Subsidiarity of unjust enrichment: Anglo-Franco-Scots perspectives
Item statusRestricted Access
Embargo end date09/07/2020
Campbell, Matthew James
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This thesis examines the supposed subsidiarity of unjust enrichment in English, French (ie, of the action de in rem verso, in the category of quasi-contracts), and Scots law. Its central argument is that the relations (i) of unjust enrichment with other areas of law, namely, special statutory regimes, property, contract, and tort/delict, and (ii) in French law, of the action de in rem verso with different quasi-contractual claims, cannot be explained on the basis that unjust enrichment, or elements thereof, are subsidiary to anything else. Various scholarly accounts are considered, along with primary materials. Chapter one summarises basic relevant features of unjust enrichment in each jurisdiction under consideration. Chapter two examines linguistic and contextual perspectives on subsidiarity (respectively, from Latin, English, and French, then from the Roman Catholic Church, European Union law, and European human rights law). From these perspectives are distilled six conceptual essentials of subsidiarity, which any use of subsidiarity must respect. Chapter three of the thesis explores the current position of subsidiarity in each jurisdiction under consideration, and why so many have that unjust enrichment is somehow subsidiary (the main reason being its extreme generality and consequent potential to upset the solutions provided, or refused, by other legal institutions). Subsequent chapters then apply the essentials distilled in chapter two to arguments that unjust enrichment is subsidiary, to statute, or property, for example. This analysis shows, not that unjust enrichment should not be subsidiary to the other institutions examined, but that it cannot be subsidiary to them. Alternative explanations of unjust enrichment’s external and internal relations are put forward to replace subsidiarity. It is hoped that this will contribute to the disappearance of subsidiarity from unjust enrichment discourse, and foster a better understanding, both of unjust enrichment in general, and how its power can be controlled.