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A History of Private Law in Scotland: Volume 2: Obligations$
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Kenneth Reid and Reinhard Zimmermann

Print publication date: 2000

Print ISBN-13: 9780198299288

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198299288.001.0001

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Unjustified Enrichment

Unjustified Enrichment

(p.369) 14 Unjustified Enrichment
A History of Private Law in Scotland: Volume 2: Obligations


Oxford University Press

Scots law has only recently acknowledged explicitly that there is a unitary body of law called ‘unjustified enrichment’, however, the parameters and internal body of this law still remain unclear. This chapter discusses the influences and the different substantive law which formed the unitary concept. It attempts to explain the reason why Scots law which is founded upon the civilian tradition in this context has been late in recognizing ‘unjustified enrichment’ as a distinct body of law compared to other legal systems from the civil law. The first section of this chapter examines the two structures which led to the difficulty of the Scots law in recognizing the ‘unjustified enrichment’ as a body of law. It looks into the development of Stair’s scheme of obediential obligations. In the chapter the influence of the misperceptions that have existed in Stair’s obediential obligations and the modern law are identified and discussed. In addition, the chapter also outlines how the understanding of the nature of the developed institutional scheme allows a proper understanding of the boundaries of the law of ‘unjustified enrichment’ as well as the how this body of law provides a unitary treatment in spite of it being expressed in terms such as restitution and recompense. The second section of this chapter discusses the three studies of reception which revealed Scots law as being overrun by English law. The chapter finally provides a general conclusion of the nature of ‘reception’ and the resulting character of the Scottish ‘mixed’ legal system.

Keywords:   unjustified enrichment, obediential obligations, restitution, recompense, Scots law, Stair

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