Between the Birksian theory and the traditional approach in the Dissertation

Between the Birksian theory and the traditional approach in the English law of Unjust Enrichment - Dissertation Example It is necessary to create delineation between the possible remedies that the law offers in case of financial loss, or the enrichment of one-party beyond a reasonable measure of proportionality. The development of this principle throughout the centuries will be touched upon in this analysis, as well as the simplification of the legal landscape regarding unjust enrichment based on the principle of "absence of basis". Unjust enrichment is connected with the principle of restitution, which stands opposed to the principle of compensation. It is a matter of a remedy based upon the gain of one-party, or a remedy based upon loss to another party. RESTITUTION A court-ordered attempt to make restitution requires the offending party to surrender gains into the hands of the plaintiff/claimant. (The defendant must grant reparations to an aggrieved party in response to a loss which has occurred in a manner for which the defendant is found to be liable. The benefits or financial advantages accrued by the defendant are restored to the plaintiff based on an understanding of a legitimate claim to said benefits. In the case of contractual obligations the value of funds or properties included in the contract that will be included in the restitution judgment. Another situation in which restitution is appropriate would be the vindication of property rights which have been abrogated by some action – or failure to take action on part of the defendant. (Graham, 2006). Issues of restitution pertaining to unjust enrichment often hinge upon whether a contract exists in reality, or whether it is simply implied in assumpsit as an outgrowth of other legal processes. Situations or countries where implied contractual obligations are nonbinding challenge the premise of restitution or unjust enrichment. Here the principal issue becomes one of misrepresentation of the legal obligations and subsequent remedies mandated under principles of restitution. (Indian Contract Law, 1872) COMPENSATIO N Compensation represents payment for damages as deemed appropriate by the court. Damages can take the form of injuries or violations of duties based upon pre-existing legal obligations, or as a result of tort law. A principal difference between the gain in based restitution and loss-based compensation is that restitution would require reparation for gains that should otherwise have been shared by the defendant. Where compensation is required, and expectation of gain need not exist – all that is acquired is the ability to demonstrate that actions (or negligence) on part of the defendant was directly attributable to injury, loss, or harm suffered by the plaintiff/claimant. Compensation is also appropriate in cases of breach of contract. If the defendant enters into a binding agreement to utilize the products or services of another party, and that secondary party is required to expend funds or resources in response to work that does not occur as ordered, or a purchase that is n ot perceived as agreed, then damages are appropriate. The claimant could have undertaken agreement with other parties, and the expenditure of resources without agreed-upon compensation involves the loss of those resources without the promised revenue. Where compensation is appropriate, the defendant need not necessarily have profited themselves, as would be the