(B) DIFFERENT SENSES OF ENRICHMENT
Lodder in Enrichment in the Law of Unjust Enrichment and Restitution[1] has drawn a fundamental distinction between what he calls factual and legal enrichment. Factual enrichment relates to the identification of benefits which have an economic value and which can be restored to the claimant through the payment of money. Legal enrichment, on the other hand, relates to the acquisition of a specific right by the defendant or the discharge of a specific obligation owed by the defendant. Here the enrichment is reversed either through the negation of the right or the reinstatement of the obligation. Crucially, legal enrichment does not need to be valued.
Whilst Lodder recognizes that both forms of enrichment are relevant to the identification of an unjust enrichment, his analysis can be considered to be consistent with the fundamental division in the law of restitution as advocated in this book. Since factual enrichments are valued in money, the restitutionary remedy is personal. Legal enrichments, involving the negation of rights or the reinstatement of obligations, might trigger proprietary responses in order to vindicate the claimant’s proprietary rights.[2]
The recognition of legal enrichment as being a relevant enrichment for the purposes of the law of restitution is controversial,[3] but for the purposes of this chapter it is unnecessary to consider such issues, since the focus is on what Lodder calls ‘factual enrichment’, this being the relevant enrichment for purposes of the law of unjust enrichment which triggers a personal restitutionary remedy.
- [1] See also R Chambers, ‘Two Kinds of Enrichment’ in R Chambers, C Mitchell, and J Penner (eds),Philosophical Foundations of the Law of Unjust Enrichment (Oxford: Oxford University Press, 2009).
- [2] See, for example, the analysis of the resulting trust and subrogation at p 582 and p 636, below.
- [3] See p 6, above.
