BCL Law Notes Restitution of Unjust Enrichment Notes
A comprehensive guide to some of the key topics in the Restitution of Unjust Enrichment module taught on the BCL (but would also be useful for other similar courses).
It includes case summaries, various academic positions and a thorough analysis of some of the key debates within the topic in an easy digestible manner.
It focuses on contributions to this area of law from Andrew Burrows, Graham Virgo and Peter Birks, amongst others. ...
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ESTOPPEL
CHANGE OF POSITION AND ESTOPPEL COMPARISON
All or nothing
Avon CC v Howlett – showed how estoppel can operate only as an all or nothing defence.
Lipkin Gorman v Karpnale – showed how change of position, divorced from the rule of evidence strictures of estoppel, can operate in a pro tanto fashion.
Burrows view on this
The pro tanto fashion is more appropriate for UE as it can be geared to the precise extent of the loss of enrichment
He’s anti-estoppel and hope that change of position will supplant estoppel completely in UE – although he accepts estoppel should not disappear in other areas of law
Maddaugh’s view
As long as estoppel remains it gives the defendant who can satisfy its more stringent requirements an unwarranted complete defence
WHAT IS IT?
Explained
Burrows – the essence of the defence is that D has detrimentally relied on a representation from C that the benefit is his to keep. Where it is established, it is an all or nothing defence – as opposed to change of position which is pro tanto
When has it applied?
It’s only ever been applied in the context of mistaken payment. Otherwise, it would be very rare that C would ever say D can have the benefit to keep
IS A BREACH OF DUTY NECESSARY AS WELL AS A REPRESENTATION?
Cases which say yes
RE Jones v Waring – estoppel defence because there was no breach of duty
Cases which say no
Holt v Markham – estoppel was successfully invoked without any requirement of a breach of duty
Burrows provides the answer
he says the ways these contradictory principles can be reconciled is that there must either be a breach of duty, and hence an inherent representaion, or a collateral representation EXPLAINED
where there is a duty to pay over the money to D, there is a factual representation inherent in the payment BUT
where there is no such duty, there must be an express (collateral) representation made to D in order to establish the estoppel
DETRIMENTAL RELIANCE
What
D must have detrimentally relied on the representation (ie. changed his position in reliance on the representation)
What does detrimental reliance mean
Beatson and Bishop – they identify 3 meanings of this:
Conventional reliance – D has spent the money in a way that can’t be recouped
Out of pocket reliance – D has spent the money in a way that can’t be recouped AND in a way in which he would not otherwise have done
Real reliance – this is out of pocket reliance but where it considers what benefit D got from spending the money. So if he got a car he wouldn’t usually have bought, but which he enjoys subjectively, then it could be said that he has benefitted here and there has been no change of position
Which is the best approach?
Burrows – out of pocket is the best one. It’s based solely on the idea that D would be worse off pecuniarily by paying back the money than if the representation and payment had not been made to him in the first place
ALL OR NOTHING
What?
Can estoppel operate as a partial rather than a total...
Buy the full version of these notes or essay plans and more in our Restitution of Unjust Enrichment Notes.
A comprehensive guide to some of the key topics in the Restitution of Unjust Enrichment module taught on the BCL (but would also be useful for other similar courses).
It includes case summaries, various academic positions and a thorough analysis of some of the key debates within the topic in an easy digestible manner.
It focuses on contributions to this area of law from Andrew Burrows, Graham Virgo and Peter Birks, amongst others. ...
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