Book Title: Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory

Publisher: Oxford University Press

Abstract: To ground the law of incapacity, mistake, duress, undue influence, unconscionable bargains, and the Etridge doctrine in the claimant’s defective consent, or the defendant’s unconscientious conduct will only give the most approximate idea of when restitution is available. This chapter shows the inadequacy of these monistic analyses. More precision is needed to explain the precise size and shape of these unjust factors. It argues that four other factors need to be brought into play; namely, responsibility in contract formation, protection of vulnerable parties from harsh outcomes, public policy, and the demands of administrability. These supplement defective consent and unconscientious conduct to provide a more precise, useful, and transparent account of the law.