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Enrichments and reasons for restitution: Protecting freedom of choice

  • Author(s) / Creator(s)
  • This article analyzes the role of freedom of choice in the Canadian law of unjust enrichment. Courts must balance the plaintiff's interest in recovering a benefit, with which she did not freely part, against the defendant's interest in controlling the allocation of resources in his possession. The primary means of resolving this tension lies in the element of enrichment: The defendant will not be considered legally enriched unless he either chose to assume financial responsibility for the benefit that he received from the plaintiff or, in the circumstances, had no choice to make. The author argues that, since the defendant's autonomy is sufficiently protected by the element of enrichment, the courts should not additionally protect that same interest when formulating the reasons for restitution at the third stage of the unjust enrichment analysis. Liability generally should be strict-it should be triggered by the plaintiff's lack of intention. Decisions that premise liability upon a \"special relationship\" or \"knowing receipt\" unduly favour the defendant's interests and therefore should be reconsidered by Canadian courts.

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  • Type of Item
    Article (Published)
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  • License
    © 2003 M. McInnes et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.
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  • Citation for previous publication
    • McInnes, M. (2003). Enrichments and reasons for restitution: Protecting freedom of choice. McGill Law Journal, 48(3), 419-476. Retrieved from
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