Unjustified enrichment’s evolution in mixed legal systems: Confronting McCarthy Retail Ltd
Authors R Evans-Jones and M Fischer
Affiliations: Emeritus Professor, University of Aberdeen; PhD candidate, University College London
Source: Acta Juridica, 2019, p. 395 – 418
Scotland has taken major steps towards the full recognition and development of a free-standing law of unjustified enrichment. It has been called a ‘revolution’. This essay briefly examines the content of the Scottish enrichment revolution. However, its main concern is modern South African law, with which aspects of the Scottish revolution resonate, particularly in relation to a general enrichment action. The examination of the Scottish and South African case law reveals that applying the standards of one category of enrichment claim to another category has its pitfalls. It is argued that the various established causes of action are significantly different from each other in important respects, and that they are much more than just historical mounds in the topography of unjustified enrichment. Therefore it remains to be seen whether the recognition of general principle in unjustified enrichment is capable of giving rise to a coherent, unified structure for the subject.