Denials and defences in the law of unjust enrichment



Publication Details

Mitchell, C. and Goudkamp, J. (2013). Denials and defences in the law of unjust enrichment. In C. Mitchell (Eds.), The Restatement Third: Restitution and Unjust Enrichment, Critical and Comparative Analyses (pp. 133-164). United Kingdom: Hart Publishing.

Additional Publication Information

ISBN: 9781849464086


In this chapter we argue that the rules governing the imposition of liability for unjust enrichment can be reduced to two categories. There are rules that define the elements of an action in unjust enrichment, and there are rules that specify situations in which liability will not arise, or will not arise in full, even though all of the elements of an action can be established. If this is correct, then it follows that there are two and only two types of response that a defendant can make with a view to avoiding or limiting his liability in unjust enrichment. He can argue that the claimant has failed to establish an element of his action. Or he can admit that the claimant has established all of the elements of his action but invoke a rule that wholly or partly exempts him from liability nonetheless. We term these responses ‘denials’ and ‘defences’ respectively.

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