Legal history is well developed enough to answer that, I think. The provision in question dates from 1939, a time at which 'unjustified enrichment' barely featured in English legal consciousness at all. The common law liabilities we are discussing were almost universally regarded as based on implied contracts. Even a decade later, as the Law Commission have recently noted,

"the implied contract theory, , although under attack, was still used to explain 'quasi-contractual' claims" (CP 151, 1998, para 5.6)

and the reference to 'contract' was clearly meant to include quasi-contract. The fact that this has more recently been disputed, and is still a matter for argument, is beside the point.

It is clearly true that not all claims which might be classified as based upon unjustified enrichment are, for the purposes of limitation treated in the same way. That is why I said 'generally.'

Indeed. *Any* claim *might* be classified as an unjust enrichment claim, inasmuch as failure to honour any claim unjustly enriches the person who does so. That is why assertions that there must be some coherence to the category are typically rather rash. I'm glad to know that you're not making such a claim, and were speaking hypothetically.

Those who believe in this category include within it areas traditionally seen as distinct (e.g. the action for money had and received and some constructive trusts.) My view is that unjustified enrichment's sole justification for separate existence is that it is conceptually distinct.

Well, at least we are agreed that other justifications won't do. If we were agreed on the merits of the conceptual argument, we would agree on everything !

The historical classification of 'torts' is not entirely conceptually coherent therefore.

Indeed not. That is why attempts to analogise from the tort/contract distinction to the contract/restitution distinction are usually rather dubious.

Steve Hedley

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