Helen Scott is Professor of Private Law in the Oxford Law Faculty and Tutorial Fellow in Law at Lady Margaret Hall. Her research interests fall within the law of obligations (particularly tort and unjust enrichment) and civilian legal history (particularly Roman law). She is the author of Unjust Enrichment in South African Law: Rethinking Enrichment by Transfer (Hart, 2013), reviewed by Hector MacQueen in the South African Law Journal (here), and recently edited Private Law in a Changing World, a collection of essays celebrating the work of Danie Visser. She is currently working on projects concerning the role of foreseeability in the law of tort (her recent work on the history of foreseeability can be found here) and the role of fault in unjust enrichment.
She studied classics and law at the University of Cape Town and subsequently completed BCL (2000), MPhil (2001) and DPhil (2005) degrees at Oxford. Before taking up her current position at Oxford she was a professor in the Department of Private Law at the University of Cape Town, where she taught courses on comparative legal history, delict, unjustified enrichment and Roman law. Between 2005 and 2009 she was a tutorial fellow in law at St Catherine's College Oxford, and before that a fixed-term fellow at Trinity College. Between 2008 and 2014 she was also a visiting professor at the Université Panthéon-Assas (Paris II), where she taught a course in the common law of tort. At Oxford she teaches Roman law, tort, and the restitution of unjust enrichment.
In December 2017 she received a B rating (denoting an 'internationally acclaimed researcher') from the South African National Research Foundation.
- DOI: doi.org/10.4337/9781788114264ISBN: ISBN: 978 1 78811 425 7The past decade has seen a marked rise in unjust enrichment scepticism across the common-law world. Some argue that the ‘at the expense of ’ element in particular has been over-generalised and that the restitution of unjust enrichment should be principally confined to cases of deliberate conferral by the plaintiff. Others go further and argue that the law of unjust enrichment itself does not exist insofar as ‘unjust enrichment’ is neither a cause of action nor a consideration of justice capable of justifying restitution. This essay offers a tentative response to these arguments, defending a performance-based analysis of core Kelly v Solari-type cases but questioning whether the continued existence of the subject really depends on the tight normative unity that its critics demand. At the same time, the essay considers the ways in which legal history, comparative law and legal theory have acted as drivers of change in this context, examining the phenomenon of change and continuity in private law with reference to these developments.The factual component of the duty of care inquiry—that harm to the claimant as a result of the defendant’s conduct was reasonably foreseeable by the defendant—has been entrenched in English law since Donoghue v Stevenson. Both indigenous and comparative (specifically South African) evidence suggests that Lord Atkin’s formulation of the duty of care test was influenced by a particular fragment contained in Title 9.2 of Justinian’s Digest, ‘On the lex Aquilia’. Interrogation of the foreseeability principle in its original setting shows, however, that its role there was rather circumscribed. Derived perhaps from the account of wrongdoing offered by Aristotle, for whom the fact that harm had occurred contrary to expectation (paralogos) served to demonstrate that it had been unintentionally inflicted, in the context of Roman culpa foreseeability functioned as a technique for determining the avoidability of the harm—essentially a causal inquiry. This historical insight serves to illuminate the limits of foreseeability in the context of the modern test for duty of care. As a principle which generates liability, it may be that reasonable foreseeability cannot bear the normative weight assigned to it. Thus the history of foreseeability furnishes the material for a further critique of the duty concept, adding an historical dimension to contemporary calls to abandon the factual component of the duty of care entirely.ISBN: ISBN 978-1-4744-3446-1ISBN: ISSN 1351-170X