Basic Principles

Question 1

Structure of Unjustified enrichment

Answer 1

Unjustified enrichment is recognised in Scots law as a distinct source of obligations in private law on a similar level to contract and delict, however it is imposed law and so is not contractual in nature, rather quasi contractual.

Question 2

Identifying the general requirements to be satisfied for the claim to be successful.

Answer 2

The requirements for a successful claim is

• The defender must have been enriched , meaning they must have become economically better off as a result of a conferral on him, or an acquisition and retention by him, of a benefit that has an objectively determinable monetary value at the time the enrichment claim was raised.
• The enrichment must be unjustified, meaning the cause of action must be recognised by law in the circumstances, but there is no legal ground for it to be retained.
• The enrichment must be retained by the defender at the expense of the pursuer, from whom it was directly acquired or taken.
• There must be no defence in operation to defeat the claim or reduce its measure.
• The circumstances are such it is equitable to compel the defender to redress the enrichment.

Question 3

Division of the claims into groups

Answer 3

Unjustified enrichment is divided into different groups according to the manner in which the enrichment was acquired

• Condictio cases - deliberate conferral for a purpose which failed
• Interference cases - interference with another’s property or rights for ones own benefit without right or permission
• Imposition cases - physical improvement of another’s property in the erroneous belief they were enriching themselves, or the property was their own.
• Discharge of debt or duty - discharging another’s debt or duty to a third party, in certain circumstances.

Question 4

The General Enrichment Principle

Answer 4

In a sense, all causes of action leading to a benefit being retained by D at P’s expense sine causa is recoverable. The sine causa part has to be understood according to the group of cases it applies.

Question 5

The three R’s

Answer 5

Irrespective of the manner in which the enrichment was acquired, all causes give rise either to claims for RESTITUTION, REPETITION, or RECOMPENSE.
The remedy sought is not the three R’s above, but a judicial order for the required response.

Question 6

Restitiution

Answer 6

A claim to recover the the precise thing which was transferred

Question 7

Repetition

Answer 7

A claim for the return, substitutionally for the thing, of a fixed sum of money

Question 8

Recompense

Answer 8

A claim for the recovery of a benefit that is uncertain in content in that it is not something sufficiently concrete in the hands of D to be capable of exact return in a claim for restitution or repetition. It has to be evaluated in money by a court and this sum is paid to P.

Question 9

Measure of Recovery

Answer 9

In principle, each claim provides an identical measure of recovery - the extent of the enrichment at the time the claim was raised.
In some circumstances the measure of enrichment may only be reached after considering D’s defence of loss of enrichment, reducing the original enrichment.