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Criterion v Stratford was concerned with the enforcement of an executory contract. Anything said about restitution was dicta. And it is difficult to see how that dicta accepts a shift from unjust factors to juristic reasons.

While some of Lord Nicholls' comments might be read in support of the civilian model (especially the second sentence in para 4), they are, when read in context, entirely consistent with the approach that he proposed in 1998 ("Knowing Receipt: The Need for a New Landmark"). And at that time, he was understood to support "knowing receipt" as a species of unjust enrichment in which strict liability is triggered by the plaintiff's lack of intention (an unjust factor). From that perspective, the bits about the validity of the agreement simply pertain to the issue of subsidiarity. A claim in unjust enrichment cannot normally get off the ground if the relevant transfer is governed by an enforceable contract. Unless the agreement is invalidated, "questions of 'knowing receipt' ... do not arise."

Lord Scott's judgment (with which the other members of the panel agreed) is even less amenable to the juristic reason analysis. The lower courts analyzed the claim in terms of knowing receipt and held that liability required proof of the recipient's knowledge or unconscionability. Assuming that knowing receipt is a species of unjust enrichment, it cannot be explained in terms of an absence of juristic reason. Unconscionability is a positive reason for restitution - an unjust factor.

Lord Scott did not reject that analysis - he simply held that it was inapplicable to the facts. Whether or not the defendant had acted unconscionably, it had not received anything upon which a restitutionary claim could bite. It simply hoped to be enriched under the contract.

Professor Birks' view may eventually prevail. It is, however, hard to see how Criterion adds much to the debate.

Mitchell McInnes