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I agree that the ratio of Criterion has nothing to do with knowing receipt or unjust enrichment. That's why I find it so difficult to see how one can say, on the basis of the decision, that "juristic reasons/lack of basis has now won the day in England."

I'm also happy to agree that Lord Nicholls' comments regarding the error in Akindele pertained to the issue of "want of authority."

I find it harder to agree, however, with the suggestion that Lord Nicholls was NOT "saying anything, consistent or otherwise with his earlier view about knowing receipt." He was certainly saying something, in dicta, about knowing receipt. I'm not absolutely sure what that something was - but I don't see much support for a civilian analysis.

A director transfers company assets to a stranger. If the transfer occurred under a contract that has not been set aside, "questions of knowing receipt ... do not arise."

If the contract has been set aside, the assets may be recoverable proprietarily if they're still available. In any event, there is "a personal claim ... for unjust enrichment." The defendant's personal liability "will not be dependent upon proof of fault or 'unconscionable' conduct on his part. [His] accountability, in this regard, will be 'strict'."

So ... Lord Nicholls was talking, in dicta, about knowing receipt, and moreover, he was talking about it in pretty much the same language that he used in 1998. And at that point, he was taken to support a model of strict liability within the traditional unjust factor approach.

This thread opened with the comment was that "Lord Nicholls approach of looking at the validity of the agreement as determinative of whether there is a personal or proprietary claim to the benefit conferred is the same as that suggested by Peter Birks in Unjust Enrichment."

I interpreted that as a suggestion that Criterion supports the view that a benefit conferred under an invalid contract is recoverable simply because the purported basis for the transfer failed - and not because, as traditionally has been true, the plaintiff can also demonstrate an unjust factor.

Within that context, Lord Nicholls' comments in Criterion are neutral at best. He might conceivably have been saying that once the contract is set aside, restitution is "strict" in the sense that it follows automatically (subject to defences). Or he might have been saying that once the contract is set aside, restitution follows, without proof of fault, because the same considerations that invalidated the agreement will also provide the plaintiff with an unjust factor.

In choosing between those options, the latter seems more likely. It would be surprising for a judge of Lord Nicholls' stature to adopt a radically new conception of unjust enrichment without even acknowledging that he was doing so.

And that, of course, is the challenge for the civilian model in English law. Except for a couple of lower court decisions in the swaps saga (which may have been driven by the old mistake of law doctrine), there's little positive authority for the proposition. Aside from making arguments of principle (some quite compelling), the most that one can do is point to decisions (like Lord Nicholls') that are not inconsistent with the juristic reason analysis.

MM