Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Fri, 21 Jul 2000 16:16:49 +0100 |
| Re: |
Mistakes |
At 11:52
+0100 21/7/00, fergus farrow wrote:
How is that principle applied in a case where a donor
would not have given his $1,000 to a particular charity if he had realised
that an enemy of his was on the managing board of the charity? ... It
may be argued that the donor, in the case under review, manifested by
his conduct an irrevocable, unconditional intention to abandon his ownership
of the money in favour of the charity. Conversely, it may be noted that
if he did not want to give money to charities who have board members
unacceptable to him he had to check that out before he gave his money....
In turning to another potential application of the
general principle in question reference is made to a case where a payor
mistakenly pays his gas bill a second time, in circumstances where the
payee does not detect the mistake. Although such a payor may have had
an ostensible intention to discharge an obligation, it can be argued
by reference to the surrounding circumstances that he did not manifest
by his conduct an irrevocable intention to discharge an obligation to
the gas company because, as a matter of fact, he did not have one. Anything can be argued :-), but what is it in the surrounding
circumstances that allows us to say that the first mistake does not allow
recovery but the second one does? I would suggest, nothing. That is a
conclusion of law, and my view is that any rule imposing on payors the
risk of some mistakes (eg who is on the board) but not others (eg whether
a debt was due) must be justified as a rule of law which distinguishes
between different kinds of mistakes. If you try to do it with a single
legal principle, the differing results said to be based on factual differences,
you are left unable to explain why a person is bound to inquire into a
board of directors but not into the state of his account with the public
utility.
Lionel
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