The law of restitution for unjust enrichment in India: a history


The law of restitution for unjust enrichment consists of rules reversing enrichment that occurs at the cost of another. Not only is unjust enrichment a major source of divergence in the common law today, it also faces an existential challenge: as a result of the varied nature of the claims involved, its critics argue that it should not be seen as a field independent from the law of property, tort or contract. In particular, several scholars argue that it would be better to understand the transaction that we currently see as forming part of the law of unjust enrichment as part of contract law.

In India, the subject is governed by the Indian Contract Act, 1872. The Act also continues to be in force in Myanmar, Pakistan and Bangladesh, and has been substantially reproduced in Malaysia. In keeping with the law in England at the time, the statute contains specific rules reversing such enrichment. Contemporary Indian law must take into account this history of the law, along with subsequent English developments. A history of the development of Indian jurisprudence can also contribute to debates about the scope of the subject that arise in both England and India today.

The project is an examination of the historical journey of a legal concept, specifically its ‘domestication’ or adaption to the Indian legal system. As a history of colonial law, the project also attempts to integrate histories of empire with a history of legal doctrine.

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