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.
Common Law | Natural Law
Oxford University Commonwealth Law Journal
Taylor & Francis (Routledge): SSH Titles - no Open Select
TANG, Hang Wu.
Natural obligations and the common law of unjust enrichment. (2006). Oxford University Commonwealth Law Journal. 6, (2), 133-156. Research Collection School Of Law.
Available at: http://ink.library.smu.edu.sg/sol_research/2393
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.