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Unjust Enrichment Claims: A Comparative Overview

Published online by Cambridge University Press:  16 January 2009

Brice Dickson
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This article examines a variety of legal systems with a view to assessing the role currently played within each of them by the principle of unjust enrichment. By focusing on the characteristic features of unjust enrichment claims it seeks to demonstrate that, although there are significant differences between the ways in which different countries handle such claims, there is also much that those systems have in common. While under the common law the principle of unjust enrichment has endured a long struggle for recognition, in civil law systems it has been acknowledged for centuries. This may be because in civil law countries the principle has been expected to play only a residual, and therefore non-threatening, role in the law of obligations while in common law countries it has been called upon, if at all, to serve as the basis for the whole of the law of restitution. We should not assume, however, that all common law systems share one set of characteristics while all civil law systems share another. In some respects there is more in common between systems drawn from each category than there is between systems drawn from the same category. Mixed legal systems, as one might expect, tend to display characteristics drawn from both.

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The Cambridge Law Journal , Volume 54 , Issue 1 , March 1995 , pp. 100 - 126
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Copyright © Cambridge Law Journal and Contributors 1995

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References

1 Gutteridge, and David, , “The Doctrine of Unjustified Enrichment” (1934) 5 C.L.J. 204;Google ScholarDawson, J.P., Unjust Enrichment: A Comparative Analysis (Boston 1951);Google ScholarO'Connell, D.P., “Unjust Enrichment” (1956) 5 Am. J. Comp. L. 2.; Zweigert, K. and Kotz, H. (trans. Weir), An Introduction to Comparative Law, 2nd ed. (Oxford 1987), vol. 2, pp. 229–287;Google ScholarGallo, P., “Unjust Enrichment: A Comparative Analysis” (1992) 40Google Scholar Am. J. Comp. L. 431; MrZyl, Justice van, “The General Enrichment Action is Alive and Well” [1992] Acta Juridica 115;Google ScholarSwadling, W.J., “Restitution and Unjust Enrichment” in Towards a European Civil Code (eds. Hartkamp, A.S. et al. ; The Netherlands 1994) at p. 267.Google ScholarSee too the International Encyclopaedia of Comparative Law, vol. 10, Restitution (ed. Schlechtriem, P.); ch. 3,Google ScholarPalmer, G.E., History of Restitution in Anglo-American Law (1989);Google Scholar ch. 5,1. Englard, , Restitution of Benefits Conferred Without Obligation (1991);Google Scholar ch. 10, Friedmann, D. and Cohen, N., Payment of Another's Debt (1991);Google Scholar ch. 11, Friedmann, D. and Cohen, N., Adjustment Among Multiple Debtors (1991);Google Scholar ch. 17, Stoljar, S., Negotiorum Geslio (1984).Google Scholar

2 Cf. Birks's talk of “the uncertain anatomy of restitution” and his attempt to reveal its “skeleton of principle”; infra note 12, at pp. 1–3.

3 More than a note of caution has been expressed by at least one commentator: Hedley, S., “Unjust Enrichment as the Basis of Restitution—an Overworked Concept” (1985) 5 Legal Studies 56.CrossRefGoogle Scholar

4 See, e.g., Burrows, A., “Contract, Tort and Restitution—A Satisfactory Division or Not?” (1983) 99L.Q.R. 217.Google Scholar

5 This was one of the issues in the recent cases on swap transactions: see Burrows, A. (1993) 143 New LJ. 480 at p. 481.Google Scholar

6 See Bennett, T.W.. “Choice of Law Rules in Claims of Unjust Enrichment” (1990) 39 I.C.L.Q. 136.Google Scholar

7 See Palmer, op. cit. note 1 above.

8 Birks says this publication “liberated restitution from the fringes of contract and tort”: “The Independence of Restitutionary Causes of Action” (1990) 16 U. Queensland L.J. 1 at p. 26.Google Scholar

9 The most authoritative work is by Palmer, G.E., The Law of Restitution (4 vols; Boston 1978).Google Scholar

10 The Law of Restitution, 4th ed. (London 1993).Google Scholar Robert Goff, of course, subsequently became a judge and is now a Law Lord.

