He argues instead that, for various reasons

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.

I agree with Charles that we must be careful when we have actions that are in the main restitutionary not to assume that they are necessarily exclusively restitutionary (though they might be). Thus, in my view, the quantum meruit is not exclusively restitutionary, since the cases in which it is imposed speak the language of various issues, eg, of contract, fault, reliance and restitution. If we take these assertions seriously, then we have a contractual quantum meruit, a fault-based quantum meruit, a reliance-based quantum meruit, and a restitutionary quantum meruit. If so, it follows that it is a mistake to assume that the qm is essentially restitutionary (or contractual, fault-based, reliance based, and so on).

Similarly, I agree with Charles that we must entertain the possibility that the action for money had and received is likewise multi-faceted (or at least bifurcated). And if (what he usefully describes as) the 'vindicatio' cases cannot be accommodated within a coherent framework of the law of restitution for unjust enrichment, then that action is bifurcated. On the other hand, if those cases can be so accommodated, then the action turns out to be exclusively restitutionary.

My (tentative) view is that the 'vindicatio' cases *can* be accommodated within a coherent framework of the law of restitution for unjust enrichment. That being so, (at present) I regard the action for money had and received as exclusively restitutionary.

As to why those cases can be regarded as restitution for unjust enrichment, the four enquiries (Birks, passim; Bricklayers Hall case, per Keane J; BFC v Parc per Lord Steyn) can be satisfied. In particular, the unjust factor will usually be one of the consent-related unjust factors. If the plaintiff's consent to the transaction is impaired because it is qualified (failure of basis), vitiated (duress, mistake) or absent (ignorance, incapacity), then there will be an unjust factor; and the defendant is enriched by the *receipt* of the money (which is the point of my first email on the point).

If that is so, especially if the defendant is enriched by receipt, then a personal action for restitution of an unjust enrichment will lie against the defendant.

Consequently, in reply to Charles, it was not so much that I assumed that the action for money had and received was restitutionary; rather I think the 'vindicatio' cases can be accommodated within a coherent framework of the law of restitution for unjust enrichment, which leads to the conclusion that the action for money had and received is, in his words

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

(emphasis added). But of course that only holds good if my conclusion above that receipt enriches is correct. Which is where I came in: does mere receipt enrich ?

Eoin

EOIN O'DELL
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.)