ABSTRACT
The failure to apply the unjust enrichment principle in Foskett has met with particular concern, most
notably from Birks.43 Essentially Birks’s criticism focuses on the fact that the beneficiaries were
claiming restitution of a substitute for their property. To claim that substitute it is necessary to show
that the claimant has a right to it and, Birks asserts, the beneficiaries could only establish that by
means of the unjust enrichment principle and not simply by the assertion of property rights. At the
between events and responses. According to Birks, in the law of civil obligations it is necessary to
identify an event before the appropriate response can be considered. The law, he asserts, recognises
four events, namely consent, wrongs, unjust enrichment and other events. Where the event of unjust
enrichment can be established the only response is restitution. Vindication of property rights is not an
event and so, he concludes, restitution cannot respond to it. As he says:
He concludes that:
This identifies the crux of the debate: to what extent do the laws of property and unjust
enrichment operate independently?
