{"id":10114,"date":"2022-07-05T14:47:36","date_gmt":"2022-07-05T14:47:36","guid":{"rendered":"http:\/\/legalblog.ie\/unjust-enrichment\/"},"modified":"2024-03-02T16:19:10","modified_gmt":"2024-03-02T16:19:10","slug":"unjust-enrichment","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/unjust-enrichment\/","title":{"rendered":"Unjust Enrichment"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Overview\" title=\"Overview\">Overview<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Connected_to_Obligation\" title=\"Connected to Obligation\">Connected to Obligation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Non-Contract\" title=\"Non-Contract\">Non-Contract<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Trusts_IP\" title=\"Trusts &amp; IP\">Trusts &amp; IP<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#EU_Regulation\" title=\"EU Regulation\">EU Regulation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Proprietary_Trusts\" title=\"Proprietary &amp; Trusts\">Proprietary &amp; Trusts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Wrongdoing\" title=\"Wrongdoing\">Wrongdoing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Prior_Relationship\" title=\"Prior Relationship\">Prior Relationship<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#If_Above_Inapplicable\" title=\"If Above Inapplicable\">If Above Inapplicable<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Services_without_Request\" title=\"Services without Request\">Services without Request<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Pre-Contract_Dealing\" title=\"Pre-Contract\u00a0 Dealing\">Pre-Contract\u00a0 Dealing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Insurer\" title=\"Insurer\">Insurer<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/unjust-enrichment\/#Unilateral_Non-Contractual\" title=\"Unilateral Non-Contractual\">Unilateral Non-Contractual<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Overview\"><\/span>Overview<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There are\u00a0 two broad categories of restitution.\u00a0 In one type of case, the defendant\u2019s claim is based solely on the defendant being unjustly enriched.\u00a0 In other types of case, the claim is is based on unfair enrichment due to a wrong analaogous to a breach of contract or tort.<\/p>\n<p>There are different conflicts of law rules depending on the type of interest concerned.\u00a0 Where the restitution is closely related to a contract or civil wrong it is governed by the law applicable to that relationship.<\/p>\n<p>Where the above cannot determine the position and the parties have habitual residence in the same country, that country&#8217;s law applies. Failing that, the law of the country where the unjust enrichment took place applies.<\/p>\n<p>Where it is clear that the non-contractual obligation arising out of unjust enrichment is more closely connected with another country, the law of that other country shall apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Connected_to_Obligation\"><\/span>Connected to Obligation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The common law rules on the choice of law \u00a0for restitution are inconsistent.\u00a0 There is a tendency to follow the principle that the obligation to restore the benefit of enrichment at another person\u2019s expense should be governed by the law of the obligation.<\/p>\n<p>Many unjust enrichment claims arise from a failed contract.Where the restitution arises out of pre-contract dealings the law that applies to the contract is applicable to restitution in connection with it. \u00a0The most commonly held view is that if the unjust enrichment arises from a contract the proper law applicable to the contract should apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Non-Contract\"><\/span>Non-Contract<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where a contract is not involved, some cases support the view that the law of the place of enrichment applies.\u00a0 Other cases take the view that the law of country with which the circumstances are most closely connected, should prevail.<\/p>\n<p>Where the above law cannot be applied the law of the country where the damage occurs applies or where the parties have habitual residence in the same country at the time the event occurs that country or where it is clear that the non-contractual obligation arose out of dealings prior to conclusion of a contract is more closely connected with another country, the law of that other country.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Trusts_IP\"><\/span>Trusts &amp; IP<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Questions relating to the administration of trusts are governed by the law applicable to the trust. In the case of restitution for wrongs, it is arguable that the law governing the wrong is the appropriate law.<\/p>\n<p>In the case of intellectual property, it is the law of the country where the protection is claimed.\u00a0 In the case of unitary EU intellectual property rights, the relevant law is the law of the place where the act of infringement was committed.\u00a0 This cannot be restricted by agreement.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"EU_Regulation\"><\/span>EU Regulation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Part 3 of the Rome II Regulation deals with unjust enrichment and certain rights arising from failed contracts. The laws governing contractual relationships also govern non-contractual obligations arising out of unjust enrichment.<\/p>\n<p>Unjust enrichment may arise out of a non-contractual obligation. \u00a0It may create an obligation to repay sums and amounts wrongly received (e.g. overpayment. If the obligation arises out of torts (civil wrongs) or equity, another part of the Regulation applies.<\/p>\n<p>In some cases, it may be difficult to distinguish contract claims from unjust enrichment claims.\u00a0 In most events, this will not matter as the conflict of law rules will be similar.<\/p>\n<p>The Rome Convention (contractual obligations) provides the consequences of the nullity of a contract are determined under it.\u00a0 Some states, including the United Kingdom, have entered a reservation with respect to this provision.\u00a0 English Law regards nullity as a restitutionary issue.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Proprietary_Trusts\"><\/span>Proprietary &amp; Trusts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Many unjust enrichment claims are claims to retrieve property owned.\u00a0 In this event, proprietary rules apply.\u00a0 If it is proprietary in nature then it falls outside the Regulation and the traditional rules apply This would apply for example where goods are delivered with retention of title but are not paid for,.<\/p>\n<p>Where an non-contractual obligation arises from an infringement of intellectual property rights, the specific intellectual property mentioned in an earlier section apply.<\/p>\n<p>Boundary issues arise between equitable principles and restitution.\u00a0 What might be characterised as constructive trust in one setting may \u00a0be characterised as unjust enrichment\/restitutionary in another.\u00a0 Some resulting trusts may be characterised as restitutionary in one context and proprietary in another.<\/p>\n<p>An example may be where a \u00a0fiduciary makes an unauthorised profit.\u00a0 Their duty to disgorge the profit made is an equitable obligation and there is proprietary constructive trust over the benefit received..<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Wrongdoing\"><\/span>Wrongdoing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Restitution for wrongdoing may have a tortious or equitable basis.