The Role of Fault in the Law of Unjust Enrichment

Abstract

Abstract Fault can creep into the law of unjust enrichment on the plaintiff’s side or on the defendant’s. A plaintiff who would otherwise be entitled to a restitutionary claim may be denied restitution because he has been at fault. For example, in respect of payments made by mistake some jurisdictions have chosen to bar claims where the plaintiff’s mistake is judged to be inexcusable. More frequently it is the fault of the defendant which is made relevant. A system can go as far as to allow innocent defendants to escape restitutionary liability altogether. More selectively, the requirement of fault on the part of the defendant may be confined to particular causes of action in unjust enrichment.

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