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In my respectful submission, the "Canadian formulation" (even with Professor McInnes' gloss) smacks of generalization and simplism analogous to the heresy, which tainted Anns v. Merton L.B.C. [1978] A.C. 728 and which was corrected by Murphy v. Brentwood B.C. [1991] 1 A.C. 398. Not surprisingly in the light of that gloss, I further respectfully submit that the doctrine of unjust enrichment is having the same corrupting influence in England and Wales as did Anns and that this is demonstrated by Westdeutsche Landesbank v. Islington L.B.C. [1996] A.C. 669.

When applied to a body corporate, the purpose of the ultra vires doctrine is to protect the corporation's capital for the sake both of its members (in Islington, the ratepayers) and of the outside public, more particularly those who might be its legitimate creditors. This is remarked upon by Lord Templeman (at 36G) in Hazell v. Hammersmith L.B.C. [1992] 2 A.C. 1, the case wherein the ultra vires nature of the swap agreement was determined as an implication from the Local Government Act 1963. Lord Templeman cites Cotman v. Brougham [1918] A.C. 514, at 520. The leading case is Ashbury Rly Carriage & Iron Co. v. Riche (1875) L.R. 7 H.L. (E.) 653, at 667, 678 & 684. So far as I have seen, both are ignored in Westdeutsche at the higher levels of the judicial hierarchy. Yet they state the policy implicit in the Building Societies Act 1836, which warranted the denial, in Sinclair v. Brougham, that an action would lie for money had and received. Goff & Jones' The Law of Restitution (4th ed., London 1993, by Jones at 62-68 & 498-505) shows that, where a contract is forbidden and consequently rendered either void or unenforceable by statute, it is a matter of the interpretation of the statute whether or not money paid thereunder is recoverable as money had and received by the payee to the use of the payer. Without taking into account the like policy in the Local Government Acts, how is one to determine whether or not the implication of the availability of an action for money had and received creates such inconsistency, absurdity, or inconvenience, as Lord Blackburn told us in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743 at 765, the golden (and sole) rule of documentary (including statutory) interpretation is designed to avoid?

With due diffidence as to my ability to understand the distinction after only a year (and that almost a decade ago) of teaching mercantile law in Scotland, I respectfully suggest the analogy of condictio causa data causa non secuta to provide (as condictio indebiti does not) an explanation of what I respectfully submit to be the patent liability to repay money recovered under a judgment, once the judgment is unconditionally set aside. As I understand it, the former condiction is itself analogous to the action for money had and received on a total failure of consideration. Consideration cannot fail, unless it first be present - McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 337 at 406. Though, in a simple contract, not every causa sine qua non amounts to consideration, consideration always constitutes such causa or, as common lawyers put it, a condition. "In consideration (or because) of your selling me Blackacre, I promise to pay you £X" can be expressed just as well as "If you sell me Blackacre, I promise to pay you £X". Hence, presumably, the conditions (unlike the mere warranties) of a contract are said to go to the consideration. "The Daily Star" was obliged to pay Lord Archer his damages and costs if he entered judgment against the paper. In other words, "The Daily Star" paid Lord Archer his damages and costs in consideration of the entry of the judgment, which he won against the paper. Hence, perhaps, judgments are said to be contracts of record. If the judgment be set aside, the consideration (though once present) will have failed totally. Alternatively, the contract (of record) having been set aside ab initio for the fraud of one of the three parties (plaintiff, defendant and court), restitutio in integrum must follow - cf. Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. Cas. 1218.

I, too, respectfully urge caution in looking to the civilians for guidance beyond analogies. No legal system can digest concepts fundamentally alien to it - Williams v. Britannic Merthyr Steam Coal Co. (1924) 40 T.L.R. 687, at 688(1) per Rowlatt, J., and Mongomery, Q.C., and Sharp v. Thomson [1995] Times Law Reports 439 ("The Times" 25/7/95).