Which is precisely why restitution can only be contingent on having the judgment set aside. Res judicata is undeniably a defence to a claim for restitution (cf. the Dublin Bricklayers' Hall case). The judgment is the "juristic basis" (the French would say "cause"; English lawyers have taken to using the expression "consideration"; in both cases, these concepts are distinguished from their contractual homonyms). When the judgment is set aside, the basis/cause/consideration "fails" and a right to restitution arises. I see no reason why reference to "juristic reason" should cause any difficulty in Lord Archer's case.

He also notes (re gratuitous contracts):

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.

In continental legal systems (at any rate, in French Law), there is no such thing as a contract without "cause", a notion which corresponds to consideration, except that there is no requirement that it be valuable. Thus, a gift is analysed as a contract, the cause for which is a "liberal intention". Which is why, when a relationship of friendship is proven to have been a sham, it may be possible to rescind gifts (although I am presently unable to specify the circumstances...). In the case of gratuitous provision of services, this will give rise to a restitutionary claim.

Matthew Scully.
Oxford Institute of Legal Practice.

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