Between the Birksian Theory and the Traditional Approach in the English Law of Unjust Enrichment - Essay Example

Suppose there is no doubt that the law restitution of unjust enrichment exists. In that case, it is not still clearly determined what is considered an unjust enrichment and in what cases the enrichment should be defined as “unjust”. Understanding that the law is inconsistent in terms of the definition of unjust enrichment, Professor Peter Birks created his own scheme of unjust enrichment definition. This study will explore the concept of unjust enrichment, a relevant and still-developing area of law in the United Kingdom.

The investigation will be based on the theory of Peter Birks. Essentially, questions of unjust enrichment fall under the broader category of restitution in cases of damage, theft, or fraud resulting in monetary or property loss to the aggrieved party. It is necessary to delineate the possible remedies that the law offers in case of financial loss, or the enrichment of one party beyond a reasonable measure of proportionality. The development of this principle throughout the centuries will be touched upon in this analysis, as well as the simplification of the legal landscape regarding unjust enrichment based on the principle of "absence of basis".

Restitution Unjust enrichment is connected with the principle of restitution, which stands opposed to the principle of compensation. It is a matter of a remedy based upon the gain of one party or a remedy based upon loss to another party. . the benefits or financial advantages accrued by the defendant are restored to the plaintiff based on an understanding of a legitimate claim to said benefits. In the case of contractual obligations, the value of funds or properties included in the contract will be included in the restitution judgment.

Another situation in which restitution is appropriate would be the vindication of property rights that have been abrogated by some action – or failure to take action on part of the defendant. (Graham, 2006). Issues of restitution pertaining to unjust enrichment often hinge upon whether a contract exists in reality. Situations or countries where implied contractual obligations are nonbinding challenge the premise of restitution or unjust enrichment. Here the principal issue becomes one of misrepresentation of the legal obligations and subsequent remedies mandated under principles of restitution.

(Indian Contract Law, 1872) Compensation represents payment for damages as deemed appropriate by the court. Damages can take the form of injuries or violations of duties based upon pre-existing legal obligations, or as a result of tort law. A principal difference between the gain in based restitution and loss-based compensation is that restitution would require reparation for gains that should otherwise have been shared by the defendant. Where compensation is required, and expectation of gain need not exist – all that is acquired is the ability to demonstrate that actions (or negligence) on part of the defendant were directly attributable to injury, loss, or harm suffered by the plaintiff/claimant.

Compensation is also appropriate in cases of breach of contract.