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Dear all,

I had not intended to ... but here we go. I think it worth spelling out precisely what I do think these things are.

Hector MacQueen's contribution almost precisely mirrors what I mean by natural obligations IN ENGLISH LAW. Indeed my argument is precisely that Lord Mansfield and Sir William Evans knew about these things, and they have never gone away, merely that since their major effect is to bar recovery of payments under a mistake (almost invariably of law) they were buried by the mistake of law bar. Essentially the argument goes that there are some obligations that English law recognises as being worthy of some effect despite being unenforceable.

The obligation should arise where the claimant has undertaken to do an act, but the contract, under which he undertook the duty, is void; nonetheless, we see the undertaking of the duty as worthy of some recognition. However, the reason why the contract, or agreement, is void ought not indicate a disapproval of the act itself, or a need to protect the claimant. Thus where the contract is void for informality a natural obligation ought to be recognised; however, where the contract is void for the mistake of one of the parties relief ought not to be denied to that party. I understand that this is a central case of natural obligations in several jurisdictions.

I think that there are three types of natural obligation, which I have imaginatively labelled type 1, type 2, and type 3. Type 1 obligations are those that only bar recovery of money paid by mistake (either of law or fact). Type 2 obligations also support a future promise to do the act promised. This is the remnants of moral consideration integrated into the theory - it's notable that Treitel's general statement of when moral consideration arises is remarkably similar to the general idea lying behind my concept of natural obligation. Type 3 obligations include other effects - ability to support accessory or guarantor liability - minors contracts for instance (albeit only by statute).

Duncan

Dr Duncan Sheehan
Postgraduate Admissions Officer
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

-----Original Message-----
From: Enrichment - Restitution & Unjust Enrichment Legal Issues On Behalf Of Lionel Smith
Sent: Monday, April 05, 2004 2:40 PM
Subject: [RDG:] Natural Obligations

I post this on behalf of Hector MacQueen. I should say that I am aware of the sense of 'natural obligation' which he describes, which also exists in the civil law of Quebec, and was very familiar to common lawyers at least in the days of Lord Mansfield and Sir William Evans. I meant to suggest that as it relates to proof of undue influence, there may be no real difference between that idea and some of the formulations which common law courts have used. The words capture an underlying factual idea, which can issue in more than one legal consequence.

Lionel

 

Dear Lionel

Apologies if I am coming into the middle of something here (I hadn't been following this thread until I saw your contribution), but as I understand "natural obligation", it means an obligation unenforceable as such in law but which nonetheless may have certain secondary effects in the law of obligations, e.g. if money is paid under a natural obligation such as a prescribed debt, it is not reclaimable as an unjustified enrichment; and it can be used in set-off. The root is Roman law and the concept is very familiar in continental European systems.