That is not what I was trying to say. My point is that UE is about enrichments that are unjustified (at least from a Canadian perspective). An enrichment cannot be unjustified when there is a valid legal reason explaining why X has Y's value. In cases of that you would term "mistake," there is no valid legal reason why X has Y's value and hence it must be returned, as you point out not because X is at fault, but because the value is Y's. My point was that in cases of UI there is a valid legal reason (usually a contract or gift) justifying X's retention of Y's value. Hence, the only way it can be an UE is to find a way to knock out this valid legal reason. So my claim is not the UE is about fault but that in some instances a wrong is a necessary practical precursor to one succeeding in an UE claim.

Robert Stevens wrote:

I don't think this can be correct. One party's innocent misrepresentation entitles the other party to rescind a contract. No fault is required; rescission is not based upon an implied agreement that the contract it is capable of being rescinded.

This raises the question of why a contract can be rescinded for a material innocent misrepresentation. I agree the reason is not fault. But I do not agree that it has nothing to do with the implied agreement of the parties. I see the reason for the courts intervention, being similar to the reason the court intervenes (or is asked to intervene) in cases like Scott v. Coulson, Bell v. Lever Bros. The implied agreement/condition is that the contract is to bind only their shared fundamental assumption is true. Hence if you would have put the point to the parties in Redgrave v. Hurd, they would have objectively agreed that the contract was to bind only if the practice brought in L400 per year. While one may not agree with this analysis, it has a long history: see Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter Benson, The Unity of Contract of Law (2001: CUP). As I argued above, once the contract is set aside on this basis, then UE can follow.

Robert Stevens wrote:

A breach of fiduciary duty may also be wholly innocent (e.g. Boardman v Phipps [1967] 2 AC 407) and is always a wrong.

I fail to see how this impeaches what I have said. It is like saying one may breach a contract without fraud or negligence but it is still considered a wrong -- the fault being failure to deliver what was promised. If anything it seems to support my contention that UI could be a wrong even if the fault element might not be fraud or negligence.

Low Fatt Kin Kelvin wrote:

To answer Mr Neyer's point about presumed undue influence being counter- intuitive, it is not sufficient merely to establish some sort of relationship of trust and confidence to raise the presumption. It is necessary to, according to Lord Nicholls, demonstrate that the transaction calls for an explanation. Bearing in mind this additional requirement, I do not see how it is counter-intuitive.

Being no expert on UI (so I would be happy to be disabused of this notion) my understanding of the cases is that generally a "transaction calls for an explanation" when it to the material disadvantage of the party entering into it. When is someone most likely to enter into a such a transaction such as guaranteeing a loan? When they are in a close family relationship. Yet instead of presuming that the basis of the transaction was natural love and affection or mutual support, the essence of family life, the court presumes it was on the basis of an influence which was 'undue'. Is that not at least somewhat counter-intuitive?

Cheers,