(i) The Significance of Recognizing the Unjust Sacrifice Principle

It has sometimes been suggested that, where a claimant has suffered a loss without the defendant necessarily obtaining a benefit, the claimant should be able to obtain a remedy without founding an action in contract or tort. Rather, liability should be founded on the unjust sacrifice principle.[1] [2] If such liability exists, clearly it cannot be founded on the principle of reversing unjust enrichment, because of the lack of an enrichment. Also the remedies consequent upon such liability could not be termed restitutionary, since if the defendant has not been enriched, and cannot be assumed to have been enriched, there is no actual or deemed benefit which the defendant can restore to the claimant. It might, therefore, be thought that analysis of unjust sacrifice has no place in a textbook on the law of restitution. Its analysis can be justified, however, because if such a principle is recognized it would have an important influence on the question of how enrichment is defined. For if unjust sacrifice liability does exist, it will not be so important to adopt a wide definition of enrichment to ensure that the claimant obtains a remedy. Equally, if the notion of enrichment is defined widely, as has been argued in this chapter, there is little, if any role, for unjust sacrifice liability to play.[3]

  • [1] See, in particular, the report of the case at (1831) 1 LJCP 7.
  • [2] See especially SJ Stoljar, ‘Unjust Enrichment and Unjust Sacrifice’ (1987) 50 MLR 603.
  • [3] Birks, Restitution—The Future, 103. 4 See p 78, above.
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