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Hello all,

The recent vigorous debate on this list has discussed many important structural and taxonomic matters. Mentioned in passing has been Prof Birks' recanting of the perfect quadration of restitution and unjust enrichment, his conversion to the multi-causal nature of the response of restitution, and his consequent espousal of unjust enrichment as an appropriate for the subject. Let me take up that point by means of quoting an extract from something I've just written:

__________ Begin Extract __________

Just as the courts have rejected the implied contract fiction and begun to coalesce around a vision of a law of restitution founded upon … the principle against unjust enrichment, academic debate has, almost inevitably, begun to call it into question. For example, Birks, whose work was so influential in the developments sketched above, was once of the view that "Restitution and unjust enrichment identify exactly the same area of law. The one term quadrates with the other". [fn96] That is, if the cause of action is the unjust enrichment of the defendant at the expense of the plaintiff, the remedy is restitution to the plaintiff from the defendant of the amount of that unjust enrichment. However, he has since recanted of this quadration. He now [fn 97] believes that restitution in the sense of giving back can be a response to an obligation arising not only from an unjust enrichment but also from consent (as where the defendant agreed to the return), and from a wrong (because restitution for the wrong is a consequence of the law relating to the wrong itself), [fn 98] so that to confine the meaning of the word "restitution" [fn 99] to a response to unjust enrichment is to ignore that the natural meaning of the word restitution can include the other responses he identifies. For him, the remedy for this instability is to adopt "unjust enrichment" as a more appropriate title for the subject than restitution. This, unfortunately, muddies waters which have only recently begun to run clear. The stability which Birks requires of the phrase "unjust enrichment" is illusory, because, though Birks would deny this, the phrase "unjust enrichment" can be used in the law in manners which are neither pejorative nor as substantively precise as he would insist; indeed, there is a spectrum [100] along which lie various visions of unjust enrichment, from the very technical descriptive principle advocated by Birks and adopted by the Irish, English and Australian courts, through the slightly more open-textured prescriptive principle adopted by the Canadian courts, and the related but less technical understandings of the principle, [fn101] often expressed in 'equitable' terms, [fn 102] to much looser senses [fn 103] and ultimately to pejorative dismissals of unfettered palm tree justice or worse. If the word "restitution" is, as Birks puts it, multi-causal, then the phrase "unjust enrichment" is equally multi-faceted. In both cases, there are many possible meanings, and the law seems to have chosen one meaning in each case; so that the phrase "unjust enrichment" describes a cause of action for which the word "restitution" describes its remedy. [fn 104] In so doing, it would simply be another example of the law ascribing to words stable legal definitions which differ in some way either from their meanings in ordinary speech or from other legally plausible meanings. Though the natural meaning of restitution might extend beyond unjust enrichment, and the possible usage of unjust enrichment might in its turn extend beyond restitution, nevertheless, their overlap indisputably defines a relatively stable field of the law of obligations. It is not now necessary to undo what has only recently been done, and done well.

96. Birks, p 17.

97. See, eg, Birks "Misnomer" in Cornish, Nolan, O'Sullivan and Virgo (eds) Restitution. Past, Present and Future (Hart Publishing, Oxford, 1998) p 1; Birks "The Law of Unjust Enrichment: A Millennial Resolution" [1998] Singapore JLS 318; Birks "Equity, Conscience and Unjust Enrichment" (1999) 23 Melb ULR 1; Birks "The Law of Restitution at the End of an Epoch" (1999) 28 UWALR 13; see also Swadling "What is the Law of Restitution About: Four Categorical Errors" in Cornish, Nolan, O'Sullivan and Virgo (eds) Restitution. Past, Present and Future (Hart Publishing, Oxford, 1998) p 331. However, (inevitably ?), this recantation has proved controversial; see, eg, Tettenborn "Misnomer - a Response to Professor Birks" in in Cornish, Nolan, O'Sullivan and Virgo (eds) Restitution. Past, Present and Future (Hart Publishing, Oxford, 1998) p 32; McInnes "Restitution, Unjust Enrichment, and the Perfect Quadration Thesis" [1999] RLR 118.

98. In fact, Birks argues that as a matter of taxonomy, the law of obligations divides into four: those obligations which arise from consent, wrongs, and unjust enrichment, and those which fall into a fourth miscellany; for him, the doctrines which protect the reliance interest at common law identified at various points in this comment (see, eg, text with and in nn 123-126 below) provide an example within this fourth category. Consistently with his view that restitution can be a response to an obligation arising not only from an unjust enrichment but also from consent and from a wrong, he also argues that it can be a response to events in the miscellany: see, eg, his discussion of Macmillan v Bishopsgate Investment Trust (No 3) [1996] 1 All ER 585 (CA) in Birks "Property and Unjust Enrichment: Categorical Truths" [1997] NZLR 623 (on this piece, see also n 108 below).

99. That is, restitution at private law; alternative legal usages of the word restitution in family law and criminal law are not in issue here.

100. See, generally, Dietrich Restitution. A New Perspective (Federation Press, Sydney, 1998) pp 10-17; and Virgo pp 6-10, 49-55.

