Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Fri, 4 Dec 1998 23:39:55 |
| Re: |
Lloyds Bank plc v Independent Insurance Co |
It
appears then, satisfyingly enough for the end of term, that Charles and
I agree on far more than we disagree about. The only significant area of
disagreement is : Are cases of the Lloyds
v. Independent type very different from cases of the BFC
v. Parc type ? Or only somewhat different ?
I say that they are wholly different. "Mistake" in restitution is no
more of a coherent category than is "mistake" in contract. *All* reported
cases (on any topic !!) involve a mistake of some sort, because no sane
person would willingly end up as the subject of a leading case -- an expensive
and generally unrewarding experience at best.
Charles's approach is more complex, insisting that in some respects the
two classes of case are similar :
In my opinion there is a group of cases which
are both "mistake cases" and "subrogation cases". In my opinion, the courts
have awarded subrogation as a response to the unjust enrichment of the
defendant in these cases, and the unjust factor present in these cases
I would say is mistake. I make this argument in Chapter 9 of my book and
I stand by it. At a simplistic level I can retort that the overlap of two areas doesn't
demonstrate that they are the same, or even are related. Just because
land is often referred to in restitution texts doesn't demonstrate that
"restitution" and "land law" are the same subject.
Less simplistically, I don't imagine that "mistake" forms a coherent
category in restitution, any more than it does in contract. So the question
is not whether it is possible to speak of "mistake" in both Lloyds-cases
and Parc-cases, but whether the same legal phenomenon is being referred
to. If the "false basis" criterion is the one really at work in the Lloyds
type of case, then they seem to be different : for the Lloyds-cases will
involve payments which do not discharge a debt, whereas the Parc-cases
involve those that do.
That is precisely why it is important that Charles, after all, argue
that we should treat the two groups of cases differently :
I think that we can only make the argument that
certain types of negligent mistaken payors do not "deserve" to recover
their money if we also take into account the question whether the recipients
of their payments "deserve" to keep them. I think that the point I was
trying to make when floating the idea that we could distinguish between
the Lloyd's-type case and the BFC- type case is that when we come to assess
the position of the defendant in the two types of situation, we should
not assume that that the position of someone who receives payment by a
bank on a cheque made out to him by a customer with insufficient funds
in his account to cover the cheque is necessarily the same as the position
of a member of a corporate group benefited by a payment to another member
of the group. So, it seems that we agree that the two types of case are different.
The issue is : * How* different ?
But again, let's wait and see the full report. Indeed. The transcript is now on the web site. Enjoy.
Steve Hedley
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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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