11 See, e.g., Klippert, G., Unjust Enrichment (Toronto 1983);Google ScholarMaddaugh, P. and ,, J.McCamus, , The Law of Restitution (Aurora, Ontario 1990);Google ScholarFridman, G.H.L., Restitution (2nd ed., 1992, Toronto);Google ScholarFinn, P. (ed.), Essays on Restitution (Canberra 1990),Google Scholar especially Mason, K., “Restitution in Australian Law” at pp. 20–46; Law Reform Commission of British Columbia, Benefits Conferred under a Mistake of Law (1981);Google ScholarMcCamus, J., “Restitution and the Supreme Court: The Continuing Progress of the Unjust Enrichment Principle” (1991) 2Google Scholar Sup. Ct. L. Rev. (2d) 505; Smith, L.D., “The Province of the Law of Restitution” (1992) 71Google Scholar Can. Bar Rev. 672; New South Wales Law Reform Committee Report No. 53, Restitution of Benefits Conferred under Mistake of Law (1987).

12 Birks, P., An Introduction to the Law of Restitution (Oxford 1985, revised 1989);Google ScholarBeatson, J., The Use and Abuse of Unjust Enrichment (Oxford 1991);Google ScholarBurrows, A. (ed.), Essays on the Law of Restitution (Oxford 1991);Google ScholarBurrows, A., The Law of Restitution (London 1993);Google ScholarTettenborn, A., Law of Restitution (London 1993).Google Scholar The catalogues of specialist legal bookshops still list books on restitution in the sections devoted to contract.

13 [1993] A.C. 70; J. Beatson (1993) 109L.Q.R. 1 and 401; S. Arrowsmith (1992) 142 New L.J. 1726.

14 [1991] 2 A.C. 548. For a note on the Court of Appeal decision see E. McKendrick (1991) 107 L.Q.R. 526. 15 (1981) 117 D.L.R. (3d) 257. See also, most recently, Peel (Regional Municipality) v. Canada (1993) D.L.R. (4th) 140; M. Mclnnes, “Restitutionary Relief for Incontrovertible Benefits” (1993) 109 L.Q.R. 521.

16 (1987) 162C.L.R. 221; J. Beatson (1988) 104 L.Q.R. 13.

17 (1992) 109 A.L.R. 57; Birks, P. (1993) 109 L.Q.R. 164. This decision allows even mistakes oflaw to be a basis for restitution.Google Scholar

18 O'Dell, E. shows that “many of the advances recently made in England were made quite some time ago in the Irish courts” [1993] Restitution Law Review at p. 140.Google Scholar Of particular note is Murphy v. Attorney-General [1982] I.R. 241, where the Supreme Court held that the government was prima facie liable to make restitution of taxes paid under an unconstitutional tax provision. The facts and result of Texaco (Ireland) Ltd. v. Murphy (No. 2) [1992] 1 I.R. 399 and (No. 3) [1992] 2 I.R. 300 are remarkably similar to those in Woolwich v. I.R.C., though the judicial analysis is jejune by comparison.

19 Until recently the law of restitution in New Zealand was bedevilled by the infamous dictum of Mahon, J. in Carly v. Farrelly [1975] 1 N.Z.L.R. 356Google Scholar at 357: “[Unjust enrichment] is not only vague in its outline but … must disqualify itself from acceptance as a valid principle of jurisprudence by its total uncertainty of application and result … No stable system of jurisprudence could permit a litigant's claim to be consigned to the formless void of individual moral opinion.” See too the same judge in Avondale Printers and Stationers Ltd. v. Haggie [1979] 2 N.Z.L.R. 124.

20 See the excellent work by England, International Encyclopaedia of Comparative Law. vol. 10, ch. 5(1991).

21 For a search for principles governing the last two categories see Arrowsmith, S., “Ineffective Transactions and Unjust Enrichment: a Framework for Analysis” (1989) 9 Legal Studies 121.CrossRefGoogle Scholar

22 Despite the English Law Commission's proposals in Report No. 121, Pecuniary Restitution on Breach of Contract (1983).

23 This seems to be the clearly prevailing view in America: Perillo, “Restitution in the Second Restatement of Contracts” (1981) 81 Col. L. R. 37. Arrowsmith, op. cit. at p. 129, favours retention of the ceiling principle. For consideration of alternative principles see Ball, S.N., “Work Carried Out in Pursuance of Letters of Intent—Contract or Restitution?” (1983) 99 L.Q.R. 572.Google Scholar

24 But again see Law Commission Working Paper No. 120, Restitution of Payments Made under a Mistake of Law (1991). For comparisons between common law and civil law approaches to mistakes of law see Zweigert and Kötz, An Introduction to Comparative Law, op. cil. note 1 above at pp. 260–268 and Englard, op. cit. note 1 above at pp. 18–21.

