By Hanoch Dagan
Dagan's publication presents a dynamic and lots more and plenty wanted account of the yankee legislations of restitution. The ebook experiences the present doctrine, together with the imminent (third) Restatement, utilizing a moral standpoint to reveal and severely study the normative underpinnings of restitution's middle different types. the writer additionally discusses essentially the most debatable matters within the quarter, resembling cohabitation, flawed tax funds, and the position of optimistic trusts as trumps in financial disaster. He argues that the concept that of unjust enrichment isn't an self reliant cause of restitution yet, relatively, serves as a unfastened framework, structuring the contextual software of commitments to autonomy, application, and neighborhood in occasions the place both the reason for motion or the degree of restoration is benefit-based. by means of integrating doctrinal and moral analyses of restitution around the spectrum of restitution contexts, the writer deals major and provocative insights on present legislation in addition to attainable reforms.
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2083, 2084 (2001). preventing unjust enrichment 13 the “unitary principle” which “underlies the rules” of restitution. ” Institutional limitations, historical accidents, and conﬂicting principles that make it “impossible to be just to one without being unjust to the other” inhibit the perfect translation of “the fundamental conception of restitution” into rules. But this is always the case in law and, as with other branches of the law, such blemishes should not blind us from seeing the unitary principle of unjust enrichment.
Instead, I maintain that unjust enrichment can play a modest role as both a loose common theme of the law of restitution8 and as a reminder of the potential viability of the normative underpinnings of this body of law, thus functioning as an ongoing invitation to engage these underlying contextual commitments in developing restitution’s divergent doctrines. A Between moral principles and open-ended discretion When Warren Seavey and Austin Scott, the reporters of the ﬁrst Restatement, explained the project to their readers in England, who were at that time “unfamiliar” with the ﬁeld, they referred to unjust enrichment as 7 8 Andrew Kull, Rationalizing Restitution, 83 Cal.
Institutional limitations, historical accidents, and conﬂicting principles that make it “impossible to be just to one without being unjust to the other” inhibit the perfect translation of “the fundamental conception of restitution” into rules. But this is always the case in law and, as with other branches of the law, such blemishes should not blind us from seeing the unitary principle of unjust enrichment. As in other ﬁelds, “the subject of restitution is not properly or adequately described merely by a description of the purpose or interest that gives life to the rules.
Law and ethics restitution by Hanoch Dagan