I can't resist reference to the Bricklayers' Hall case: Dublin Corporation v. Building and Allied Trade Union [1996] 2 IR 468; [1996] 2 ILRM 547 (members of the list may recall a long message on that case which I sent to the list some time ago and which became (1997) 113 L.Q.R. 245). In that case, Keane J in the Supreme Court described restitution as "separate from both contract and tort" ([1996] 2 IR 468, 483; [1996] 2 ILRM 547, 558). He went on expressly to separate out four "essential preconditions" (id) for recovery, ("while there is seldom any problem in ascertaining whether two essential preconditions for the application of the doctrine have been met - i.e. an enrichment of the defendant the expense of the plaintiff - considerably more difficulty has been experienced in determining when the enrichment should be regarded as 'unjust' and whether there are any reasons why, even where it can be regarded as 'unjust', restitution should nevertheless be denied to the plaintiff." ([1996] 2 IR 468, 483; [1996] 2 ILRM 547, 558)). Finally, for our purposes, and expressly to meet Steve's point, Keane J observed of that third enquiry as to whether the enrichment should be regarded as 'unjust', that,

"the law, as it has been developed, has avoided the dangers of 'palm-tree justice' by identifying whether the case belongs in a specific category which justifies so describing the enrichment: possible instances are money paid under duress, or as a result of a mistake of fact or law or accompanied by a total failure of consideration" ([1996] 2 IR 468, 484; [1996] 2 ILRM 547, 558)."

Of course, none of this is new, a similar list for a similar purpose appears in Moses v. Macferlan (1760) 2 Burr 1005, 1012, but the point about the Bricklayer's Hall case is that it expressly lists unjust factors as unjust factors (accepting, it seems, Irish examples (e.g. (1993) 15 D.U.L.J. (n.s.) 27) of the modern scholarship with which Steve is in such disagreement). And if Steve replies that one swallow does not a summer make, the riposte has to be that the question was posed a rhetorical one to which the only possible answer was "none", and the fact that there is at least one case which says (without explanation or reinterpretation) what he did not expect any case to to say is a sufficient answer to the rhetorical question and to the point it embodied.

Happy new year to all,

Eoin.

EOIN O'DELL BCL(NUI) BCL(Oxon)
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)