This chapter claims that unconscionability and its cognate exploitation offer a plausible account of the duty to make restitution particularly in the context of undue influence and unconscionable dealing. It begins by claiming that the application criteria of the undue influence and unconscionable dealing doctrines, judicial language, and the facts and outcomes of these cases support the view that restitution is awarded to prevent exploitation or unfair advantage taking. It is claimed that unjust enrichment theory, which is rooted in defective consent, cannot explain the fact that in many of these cases the promisor (or transferor) did consent. In reply to the objection that no 'actively' exploitative behaviour is involved in some of these cases, the chapter claims that exploitation has a 'passive' form which involves the retention of benefits in circumstances where the promisee becomes aware that their receipt of them was unfair. This leads to the chapter's most provocative claim, that a 'defendant-sided' analysis is available for unjust enrichment's core case, the mistaken payment. The chapter concludes by considering the consequences of this analysis for substantive fairness, change of position, corrective justice theory and the morality of the duty to make restitution.
|UCL classification:||UCL > School of Arts and Social Sciences > Faculty of Laws|
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