Some Observations on the Taxonomy of Unjustified Enrichment in Scots Law

Abstract

This article examines the basis for Stair's classification of obediential obligations into restitution, recompense and reparation. It then provides an overview of how this classification was developed by the institutional writers who followed Stair. The development has resulted in the expression of the law of unjustified enrichment in terms of restitution, repetition and recompense (the three “Rs”). It will be suggested that the nature of this classification has been misunderstood by modern scholars. It will be shown how, when properly understood, the classification creates no obstacle to a unitary treatment of causes of action arising within a body of law called “unjustified enrichment”. How certain central aspects of the Scots law of unjustified enrichment should be organised is also considered.