And I argued that the debt could be seen as arising from an implied term in the banker/customer contract. Look replied that message and forwarded the reply to the list; and in that reply, argues that the contractual solution seems to have been excluded in Laws v United Missouri Bank, for two reasons.

First, according Look (whose summary of the case I rely upon as I have not had the opportunity to read it):

UMB testified that 'we were lending money and the loan was not approved.'

which fact, it seems, precluded a contract. I'm not sure I agree with this. Certainly, as a matter of Irish law, the fact that the loan was unapproved by the lenders internal machinery would be a matter of internal management which would not affect the validity of any external obligation which would arise; an unapproved loan could still generate a contractual liability to repay. So, the question arises: why would the transaction not be saved by the US version of the internal (or indoor) management rule ?

And, second, it seems that the court rejected the view that a contract to repay could arise on the facts having regard to the transaction in question. Well,the court could be wrong in this, but even it isn't, it doesn't answer my argument. I was not arguing that the advances against uncollected cheques would themselves generate (or imply in fact) a contract (which is what the court in Laws v UMB rejected, if I've understood Look correctly), but merely that, as between the banker (UMB) and customer (Laws), there is already an *existing* express contract, into which the court could imply a term regarding the repayment of the advances.

My reason for harping on about this is that, very often the existence of the contract itself will preclude a response of restitution for unjust enrichment, so that it is better to look for a remedy on the contract having a similar pattern and effect on the contract itself (if we allow that the response of restitution can be born of events other than unjust enrichment, as Prof Birks now argues to be case in "Misnomer" in Cornish, Nolan, O'Sullivan and Virgo (eds), then this would be an example of the response of restitution born of the event of consent; compare, Cargill v Bangladesh Sugar [1996] 4 All ER 563 in which Morrison J implied a term into a contract requiring an accounting of a surplus, and expressly rejected a restitutionary explanation of the liability). So here the existence of the banker-customer contractual relationship makes a contractual explanation more natural, and perhaps even necessary.

Best 

Eoin

EOIN O'DELL
Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m)
(All opinions are personal. No legal responsibility whatsoever is accepted.)

Eunice and I had a wonderful little baby boy, Andrew, on 24.7.99 !!