Absence of Basis

Peter Birks

in Unjust Enrichment

Second edition

Published in print January 2005 | ISBN: 9780199276981
Published online March 2012 | e-ISBN: 9780191699917 | DOI:

Series: Clarendon Law Series

Absence of Basis

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Every enrichment comes about either with or without the participation of the claimant. Non-participatory transfers are those over which the claimant has no control, as where a pickpocket takes money from his pocket. Such an enrichment at the claimant's expense almost invariably has no explanatory basis. Participatory enrichments are perceived as either obligatory or voluntary. If the purpose is discharge of an obligation and there is indeed a valid obligation which is discharged, the enrichment has an explanatory basis and cannot be viewed as unjust enrichment. If there turns out to be no valid obligation discharged, the enrichment is inexplicable. It has no explanatory basis. Voluntary enrichments are those which are transferred not with obligation but in order to achieve some outcome. If that purpose is achieved, the basis has not failed. If it is not achieved, the enrichment has no explanatory basis. There are three categories of voluntary enrichments: contracts, trusts, and gifts. Non-participatory enrichments can be at law, in equity, or by-benefits.

Keywords: participatory enrichments; voluntary enrichments; contracts; trusts; gifts; obligation; non-participatory enrichments; by-benefits; unjust enrichment; at law

Chapter.  14666 words. 

Subjects: Civil Law

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