Restitution of Mistaken Enrichment under Section 73 of Malaysia's Contracts Act 1950: Pouring New Wine into an Old Bottle?

Alvin W-L SEE, Singapore Management University


This article makes two main suggestions regarding the interpretation of section 73 of Malaysia’s Contracts Act 1950, which sets out the right to recover a mistaken enrichment. The first suggestion is that the courts should have regard to the historical background against which the section was enacted, especially because the pre-enactment common law was a historical curiosity. This will dispel certain misconceptions about the nature of the statutory right by shedding light on its relationship with the obsolete forms of action, its supposed affinity with contract and the role of the principle of unjust enrichment. The second suggestion is that the courts should draw on the experience of other major common law jurisdictions in formulating the detailed rules and principles for the section. It shall be shown that the common law unjust enrichment analysis could be usefully incorporated into the section’s framework, thus allowing it to better address complex cases.