Restitution of Mistaken Enrichment under Section 73 of Malaysia's Contracts Act 1950: Pouring New Wine into an Old Bottle?
Abstract
This article makes two main suggestions regarding the interpretation of s 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 supposed affinity with contract and its relationship with the obsolete forms of action and the principle of unjust enrichment. The second suggestion is that the content of s 73 needs to be developed so as to enable it to better address complex cases. In undertaking the task of formulating the detailed rules and principles for the section, the courts should draw on the experience of other major common law jurisdictions. It shall be shown that the common law method of analysing issues of unjust enrichment could be usefully incorporated into the section's framework.