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This article constitutes a brief study on the legal institution of enrichment without cause and the figure of the free rider in Chile. Because they have important meeting points since, in both, we find people who take advantage at the expense of others. What is raised is a conceptual question, a categorization proposal that tries to show that the underlying logics of both figures are compatible. To this end, an approach is made to how the principle of repudiation of enrichment without cause has been treated in Chile, which includes positive law, doctrine and jurisprudence. Then, some notions about the free rider are alluded to, the similarities between both institutions and their pairing with corrective and distributive justice. Finally, make some terminological precisions. After this tour, it is concluded that what is behind unjust enrichment is the formal notion of corrective justice and what is behind the figure of the free rider is the formal notion of distributive justice, both under the structure proposed by Aristoteles, which is developed Ernest Weinrib in The Idea of Private Law.
Chapter 3 demonstrated that the goal(s) of the law of unjust enrichment are not expressly stated in Chinese law. What can be deducted from the statutory provisions, the commentators’ views and case studies is that the Chinese law of unjust enrichment may aim to fill the gaps where no other areas of law reverse benefits obtained without a legal basis to compensate another’s loss to achieve fairness. Chapter 4 then explored whether such a gap exists. Four ‘gap scenarios’ in total have been identified where the law of unjust enrichment provides the sole tool to reverse the transfer of benefits that is not justified by a legal basis.
In some quarters, the focus of unjust enrichment scholarship has shifted from loss and gain towards the defendant’s ‘involvement in the story’—what she has done to warrant liability. The goal of this shift is to fit unjust enrichment within the ‘doer-sufferer’ template of ‘corrective justice’ theories of private law. I argue that this shift fails to reconcile unjust enrichment with the commitment to equal freedom upon which these theories depend. But we can justify restitution without forsaking the Kantian concern with rational agency. In this article, I endorse a contractualist approach to mistaken payments: a particular use of the state’s coercive power is just if it is one that everyone could rationally choose; everyone could rationally choose a rule placing the burden of risk for mistake with payees, if that rule does not make any such payee worse off than she was prior to the impugned transaction.
A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords in
Attorney General v. Blake
. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.
Evidence shows that real-effort investments can affect bilateral bargaining outcomes. This paper investigates whether similar investments can inhibit equilibrium convergence of experimental markets. In one treatment, sellers’ relative effort affects the allocation of production costs, but a random productivity shock ensures that the allocation is not necessarily equitable. In another treatment, sellers’ effort increases the buyers’ valuation of a good. We find that effort investments have a short-lived impact on trading behavior when sellers’ effort benefits buyers, but no effect when effort determines cost allocation. Efficiency rates are high and do not differ across treatments.
Inspired by recent debate, the purpose of this collection of essays on private law doctrines, remedies and methods is to celebrate and illustrate the contribution that both 'top-down' and 'bottom-up' methods of reasoning make to the development of private law. The contributors explore a variety of topical subjects, including judicial approaches to 'top-down' and 'bottom-up' methods; teaching trusts law; the protection of privacy in private law; the development of the law of unjust enrichment; the private law consequences of theft; equity's jurisdiction to relieve against forfeiture; the nature of fiduciary relationships and obligations; the duties of trustees; compensation and disgorgement remedies; partial rescission; the role of unconscionability in proprietary estoppel; and the nature of registered title to land.
In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.
Forty Years of Restitution: A Retrospective
- See John
- D Mccamus
See John D McCamus, "Forty Years of Restitution: A Retrospective" (2011) 50:3 Can Bus LJ
474 at 492-94.
English and Roman Learning in Moses v. Macferlan" (1984) 37:1 Curr Legal Probs 1; WMC Gummow
- B H Peter
- Birks
Ibid at 681. For a contrast, see Peter BH Birks, "English and Roman Learning in Moses v.
Macferlan" (1984) 37:1 Curr Legal Probs 1; WMC Gummow, "Moses v. Macferlan 250 Years
On" (2011) 68:3 Wash & Lee L Rev 881.
Linzer, supra note 86 at 697, 760. For a general discussion of various possible interpretations of this view, see Emily Sherwin
See e.g. Linzer, supra note 86 at 697, 760. For a general discussion of various possible
interpretations of this view, see Emily Sherwin, "Restitution and Equity: An Analysis of the
Principle of Unjust Enrichment" (2001) 79:7 Tex L Rev 2083 at 2091-104.
supra note 94 at 850-51. See Peel, supra note 69 at 802-03. Here, this reading of unjust enrichment was rejected
- Pettkus
Pettkus, supra note 94 at 850-51. See Peel, supra note 69 at 802-03. Here, this reading of
unjust enrichment was rejected.
Equity in the Modern Law
- Birks
See e.g. Birks, "Equity in the Modern Law," supra note 22 at 16-25. See also McInnes,
"Resisting Temptations," supra note 9 at 129.
It may well be political in another sense, which I do not explore here. I have argued elsewhere that many arguments presented by corrective justice scholars presented as politically neutral are actually committed to a right-wing view. See Dan Priel
It may well be political in another sense, which I do not explore here. I have argued elsewhere
that many arguments presented by corrective justice scholars presented as politically neutral
are actually committed to a right-wing view. See Dan Priel, "Torts, Rights and Right-Wing
Ideology" (2011) 19 Torts LJ 1. In this regard, McInnes's dislike for "social justice"
(which, like Hayek, he repeatedly puts in scare quotes) is notable. See McInnes, "Resisting
Temptations," supra note 9 at 100, 114.
For an earlier statement to the same effect, see Adras Building Material Ltd v Harlow & Jones Gmbh, (1995) 3 RLR 235 at 271-72, Barak J (Supreme Court of Israel). This is an English translation of the decision. For the original publication, see
- Ashir
AShIR, supra note 99 at 451, Barak P. For an earlier statement to the same effect, see Adras
Building Material Ltd v Harlow & Jones Gmbh, (1995) 3 RLR 235 at 271-72, Barak J
(Supreme Court of Israel). This is an English translation of the decision. For the original
publication, see (1988) 42:1 Piskei Din 221.
supra note 94 at 859, Martland J. Interestingly, in the French translation, "palm tree justice" is rendered as "la justice distributive
- Pettkus
Pettkus, supra note 94 at 859, Martland J. Interestingly, in the French translation, "palm tree
justice" is rendered as "la justice distributive." Ibid.
supra note 86 at para 40; Zaidan Group Ltd v London (City) (1990), 71 OR (2d) 65
- Garland
Garland, supra note 86 at para 40; Zaidan Group
Ltd v London (City) (1990), 71 OR (2d) 65, 64 DLR (4th) 514 at 518 (CA).