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Sender:
Robert Stevens
Date:
Thu, 6 Aug 1998 18:33:40 +0100
Re:
Was Banks Overcharging Customers

 

Steve wrote, yet again:

(b) if the recipient, instead of having a contractual entitlement to retain, has contractual duty to return:

(ii) What if the relationship between A and B is not bailor and bailee but customer and banker and B's obligation is not to return the same £5 note but to pay A £5 on demand? Can B's refusal render his initial enrichment unjust?

Again, obviously there is a contractual remedy for £5. In what circumstances would a litigant ever want to assert that there was a restitutionary remedy for £5 ?

Some arguable possibilities might be tentatively suggested:
What if the agreed rate of interest was lower than the interest which would be awarded if the claim was based upon a failure of consideration?
What if the English court had no jurisdiction over a contractual claim?
What if different systems of law applied to the contractual and restitutionary claims?
What if B is a minor and cannot be sued in contract?
What if the obligation is to repay in a different, now devalued, currency?

Some very tentative suggestions on Andrew's point,
i) In return for B promises to pay C £5 on demand, A pays B £5. B refuses to pay C. A should have a claim for £5 based upon a failure of consideration. Should it make any difference that B's promise is to pay £5 to A rather than C?

ii) However, The Trident Beauty might be authority against any restitutionary claim. A owes B £5. B assigns his right to payment to C. A pays C £5. B fails to perform his side of the deal and comes under an implied contractual obligation to repay A. A has no restitutionary claim against C, and he is limited to his contractual claim against B. Surely the same would be true if there was no assignment?

I have never been very happy with the Trident Beauty.

 

Robert Stevens


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