Unjustified Enrichment: Key Issues in Comparative Part 10

Tham khảo tài liệu unjustified enrichment: key issues in comparative part 10, ngoại ngữ, anh ngữ phổ thông phục vụ nhu cầu học tập, nghiên cứu và làm việc hiệu quả
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Unjustified Enrichment: Key Issues in Comparative Part 10P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCHCU074-Johnston CU074-23 January 16, 2002 17:18 Char Count= 0 rationality, nationality and taxonomy 677 explained as based upon unjustified enrichment,115 but the matter awaits exploration. 7. Unjustified enrichment and bankruptcy Legal systems will generally not allow an enrichment claim to prevail over the right of a bona fide purchaser for value from the enrichment- debtor but may sometimes allow an enrichment claim to prevail over the enrichment-debtor’s creditors on his bankruptcy.116 Bankruptcy involves at least two transactional links in a transmission chain. The first link involves a benefit passing from an unsecured creditor to the bankrupt by the creditor’s transfer or the bankrupt’s wrongful misappropriation. The second link involves the sequestration or adjudication in bankruptcy transferring the bankrupt’s assets to the trustee for the creditors. Where a creditor has a personal right against the bankrupt, say for the unpaid price of goods or services, he cannot claim in the debtor’s bankruptcy for a preference for his claim on the ground that the gen- eral creditors have been unjustifiably enriched by their sequestration or attachment in the bankruptcy proceedings of the goods or the product of the services.117 This is consonant with the principle of the parity of the general creditors of an insolvent and the fact that the vesting in the trustee in bankruptcy is not sine causa.118 Much more frequently litigated is the question whether a right to the re- dress of unjustified enrichment in the first transactional link should have a priority or preference in the enrichment-debtor’s subsequent bankruptcy in competition with his general, unsecured creditors. This should depend on which specific ground of redress (‘unjust factor’) of the bankrupt’s un- justified enrichment (through the first transactional link) is relied on by the enrichment-creditor.119 English lawyers speak of the need to examine 115 Cf. R. Chambers, Resulting Trusts (1997), who contends that in English law resulting trusts reverse unjust enrichment. 116 Why the difference? Two traditional reasons are that the general creditors when extending credit rely on the bankrupt’s personal credit not on his ownership of any asset, and, when bringing or claiming in bankruptcy proceedings, do not give new consideration. E.g. Heritable Reversionary Co. Ltd v. Millar (1892) 19 R (HL) 43 at 47–8 per Lord Watson. The same reasoning applies to a bankrupt’s donee. 117 Here there is a contract in the first transactional link (between the creditor and the bankrupt) and an enrichment claim in the form of a claim for a preference arising out of the second link (the sequestration in bankruptcy). Mess v. Sime’s Tr (1898) 1 F (HL) 22; affirming 25 R 398; [1899] AC 233. 118 Ibid. 119 For the Scots law, see Whitty, ‘Indirect Enrichment’, 267–9.P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCHCU074-Johnston CU074-23 January 16, 2002 17:18 Char Count= 0 678 niall r. whitty all the unjust factors from this standpoint.120 This is discussed below when considering indirect enrichment in Section VIII. V. Obligations to redress unjustified enrichment distinguished from other categories of obligations The label ‘unjustified enrichment’ invokes the measure of recovery as the criterion determining the scope of the types of obligations which it describes. Several legal doctrines are concerned to some extent with the redress of unjustified enrichment, so the boundaries between enrichment law and other legal categories are not always clear.121 1. The interface with contract law The English enrichment law revolution has rescued the subject from the fringes of contract law and destroyed the implied contract fiction. The fiction was never the basis of the civil-law and mixed systems. They char- acterise obligations to redress enrichment as obediential (arising by op- eration ...