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WHAT’S “UNJUST” ABOUT UNJUST ENRICHMENT: AN ANSWER AT LAST?

Lloyd's Maritime and Commercial Law Quarterly

WHAT’S “UNJUST” ABOUT UNJUST ENRICHMENT: AN ANSWER AT LAST? Alexander YS Georgiou * SFM v Christ the King College The law of unjust enrichment has been dogged by a persistent question: what explains the claimant’s entitlement to restitution from the defendant? For Professor Birks, the answer lay in appeal to the simple intuition that the payor of a mistaken payment was entitled to its return; 1 but this view of the law, which principally focuses on the combination of some enrichment of the defendant and some vitiation of the claimant’s will, is not short of modern-day detractors. 2 However, the leading alternatives fare little better, leaving us with a still-open question. In School Facility Management Ltd v Governing Body of Christ the King College 3 we find the seeds of an answer: the express or implied conditions on which we act. The facts Christ the King College (“the College”) was a voluntary aided school maintained by the Isle of Wight Council (“the Council”). In February 2009, the Council agreed to * All Souls College, University of Oxford. My thanks to Jordan English, Matthew Hoyle, Emma Rawkins and William Swadling, whose comments on this piece in draft were invaluable. 1. P Birks, An Introduction to the Law of Restitution , rev’d edn (Clarendon, Oxford, 1989), 16. 2. There are doubts about the truth of the moral principles said to underpin explanations of this kind, as well as the extent to which the positive law in fact coheres with such explanations. See eg F Wilmot-Smith, “Should the payee pay?” (2017) 37 OJLS 844; R Stevens, “The unjust enrichment disaster” (2018) 134 LQR 574; and L Smith, “Restitution: a new start?”, in P Devonshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart, Oxford, 2018). Cf A Burrows, “In defence of unjust enrichment” (2019) 78 CLJ 521. 3. [2020] EWHC 1118 (Comm) (hereinafter “ SFM ”). 64

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