25 See Englard, op. cit. note 1 above at pp. 10–11.

26 See BP Exploration Co. (Libya) Ltd. v. Hunt (No. 2) [1983] 2 A.C. 352; (1983) 34 N.I.L.Q. 106.

27 “Restitution and Illegal Transactions”, in Burrows, A. (ed.), Essays on the Law of Restitution, ch. 7.Google Scholar

28 See, e.g.. Chase Manhattan Bank v. Israel-British Bank [1981] Ch. 105, Tettenborn, A. [1980] C.L.J. 272;Google Scholar Westdeutsche Landesbank Girozentrale v. Islington L.B.C., [1994] 4 All E.R. 890; Burrows, A.(1993) 143 New L.J. 480 at p. 482.Google Scholar

29 [1993] 3 All E.R. 65. Here the House of Lords allowed a claim by one woman that she was entitled to share ownership of a house registered in the sole name of another woman even though the purpose of so registering ownership was to allow the first woman to make fraudulent claims for welfare benefits from the Department of Social Security. See Council, B., “Clean Hands Need not be Spotless” (1993) 143Google Scholar New L.J. 1577 and cf. Rowan v. Dann [1992] 64 P. & C.R. 202.

30 [1991] 2 A.C. 548; P. Watts (1991) 107 L.Q.R. 521.

31 [1992] 3 All E.R. 737 at pp. 752g and 759h; S. Arrowsmith (1992) 142 New L.J. 1726.

32 R. v. I.R.C., exparte Woolwich Equitable Building Society [1990] 1 W.L.R. 1400.

33 Burrows, in The Law of Restitution, at p. 7, refers to the four “fundamental building blocks in the theoretical structure of restitution”. These are, first, the need for the defendant to have received a benefit; second, the need for this benefit to have been received at the plaintiff's expense; third, the requirement that it be unjust for the defendant to retain the benefit; fourth (though this is surely not so much a building block as a feature undermining a claim), the availability to the defendant of a range of defences. Cf. the language of Birks in “The English Recognition of Unjust Enrichment” [1991] L.M.C.L.Q. 473 at p. 475: “Taking the principle against unjust enrichment seriously means asking … four questions in every case”. He makes the same point in “The Condition of the English Law of Unjust Enrichment” [1992] Acta Juridica 1 at p. 4.

34 See e.g. the analysis by Lord Denning in Spartan Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd. [1973] Q.B 27.

35 See Murphy v. Brentwood DC. [1991] A.C. 398, overruling Anns v. Merton L.B.C. [1978] A.C. 728. See too Caparo Industries pic v. Dickman [1990] 2 A.C. 605 and Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310.

36 The Law of Restitution, passim.

37 This is the word used by Jones, G. in “A Topography of the Law of Restitution”, in Finn, P. (ed.), Essays on Restitution, ch. 1 at p. 12.Google Scholar

38 [1991] 3W.L.R. 790.

39 [1991] L.M.C.L.Q. 473 at p. 506. For his comments on the House of Lords decision see “When Money is paid in Pursuance of a Void Authority …—A Duty to Repay?” [1992] P.L. 580. See too, for a comparative treatment of the law on payment of excessive public charges, Englard, , International Encyclopaedia of Comparative Law, vol. 10, ch. 5 at pp. 29–32 and 38–39.Google Scholar

40 An Introduction to the Law of Restitution, at pp. 208–216.

41 Op. ch., ch. 12.

42 Op. cit., ch. 4.

43 Ibid. at p. 139.

44 Ibid. at pp. 141–142.

45 See e.g. Arrowsmith, S., “Ineffective Transactions, Unjust Enrichment and Problems of Policy” (1989) 9 Legal Studies 307.CrossRefGoogle Scholar

46 [1991] L.M.C.L.Q. 473.

47 Ibid, at p. 481.

48 “The Change of Position Defence in Restitution” (1994) 52 University of Toronto Faculty Lan Review 275.Google Scholar

49 Ibid. at p. 507.

50 The Israeli Law is considered further below.

51 (1983) 99 L.Q.R. 217.

