By Michael Rush
There's dispute in regards to the id and life of a loss-based protection within the legislation of unjust enrichment. well known as 'passing on', yet higher pointed out as 'disimpoverishment', this safety has generated confusion and confrontation throughout and inside of England, Australia, Canada, and the U.S.. This e-book addresses those difficulties in 3 ways. First, through offering an answer to the defense's terminological difficulties and proposing a coherent photo of the present country of the legislations. Secondly, by way of studying even if a defendant's unjust enrichment could be acknowledged to have come on the price of' a claimant while a 3rd celebration has borne the price of that enrichment. positioned differently, even if awards of restitution are, or might be, constrained via the price of a claimant's loss. and at last, through reading the explanations in prefer of accepting or rejecting a loss-based safety within the legislation of unjust enrichment. various scholarly textbooks and legislation journals have dedicated area to those matters. This paintings is extra narrowly all in favour of both specific instances or units of matters. The publication examines this deficiency via collating, and delivering overall assurance of, the controversies and questions referring to a loss-based protection within the legislation of unjust enrichment. The Defence of Passing On can be crucial examining for someone drawn to the legislation of restitution, and in its dating with different components of non-public legislation.
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Sample text
The only reason preventing him from doing so is a decision to restrict restitution to those claimants who have suffered a loss. 20 It therefore follows that if a claimant has suffered a loss which was caused by the defendant’s unjust enrichment, then he should be awarded restitution. The purpose of the defence of disimpoverishment is to prevent claimants accumulating in respect of the same loss. It is a prophylactic response to maintain the 20 Air Canada v British Columbia [1989] 1 SCR 1161, (1989) 59 DLR (4th) 161 (CSC) 193 (La Forest J).
In that case the United States placed an excise tax on automobile accessories. The claimant argued that the tax did not apply to its business because ignition coils, which it sold, were not automobile parts within the meaning of the relevant statutes. Thus, it sought a refund of tax remitted to the government during the relevant period. Under Revenue Act (US) 1928 Section 424(a)(2), the claimant could not recover if the tax had been directly or indirectly collected from its customers. The Supreme Court therefore determined that it could not: ‘[A]ssent to the view that a court may give a judgment awarding the taxpayer a 53 Pettkus v Becker [1980] 2 SCR 834, (1980) 117 DLR (3rd) 257 (CSC) 274.
Evidence of this alternate approach can be found in numerous cases. ’. United States v Jefferson Electric Manufacturing Co63 (‘Jefferson Electric’) usefully illustrates this point. In that case the United States placed an excise tax on automobile accessories. The claimant argued that the tax did not apply to its business because ignition coils, which it sold, were not automobile parts within the meaning of the relevant statutes. Thus, it sought a refund of tax remitted to the government during the relevant period.