The Double Ceiling on Unjust Enrichment: Old Solutions for Old Problems

Abstract

Unjust enrichment is not calculated to strip defendants of gain at all costs, but rather to restore to the claimant the value or rights he has unjustly lost. It can therefore only justify restitution to the extent of the claimant's ultimate expense, or the defendant's ultimate enrichment, whichever is lesser. Although that “double ceiling” has not found favour (at least in England), this article defends it against perceived inconsistencies with principle and precedent, and proposes it as a solution to three unresolved doctrinal problems in the law of unjust enrichment: claims for improvements to property, subjective overvaluation and incidental benefits.