Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Thu, 26 Nov 1998 22:20:38 |
| Re: |
"at the expense of" |
Rafal's question
is an important one, because of the pervasiveness of vicarious performance
in modern contracts. A company doesn't have arms or legs; it has directors,
employees, agents, sub-contractors. So while we can usually get away with
talking about a company "performing" its undertakings, in reality that cannot
happen in any literal sense.
In a case like Pavey
v Paul, essentially the situation is contractual - Pavey are doing
work in exchange for money after agreement with Paul to that effect -
but because of the illegality the claim can't be advanced on a contractual
basis. Rafal's question raises interesting issues on how this restitutionary
liability can be defined, particularly in the light of the requirement
that the benefit gained must be "at the expense of" the plaintiff. Essentially,
the unjust enrichment theory is here re-inventing the wheel - trying to
develop a theory of when and how we should enforce commercial agreements,
when we already have a law (of contract) to do that.
But how well does restitution do it ? We really have
3 suggestions from various contributors. Each of them reveal how complex
this liability really has to be, if it to do the job it is meant to in
Rafal's hypothetical.
1. Firstly, some are arguing that, as a matter of fact,
there probably was some "expense" involved somewhere. So Andrew Dickinson
says that
performance by the sub-contractor has resulted
in a reduction in his assets/ resources in that he no longer has any right
of action against the sub- contractor to compel performance nor, perhaps,
any right to allocate resources elsewhere. Whether he is now liable to
pay the sub-contractor is neither here nor there. As far as the sub-contractor
is concerned, his performance was requested by the main contractor and
has discharged an obligation under his contract with the main contractor.
But this brings in all sorts of factual complications.
If the contract between Paul and Pavey is invalid, it really isn't too
far-fetched to consider the possibility that the contract between Pavey
and the sub-contractor is invalid too - what then ? Andrew may well be
right in any particular case, but he won't *always* be right. Are we to
say that the case turns on some unspoken assumptions about how the plaintiff
arranged for the work to be done ? If so, what assumptions ? This approach
makes Pavey turn on a raft of factual findings which were hitherto thought
irrelevant.
2. Secondly, some are arguing for a fairy-godmother rule,
in effect that we should *pretend* that the plaintiff did it all itself,
because the truth is not the defendant's business. Or as Andrew Tettenborn
put it :
Your charm, merit and/or sweet-talking ability
that caused the sub to release you should enure to your benefit, not some
grasping householder's. I would be interested to see a statement of the rule
supposedly at work there. The complications of the rules in contract and
tort, alluded to by Charles Mitchell, hardly encourage us to adopt the
same approach in restitution.
3. Thirdly, no doubt some will suggest that if the benefit
wasn't really at the plaintiff's expense it must have been at *someone's*
expense, and we should give a right of action to the someone. No-one has
argued that here, but no-one has given a clear reason why it would be
wrong, either. Views, anyone ?
It seems to me therefore that there are wheels within
wheels when we try to explain the remedy here. The contractual analysis
of the case has at least the merit of simplicity - it is the plaintiff
who must be paid because it was the plaintiff that the defendant undertook
to pay. The suggested criterion for picking out the plaintiff in restitution
- "at the expense of" -seems highly complex in its application here -
perhaps, as I say, because it is trying to re-invent the wheel.
I appreciate that this leaves me siding with Brennan
J in Pavey v. Paul.
Steve Hedley
===================================================
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
telephone and answering machine : (01223) 334931
messages : (01223) 334900
fax : (01223) 334967
Christ's College Cambridge CB2 3BU
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