Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Like Steve Hedley, I think that Esso Petroleum v. Niad should serve as an opportunity to reconsider the Blake opinions. I prefer the view of Lord Steyn that succeeded in striking a very delicate line between Lord Nicholls' opinion that is -- I agree again with Steve Hedley -- too open-ended, and the dissent's view, which I find unnecessarily rigid.

I believe that the restitutionary remedy should be very exceptional in contractual settings. (see my Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory 1 Theoretical Inquiries in Law 115 (2000)). But I think that the Blake outcome is correct. If I read Lord Steyn's opinion correctly, the gist of his argument is that although technically not a fiduciary, Blake was "in a very similar position to a fiduciary. The reason of the rule applying to fiduciaries applies to [Blake]." This analysis uses law's underlying justifications in order to both reach the just outcome (allowing the Crown's claim) and preserve the sound policies of the law (disallowing in most cases claims of restitutionary damages for the breach of contract). Put differently, Lord Steyn's opinion can be read as adapting the scope of fiduciary law to the underlying principles of this area without upsetting the sound traditional reluctance of the common law towards restitutionary damages for breach of contract.

Hanoch Dagan
Affiliated Overseas Professor
University of Michigan School of Law
625 South State Street
Ann Arbor, MI 48109-1215
(734) 647-7352 (o)
(734) 764-8309 (fax)