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RDG
online Restitution Discussion Group Archives |
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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.
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