Resumen de Justifying unjust enrichment
Notwithstanding its recognition and acceptance in private law, the notion of “unjust enrichment” has faced both academic and judicial criticism, scepticism and denial. Such treatment raises to the fore the fundamental but controversial question of the normative justification for this liability, by which the common law governs restitution in respect of defective transfers. This article evaluates the two primary accounts given of this normative justification: corrective justice, and so-called “property-based” accounts. After concluding that a version of the property-based account best coheres with the nature of a defective transfer, the implications of this account for the form and operation of the elements of unjust enrichment are examined. It is argued that a reorientated principle of “unintended disenrichment” would better align the liability with its most plausible normative justification.
