Section 2: Restitutionary Techniques

A: In rem and in personam
B: Terminology

Section 3: Tests of Enrichment

CHAPTER 2: MISTAKE

Section 1: Money paid under a Mistake of Fact

Section 2: Money paid under a Mistake of Law

Section 3: Services Rendered Under a Mistake

Section 4: Rescission for Mistake and Misrepresentation

A: Rescission for Misrepresentation
B: Rescission for Mistake

Section 5: Is Ignorance a Restitutionary Cause of Action?

CHAPTER 3: COMPULSION

Section 1: Benefits Conferred Under Duress

A: Duress to the Person
B: Duress of Goods
C: Economic Duress
D: 'Lawful act' duress?

Section 2: Benefits Obtained as a Result of Undue Influence

Section 3: Inequality

Section 4: Legal Compulsion

A: Recoupment
B: Contribution

Section 5: Necessity or Moral Compulsion

A: Authorities Favouring Restitution
B: Authorities Hostile to Restitution
C: A General Principle?

CHAPTER 4: FAILURE OF CONSIDERATION

Section 1: Contracts Discharged by Breach

A: Recovery of Money by the Innocent Party
B: Recovery of Non-money Benefits by the Innocent Party
C: Recovery of Money by the Party in Breach
D: Recovery of Non-money Benefits by the Party in Breach

Section 2: Contracts Discharged by Frustration

A: The Common Law
B: The Act

Section 3: Restitution and Pre-Contractual Liability

Section 4: Void and Unenforceable Contracts

A: Void Contracts
B: Contracts Unenforceable Due to Lack of Formality

Section 5: Free Acceptance.

CHAPTER 5: RESTITUTION AND PUBLIC LAW

Section 1: The Woolwich Case

Section2: The Swaps Case

CHAPTER 6: RESTITUTION AND THE LAW OF WRONGS

Section 1: Restitution and Torts

A: Waiver of Tort
B: Restitutionary Damages?

Section 2: Restitutionary Damages for Breach of Contract?

Section 3: Breach of Fiduciary Duty

Section 4: Breach of Confidence

Section 5: Accessory Liability in Equity

CHAPTER 7: TRACING AND PROPRIETARY REMEDIES

Section 1: Tracing at Common Law

Section 2: Tracing in Equity

A: The Relationship between Tracing and Knowing Receipt
B: The Tracing Rules

Section 3: Proprietary Remedies

CHAPTER 8: DEFENCES

Section 1: Bona Fide Purchase

Section 2: Change of Position and Estoppel

A: Estoppel
B: Ministerial Receipt
C: Change of Position

Section 3: Counter-Restitution Impossible?

Section 4: Public Policy

It may also be useful for you to have some abstracts from the Preface:

"Restitution has emerged over the last fifty years as an essential component in the modern law of obligations. Its central concerns are the reversal of unjust enrichments and the unscrambling of defective transactions. Until recently these difficult topics have been neglected in traditional legal education, with quasi-contract and constructive trusts hived off as appendices to more familiar 'core' subjects. Increasingly restitution is taught as a subject in its own right, at both undergraduate and postgraduate level. It is well-served with textbooks by Birks (An Introduction to the Law of Restitution, Oxford: Clarendon Press, paperback edn. 1989), Burrows (The Law of Restitution, London: Butterworths, 1993) and Tettenborn (The Law of Restitution, London: Cavendish Press, 1993). However, as Professor Birks has observed: 'There is, at a time when such books have proliferated, no English collection of cases and materials relevant to restitution. The contrast with the state of affairs in tort and contract hardly needs to be further underlined.' (Introduction, 3)

This is a first attempt at plugging that gap. A major difficulty for first-time students of the subject is language. The cases utilise techniques such as the action for money had and received and the equitable lien, whereas modern juristic writings speak of unjust factors and incontrovertible benefit. Chapter One attempts to prepare students for this terminological minefield. Another characteristic of restitution scholarship is the creative re-interpretation of authorities. More commonly than in other fields of law, commentators classify cases by reference to grounds for restitution which are insufficiently articulated, or not articulated at all by the judges. The annotations and suggestions for further reading aim to provide some help here.

The structure of the chapters is intended to be lightweight, and not to be a grand theory of categorisation. Some topics do not yield much (or much worthwhile) judicial discussion: for example, enrichment. Similarly on the margins of the subject, emerging and controversial grounds for restitution, such as 'ignorance' and 'free acceptance', are discussed in outline only. Some of the materials on the emerging and much criticised judicial synthesis of 'no consideration' are to be found under the heading of convenience: 'Restitution and Public Law'. Inevitably there are omissions: subrogation, contribution and resulting trusts receive only superficial treatment.

Restitution has been blessed in the last couple of decades by a wealth of excellent academic writing. The sophistication of modern analysis is now being transplanted to the case law. Whilst I have provided references to academic writings, this is ultimately a case book, utilising traditional case method techniques. As Paul Matthews, a self-confessed restitution-sceptic recently wrote: "..... there are now a number of judicial pronouncements on the central principle(s) of restitution as a discrete subject. But they are not altogether consistent, and in any event they run well ahead of the collective results of the cases in which they appear. The mosaic is yet tiny." (in Birks (ed), Laundering and Tracing, Oxford: Clarendon Press, 1995, 66). That may overstate the sceptical view somewhat, but contains a grain of truth. The basic aim of a casebook, especially in this area of the law, should be to identify the established grounds of recovery, and the limitations upon such recovery. Criticism and categorisation come later."

I hope this information is of some assistance. The selection of cases is pretty conservative. Clearly there are difficulties with emerging causes of action such as; ignorance, inequality, free acceptance and "no consideration" (although the latter may not survive Lord Goff's justified scepticism in Westdeutsche) where there is little explicit judicial discussion. All what we really do here is refer to the textbooks and relevant academic articles.

I look forward to the feedback (!) when you get hold of your inspection copies.

Best wishes.

Gerard McMeel
Lecturer in Law
University of Bristol
14 June 1996