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Unjust Enrichment$
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Peter Birks

Print publication date: 2005

Print ISBN-13: 9780199276981

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199276981.001.0001

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Disenrichment and Disimpoverishment

Disenrichment and Disimpoverishment

(p.207) 9 Disenrichment and Disimpoverishment
Unjust Enrichment

Peter Birks

Oxford University Press

The independence and necessity of the law of unjust enrichment derives from the peculiar normativity of extant gain. This chapter examines whether the enrichee has any defences. The liberalization of the grounds for restitution, which continues in the change of method determined by the swaps saga, has left them bearing a greater burden. Sir William Evans' anxieties as to the extreme consequences of recognizing rights to restitution under void contracts have to be met here, if they can be met at all. All the defences work by trumping the injustice of the defendant's enrichment. The defendant simply adds further facts which overwhelm the claimant's prima facie entitlement to restitution. However, there are two which operate in this way specifically by attacking ‘enrichment at the expense of the claimant’. This chapter deals only with those two. It is convenient to distinguish them from all the rest, so that the rest become unjust-related defences, while these two are enrichment-related and expense-related. The enrichment-related defence is here called disenrichment, and the expense-related defence is called disimpoverishment.

Keywords:   defences, restitution, void contracts, disenrichment, disimpoverishment, unjust enrichment, claimant, defendant

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