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Unjust enrichment — a reply to Mr Hedley*

Published online by Cambridge University Press:  02 January 2018

Peter Birks
Peter Birks*
Affiliation:
University of Edinburgh
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Extract

Whereas it was before dispersed and hidden, Goff and Jones have brought Restitution together and made it prominent. Lacking the generations of textbooks which have organised other subjects, its case law will for many years attract debate as to how best it should be arranged and how it relates to other categories. Many writers think that the key is to be found in the ideas and language of unjust enrichment. But the lock does not immediately turn. Hedley's paper says that it will not. Indeed he thinks that any hope of an elegant theory, or, which may be the same thing, an integrated and economical classification, is vain, since Restitution is more various, empirical, and endemically muddled than the unjust enrichment camp dares to admit. His paper valuably compels a re-examination of fundamental questions.

Type
Research Article
Information
Legal Studies , Volume 5 , Issue 1 , March 1985 , pp. 67 - 76
Copyright
Copyright © Society of Legal Scholars 1985

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Footnotes

*

I am grateful to the Editor and to Mr Hedley for allowing me the opportunity to reply to the previous article (citations to which take the form H, text to n 5′).

References

1. [1932] AC 562, 580.

2. St Luke, 10. 25–29, leading into the parable of the good Samaritan.

3. This distinction is further discussed at (1982) 35 CLP 53, 62; and see also, below, text to n 14.

4. H, text following n 2. Cf A. S. Burrows ‘Contract, Tort, and Restitution: A Satisfactory Division or Not?’ (1983) 99 LQR 217.

5. Cf Goff, R. and Jones, G. The Law of Restitution (2nd edn, London 1978). 42, 46–68 Google Scholar. The discussion at (1983) 36 CLP 141, 143–6 does not deny the existence of restitutionary rights in rem but says that they are hard to identify.

6. See below, n 21.

7. See below, especially text following n 13, with n 22, and text thereto.

8. H, text to n 14.

9. H, text following n 13.

10. This word signifies the exclusion of items of non-wealth (eg children) and also reflects the fact that pecuniary restitution is the rule, even in respect of benefits in kind.

11. The prefix reimplies ‘give back’ which has to become ‘give up’ in order to reach receipts from a third hand; arid the sense in which ‘restitution’ can be of a person or thing to a prior condition has also to be excluded: see below, n 29.

12. H, text following n 7: ‘a massive assumption’.

13. Thomas Wood An Institute of the Laws of England, (London 1720), preface.

14. Cfn 3 above, and text thereto.

15. Partitio, not divisio: cf P. G. Stein Legal Institutions (London 1984), 126–7.

16. Burrows op cit n 4 above, creates an impure series in his title though he avoids the consequent dangers in his text. His title also omits the residual miscellany.

17. Cf nn 3 and 14 above, with associated text.

18. H, text to n 14.

19. Gaius, 3.82; D.44.7.1 pr (Gaius, 2 aurea); D.44.7.4,5 (Gaius, 3 aurea); Justinian, Inst 3.13. This last text uses sunt, not nascuntur, but see Inst 3.27 pr, 4.1 pr, 4.5 pr.

20. This assumes that obligations quasi ex delicto (J Inst 4.5) would all appear in vertical column 2, under ‘wrongs’.

21. Quasi-contract was seemingly appropriated by the common law — perhaps because the very idea of equitable obligations was not accepted — so that eg the personal liability in Re Diplock [1948] ch 465 would not have been called quasi-contractual.

22. Cf Winfield, P. H. The Law of Quasi-Contracts, (London 1952), p lf Google Scholar; Golf& Jones, op cit, p3f.

23. H, text ton 17.

24. As to which see (ii) below.

25. For ‘money had and received’ see Stephen, on Pleading, (2nd edn, London 1827) 312 Google Scholar. For Account, see Fitzherbert New Natura Brevium sv ‘Accompt’.

26. (1760) 2 Burr 1005, 1009 (italics added).

27. Cf Docker v Somes (1834) 2 My & K 655; Re Simms [1934] Ch 1; Edwards v Lee's Administrators (1936) 96 SW 2d, 1028.

28. There may be none: Reading v A-G [1951] AC 507; Boardman v Phipps [1967] 2 AC 46.

29. Cf n 11 above. For this see also Bartlett v Barclays Bank Trust Co [1980] Ch 515, 542–3, where ‘restitution’ means ‘making good a loss’.

30. H, text following n 25.

51. H, text following n 30.

32. H, text to n 29 citing BP Exploration Co (Libya) Ltd v Hunt [1979] 1 WLR 783, 803 (Goff, J).

33. Discussed: (1971) 24 CLP 110, 121 ff, (1974) CLP 13, 14ff; G. H. Jones ‘Restitutionary Claims for Services Rendered’ (1977) 93 LQR 273; Matthews, P. ‘Freedom, Unrequested Improvements and Lord Denning’ (1981) 40 CLJ 340.

34. Greenwood v Bennett (1973] 1 QB 195; also Cooper v Phibbs (1867) LR 2 HL 149, and Boardman v Phipps, [1967] AC 46.

35. Eg Law Reform (Frustrated Contracts) Act 1943, s 1 (3), considered in BP v Hunt, cit n 32, above.

36. [1914] AC 398, 452 (Lord Sumner).

37. Goff and Jones op cit, p 360f.

38. (1883) 24 Ch D 439. In (1982) 35 CLP 52, at 60, I say incorrectly, that the trespass was innocent.

39. [1936] 2 All ER 1066, especially 1074.

40. It would have been a quesiton whether sound policy dictated that the bar to the action for the tort should be extended to the unjust enrichment by subtraction: ef Universe Tankships Inc of Monrovia v ITWF [1982] 2 WLR 803, especially 814 (Lord Diplock).