I presented an earlier version of this essay at a workshop in Osgoode Hall, and I thank participants there for their comments. For conversations on some of the issues discussed in this essay I also thank Prince Saprai. Finally, I thank two anonymous referees for the Modern Law Review for their comments.
In Defence of Quasi-Contract
Article first published online: 21 DEC 2011
© 2012 The Author. The Modern Law Review © 2012 The Modern Law Review Limited.
The Modern Law Review
Volume 75, Issue 1, pages 54–77, January 2012
How to Cite
Priel, D. (2012), In Defence of Quasi-Contract. The Modern Law Review, 75: 54–77. doi: 10.1111/j.1468-2230.2012.00888.x
- Issue published online: 21 DEC 2011
- Article first published online: 21 DEC 2011
Restitution scholars are almost unanimous in rejecting the term quasi-contract. This essay challenges this view. It begins by demonstrating that many debates among restitution scholars are in fact debates about the boundaries of consent-based liability. This serves as an introduction to the main thesis advanced, which is that the idea of quasi-contract, which is supposed to cover cases in which the parties would have made a contract if conditions allowed them to do so, helps to explain the doctrine better than the conclusory language of unjust enrichment. The essay concludes by situating the argument within the growing literature on the normative foundations of restitution. It argues that quasi-contractual liability should be understood not as part of unjust enrichment, but as a different basis of liability that can help us see what liability for unjust enrichment might be: liability grounded in notions of fairness.