52 The term is that of Birks, (1990) 16 U. Queensland LJ. 1 at p. 2,Google Scholar citing Beatson, J., “Benefit, Reliance and the Structure of Unjust Enrichment” [1987] C.L.P. 71.Google Scholar

53 Essays on Contract at pp. 52–56. An attempt to refute Atiyah's arguments has in turn been made by Birks: “Restitution and the Freedom of Contract” [1983] C.L.P. 141.Google Scholar

54 The Rise and Fall of Freedom of Contract (Oxford 1979) at pp. 767–768.Google Scholar

55 “Colour of Office: Restitutionary Redress against Public Authority” (1987) 14 Journal of Malaysian and Comparative Law 41 at p. 56.Google Scholar

56 [1983] C.L.P. 141. Burrows is convinced by Birks's refutation: The Law of Restitution at p. 3, n. 6.

57 Op. cit., at pp. 47–52.

58 “The Independence of Restitutionary Causes of Actions” (1990) 16 U. Queensland LJ. 1 at p. 22; see too An Introduction to the Law of Restitution, at pp. 99–108.Google Scholar

59 See the succinct account, and refutation, in A. Burrows, The Law of Restitution, at p. 4.

60 “Restitution, Property and the Cause of Action in Unjust Enrichment: Getting by with Fewer Things” (1989) 39 University of Toronto Law Journal 258CrossRefGoogle Scholar and 325. Stevens' thesis is that the failure of English common lawyers to adopt the idea of “non-consensual receipt and retention of value”, and their adoption instead of historical ideas and ad hoc solutions, including the anachronistic division of private law rules into the rules of equity and the rules of common law, “has resulted in a growing incoherence on the part of Canadian judges and lawyers who attempt to articulate justifications in the law of restitution” (at p. 352).

61 Smith, L.D., “The Province of the Law o f Restitution” (1992) 71 Can. Bar Rev.672.Google Scholar

62 “The Principle of Unjust Enrichment in English Law” (1938) 16 Can. Bar Rev. 243 and 365, at p. 244.Google Scholar

63 The Law of Restitution, ch. 9.

64 Op. cit. note 55 above. It was cited in the judgment of Lord Goff.

65 See below. Also Jones, G., Restitution in Public and Private Law (London 1992).Google Scholar

66 The San Giorgio case, [1983] E.C.R. 3595, cited in Woolwich v. I.R.C. The ECJ accepted that restitution could be denied by a member state if, because the plaintiff has already passed on the loss to third parties (here, consumers), the plaintiff would him or herself be unjustly enriched as a result.

67 “Should there be Legislative Development of the Law of Restitution?”, in Burrows, A. (ed.), Essays on the Law of Restitution, ch. 11. See too his “Restitution of Taxes, Levies and Other Imposts: Defining the Extent of the Woolwich Principle” (1993) 109 L.Q.R. 401.Google Scholar

68 (1956) 5 Am. J. Comp. L. 2 at p. 3.

69 Zweigert and Kötz, An Introduction to Comparative Law, at p. 257: “When one moves from the enrichment law of the Continental systems to what is now called the ‘law of restitution’, even in England, namely that area of the Common Law which contains all the rules which seem to Anglo-American lawyers to rest on the idea of preventing unjust enrichment, one might be entering another world.”

70 D.50.17.206. For a comparison between Roman law and modern common law systems see Buckland, W.W. and McNair, A.D., Roman Law and Common Law: A Comparison in Outline (2nd ed. by Lawson, F.H.; Cambridge 1965), ch. 9. See too Mr. Justice van Zyl, [1992] Ada Juridica 115 at 115–118.Google Scholar

71 J.P. Dawson, Unjust Enrichment: A Comparative Analysis, at pp. 95–96. O'Connell, op. cit., at pp. 5–9 and 15, speaks up for Pothier and blames instead the framers of the Code civil.

72 J.P. Dawson, op. cit., identifies 15 of these.

73 See Nicholas, B., The French Law of Contract (2nd ed., Oxford 1992), passim.Google Scholar

74 Zweigert and Kötz point out that the provisions on répétition de I'indu do not allow reimbursement for services rendered without legal grounds or restitution of property transferred for a purpose which fails: op. cit., at p. 240.

75 The work of the leading writers is summarised in de Page, H., Traité Elémentaire de Droit Civil Beige, vol. III (Brussels 1967), at pp. 36–37.Google Scholar The Belgian law on unjust enrichment is to all intents and purposes the same as French law (ibid, at pp. 31–64).

