Publication Type

Journal Article

Publication Date

1-2007

Abstract

This paper examines the decision of the High Court of Australia, Roxborough v Rothmans of Pall Mall Australia Ltd. In particular, this paper interrogates the suggestion by some English commentators that the principle of unjust enrichment ought to apply in this case. This suggestion is controversial because this case is a situation where there was a valid contract between [*2] the parties. In this paper, the central argument advanced is a negative thesis: the unjust enrichment principle is inappropriate as a framework of analysis in the Roxborough context. In a situation like Roxborough, there are two hurdles before the unjust enrichment theory can be applied to a situation where there is a valid contract. First, it must be demonstrated that there was a gap in the contractual risk allocation before the unjust enrichment principle may operate. Second, even if the project of articulating a theory of gaps in contracts is feasible, unjust enrichment scholars must also explain the reasons for preferring unjust enrichment to other competing normative theories that are available in filling gaps in contracts. The main contention of this paper is that unjust enrichment scholars who seek to apply their theory to the Roxborough context have not provided a satisfactory solution to both of these hurdles.

Keywords

contract, implied terms, unjust enrichment, restitution, mistake, law

Discipline

Commercial Law | Contracts

Publication

Journal of Contract Law

Volume

23

Issue

3

First Page

201

Last Page

227

ISSN

1030-7230

Publisher

Elsevier Science B.V., Amsterdam.

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