Publication Type

Journal Article

Publication Date

11-2006

Abstract

Two leading restitution scholars have recently argued that the notion of natural obligations is now an important defence in the law of unjust enrichment. 'In particular, the late Professor Peter Birks asserts, in his last book, that 'the claimant cannot say that the money was not due if, behind the technicalities of the law, there was still a moral obligation to pay.' This development is interesting because the concept of natural obligations is traditionally thought to be a civilian and not a common law concept. Birks' assertion represents an attempt to use the study of comparative law to interpret the common law and argue that certain civilian concepts are found in (or should be transplanted into) the common law. This paper is an investigation into whether such an endeavour is necessary to develop the common law of unjust enrichment. On a jurisprudential level, this paper also serves as a contemporary case study on whether it is desirable to engage in an exercise of legal transplant of a civilian concept into the common law.

Discipline

Common Law | Natural Law

Publication

Oxford University Commonwealth Law Journal

Volume

6

Issue

2

First Page

133

Last Page

156

ISSN

1472-9342

Identifier

10.1080/14729342.2006.11421469

Publisher

Taylor & Francis (Routledge): SSH Titles - no Open Select

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Additional URL

http://doi.org./10.1080/14729342.2006.11421469

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