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23 - Rationality, nationality and the taxonomy of unjustified enrichment

Published online by Cambridge University Press:  31 July 2009

Niall R. Whitty
Affiliation:
Visiting Professor, University of Edinburgh
David Johnston
Affiliation:
University of Edinburgh
Reinhard Zimmermann
Affiliation:
Universität Regensburg, Germany
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Summary

In an institute of law, or of any other science, the analyzing it into its constituent parts, and the arranging every article properly, is of supreme importance. One could not conceive, without experience, how greatly accurate distribution contributes to clear conception … No work of man is perfect: it is good, however, to be on the mending hand; and in every new attempt, to approach nearer and nearer to perfection. To compile a body of law, the parts intimately connected and every link hanging on a former, requires the utmost effort of human genius.

Lord Kames, Principles of Equity (3rd edition, 1773), Introduction.

Setting the scene

The brief of this chapter

As Lord President Rodger has recently remarked, references to ‘taxonomy’ are ‘very much à la mode in discussions of enrichment law’. The reason is well known. The English legal system accidentally overlooked its law of unjust enrichment for several centuries and has just rediscovered it. English lawyers are now busy exploring and developing it. The resultant outburst of intellectual creativity displays the awesome strength of English legal culture. The English enrichment law revolution has had a moderately galvanising effect in Scotland.

Certainly before Robert Goff and Gareth Jones's Law of Restitution broke the English ice in 1966, there was in Scotland a complacent tendency to believe that Scots enrichment law with its Cantiere case was much more advanced than the English law with its ‘Coronation’ cases and the implied contract fiction in Sinclair v. Brougham.

Type
Chapter
Information
Unjustified Enrichment
Key Issues in Comparative Perspective
, pp. 658 - 729
Publisher: Cambridge University Press
Print publication year: 2002

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