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Dear all,

Well OK there are six of us who think the bank were mistaken, but in my defence I was thinking of people other than their lordships, which makes three, which is less than five.

I myself think that Meier and Zimmermann are right to say that in order to restrict the types of mistake that ground relief in restitution you must look to a legal ground analysis. Either saying that only liability mistakes will count as in Kelly v Solari or by going over to their ideas of throwing over mistake altogether would be coherent. I would not myself be overly keen on going back to liability mistakes. If it is true that giving restitution for a mistake protects our interest in being able to make decisions on a flaw-free basis then restricting relief to liability mistakes while stable does not give relief in a whole string of cases where we might want to give relief and it certainly fails to give us any inkling of what we are supposed to do with mistaken gifts, since ex hypothesi they wouldn't be gifts if we thought we were liable to hand the property over.

However, and this, I think, is where Meier and Zimmermann, and myself part company I do not think that it is true to say that because we do not allow restitution where there is a valid obligation whether we are mistaken or not implies that English law is indulging in the kind of legal ground analysis they believe it does or ought to. Where there is a contract or any other type of obligation, enforceable or unenforceable, there is a bar because the recipient was entitled to the very thing handed over. It would be nonsensical to allow a claimant to obtain restitution where the obligation is enforceable; the defendant promptly enforces it and wastes court time. Allowing the defendant to keep the property where the obligation was unenforceable, or even (if you believe in such things) natural, is merely a small and legitimate extension. The payee then has to prove that there is an obligation. The type of legal ground analysis that Meier and Zimmermann would have English law indulge in would have the payer proving that there was no obligation. There is a difference. That the presence of X is a defence does not mean that its absence is a cause of action. Any slippage from one to the other, while it may well happen after Kleinwort Benson is illegitimate. It may be that Meier and Zimmermann are on to a winner here and I'm on a loser but I hope not.

Both of these different methods of running this area of law, voidness = cause of action + exceptions, or unjust factors = cause of action + validity as a bar are perfectly rational ways of doing things. Let nobody be in any doubt that I think that. With that aside I can reply to Robert's point on void contracts. I don't think it matters for these purposes what English law actually is, although I believe that the rule is not that void contracts give relief and that there are then exceptions to that, which is Treitel's position and I think Meier and Zimmermann's. What matters is that the fact that the contract is void does not per se necessitate that we go for the rule that it gives relief subject to exceptions. There is nothing incoherent in saying that we need an extra factor, be that mistake or anything else. WHAT WE CHOOSE IS A CHOICE; VOIDNESS DOES NOT LOGICALLY REQUIRE ANY PARTICULAR CHOICE. That is all I meant when I said that voidness is entirely neutral.

Lastly a question for German lawyers. I understood that the reason why gifts are not caught by section 812 of the BGB was that in German law it was possible to have contracts of donation, which since contracts are juristic causes prevent the section's bite. These cannot exist in English law which is why going over to the legal ground German analysis entails looking anew at gifts. Christoph Coen seems to make out that we do not as English lawyers need to look anew at gifts. I think I am missing something and I would be grateful for attempts at explaining what.

Duncan Sheehan