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Owen V. Tate Notes

BCL Law Notes > Restitution of Unjust Enrichment BCL Notes

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OWEN V. TATE FACTS On February 26, 1965, the defendants obtained a loan from Lloyds Bank, Sunderland. This loan was secured by a charge by way of legal mortgage upon the property of a Miss Lightfoot. The plaintiff was in no way concerned with this transaction, and received no money from the defendants. In 1969 Miss Lightfoot became concerned that her deeds were being held by the bank to secure the defendants' loan. She consulted the plaintiff, who offered to help her to get her deeds back. Miss Lightfoot was a former employee of the plaintiff. In order to oblige Miss Lightfoot, and in order to obtain her deeds and keep them in a safe place, the plaintiff deposited PS350 with Lloyds Bank and signed a form of guarantee by which he guaranteed payment of all money, limited to PS350, due, owing or incurred to Lloyds Bank by the defendants. He did not consult the defendants before doing this. He was not asked to do this by the defendants. His motive was only to help Miss Lightfoot. He did not speak to the defendants at all about the matter. On December 17, 1970, Lloyds Bank applied PS350, held by them in support of the plaintiff's said guarantee, in repayment of the defendants' debt. On January 15, 1971, the plaintiff's solicitor demanded from the defendants reimbursement of this sum. The defendants refused and the battle was joined. HOLDING SCARMAN LJ The broad analysis of a guarantor situation suffices, and it is this: if, as in this case, there is no antecedent request, no consideration or consensual basis for the assumption of the obligation of a guarantor, he who assumes that obligation is a volunteer. That, of course, is not the end of the transaction. The time comes, or may come, and in this case did come, when the guarantor is called upon by the creditor to honour his guarantee. At that moment undoubtedly the guarantor, having entered into his guarantee, is under an obligation by law, or, in the words of the old cases, "is compelled by law" to make the payment. The first phase consists of the circumstances in which the plaintiff entered into the guarantee; the second phase consists of the circumstances in which the plaintiff made the payment. It is enough to refer to the judge's findings of fact to know that the plaintiff assumed the obligation of a guarantor behind the back of the defendants, against their will, and despite their protest. At that moment he was interested, as the judge has found, not to confer a benefit upon the defendants; he was interested to confer a benefit upon Miss Lightfoot. Using the language of the old

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