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Dear all,

To respond to Jason Neyers' last email:

Firstly wills and judgments are different to gifts, or more precisely they are different to spontaneous gifts such as my giving my girlfriend her birthday. That is spontaneous in the sense that (although she may expect it) I do not promise to give it to her before I actually do. Wills and judgments are therefore like voluntary instruments of the kind met in Gibbons v Mitchell and Lady Hood v MacKinnon. The important point about those is that they create a pre-existing debt (although in the case of a will that is obviously contingent on the testator's death). That means that the judgment, will, or voluntary instrument must be set aside before restitution is granted. That is the easy case where we see a two stage process.

That is not the case in the class of case that I call spontaneous gifts. In those cases there are two points. Firstly it is a lot harder to see why having a two stage test is better than having a one stage test, where all we need to say is mistake therefore recovery, rather than mistake therefore void, therefore recovery. That is certainly true if you accept my view that we are actually concerned with every type of mistake, and I think true also if we accept Jason Neyers' view that we are not.

The second point is this. Christoph Coen's last email explained why contracts of donation were dreamt up. It seems to be because the German lawyers were worried about the case where the plaintiff says he thought that he was obliged to make the transfer as a result of a pre-existing promise. It may be that this is not a problem. Certainly Jason Neyers does not appear to believe that it is. However, if it is a problem a German style contract of donation would seem to me, unless anybody out there has any bright ideas, to be the only way of avoiding it. This is crucially not a problem where there is already a pre-existing liability as in the voluntary instruments cases.

As for Jason Neyers' own second points my response is relatively simple. It is this. How can we not be interested in every single mistake?

Jason Neyers' concerns seem to revolve around the idea that we ought only to be interested in mistakes that affect our liberal intention, our intention to give. As an aside that to me is very like Meier's distinction between mistakes in forming the intention and executing it. However, what does it mean? Is it my intention to give, my intention to give to my girlfriend as opposed to my sister, my intention to give this particular present, my intention to ..... I could go on. It seems to me that it is extremely difficult to isolate one particular intention and say that a mistake that vitiates that intention counts, but not one that affects a different intention. Mistakes will affect all sorts of differing and overlapping intentions and if Jason Neyers thinks he can isolate mistakes that only affect the donative intention I think he will fail.

Secondly even assuming that he can do this, surely every mistake affects that intention unless it has no causative force. Christoph Coen uses the example of giving £1000 rather than £100. I presume that Jason Neyers would allow recovery here. Christoph Coen then uses the example of the donor finding out that the head of the charity is an enemy. Would Mr Neyers allow recovery? My understanding is that he would not. Yet if that mistake were a sine qua non of the payment it obviously affects the intention to make it! Andrew Tettenborn's objection to this area is that it is at present too metaphysical. I think my approach strips out all the metaphysics Jason Neyers seems to want to keep.

Duncan Sheehan