The first plank of his argument is based on the assumption that it is

true that the comedian has a claim for unjust enrichment against the defendant credit card purchaser,

The 'comedian' may very well have such an argument based on mistake or (as James suggests in his first message) failure of basis, but one of the reasons often given for allowing the plaintiff (here: the member of the audience) to sue the defendant (here: the credit card purchaser) is to short-circuit the multiplicity of actions implicit in requiring the third party (here: the 'comedian') to sue the defendant, and then requiring the plaintiff to sue the defendant(1).

The second plank of his argument is that:

the law in general does not require the perfection of imperfect gifts,

The key here is in the concession that the law IN GENERAL does not require the perfection of imperfect gifts, implying that there are some specific cases in which it can and does. I referred to many of them in the notes to my previous message.

From these two planks, he argues that the facts retailed to us by Lionel cannot count as a

case of interceptive subtraction, because the plaintiff was never and is not entitled to the receipt of the money from the defendant, and surely such an entitlement would be a necessary precondition for such a claim.

Proof of interceptive subtraction turns on the certainty of the donor's intention to benefit the claimant: in Birks' words, had the defendant not intervened, the enrichment must "certainly" or "indubitably" have reached the claimant(2). On such proof, there are at least three possible positions. The first is that taken by Lionel, who argues against the notion of interceptive subtraction partly on the ground that such certainty is impossibly elusive(3). The second is taken by Graham Virgo, who sees interceptive subtraction as one of the exceptions to which his version of privity is subject, and argues that "the proper interpretation of the notion of inevitable receipt is that of legal inevitability", that is, inevitable because "the third party was legally obliged to transfer the benefit to the plaintiff" and not because he had simply intended to do so(4). This requirement of legal inevitability is the point taken by James in his objection to the plaintiff's claim. The third possible position is that taken by Birks, for whom it is enough that, had the defendant not intervened, the enrichment would certainly have reached the claimant because the donor had so intended, whether or not the donor was legally obliged to do so. If this is right, the requirement of legal inevitability insisted on by James and by Graham Virgo is a good way to prove inevitability, but it is not the only way to do so. Nevertheless, although the authorities do not confine interceptive subtraction to cases where the third party donor is under a legal obligation to pay the claimant, they do not go very much further. For example, they demonstrate that outside this context of legal inevitability, the convincing evidence of the third party's intention to benefit the claimant will most often be provided by the fact that the donor had done all that he could do to ensure that the plaintiff received the enrichment, as in the Re Rose line of authority(5).

Such inevitability (meeting the conclusion drawn by James) is the proper basis upon which a gift will, exceptionally, be perfected, and on which a personal claim in restitution will be allowed (meeting plank 2 of his argument) thereby shortcircuiting the need for the third party's claim - if any - against the defendant followed by the plaintiff's claim - if any - against the third party (meeting plank 1).

So, for the plaintiff's claim to succeed, two questions must be answered in his favour: (i) does the law allow an enrichment of the defendant at the expense of the plaintiff to be established where a third party transferred the enrichment to the defendant, intending it for the plaintiff, only where the third party is obliged to make the relevant transfer or does such a claim extend to cases where the third party merely factually intends to do so, and has done all that he could do to ensure that the enrichment arrives with the plaintiff; and (ii) if the latter (as I argue in principle that it should be), is this standard met on the facts? It is open to question whether in fact this standard is in fact met on the facts, but that does not alter the point that such a claim might in principle be made.

Eoin.

References

(1) See Official Custodian for Charities v Mackey (No 2)[1985] 1 WLR 1308, 1313-1315 per Nourse J; Dawson "Indirect Enrichment" in von Cämmerer, Mentschikoff and Zweigert (eds) Ius Privatum Gentium: Festschrift für Max Rheinstein zum 70 Geburtstag, Band II (Nationales und Vergleichendes Recht) (JCB Mohr, Paul Siebeck, Tübingen 1969) 789, 801; Virgo Principles of the Law of Restitution (OUP, Oxford, 1999) 110).

(2) Birks, 133, 136.

(3) Smith "Three-Party Restitution. A Critique of Birks' Theory of Interceptive Subtraction" (1991) 11 OJLS 481, 486-487; see also Jaffey The Nature and Scope of Restitution (Hart Publishing, Oxford, 2000) 260-270 and Grantham and Rickett Enrichment and Restitution in New Zealand (Hart Publishing, Oxford, 2000) (hereafter: Grantham and Rickett) 20.

(4) Virgo, 109-111.

(5) Re Rose; Rose v Inland Revenue Commissioners [1952] 1 Ch 499 (CA). See also the earlier Re Rose; Midland Bank Executor and Trustee Co v Rose [1949] Ch 78; Vandervell v IRC [1967] 2 AC 291 (HL): Corin v Patton (1990) 169 CLR 54 (HCA); T Choithram International SA v Pagarnai [2001] 1 WLR 1 (PC).

EOIN O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin University Law Journal.
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.)