Unjust Enrichment: Nearer to Tort than Contract

Abstract This chapter argues that unjust enrichments are structurally closer to torts than contracts. As is true of torts and damages (but not contracts and contractual obligations), the relationship between unjust enrichments and restitution is normative rather than logical. The duty to make restitution, like the duty to pay damages, is logically distinct from the event that, as a matter of law, gives rise to it. Further, the normative structures of the unjust enrichment/restitution and tort/damages relationships are similar: although an unjust enrichment is not a wrong, it is, like a wrong, a problem, and the restitutionary duty to which it gives rise is, like the duty to pay damages, a duty to remedy that problem. The structure of the unjust enrichment/restitution relationship explains, inter alia, why courts never award damages for failing to make restitution (namely because the relevant duty is, like the duty to pay damages, a duty to make things right, not a duty not to commit a wrong). It also explains why Peter Birks' thesis that all unjust enrichments are unjust because they lack a legal basis is controversial.