My response is two-fold. First, it is not every mistake that we are concerned about and that is why I believe that the mistake/unjust factor is flawed. What we are concerned about is whether or not their was a liberal intention at the time the gift was made. The only mistakes that count under the UE analysis is a mistake that explains how one managed to transfer value without this liberal intention. Did the person transfer the value as a gift? Yes or No. If they intended to transfer the value because they thought they were required to (i.e. were under a legal obligation to do so) then there is an UE: that person did not intend to benefit you (with a gift) and there is no contract or other obligation justifying retention.

Second, under this analysis it is not really important if you somehow came to the conclusion that you wanted to give a gift through a misperception of the facts. In my mind, this does not effect the liberal intention as every human has their own level of ability when it comes to processing information and making decisions. Now you are probably right that there will be cases were certain mistakes, or illegitimate pressures of a certain agreed upon threshold, will force us to speak of an juridical act (gift, contract, wills) as being void, but this law will apply equally to all juridical acts. But in any event, this category will not include all that is meant by your definition of "mistake" (any sort of error of any kind). Thus, I don't think that one can say that the system of unjust factors is a simpler and more coherent explanation of this process.

3) You wrote:

if we were to go over to the German system what happens to Chambers view that when we transfer property under a mistake that automatically gives rise to a resulting trust? If that is true (and I grant that lots of people don't think so) is this not one of those unforeseen ripples that I talked of in my last message.

You have highlighted a very interesting point. It is on this issue where I feel that the common law has recognized something that is missing from the Quebec civil law system (I am not sure of Germany so I will remain silent). If the juristic reason UE analysis is applied rigorously and logically I believe that Prof. Chambers is essentially correct. Every UE, properly understood, automatically leads to some sort of bankruptcy priority/ proprietary remedy. The argument for this proposition is too long for inclusion here, but is well explained (as are many of the arguments above) by David Stevens in "Restitution, Property, And the Cause of Action in Unjust Enrichment: Getting By with Fewer Things" (1989) 39 Univ. Toronto Law Journal 258, (1989) 39 U.T.L.J. 325 & "'Knowing Assistance' And 'Knowing Receipt' in The Supreme Court of Canada" 14 Banking & Finance Law Review 407-456. On this issue, I believe that the logical merging of the civilian system with our experience creates some ripples, the result of which is a more coherent understanding of our private law and the relationship between contract, tort and UE. This are preferable ripples, much like the ripples caused by the introduction of UE generally.

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