101. See, eg, Friedmann "Valid, Voidable, Qualified and Non-Existing Obligations: An Alternative Perspective on the Law of Restitution" in Burrows (ed) Essays on the Law of Restitution (Oxford, 1991) p 247, distinguishing between technical and related non-technical usages of the phrase "unjust enrichment".

102. This may be what Lord Clyde had in mind in Banque Financière de la Cité v Parc (Battersea) [1999] 1 AC 221 (HL) when he said that "the principle of unjust enrichment … is equitable in the sense that it seeks to secure a fair and just determination of the rights of the parties concerned in the case" ([1999] 1 AC 221, 237; though it should be noted that in the same case, Lord Steyn and Lord Hoffmann took the more precise technical approach; see text with and in n 69 above).

103. An excellent example of such a looser usage is provided by Prof Atiyah. Writing in 1979, when he perceived "little sign … of any wholehearted acceptance by English lawyers of a new branch of the law entitled the Law of Restitution, and based on unjust enrichment ideas" Prof Atiyah saw the notion of unjust enrichment as simply "an important underlying idea … operating interstitially in all branches of the law" (Atiyah The Rise and Fall of Freedom of Contract (Oxford, 1979) p 768); however, the argument in the text is that decisions in the House of Lords, as well as the Supreme Court of Canada, the High Court of Australia, and of course the Irish Supreme Court, demonstrate that this view has been overtaken by just such an acceptance.

104. Or, perhaps more accurately, the word "restitution" describes that pattern of its various remedies. For an important discussion of restitutionary remedies, arguing that a distinct remedial focus, when placed in constructive partnership with the existing debate about causes of action arising from unjust enrichment, can be a fertile source of understanding about the nature and content of restitutionary rights, see Barker "Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right" [1998] CLJ 301.

__________ End Extract ___________

The extract is from O'Dell "Bricks and Stones and the Structure of the Law of Restitution" (1998) 20 DULJ (ns) 101, 119-121. Though it has a nominal 1998 publication date, it has in fact only recently been published as part of rescue operation for the DULJ. And now for the shameless plug. In "Bricks and Stones ..." I consider at inordinate length the Bricklayers' Hall case [1996] 1 IR 468; [1996] 2 ILRM 547 (SC); [1996] RLR ß 134, and conclude that, in many ways, the case is modern re-run of Moses v Macferlan (1760) 2 Burr 1005; 97 ER 976. In the forthcoming RLR, I summarize the article as follows:

The author argues that the judgments of Budd J at first instance and of Keane J on appeal are of the first importance, not only in Ireland but in the common law world, for the development of the law of restitution based upon a principle against unjust enrichment, the genesis of which is often traced back to the judgment of Lord Mansfield in Moses v Macferlan. And those judgments have done much to clarify the ambit of res judicata as a defence to a claim, not only in restitution, but more generally in the law. Though there were other routes which they could have chosen to take, which the author discusses [and it is in this discussion that the above extract appears] and rejects, the judgments in the Bricklayers' Hall case establish that the signposts on the current route pose four enquiries which are then applied in the article to the case itself, concluding that the enrichment was unjust because the overpayment was both a mistaken payment and one in respect of a consideration which had failed. The author argues that these conclusions point the way to the development of the action for mistake to reach mistakes of law, and to the development of the action for failure of consideration to reach partial failures and non-contractual bases, and that important theoretical and practical differences justify treating them as separate causes of action. In the High Court, Budd J considered that change of position could have provided a defence, and his judgment raises the prospect, considered by the author, that Irish law recognises a justice-related rather than a more limited and more principled enrichment-related version of the defence. In the Supreme Court, the claim was dismissed for res judicata, but the author argues that cause of action estoppel, issue estoppel, estoppel by omission, and abuse of process, properly did not apply on the facts either of the Bricklayers' Hall case or of Moses v Macferlan, though public policy or the defence of enrichment pursuant to obligation would seem to justify the dismissal of the plaintiff's claim in the Bricklayers Hall case. Finally, in the High Court, Budd J seemed to hold that the defendant would hold the unjust enrichment on constructive trust for the plaintiff, but the author argues that unjust enrichment would have given rise simply to a personal obligation to make restitution, that there must be something more (such as the Westdeutsche formulation ([1996] AC 669 (HL) 705 per Lord Browne-Wilkinson)) or something else (such as a resulting trust) to justify a proprietary obligation to hold the sum on trust, and that it is an open question whether such an additional matter was properly to be found in the remedial constructive trust either in principle or on the facts.

If this summary has whetted anyone's appetite, I'll happily send an offprint in reply to a request, though given my usual degree of efficiency, this should read that I'll happily *eventually* send an offprint in reply to a request. In any event, the point of the message is to prompt discussion of the multi-causal nature of the word "restitution", the equally multi-faceted nature of the phrase "unjust enrichment", and the stability to be obtained not by focussing on one or the other, but upon their overlap.

Best

Eoin.

EOIN O'DELL
Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m)
(All opinions are personal. No legal responsibility whatsoever is accepted.)