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This is a follow-up to the e-mail of Dr. Gerhard Dannemann where he suggests that in English law it is not helpful to resort to "obvious" or "failure of basis" reasoning to deal with issues such as Lord Archers in a common law system since any change in UE will affect contract in tort in difficult ways. In that mail he commented that he might be interested in hearing how Canadian courts deal with the problems that he outlined.

My answer, as the debate with Prof. McInnes demonstrates, is that one cannot say how Canadian courts deal with these problems because one cannot with certainty say how these courts will deal with unjust enrichment (i.e. unjust factors versus absence of juristic reason).

With that in mind, I would like to answer some of your challenges to the "juristic reason" analysis in a common law system (such as England or Canada) because I don't think that many of them are as problematic as they first appear. Many terms have been used to describe this method of UE reasoning in your letter but I am of the opinion that the "juristic reason" terminology is the best with which to continue.

Challenge 1: "Illegal contracts and quantum meruit"

If it is true that there is a public policy (or rule of public order) which denies the enforcement of illegal contracts then I see no reason why this same public policy would not apply to a claim under UE as well. All it would take is one case to apply the public policy in the new situation. Hardly, an upheaval in the legal system.

Challenge 2: "The procedural rule that a judgment is final after all possibilities of appeal have been exhausted becomes equally irrelevant if we allow unjust enrichment claims to return payments made under this judgment while leaving the judgment itself intact".

Your point is well taken but under the "juristic reason" analysis a judgment is a sufficient juristic reason to deny recover. I cannot think of a better juristic reason than to say there is a judgment justifying the deprivation.

Challenge 3: "The combination of a condictio indebiti with the lack of gratuitous contracts is more problematic." The example: " Somebody agrees to help a friend to paint his rooms, and after having fallen out with the friend, claims a quantum meruit."

If I understand your hypothetical correctly the friend was not labouring under a mistake as no consideration was to be expected. Under the "juristic reason" analysis the answer is simple. There is no UE in this case because there is a juristic reason justifying the deprivation -- the friend intended his labour as a gift. A gift is a juridical act in the common law as well. One does not need the idea of gratuitous contacts to analyse this fact pattern and conclude that there should be no recovery.

Challenge 4: "form requirements"

I think I need more information to comment.

Challenge 5: "Gaming & Betting Contracts"

See answer to challenge 2.

Moreover, what is the problem with the legislator intervening to make this an unactionable contract (similar to the statute of frauds, which is hardly a new innovation)? I do not think that the principles of the common law, or formulations of these principles, should be denied at the onset simply because our public policy interventions will have to be tweaked to account for the evolution. This is especially the case where the change is coherent and (possibly) conceptually better. For example, would you say that concurrent liability in tort and contract should be denied as a principle of common law (if it is the correct principle) merely because there might be difficulties with existing statutes or rules of civil procedure that were drafted before this conclusion. To do so, in my opinion, would be to put pragmatism and ingrained practice before principle and logic.

Jason W. Neyers
Law Clerk, Ontario Court Of Appeal
(416) 327-5107