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In response to Eoin's recent message re property, unjust enrichment, vindicatio etc., I must say that I'm unhappy about the assumption which I understand him to make, and which is very widely held - see eg Goff & Jones, p 3, Birks [1997] NZLR pp 647-650 - that the action for money had and received is an action which can only be brought by a plaintiff whose claim is grounded in unjust enrichment. Granted, the result sought by a plaintiff bringing an action for money had and received is restitution. But there is no perfect quadration between unjust enrichment and restitution: restitution is not the only possible response to unjust enrichment in the courts' remedial armoury (cf simple subrogation; quia timet orders), and it is a response to other causative events besides unjust enrichment (cf Birks and Virgo at the Jonesfest). This leads me to think that the true explanation of cases like Holiday v Sigal and Lipkin Gorman is not that they belong under the heading of 'unjust enrichment' because the claimants in them brought an action for money had and received, but rather that the action for money had and received can be brought by plaintiffs whose claim lies in 'vindicatio' as well as by plaintiffs whose claim lies in unjust enrichment.

Charles

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Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 0171 873 2290
fax: 0171 873 2465