
Contents
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1. The Nature of the Grounds of Restitution 1. The Nature of the Grounds of Restitution
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2. Claimant-Orientated Grounds of Restitution 2. Claimant-Orientated Grounds of Restitution
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(A) Absence of Intention (A) Absence of Intention
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(B) Vitiated Intention (B) Vitiated Intention
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(C) Qualified Intention (C) Qualified Intention
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3. Defendant-Orientated Grounds of Restitution 3. Defendant-Orientated Grounds of Restitution
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(A) Exploitation (A) Exploitation
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(B) Free Acceptance (B) Free Acceptance
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4. Policy-Orientated Grounds of Restitution 4. Policy-Orientated Grounds of Restitution
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5. Four Additional Considerations 5. Four Additional Considerations
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(A) The Danger of Over-Simplification (A) The Danger of Over-Simplification
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(B) The Grounds of Restitution are not Closed (B) The Grounds of Restitution are not Closed
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(C) The Relevance of The Type of Enrichment (C) The Relevance of The Type of Enrichment
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(D) Restitution and Third Parties (D) Restitution and Third Parties
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6. Absence of Basis 6. Absence of Basis
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(A) No Explanatory Basis (A) No Explanatory Basis
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(B) Criticisms of Absence of Basis (B) Criticisms of Absence of Basis
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(i) State of the Authorities (i) State of the Authorities
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(ii) Different Results (ii) Different Results
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(iii) Analytical Complexity (iii) Analytical Complexity
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(iv) Too Much Restitution (iv) Too Much Restitution
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(v) Uncertainty as to Basis (v) Uncertainty as to Basis
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6 Principles Underlying The Recognition of The Grounds of Restitution
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Published:April 2024
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Abstract
This chapter identifies the reasons for the recognition of grounds of restitution, with reference to those which are claimant-orientated (involving absence of intention to benefit, vitiation of intention, and qualified intention), those which are defendant-orientated, and those which are policy-based. The particular ground of free acceptance is considered and rejected. The chapter also considers whether the orthodox grounds of restitution should be rejected in favour of recognizing a principle that restitution should lie if there was no legal basis for the defendant’s receipt. This principle is analysed and rejected because it is inconsistent with the state of the authorities and cannot be justified for policy and theoretical reasons.
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