Publication Type

Journal Article

Version

publishedVersion

Publication Date

5-2012

Abstract

This paper explores the divide between the law of contract and the law of restitution in dealing with the different situations that arise from one party commencing work prior to the conclusion of a formal contract. It argues that contract and unjust enrichment each have a proper role to play in dealing with such cases. First, it argues against a purely contractarian view that such cases should be exclusively resolved by the law of contract, through an implied collateral contract. Such a technique, applied vigorously, would result in nullifying the concept of “essential terms” and an artificial construction of parties intentions. Second, it dispels the myths that the law of unjust enrichment is inadequate to deal with the problem, by clarifying the enrichment test and the unjust factor to be applied in such cases. It will be shown that the defendant s assumption of the risk of financial responsibility for the benefit is key to establishing these two elements of the claim.

Keywords

contract, restitution, unjust enrichment, pre-contractual liability

Discipline

Commercial Law | Contracts

Research Areas

Corporate, Finance and Securities Law

Publication

Lloyd's Maritime and Commercial Law Quarterly

Volume

[2012]

Issue

2

First Page

289

Last Page

316

ISSN

0306-2945

Publisher

Informa

Copyright Owner and License

Publisher

Additional URL

https://www.i-law.com/ilaw/doc/view.htm?id=284273

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