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Hello all

The contributions of Charles Mitchell and Andrew Dickinson as to the influence of the 1936 Law Revision Committee upon the 1939 Act are interesting, since the 1936 Report also influenced the drafting of the Irish 1957 Act; and deliberations about "quasi-contract" in the former might have led to its express inclusion in s.11(1) of the latter; but that is mere speculation.

Andrew's contribution then returned the thread whence it came. Recall the problem of a bank taking money from its customers' accounts in the guise of charges which were not in fact due. I asked whether there could be an action for restitution of an unjust enrichment and if so what was the unjust factor. Steve Hedley replied that there would be an action for breach of contract. It was the possibility of such an answer that induced me to enquire first whether there could be an action for restitution of an unjust enrichment, but with respect to Steve, I am not convinced that the answer is entirely obvious. It is probably pushing things too far to say that there is implied into every contract between a customer and a bank that the bank will not steal from the customer, because, though it almost certainly fulfils the terms of the officious bystander test, it is still an unreal proposition. It is better to say that the contract simply does not cover the situation which has occurred. Thus, even if the existence of a valid contract between the parties can be said to bar an action for restitution of an unjust enrichment, the contract only does so if it governs the situation of the unjust enrichment. In Lord Hope's dictum from Dollar Land, the payment was made pursuant to contract, so that ex hypothesi, the contract governs and thus bars an action for restitution of an unjust enrichment relating to that payment; on the other hand in Miles v Wakefield, the contract did not in fact govern the 37/40ths of performance, so that it did not bar an action for a quantum meruit for the work actually done. Applying such a distinction to the other examples posed by Andrew, all three are situations where the contract governs the relationship in the particular facts which have happened, so that the plaintiff's primary port of call will be to enforce the contractual duty to pay over to him the money in the hands of the defendant.

Thus, in the situation the NIB in Ireland, the question is whether the contract between the bank and the customers governs the relationship in the particular situation which has occurred. If it is unreal to say that it does, then pace Hedley, any action which the customers may have is one for restitution of the bank's unjust enrichment. If that is so, (and there is a coherent principle against unjust enrichment underpinning all such actions) that brings me to my second question: what is the unjust factor ?

Best,

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.)