Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

I have to say that I disagree that "classification of rules of law rarely has direct practical consequences"; the main achievement of restitution lawyers has been to avoid the unwelcome practical consequences of poor classification: e.g. the label "quasi-contract" preventing a personal claim in Sinclair v Brougham because the D did not have the power to contract for the repayment of the loan. You cannot simply divorce having a "coherent and logical legal system" from the goal of having direct practical consequences. The point of gathering cases together in an attempt to show that e.g. there is a rule allowing recovery where the P did not intend to confer a benefit on the D is precisely to avoid restrictions on recovery such as the total failure of consideration rule in contract or the mistake of law bar. I'm not saying that either of these rules are necessarily wrong, just that the attempt to enunciate a principle of unjust enrichment based on non-intent does have a practical relevance. I am making this point because I believe it is very important that restitution lawyers have a vital role to apply here. However, a desire to argue and argue about issues without practical consequences is what gives restitution a bad name, and rightly so, law is not about angels and pins it's about whether people can sue each other. So again I would return to the question of why Archer or the Daily Star would care if this obligation to return the money if the judgment is reversed is based on unjust enrichment. It is disingenuous to say cofposition would not apply on the facts of this case not only because we do not know precisely what the test of good faith but also because it is easy to imagine a case where judgment is reversed and the D is in good faith. This present debate will "contribute to our understanding of how the legal system works" only if there is such a practical consequence of categorising this as unjust enrichment.