Ignorance and unjust enrichment: The problem of title

Journal article

There is an ongoing debate within the law of unjust enrichment whether the victim of a pickpocket has, in addition to a claim in tort against the thief, one in unjust enrichment. Those who argue that he does say that it follows a fortiori from the availability of claims in unjust enrichment for mistake. If the law gives a claim where the transferor's consent to the transfer was merely vitiated, as it does in cases of mistake, so too should it do so where he was ignorant, giving no consent whatever to the 'transfer'. This idea is used by the protagonists of ignorance as the basis of an explanation of a number of controversial cases, especially Lipkin Gorman v Karpnale and Foskett v McKeown, as belonging within unjust enrichment. This article questions whether the argument is correct. Differently to the case of a mistaken transfer, where the claimant's title passes to the defendant, the pickpocket victim's title stays put. That would seem to be fatal to any unjust enrichment analysis, for an essential element of such a claim, an enrichment at the claimant's expense, now appears to be missing. The question then is whether that objection can be overcome. Various strategies have been proposed, that the law looks to 'factual' rather than 'technical' enrichments, that title can be electively transferred by the victim to the thief and that title can simply be renounced. None of these strategies work, however, with the consequence that any claim by a victim against his thief can only be in tort, not unjust enrichment. © The Author 2008. Published by Oxford University Press. All rights reserved.

Authors: Swadling, W

• Journal: Oxford Journal of Legal Studies
• Volume: 28
• Issue: 4
• Pages: 627-658
• Publication date: 2008-01-01
• DOI: 10.1093/ojls/gqn030
• EISSN: 1464-3820
• ISSN: 0143-6503
• Language: English