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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MISTAKE
MISTAKE AND FAILURE OF CONSIDERATION
Where a contract is void or unenforceable, C will commonly be able to point to mistake or failure of consideration (ie. Rover International) BUT
As failure of consideration needs to be total, mistake is better (especially as it includes mistake of law)
MISPREDICTIONS
Birks – mistake refers to the present. A mistake as to the future is a misprediction, which don’t trigger restitution because C necessarily takes the risk of being incorrect about the future.
Seah - A misprediction doesn’t involve an impairment of consent nor wrong data being fed into C’s decision-making process
Dextra Bank v Bank of Jamaica – Privy Council expressly approved Birk’s defintion
TRADITIONAL SUPPOSED LIABILITY TEST
Used to be a supposed liability test for mistake that stated that: money was recoverable in an action for money had and received if the payor paid in the false belief that the facts were such that it was under a legal liability to the payee to make the payment
This supposed liability test was stated in Kelly v Solari and Aiken v Short
Kelly v Solari
Relied on this test
FACTS: C insurance company paid over money on a life insurance policy, apparently not realizing that the policy had lapsed because the deceased had failed to pay a premium. A new trial was ordered to ascertain whether C had indeed made a mistake but, if it had, the money was held to be recoverable.
NEGLIGENCE
in Kelly v Solari it was irrelevant that the claimant insurance company ought to have the policy had lapsed
Barclays Bank v WJ Simms – restitution was allowed here despite negligence
Exceptions to Supposed Liability Test
Burrows highlights a number of cases that could not be explained according to the traditional supposed liability test. He said these exceptions paved the way for the ‘path-breaking decision’ in Barclays Bank v WJ Simms. These exceptions fall into two categories:
Cases which could be justified on an extended meaning of supposed liability
Re Jones Ltd
C paid money to D under the mistaken belief that it was bound to do so under a legal liability to a third party
Cases which could not be so justified
Kerrison v Glyn
C had standing arrangement with bank that bank would pay X and C would reimburse the bank by putting money into an account. C made the payment, not knowing that the bank had gone bankrupt. C could recover this payment under rest.
C had a mistake believing he would be liable in the future to the bank, but one cannot have mistake as to the future.
Morgan v Ashcroft
Sir Wilfred Greene MR said obiter that mistake as to the identity of the recipient of a gratuitous payment was recognised as a possible ground for recovery and clearly this could not be justified on any extended meaning of supposed liability
SWITCH TO PRIMA FACIE CAUSATION TEST
Barclays Bank v WJ Simms
QBD – Goff J launched an attack on supposed liability rule and suggested a switch to a new prima facie causation test
One of his criticisms of supposed liability test: ‘A man, forgetting that he has already paid his subscription...
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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