Prof. David J. Ibbetson: Unjust(ified) Enrichment

Frankfurter Rechtshistorische Abendgespräche

  • Date: Nov 1, 2017
  • Time: 18:15
  • Speaker: Prof. David J. Ibbetson
  • University of Cambridge
  • Location: Max Planck Institute for European Legal History
  • Room: Lecture hall of the MPI
David J. Ibbetson: Unjust(ified) Enrichment

Modern European legal systems routinely give a remedy for the recovery of money paid by mistake and allied situations. In continental European legal systems the focus of the law is typically on the lack of justification for the enrichment which has occurred, whereas in English law the focus is on the injustice of the enrichment. Hence we have two different terms, unjustified enrichment and unjust enrichment. Both of these ideas are rooted in Roman law: in the condictiones and in the general principle attributed to Pomponius that no-one should be enriched [unjustly] at the expense of another.

It is easy to assume that these two ideas are the same, and normally they do overlap almost completely, but there is at least a clear linguistic distinction between lack of justification and lack of justice, and this can have important consequences for the way in which the law is structured.

The purpose of the present paper is to trace the tension between the two formulations in various legal systems in the nineteenth and twentieth centuries, examining how it came about that the analysis in terms of lack of justification came to predominate. To a substantial extent the shift is linguistic, but it has wider ramification both for the structure of this area of law and more generally for the development of European legal science.

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