Concepts of Unjust Enrichment

Climate Justice and the Duty of Restitution

“…Even if currently living members of developed countries came into possession of the benefits in good faith, they did not purchase but merely received them from their predecessors. The justification of this bona fide purchase defense lies in the fact that “if purchasers are at risk of unexpected liabilities on account of the assets they buy, they’ll be discouraged from entering in such transactions” ( Webb 2016 , p. 230). In the climate justice debate, however, there is no contract or purchase between current or past members of developing and industrialized countries to protect.…”

“…The general rationale of the change of position defense , as Charlie Webb explains, is that “the claimant interests cannot be secured in full without doing harm to the defendant” ( Webb 2016 , p. 226). Suppose it is accurate to claim that many benefits from past emission-generating activities have already been consumed by pre-1990 activities of blamelessly ignorant present members of developed countries, as in (a).…”

“…It is also harmful that they have to give up something different than the received good, as in (b), and have to provide full restitution which prevents them from enjoying those remaining benefits upon which they have framed and organized their life plans, as in (c). Hence, for each of these situations, as in the legal context in which the defense of change of position is pleaded, “the question is whether restitution should nonetheless be ordered and this harm is then done to the defendant or, alternatively, whether restitution should be denied, leaving the claimant instead to suffer the loss” ( Webb 2016 , p. 226).…”

“…These cases are more difficult. As Webb asserts for legal contexts, in this kind of situation, “there can, therefore, be no return or reallocation of these benefits, only offsetting, only the imposition of some measure which worsens the defendant’s position, setting back his goals and interests, in equal measure to the advancement his use of the asset provided” ( Webb 2016 , p. 187).…”

“…By using the £100 I paid you to pay your phone bill, you were able to save £100 of your own. If you now have to pay me £100 you are left in the same position you would have been in had I not made the payment to you, no better but no worse off ( Webb 2016 , p. 195).…”