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THE LAW OF RESTITUTION

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Nonetheless, the law of restitution is often confused through the English courts’ synthesis of equity and contract founded reliefs vindicated under the head of restitution. It is to be noted that the inherent issues with the restitution footed claims is the doctrinal complexity of measuring the notion of unjust enrichment. In the case Westdeutsche Landesbank Girozentrale v Islington LBC, the underlying aim of restitution has frequently been puzzled with equitable trust law notions, thereby increasing the perplexity in this domain of law as corroborated by the main issue in the above case being swap litigation.

(Burrows et al 2007:40). The English courts have given for the claims under restitution a synthetic “quasi –contract” hypothesis, which is damned for being “intrinsically hollow, mirroring a vague concept. The core issue in applying the quasi contract rationale is that in restitution claims, the defendants were being demanded to make payment on the footage of wrongdoing without any backing doctrinal rationale for making such damage payment to the claimant under logical legal standards. Thus, for restitution oriented claims, there is an application of unconscionability equivalents with the trust law and equitable tracing have been applied without proper inference given to legal standards.

(Wilson 2007:57). However, English judiciary has recognised the restitutionary claims as a legal principle footed upon unjust enrichment and verdicts in Woolwich Building Society v Inland Revenue Commissioners and Gorman v Karpnale Limited, which have corroborated that restitution footed claims for unjust enrichment are an unique division of law in UK. For proving unjust enrichment claims, the following three elements are essential; Enrichment should have been obtained by the defendant. There should be some pointer about the unjust element that such enrichment is unwarranted and need to be invalidated. The benefit was attained to the account of claimant or there should exist some proof that the claimant has every right to sue for its refund.

(Tettenborn 2002:4). Unjust Enrichment and Swaps Transactions Outside the periphery of equity, the role of restitution as a guise of recovery is being employed in the swaps’ litigations. It is alleged that swap contracts do not take into cognisance of risk allocation norms that is available in the standard form of agreements and in the pre-existing contracts.

Further, the swaps’ litigation revealed the Achilles heel of the judicial execution of restitution and has emphasised the substance as to whether the law of restitution can be applied for finding solution to the issues associating intangible assets from simple to intricate financial structures like derivatives particularly in cross-border markets.

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preview essay on THE LAW OF RESTITUTION
  • Pages: 9 (2250 words)
  • Document Type: Essay
  • Subject: Law
  • Level: Undergraduate
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