The Interaction of Rights of Relief and Unjustified Enrichment in Scots Law

Euan West* (Corresponding Author)

*Corresponding author for this work

Research output: Contribution to journalArticle

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Abstract

In Scots law, a cautioner (i.e. a guarantor) who pays the guaranteed debt enjoys so-called “rights of relief” against the other parties liable for that debt: namely, a right to full compensation from the principal debtor (“total relief”) and a right to partial compensation from co-cautioners (“pro rata relief”). There has been an increasing tendency on the part of the Scottish courts to treat these rights of relief as a branch of the law of unjustified enrichment. This analysis, according to which a cautioner's payment of the guaranteed debt enriches the principal debtor and co-cautioners unjustifiably, thereby entitling the cautioner to redress, has been subject to academic criticism, with “enrichment” scholars arguing that rights of relief and unjustified enrichment are distinct areas of law. Building on the work of these scholars, this article explores the precise nature of the distinction between “enrichment” and “relief”, its implications for litigants faced with the choice whether to pursue a case on the basis of “relief” or “enrichment” and the extent to which these legal areas perform complementary roles.

Original languageEnglish
Pages (from-to)202-231
Number of pages30
JournalEdinburgh Law Review
Volume24
Issue number2
DOIs
Publication statusPublished - May 2020

Keywords

  • caution
  • guarantees
  • sureties
  • unjustified enrichment
  • Scotland
  • relief
  • contribution
  • subrogation

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