Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
DOI:10.1093/acprof:oso/9780198265795.003.0002
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The category of civil wrongs is a category of events in which the explanation of the
defendants obligation to the plaintiff is his having committed a breach of duty. It is in their
character as breaches of duty that the facts which we call wrongs account for the
defendants liability to the plaintiff. However, breach of duty (wrong) is not the only
possible explanation of liability. The other categories in the classification are categories of
event which can and do explain liability in other ways.
As we turn to justify the separate existence of the other three categories, we will
encounter once more and have cause to emphasize an important characteristic of a civil
wrong, namely that the measure of the laws response, or in other words the content of
the remedial obligation triggered by the breach of duty, is in principle a mere matter of
policy. The law has a free choice of what it shall be, subject only to extrinsic considerations
such as the values of proportionality, determinacy, humanity, and so on. The widespread
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Every subtractive unjust enrichment (every enrichment which is obtained from the
defendant in circumstances in which the law concludes that the enrichment is unjust)
explains the defendants obligation to make restitution without any necessity to
characterize the defendants conduct as a breach of duty.48 I pay you 100 by mistake.
You are enriched by subtraction from me and, subject to some fine-tuning which we may
assume to be satisfied, the mistake is a factor which the law regards as sufficient to
characterize your enrichment as unjust. The reason behind that conclusion is, in this
case, that the plaintiffs intention to transfer was impaired. These facts provide a wholly
satisfactory explanation of the obligation to make restitution. That is, the primary obligation
is sufficient in itself.
It should be noted, however, that a plaintiff who relies on this explanation of the
defendants liability to make restitution puts in issue nothing which bears on anything
other than the sum which has passed between the parties. The unjust enrichment cannot
justify more than restitution. It provides, without the least mention of any wrong, a
perfectly satisfactory explanation of the primary obligation to make restitution, but it
cannot explain any other measure of response.
The law could treat unjust enrichment differently. Let us continue to use mistaken
payments to exemplify all instances of subtractive unjust enrichment. The law could say,
whether additionally or alternatively, that what explains the liability of the recipient of a
mistaken payment is, not the primary obligation arising from the receipt, but the wrong
which consists in the breach of that primary obligationin other words, the wrong of not
making the restitution which the law requires. However, in general there is no point in
saying that the reason why a defendant has to make restitution is that he is in breach of
his duty to make restitution. It merely restates the primary duty. The wrong explanation
of the duty to make restitution is thus wholly unnecessary, except under one condition.
That condition is (p.49) important to understand. It is this. If the law wished to go
beyond the explanatory power of the unjust enrichment itself, by, say, doubling the
amount to be repaid, it would have to attach that hostile response to the wrong of failing
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The same pattern is repeated in category (4) (miscellaneous other events). We may take
as examples a taxable event, such as earning income, and a (p.50) judgment.53 These
events create primary obligations. Those primary obligations can be and are directly
enforced. The defendants liability to pay the tax or the sum due under the judgment
does not have to be explained by invoking the wrong of failing to pay. If that wrong were
invoked, the reason would once again have to be the desire to reach beyond the
explanatory power of the causative event itself. The wrong of failure to make punctual
payment might be visited with divers penalties extrinsic to the primary obligation
explicable by the event itself.
4. Contracts (Consent)Category (1)
Category (1) is much the most difficult, partly because the history is deceptive. The fact
that the primary tier of contractual obligation always has to be studied in order to
establish the circumstances in which there can be a secondary obligation from the wrong
of breach would not, on the present account, justify creating a category distinct from
wrongs. The question is whether the law enforces contractual obligation as opposed to
obligations from the wrong of breach. Only an affirmative answer can justify the separate
category.
It is easy to see that a contract is capable of being sufficient explanation of liability in itself,
rather than as the primary superstructure above the wrong of breach of contract.
Indeed some systems do not think in terms of the wrong of breach of contract but only in
terms of the primary obligation flowing from the contract itself. However, it is less easy to
say with confidence whether and when our law relies on that analysis and when, by
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