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Unjust Enrichment and Contract (Hardcover, New)
Loot Price: R3,848
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Unjust Enrichment and Contract (Hardcover, New)
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This book examines the role of unjust enrichment in the contractual
context, defined as contracts which are (a) terminated for breach,
or (b) subsisting, or (c) unenforceable. The book makes three
claims in relation to the orthodox common law account of
restitution (founded on unjust enrichment) in the contractual
context. Firstly, the orthodox account correctly proceeds on the
basis that the restitutionary claim in the contractual context is
founded on an independent cause of action in unjust enrichment,
rather than some equitable notion of unconscientiousness or the law
of contract. Secondly, the book departs from the orthodox account
by rejecting the unjust factors approach and endorsing the absence
of basis approach for the law of unjust enrichment. Finally, the
book argues that the right to restitution in the contractual
context should be determined by the conditionality of the transfer
of the benefit rather than a requirement such as the termination of
the contract, as the orthodox account dictates. To that end the
book proposes the following model, under which the right to
restitution in the contractual context is determined by the
resolution of the following two questions: (1) Was the transfer of
the benefit (eg of money or services) conditional? (2) Was there a
qualifying failure of condition? A condition can be, and often is,
the other contracting party's counter-performance, but it may also
be an event not promised by either party. What qualifies as a
failure of condition depends on the type of contract in question.
This book identifies two types of contracts, namely those which are
apportioned (eg instalment contracts) and those which are
unapportioned. It is only in relation to the latter that
termination is required. It is a particular strength of the book
that it is underpinned by detailed and original historical analysis
which makes a novel and distinct contribution to the history of the
laws of unjust enrichment and contract. 'Dr Baloch has produced the
definitive study of the inter-relationship between contract and
unjust enrichment. This has been achieved by carefully considering
the historical roots of our common law, and how this is to be
understood in its best light in the modern era.' Robert H Stevens,
University College, London. 'Dr Baloch's exploration of the
boundary between contractual and unjust enrichment liability in the
17th to 19th centuries has important things to say about the
history of ideas of 'contract' in this period.' Mike Macnair,
Oxford University. 'This is an innovative and rigorous book which
engages with one of the most difficult areas in the law of unjust
enrichment, namely the relationship between the law of unjust
enrichment and the law of contract. Baloch roots his treatment of
the modern law in its history and the historical analysis
throughout is very careful and well grounded in the primary
sources.' David Ibbetson, Cambridge University. 'This is a valuable
book, thoughtful and well researched. It is concerned to build a
model that fits comfortably with the cases, and its focus is on the
work of modern commentators. Those concerned with the relationship
of contract and the law of restitution whether at a theoretical
level or in practice will benefit by careful study of what Dr
Baloch has to say, whether or not they agree with it.' Jack
Beatson, Royal Courts of Justice, 14 February 2009 (From the
foreword)
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