If there is something that common-law scholars are in particular doubt about, those are the concepts of Restitution and Unjust Enrichment. Out of simple academic curiosity, the purpose of this paper is to shed light upon the common-law scholars’ efforts of theorizing and justifying the concept of Unjust Enrichment. Due to the fact that the notion is inextricably linked to the matter of Restitution, the two concepts are always sadly and inefficiently explained through each other.
Maybe even more relevant for a civil system scholar is the fact that, despite the identity name, the common-law concept of Unjust Enrichment and the Romanian one have nothing in common. In this order of thoughts, it is opportune to present the dominant five interpretative trends of the mentioned concepts in order to understand the controversial debates in common-law legal literature.
The five views on the concept of Unjust Enrichment and their subsequent critics
Due to the flexibility of the concept, two common-law scholars discussing unjust enrichment may both use English, but still be speaking two completely different legal languages (Hedley, 2006, p. 399). In this particular context, following the efforts of figuring out how the concept can shape the law, five views have come out to describe unjust enrichment. While the first of them involves a great dose of imprecision and vagueness, advancing through the succession of views, a culminating ‘civilianization’ process of the concept can be observed (Hedley, 2006).
The vagueness of a moral principle. According to the first view, unjust enrichment is perceived as a moral principle, mainly because it is easy enough to make references to equity. Burrows (1998) fiercely supported such a function of the concept by recognizing a law of restitution based on reversing unjust enrichment. The issue with this view is that, if intended to be used in order to shape the law, it would not be capable of doing so, simply because the law must have some certain precision (Hadley, 2006), a quality that a legal principle cannot provide.
Introducing some criteria. Within this understanding of the concept, scholars have overcome the strongly moralistic phase and asked themselves what the enrichment consist of, in which way it is unjust, in what sense it is at the expense of an individual and whether there are any relevant defenses. Such an interpretation is wide enough, but lacks coherence: the idea of injustice can be very different when we compare, for example, a murderer who is unjustly enriched by seeking to inherit under his victim’s will versus a recipient who is unjustly enriched through a mistaken payment (Hadley, 2006). Thus, a misleading apparent unity of unjust enrichment discloses too many disparate concepts of enrichment.
The unjust factors approach. The third, and probably the most rigorous, approach was introduced by Birks (1985), who comprehensively analyzed it in his work in connection with the matter of restitutions. He considered noteworthy the fact that the relationship between the matter of restitution and unjust enrichment is an inclusion one, the first incorporating the second, unjust enrichment being a particular causal event that gives rise to restitution. In this context, the model used (Hadley, 2006) to identify an unjust enrichment hypothesis is the following: (1) is there any enrichment?; (2) is it unjust or not?; (3) is it at the expense of the plaintiff?; (4) is there any relevant defense? The structure apparently provides rigor, except for the unjust factors that still vary significantly. Thus, there are too many situations that can be qualified as unjust factors: it becomes difficult to describe restitution for wrongs (Webb, 2000) because it includes all situations of torts, except strict liability - the equivalent of objective liability in Romanian civil law. This inconvenience resulted in the exclusion (Birks, 1985) of the mentioned restitutions from the scope of unjust enrichment. The unity provided by this approach is weak enough, due to the fact that the criteria are so diverse that they refer to different bodies of law. Despite all these deficiencies, this view is the dominant one and many of the polemics unfold themselves based on this interpretation, the really debated issue being the wide category of unjust factors. As a result, both academics and judges ‘invented’, depending on the litigation circumstances, an embarrassingly long list of unjust factors (Hadley, 2006).
Involuntariness. Paradoxically, the fourth approach is also a Birks’ interpretation (1985; 2003), prior to the unjust factors approach. Initially, the model that he proposed was much more precise. However, being aware of the fact that it would be almost impossible to offer more precision than that, he organized unjust factors the following way: a series of these factors can be addressed as being connected to the concept of mistake; others would contain an element of external pressure (unlawful pressure, duress), etc. Nevertheless, all of these situations can be classified within the involuntariness category (Hadley, 2006). Despite the seductive logic it provides, the issue of unjust factors becomes highly unpopular among academics and judges especially because it leaves no space for diversity, a fundamental characteristic of the common-law system (Hadley, 2006), giving more room to abstract description – a deeply continental law feature.
Unjustified enrichment. The last dominant approach eliminates entirely the unjust factors classification, focusing on the only relevant criterion – the lack of justification or an explanation to the enrichment (Birks, 2003). Even if this approach represents the culmination of the proximity to the continental system, this view did not gain much recognition, due to the fact that the theory is not considerably simplifying the law since the absence of the voluntariness can be attributed to multiple legal rules (such as whether or not we are discussing a voluntary gift or a valid contract).
The academic and judiciary reality
Clarity regarding unjust enrichment can be gained exclusively through a theoretical abstract description, a result that is not necessarily delightful (Hadley, 2006). However, this kind of clarity can be achieved only if we neglect the same desired clarity regarding other legal situations. As a consequence, the glorious confusion will dominate the common-law system long enough.
Academically, the third approach prevails, since moving forward to the fourth or fifth approach would mean a drastic change in terminology that does not necessarily bring out significant results.
From a judicial point of view, the theory is rarely relevant for actual disputes. The abundance of innovation within legal matters resulted into a side effect – an emphasized conservatism (Hadley, 2006). The second and the third approach will hardly be abandoned by the judges: why would you rule that there is no factor of mistake or no factors at all, only to favor a completely abstract and esoteric concept? Change will be slow, as unjust enrichment theories may be a complex and worthy cause, but perhaps not a very important one.