the Common Pleas and King's
Bench, hence that it is false to suppose that there is any competitive hostility in this field between
equity and common law or that equity can in some way be expected to do the work of the law of
unjust enrichment in some other way. One theme running through the whole paper is the need for
constant attention to legal taxonomy. This means not only having such a taxonomy but also keeping
it under constant critical review.]
I INTRODUCTION
Unjust enrichment is unfamiliar, even to many lawyers. A central example is a
mistaken payment. Suppose that I pay you $1000 in the mistaken belief that I
owe it to you. Provided that my claim does not get caught up in the finer tuning, I
will be entitled to restitution from you. You have been enriched at my expense,
and there is, in the mistake, an 'unjust factor', a factual reason why you should
make restitution. 'Unjust enrichment' is the generalised description of the event.
It forms the genus; mistaken payment is a particular species. Like cases must be
treated alike. The generic description serves to gather together all the other
events which ought to be treated in the same way as mistaken payment. For
example, if money is paid over on a specified basis, and the basis fails, restitution
must likewise follow. The 'unjust factor' is different in this case. It is failure of
basis or, in the traditional phrase, failure of consideration.
If rather few common lawyers have yet had a legal education which built the
category of unjust enrichment into their intellectual armoury, it is because until
quite recently no law school could do the job. It is still a novel category. Its
content was formerly fragmented and dispersed by language, and concepts,
thrown up by the intuitive pragmatism of the past. Yet its identification and
organisation has been one of the great success stories of the twentieth century.
That stone has now been rolled to the top of the hill, and there it will certainly
stay, unless some jurist manages to send it rolling down the other side.
There are some who are inclined to try. The High Court of Australia has played
an important part in disengaging the new law of unjust enrichment from its
Regius Professor of Civil Law, University of Oxford; Fellow of All Souls College, Oxford. This
is the text of the annual Miegunyah lecture at The University of Melbourne, given on
3 September 1998. I would like to take this opportunity to thank The University of Melbourne
and the Miegunyah Trustees for enabling me to spend six fruitful weeks at the Faculty of Law.](ViewImageLocal?handle=hein.journals/mulr23&div=9&collection=&method=preview&ext=.png&size=3)
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Annual Miegunyah Lecture: Equity, Conscience, and Unjust Enrichment
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