76 Dawson, op. cit., at p. 100, says the Cour de cassation “suddenly took a long jump into very deep water”. In a case in 1864 the Cour de cassation had allowed a person who had supplied seed to a tenant-farmer to recover its value from the owner of the land where it had been sown, but this was largely because art. 2012 of the Code civil granted compensation in very similar circumstances. Of the 1892 case Dawson writes: “From seeds to fertilizer may be a short step across a barn but it was a high dive for the Court of Cassation”, ibid, at p. 101.

77 “To many the decision of 1892 was dramatic proof of the influence of ethical ideas in the exposition and correction of positive law “: Dawson, ibid, at p. 103. At pp. 104–105 Dawson sharply criticises French judges and writers for being unable to rationalise the subsequent case law.

78 Furet, M-F., “ L'enrichissement sans cause d'apres la jurisprudence administrative” D.1967.Chr.265.Google Scholar

79 Art. L.411–69 of the Code rural (inserted in 1983). These provisions are “d'ordre public”, which means that they cannot be altered by any private contractual clause.

80 Malaurie, M., Les restitutions en droit civil (Paris 1991),Google Scholar reviewed by Cadiet in [1992] Rev. int. de dr. comp. 548.

81 This term had a much narrower meaning in Roman law, being confined to situations where the defendant was a father or the owner of a slave.

82 See the account in Lawson, F.H., Anton, A.E. and Brown, L.N., Amos and Walton's Introduction to French Law (3rd ed., Oxford 1967) at pp. 197–9.Google Scholar Also Dickson, B., Introduction to French Law (London 1994), at pp. 164–6.Google Scholar

83 (1992) 40 Am. J. Comp. L. 431 at p. 449.

84 Englard, International Encyclopaedia of Comparative Law, vol. 10, ch. 5 a t p p . 163–166.

85 See also Starck, B., Droil civil: Obligations, vol. 2, by Roland, H. and Boyers, L. (2nd ed., Paris 1986), at pp. 642–643.Google Scholar

86 D. 1953.609.

87 D.1985, Flash du n ‘ 35. See too Romani, A-M., “Lafaute de I’appauvri dans I'enrichissemenl sans cause et dans la repetition de 1'indu”, D. 1983.Chr. 127.Google Scholar

88 Zweigert and Kötz, An Introduction to Comparative Law, at pp. 268–274. This is the principle ex turpi causa non oritur actio.

89 Elle est susceptible defaire nailre l'idée que /'action esl donée lorsque l'enrichissemenl est contraire à l'équité”: Mazeaud, Leçons de droit civil (6th ed., Paris 1978), vol. 2, at p. 806.Google Scholar

90 Nicholas, The French Law of Contract, esp. at pp. 29–47.

91 See e.g. D. 1979.I.R.495. Such cases are discussed in Jauffret-Spinosi, C., “The Domain of Contract in French Law”, in Harris, D. and Tallon, D. (eds.), Contract Law Today (Oxford 1989) at pp. 115–7.Google Scholar For other cases illustrating the concept of cause légitime see Zweigert and Kötz, op. cit., at pp. 241–3 and for a comparative discussion of claims denied on the basis that P's payment was morally due see Englard, International Encyclopaedia of Comparative Law, vol. 10, ch. 5 at pp. 14–18. For the position in English law see Tinsley v. Milligan [1993] 3 All E.R. 65.

92 Burrows, A., “Restitution of Payments made under Swap Transactions” (1993) 143 New L.J. 480;Google ScholarSwadling, W., “Restitution for No Consideration” [1994] Restitution Law Review 73.Google Scholar

93 (1934) 5 C.L.J. 204 at pp. 218–221.

94 “Ces règies permettent les solutions nuancees que le droit de I'enrichissement n'est pas en mesure de donner”: E. von Caemmerer, “Problèmes fondamentaux de I'enrichissement sans cause” (1966) 18 Rev. int. de dr. comp. 574 at p. 580.

95 Ibid. at p. 581.

96 A. Burrows, The Law of Restitution, at pp. 450–456.

97 D.1984.I.R.315.

98 And even though article 1165 of the Code civil unambiguously states that “agreements have effect only on the contracting parties”.

