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Dear Prof. McInnes,

Once again I thank-you for your clarifications. I won't take much of your time, but I just wanted to note the following:

1) I think that much of our academic disagreement stems from our appreciation of the history of UE in the cases and in the common law. You interpretation seems to be (I'm sorry if this is incorrect) that there is a grand tradition of unjust enrichment in the common law that has stabilized into the coherent three part English approach. Thus, from this settled core we can work out problem areas in the interface with contract, tort & equity and re-analyze older case law. From my perspective, I do not see such a grand history but rather a nascent principle that is just starting to be worked out tentatively in the cases. Thus, I do not take great solace in proofs that deduce answers from these nascent cases and say that this is the common law tradition (unless these same principles are present in other older areas of the law). Much like Prof. Hedley I don't see much tradition (e.g. dealing with unjust factors) especially when compared with the 1000 year history of contract and tort, and the 100 year history of corporate personality. Even in those "settled" areas of the law, there is still much disagreement on certain core principles. Thus, in my mind, at this early stage, there is still much up for grabs with regards to UE and little to guide us except the core principles of private law and a logical deduction from these principles. That is why I find the civilian paradigm so helpful. They have a longer history with this topic and have thought about this issue in a very rational and principled way. I personally do not see anything "un-common law -like" in borrowing from the civilians on this issue, as there are precedents in the past. For example, as I understand legal history, many of "our" ideas surrounding contract, special contracts (e.g. bailment) and civil responsibility where borrowed from the civil law tradition at the formative stage of the common law. When faced with a difficult problem in private law, I therefore find it prudent to look to the civil law once again. It should be noted that this interaction is two-way, e.g. see the codification of the Trust in the CCQ.

2) On the scope of discretion issue, you may be right that judges may feel bound to only follow the unjust factors that have been listed in the cases and in the major texts. Perhaps this might be easier for judges as well, I'm not sure. From my perspective, and from reading the postings, it seems that the list of unjust factors just keeps growing. I have the feeling that it will just keep growing in order to try and fit strange fact patterns into the law of UE (even if they do not necessarily belong to that area of law) or to do justice in a hard case for a deserving plaintiff.

Jason W. Neyers
Law Clerk, Ontario Court Of Appeal
(416) 327-5107