The Reason to Reverse: Unjust Factors and Juristic Reasons

INTRODUCTIONThe of Restitution: Quasi Contracts and Constructive Trusts1 had profound impact in the United States but also throughout what used be known as the British Commonwealth.2 The project's success at home be expected, of course. Its impact abroad more remarkable. Academics - and those of an academic bent3 - responded quickly and enthusiastically in both England4 and Canada.5 Bar and bench, however, proved less welcoming. It fell Lord Denning, fifteen years after the fact, explain why English law (and, by extension, Canadian which had yet strike an independent path) obviously favourable soil in which plant the Restatement.6 The very idea of he observed, fundamentally at odds the English legal tradition.7 The law is be found in the cases and in broad, bold-fonted principles.8 And whereas textbook might helpfully serve as a guide the authorities but the law, the stated propositions unsupported by precedent.9 Worse yet, it prepared by named (preferably dead) author dedicated the cases, but rather by committee! A committee with revising editor that produced compromised views of the members that were into words by the secretary.10 Suffice say, there not much commend it in English eyes.11 Given the situation, the unsurprisingly suffered another disadvantage: it was hard find.12 Lord Denning prepared suppose there [were] copies at Oxford and Cambridge, but he noted that even couple of years after publication, there only one copy of the available English barristers and in London.13Small wonder then, that it took time for the Restatement become accepted into English courts.14 But accepted it was, thanks in no small part Lord Denning's own pioneering - some might say heroic - efforts. Acting pro bono15 in United Australia, Ltd. v. Barclays Bank, Ltd.,16 he for the first time at the Restatement, adopted its position regarding the nature of waiver of tort, and provided the House of Lords the means to cut away the misunderstandings of the old authorities and put the decisions on the right ground.17 The resulting judgment extended far beyond the immediate issue and opened the way the development of restitution as separate branch of the law.18 Two years later, Lord Wright drew upon United Australia and, presumably, his own extra-judicial thoughts on the Restatement19 in declaring that any civilized system of law is bound provide remedies for cases of what has been called unjust enrichment.20 The Restatement's influence even more pronounced in Canada. While English judges occasionally were skeptical or even dismissive of generalized notion of unjust enrichment,21 Canadian courts routinely looked south for guidance.22 The impact of the in the Supreme Court of Canada further heightened by the fact that the court led, during crucial period of restitutionary development in the 1970s and 1980s, by former student of one of the Restatement's principal reporters.23The explanation as why the overcame initial resistance and gained acceptance abroad is difficult discern. As Lord Denning observed, local conditions occasionally may lead us reach different solution.24 For the most part, however, our fundamental outlook is the same on all the things that really matter.25 The common-law jurisdictions on either side of the Atlantic have the same concept of justice, the same tradition of freedom, and the same hatred of oppression.26 And because they share the same commitment liberal values, individual autonomy, and personal property, they encounter the same types of disputes. Moreover, due in no small part the courts in all three countries came employ essentially the same principle of unjust enrichment during the second half of the twentieth century. …

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