Restitution Discussion Group Archives
| Sender: |
Duncan Sheehan |
| Date: |
Mon, 9 Nov 1998 21:58:44 |
| Re: |
Kleinwort Benson |
Dear All,
Firstly many thanks to Eoin for reminding me about res
judicata; it's not something I think about a great deal. As for whether
established restitutionary defences will be enough after Kleinwort
Benson I don't know either, but I suspect that they will be.
There is something that Steve Hedley said, that initially
I had to agree with, but I'm not so sure now. He gave two examples in
which he said that it would be absurd to give restitution even though
the mistake in that case was in fact a cause of the payment. I confess
I'm not entirely clear on whether I can draw down saved read mail while
composing another so you'll have to forgive me for not repeating them.
However, my point is this. If the mistake is a necessary condition of
the payment, in the sense of being a sine qua non and possibly even a
sufficient reason in that the payment would be made even if the mistake
were the only reason for it, why not?
Where do you draw the line? Cases in Australia, Commercial
Bank of Australia v Younis, and England, Gibbon v Mitchell, say, have
used the test that the mistake needs to be fundamental. This is also the
test used in contract see Associated Japanese Bank v Credit du Nord. Even
if we ignore Peter Birks' favourite assertion that willpower has no voltage,
it seems a bit vague. I've heard it explained in terms of being material
and essential to the heart of the transaction. It's not very helpful is
it? And in any case should we not be more wary of allowing mistakes to
avoid transactions in contract where ex hypothesi there is a bargain than
in restitution? If Steve has a measurable bright line he'd like to explain
to me I'd be grateful. If he has none then the law is becoming in essence
very discretionary and up to what the judge happens to think on a particular
day, so long as he uses the right words and we might as well throw away
Goff and Jones and all the rest.
Duncan
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