99 For an exposition of the development of Dutch law 1600–1800, see MrZyl, Justice van, [1992] Acta Juridica 115 at pp. 120–128.Google Scholar For more modern analyses see Fokkema, D.C. et al. , Introduction to Dutch Law for Foreign Lawyers (Deventer 1978) at pp. 113 and 144; also van Zyl, op.cit., at pp. 129–130.Google Scholar

100 Art. 6.4.3.1.

101 Wessels, B., “Civil Code Revision in the Netherlands: System, Contents and Future” (1994) 41 Netherlands International Law Review 163 at p. 182.CrossRefGoogle Scholar

102 I am indebted to Professor Winkel, of Erasmus University, Rotterdam, for this translation.

103 Schindler, K.H., Review of Trimarchi, L'arrichimento senza causa (Milan 1962) in (1965) RabelsZ. 792 at p. 793.Google Scholar

104 Ibid. at p. 794. Gallo claims that Italian law is less generous towards indirect enrichment claims than it used to be: supra, note 1, at pp. 456–7.

105 P. Gallo, (1992) 40 Am. J. Comp. L. 431 at pp. 442–3.

106 Criscuoli, G. and Pugsley, D., Italian Law of Contract (1991) at p. 194.Google Scholar See too Whincup, M., Contract Law and Practice: The English System and Continental Comparisons (Deventer 1990)Google Scholar at para. 13.65.

107 Modern Greek law appears to be identical to the German; see Kerameus, K.D. and Kozyris, P.J. (eds.), Introduction to Greek Law (Deventer 1988) at p. 95Google Scholar (explaining arts. 904–913 of the 1940 Civil Code). The position in Austria and Switzerland is very Germanic: Zweigert and Kötz, An Introduction to Comparative Law. at pp. 232–7, and the German Code also seems to have been the most influential on Japanese law, where art. 703 of the 1896 Civil Code, still in force, provides that those who benefit from another's assets or service without any legal ground, causing loss to this other person, are liable for restitution in so far as the benefit remains; see Oda, H., Japanese Law (London 1992) at pp. 205–6.Google Scholar Oda cites one Supreme Court decision from 1970 where P repaired a bulldozer for X, who had rented it from D. X went bankrupt and the bulldozer was returned to D. P recovered the fee for repair from D on the basis of unjust enrichment.

108 P. Gallo, op.cit., at p. 465. For an older account of German law see Friedmann, (1938) 16 Can. Bar Rev. 243, esp. at pp. 253–261. A modern account is provided in Foster, N., German Law and the Legal System (London 1993) at pp. 229–231Google Scholar and there are scholarly explanations of the German legal position in Zimmermann, R., The Law of Obligations—Roman Foundations of the Civilian Tradition (Cape Town 1990) at pp. 887–891 and 895–6.Google Scholar

109 “The Law of Restitution in the Federal Republic of Germany: A Comparison with English Law” (1987) 36 I.C.L.Q. 751;Google ScholarZimmerman, R. and du Plessis, J., “Basic Features of the German Law of Unjustified Enrichment” [1994] Restitution Law Review 14.Google Scholar

110 “Wer durch die Leistung eines anderen oder in sonstiger Weise auf dessen Kosten etwas ohne rechtlichen Grund erlangt, ist ihm zur Herausgabe verpflichtet.”

111 The leading monograph is that by Reuter, D. and Martinek, M., Ungerechtfertigte Bereicherung (1983).Google Scholar

112 Op. cit., at p. 248.

113 An Introduction to the Law of Restitution, ch. 1 and passim. See also his “The Condition of the English Law of Unjust Enrichment” [1992] Acta Juridica 1.

114 Ibid. at pp. 133–9. See also Smith, L.D., Three-Party Restitution: A Critique of Birks's Theory of Interceptive Subtraction (1991) 11 O.J.L.S. 481.Google Scholar

115 Lehrbuch des Schuldrechts, vol. II, Besonderer Teil.

116 Op. cit., at pp. 56–62 and 383–384.

117 “Die Verpflichtung zur Herausgabe oder zum Ersatze des Wertes ist ausgeschlossen, soweit der Empfänger nicht mehr bereichert ist”. See Dawson, J.P., “Erasable Enrichment in German Law” (1981) 61 Boston U.L.R. 271Google Scholar and Zweigert and Kötz, An Introduction to Comparative Law, at pp. 275–287.

