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The Varieties of Restitution

The Varieties of Restitution

2nd edition

By Ian Jackman


Over the past decade, the High Court has repeatedly rejected the notion that there is a unifying principle of unjust enrichment at the plaintiff’s expense, in contrast to the position in the UK. This book provides a vigorous and sustained justification for the Australian position, and demonstrates that the law in the UK has generated more fictions than it was ever thought to abolish. The law of restitution is shown to comprise several fundamentally distinct legal concepts which fill gaps in the law of contract and tort, and which have nothing in common beyond the historical accident that they arose out of the action of indebitatus assumpsit. These are (i) the recovery of non-voluntary payments (by mistake, duress, undue influence, unconscionable dealing and total failure of consideration); (ii) remuneration for goods or services requested by the defendant in circumstances indicating a promise to pay for them; and (iii) the protection of certain facilitative institutions of private law (such as private property and fiduciary relationships). The book staunchly defends the traditional common law approach of analysing legal principles by the empirical method of treating like cases alike, rather than by derivation from supposedly unifying theories. This edition updates the first edition, which was published in 1998, in the light of almost 20 years of case-law and academic debate. It also adds a separate chapter dealing with the history of the law of restitution and why it matters.


Table of Cases
Table of Statutes

1.    Introduction

2.   The History of Restitution and Why It Matters

3.   Mistaken Payments

4.   Duress, Undue Influence and Unconscionable Dealing

5.   Payments Made on a Total Failure of Consideration

6.   Voluntary Provision of Benefits in Kind

7.   Non-Voluntary Provision of Benefits in Kind

8.   Restitution for Wrongs

9.   Proprietary Claims and Proprietary Remedies

10. Defences



This is the second edition of a work which was first published in 1998 to wide acclaim for its illuminating and penetrating discussion concerning the taxonomical possibilities of that area of law which is sometimes referred to as “restitution”. The initial edition added substantially to the identification of the structure of this area of the law in its various incantations. This second edition modernises the discussion by taking into account the ever widening divergence between English and Australian law and the vigorous eschewing by the High Court of any unifying or underlying principle. …
         It matters not on which side of the debate one positions themselves in relation to this book. It is, without doubt, an excellent contribution to the process of understanding the diffuse structure of the law in this area. It directly confronts the arguments advanced for the “unifying principle” approach and posits a strong, but measured, defence of the existing Australian position. It explains and analyses a difficult and abstruse area of the law and, in the process, assays the modern cases in an intelligible and comprehensive way. Read full review...

Queensland Law Reporter 31 March 2017 [2017] 12 QLR


Published 17 March 2017
Publisher The Federation Press
ISBN 9781760021320
Australian RRP $150.00
International Price $136.37
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Law - Contract
Law - Equity & Trusts

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