Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Thu, 29 Nov 2001 20:51:57 |
| Re: |
Esso v Niad : Unjust Enrichment by Breach of Contract |
At 15:28 29/11/01, David Sandy wrote:
If Esso wanted the right to reclaim
their discount from the Defendant, it should have contracted for it.
Why should the Court effective rewrite the contract to protect Esso?
Further, why relieve Esso from the problem of quantifying its loss?
...
... why should the principles in Blake
be manipulated simply to give Esso the protection for which it had not
contracted and to which, on ordinary contractual principles, it would
not be entitled?
Exactly right. Whatever we think of Niad, Esso are not
the sort of vulnerable contractor who need careful protection from the
court.
The funny thing is that if Esso HAD provided for disgorgement
explicitly, it would most likely have been thought a penalty clause. Indeed,
the Blake remedy is in many situations suspiciously like a penalty for
contractual misbehaviour.
Steve Hedley
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