\u00a0 A person who breaches a contract and sells goods to a third party for profit may be liable to have that profit recouped by the original purchaser under restitutionary principles.<\/p>\n<p>Equally where a person wrongfully sells goods belonging to another, that other may claim may the goods by way of the civil wrong of conversion.<\/p>\n<p>It appears that each of the above would be characterised as restitutionary under the Rome II Regulation.\u00a0 This reflects Continental principles, which have a different concept of restitution.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Prior_Relationship\"><\/span>Prior Relationship<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 10 sets out the applicable law rules for unjust enrichment.\u00a0 The first rule deals with a situation where there is a prior relationship between the parties.\u00a0 The second applies if the first cannot determine the position.<\/p>\n<p>The third is a further fallback dealing with where the applicable law cannot be determined on either of the foregoing basis.\u00a0 There is a proviso that where the claim is manifestly more closely connected with a jurisdiction, then this may overrule each of the above.<\/p>\n<p>Where there is an existing relationship between the parties and a non-contractual obligation based on unjust enrichment (such as repayment of amounts wrongly received) arises out of that contract and\/or civil wrong closely connected with contract, it is governed by the law which the parties adopt for their contract when they start relationship.<\/p>\n<p>The most common relationship is a contractual relationship. In some cases, it may be based or also based on a civil wrong.\u00a0 The obligation may be based on unjust enrichment arising out of a civil wrong.\u00a0 The relationship may be fiduciary.\u00a0 In each case, the relationship between the parties must be closely connected with the unjust enrichment.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"If_Above_Inapplicable\"><\/span>If Above Inapplicable<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where the law cannot be ascertained on the above basis, and the parties had their habitual residence in the same state when the event giving rise to unjust enrichment occurred, the law of that state will apply. Habitual residence in this contract is similar to that in the respect of contracts. See the separate section.<\/p>\n<p>Where the law cannot be ascertained on the above basis, there is a further proviso. Where there is no relationship between the parties, and they are not habitually resident in the same state, then the governing law is that of the state in which the unjust enrichment occurred.<\/p>\n<p>Questions may arise as to whether unjust enrichment occurs where the benefit accrues or where the loss is suffered by the person who is deprived.\u00a0 Questions may arise where goods or assets are moved or where something done within one state has an effect on another state.<\/p>\n<p>There is an ultimate fall back rule which apples where the non-contractual obligation arising out of unjust enrichment is manifestly more connected with one state, other one of than those above. In that case, the law of that other closely connected state would apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Services_without_Request\"><\/span>Services without Request<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 11 applies where a person provides services without authority and is entitled to payment so as to prevent unjust enrichment.\u00a0 This may occur where a third party renders services to enable another to avoid a loss to assets or personal injury.\u00a0 The principle applies to salvage.<\/p>\n<p>Article 11 applies where there is a non-contractual obligation arising out of an act performed without authority in connection with the affairs of another.\u00a0 The rules are broadly the same as those above.\u00a0 i.e. existing relationship, habitual residence, place of unjust enrichment subject to an exception in favour of a state of manifestly closer connection.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Pre-Contract_Dealing\"><\/span>Pre-Contract\u00a0 Dealing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 12 applies to non-contractual obligations arising out of dealings prior to the conclusion of a contract.\u00a0 The provision is applicable irrespective of whether a contract is made.<\/p>\n<p>It covers culpa in contrahendo, which is a concept known to Continental legal systems. It broadly requires fair dealing in pre-contract negotiations.\u00a0 The equivalent under common law may manifest itself in an estoppel and some other ways.<\/p>\n<p>The law is that which applies is that which would have been applicable, if there had been a contracts.\u00a0 The proviso in this case is different to other cases.\u00a0 The fallback rule is the law of the state in which the damage occurs irrespective of the state in which the event giving rise to the damage occurred and irrespective of the state in which the indirect consequences of that occurred.<\/p>\n<p>Where the parties have their habitual residence in the same state at the time when the event giving rise to the damage occurs, the law of that state shall apply.\u00a0 Where it is clear from the circumstances of the case that the non-contractual obligation arising out of the contract dealings is more closely connected with one state other than that indicated above, the law of that state shall apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Insurer\"><\/span>Insurer<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Regulation provides special rules for a number of particular issues.\u00a0 A claim by the victim of a road traffic accident against the wrongdoer&#8217;s insurance company is specifically covered.<\/p>\n<p>The person who has suffered such damage may bring his claim directly against the insurer or person liable to provide compensation if the law is applicable to the non-commercial contractual obligation or if the non-contractual obligation or law applicable to the insurance contract so provides.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Unilateral_Non-Contractual\"><\/span>Unilateral Non-Contractual<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A unilateral act intended to have legal effect in relation to a non-contractual obligation shall be formally valid if it satisfies the formal requirements of the law governing the non-contractual obligations in question or the law of the state in which the act is to be performed.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10114\" data-postid=\"10114\" class=\"themify_builder_content themify_builder_content-10114 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Overview There are\u00a0 two broad categories of restitution.\u00a0 In one type of case, the defendant\u2019s claim is based solely on the defendant being unjustly enriched.\u00a0 In other types of case, the claim is is based on unfair enrichment due to a wrong analaogous to a breach of contract or tort. There are different conflicts of [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[153,154],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10114"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10114"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10114\/revisions"}],"predecessor-version":[{"id":32539,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10114\/revisions\/32539"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10114"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10114"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10114"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}