xr Trans-Lex.org Law Research Trans-Lex.org Law Research - Docid: 959400 -
Principle

No. IX.5 - Disenrichment

The enriched party is not liable to reverse the enrichment to the extent that the enriched party has sustained a disadvantage by disposing of the enrichment or otherwise (disenrichment), unless the enriched party would have had the same disadvantage even if the enrichment had not been obtained. This defence is not available when the enriched party did not act in good faith at the time of the disenrichment.
Commentary
1 This Principle provides a defence of disenrichment to the enriched party. Such disenrichment may be caused either by the disposal of the enrichment by the enriched party (e.g. by spending the money or giving away the goods received) or, as a more general defence, by sustaining some other disadvantage. The underlying rationale of this Principle is that the enriched party must be allowed not to restore the enrichment in order to prevent it from being worse off as a result of the restitution of the enrichment as compared to its situation without the enrichment. It is for this reason that the defence is not available if the enriched party would have had the same disadvantage if the enrichment had not been obtained.

2 The Principle is subject to good faith and the defence under it is not available to the enriched party if that party did not act in good faith at the time of the disenrichment.


Please cite as: "Commentary to Trans-Lex Principle , http://www.trans-lex.org/959400"
References
Court Decisions
Commerzbank AG v. Gareth Price-Jones, Court of Appeal (Civil Division), Case No: A2/2003/0070, [2003] EWCA Civ 1663 (21st November 2003)
Derby v. Scottish Equitable Plc, Court of Appel, 16th March 2001
Dextra Bank & Trust Company Limited v. Bank of Jamaica, The Court of Appeal of Jamaica, 26th November 2000, 2001 WL 1422965
Contract Clauses
There are currently no contract clauses.
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