118 See Stewart, W.J., The Law of Restitution in Scotland (Edinburgh 1992).Google Scholar On historical aspects see Evans-Jones, R., “Unjust Enrichment, Contract and the Third Reception of Roman Law in Scotland” (1993) 109 L.Q.R. 663.Google Scholar

119 The phrase is that of Birks. For this section I have drawn on his paper “Restitution: The View from Scotland”, delivered to the Restitution Group of the Society of Public Teachers of Law at its 1984 meeting in Edinburgh. See also his “Six Questions in Search of a Subject—Unjust Enrichment in a Crisis of Identity” (1985) 28 Jur. Rev. (N.S.) 227 and “Restitution: a View of Scots Law” [1985] C.L.P. 57.

120 Walters, D.B., “The Restitution of Unjustly Acquired Benefits in English and Scots Law” (1980) 3 Jewish Law Annual 84 at pp. 88–89.Google Scholar Walters admits of the existence of a fourth miscellaneous category of unjust enrichment cases; in Scots law this would include the accountability of a coowner for profits accruing while the property remained joint and undivided: ibid. at pp. 9–97.

121 Blackie, J., “Enrichment and Wrongs in Scots Law” [1992] Ada Juridica 23.Google Scholar

122 The South African material is conveniently presented in Eiseien, S. and Pienaar, G., Unjustified Enrichment: A Casebook (Durban 1993).Google Scholar

123 1966 (3) S.A. 96 (Appellate Division). The plaintiffs had entered into a contract with the defendant whereby the plaintiffs were given the exclusive right to prospect for and extract kaolin (china clay) on the defendant's land. The contract was void because of a formal defect but the plaintiffs sued for the value of the enrichment conferred on the defendant through their discovery of kaolin on his land. The claim was rejected: no existing head of liability applied and there was not yet a general action for unjustified enrichment in South African law.

124 See Gibson, , Wille's Principles of South African Law (7th ed. 1977), ch. 38 (esp. at p. 492).Google Scholar For a summary in English of the first edition of a book in Afrikaans on unjustified enrichment see de Vos, W., “Liability Arising from Unjustified Enrichment in the Law of the Union of South Africa” [1960]Google Scholar Jud. Rev. 125 and 226.

125 Willis Faber Enthoven (Ply) Ltd. v. Receiver of Revenue and Another (1992) (4) S.A. 202 (Appellate Division), discussed by G. Jones at [1993] C.L.J. 225 and by D. Visser at (1992) 109 S.A.L.J. 177 and [1993] Restitution Law Review 185. The court thought that legal policy now demanded the abolition of the mistake of law rule but added that only excusable mistakes should justify recovery. Jones is of the view that, as in cases of mistake of fact, even grossly negligent payers should be allowed to recover.

126 Van der Burgh v. Van Dyk (1993) (3) S.A. 312 (judgment in Afrikaans but headnote in English); [1994] Restitution Law Review 199.

127 The recently enacted Restitution of Land Rights Act will attempt to correct long standing grievances amongst blacks concerning their forced removal from land over a period of several decades.

128 [1977]2S.C.R. 7.

129 The translation is taken from [1993] Restitution Law Review at pp. 212–213. See too L. Smith, ibid, at p. 115.

130 Described by one distinguished commentator, Bernard, Jackson, as “an event of major jurisprudential significance” (1980) 3 Jewish Law Annual 3.Google Scholar The Law is reproduced in English in [1993] Restitution Law Review at p. 213. For a discussion of Israeli law prior to 1979 see Friedmann, D., “Some Trends in the Development of the Law of Unjust Enrichment in Israel”, Beitróge zum deutschen und israelischen Privatrecht (Neue Kolner Rechtswissenschafttiche Abhandlungen, Heft 81; Cologne 1977).Google Scholar

131 Ibid. There are three other substantive provisions in the 1979 Law. Section 3 allows the beneficiary, when making restitution, to deduct his or her reasonable expenses incurred in obtaining the benefit. Section 4 allows restitution in cases of payment of another's debt provided the debtor had no reasonable cause to object to the payment. Section 5 allows restitution in cases where a person, in good faith and reasonably, does any act to protect the life, physical integrity, health, honour or property of another without being under a duty to do so.

132 See generally Friedmann, D., “Infusion of the Common Law into the Legal System of Israel” (1975) 10 Israeli Law Review 324.Google Scholar Friedmann has also analysed the effects of recent Israeli contract legislation on restitutionary claims: “Consequences of Illegality Under the Israeli Contract Law (General Part) 1973” (1984) 33 I.C.L.Q. 81.