Soton Equity and Trusts - alastairhudson.com

o Recovery of an enrichment will not compensate the loss suffered by a
claimant.
o Restitution is a jumble of currently existing odds and ends which will cause
more confusion by leaving ragged, unattached elements of equity, etc..
o The word “unjust” is given a purely “technical meaning”, which overlooks
its jurisprudential force (e.g. Rawls, A Theory of Justice).
o Restitution has nothing to say about non-pecuniary, non-proprietary claims.
o Judges require flexibility to achieve fair results.
See Equity & Trusts, 4 th ed., Chapter 37:
o Human beings are fragile and need someone to “listen to their story”
o The world is fundamentally chaotic and equity is required to meet that
chaos
See e.g. Story’s Equity Jurisprudence (1886), 4: the concept of equity was a part
even of Roman law in the Pandects.
“Equity must have a place in every rational system of jurisprudence, if not in name,
at least in substance.” (Story, op cit., 6) – e.g. is family law a part of equity?
Law functions by using fictions and artificial models to achieve desirable effects:
Fuller, Legal Fictions (Stanford University Press, 1967).
F. Topics on which unjust enrichment thinking has little to say
1. Family Law
1.1 Family law is focused on needs, not enrichments
Family is focused on needs – e.g. the needs of children, and the needs of the spouses
(spice?).
Focus on any “unjust enrichment” would not give all of the parties who are within
the focus of family law the discretionary rights which the courts consider necessary.
1.2 Other models of unjust enrichment?
The English courts could, however, emulate the Canadian cases on trusts of homes
in their use of unjust enrichment.
Significantly, the Canadian approach to the home is very, very different from the
positivism of English restitution.
2. Avoidance through company law
Under company law, each company in a group is a distinct person. It is only in very rare
circumstances that company law will pierce the veil of incorporation: e.g. Saloman v A
Saloman & Co Ltd [1897] AC 22. If the defendant organises that the enrichment is passed to
A Ltd but the unjust act is committed by B Ltd, then the matrix will not seem to apply.
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