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What changes would you make to the English law of restitution Explain why you think these are desirable, but also identify any potential disadvantages that might result from them - Essay Example

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Accordingly, the central objective of restitution is to remove from a defendant the accruing of increased wealth or benefit, which the law prescribes…
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What changes would you make to the English law of restitution Explain why you think these are desirable, but also identify any potential disadvantages that might result from them
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Download file to see previous pages fusion of contract and equity based remedies justified under the head of restitution and generally, the courts have been unwilling to recognise restitution as a separate principle of recovery due to alternative common law methods of recovery such a quantum valebat and quantum meruit, the doctrine of waiver in tort and equitable claims3. As such, Tettenborn argues that “faced with this situation it is not surprising that the judges chose to remain within the existing categories of recovery rather than postulate any new theory of liability4.”
The focus of this paper is to critically evaluate the law of restitution and consider possible reform. To this end, I shall firstly consider the essential principles of restitution and it is submitted that the inherent problem with restitution based claims is the doctrinal difficulty of quantifying the concept of “unjust enrichment”. As such, the underlying objective of restitution has often been confused with equitable trust law principles, compounding legal certainty in this area as evidenced by the swaps litigation in decisions such as Westdeutsche Landesbank Girozentrale v Islington LBC5
Accordingly, in evaluating the law of restitution and possible reform, I shall contextually consider the swaps litigation and submit the proposition that possible reform in restitution should consider categorisation of according to the nature of the dispute and consider the common intention of the parties in considering the concept of unjust enrichment.
As highlighted above, the underlying basis for restitution under English law is to protect a claimant against the unjust enrichment of a defendant. However, in practice the inherently ambiguous nature of what constitutes “unjust” in order to merit recovery has led the judiciary to obfuscate the distinction between restitution, equity and contractual principles for recovery6. This in turn has fuelled academic debate as to the appropriate role and applicability of restitution ...Download file to see next pagesRead More
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