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Sender:
Robert Stevens
Date:
Mon, 17 Jul 2000 10:43:24 +0100
Re:
Questions on Prof. Birks' "Equity, Conscience, and Unjust Enrichment"

 

The concept of an unjust factor may admittedly be on the way out now after Kleinwort Benson v Lincoln City Council, given that I can count on the fingers of one hand the number of people who agree with me that the bank was mistaken and deserved relief on that basis.

Well, I can think of three members of the House of Lords. Add you, me and Professor Finnis and we have more than a fist.

I am not myself impressed by the term unjustified enrichment.

It does not matter very much, if at all, but I would prefer unjustified for the reasons given by Professor Tettenborn. "Unjust" might mean "unfair" or "unjustified". We are not dealing with the law of "unfair" enrichments. English law seems to require it to be shown that there is a positive reason why the defendant's enrichment is unjustified. Before moving to a different system I would want to be given some examples of where English law leads to unacceptable results.

Void contracts for instance do not attract relief simply because they are void. The fact that the contract is void is entirely neutral as to the result that ought to follow. An example of this must be the passage of property.... we know property can pass under illegal contracts which are void.

I agree but I don't think that this can be proven quite so easily. It might be that the rule is that restitution should always be awarded (or property should not pass) where a contract is void but that this is subject to exceptions (e.g. illegality). Professor Treitel, for one, seems to think that this is correct.

 

R


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" These messages are all © their authors. Nothing in them constitutes legal advice, to anyone, on any topic, least of all Restitution. Be warned that very few propositions in Restitution command universal agreement, and certainly not this one. Have a nice day! "


     
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