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Sender:
Mark Gergen
Date:
Tue, 20 Jul 2004 11:18:47 -0500
Re:
Failure of consideration - or not?

 

Nurdin belongs in a larger category of cases in which the restitution claimant does an act that conditionally enriches another (or gives the other more than the other's due) depending on the resolution of an uncertain question of law. Consider:

The claimant pays a judgment he challenges.

The claimant pays a tax on property knowing another has a claim to the property.

The claimant pays a tax he disputes.

The claimant performs a contractual obligation he disputes.

The claimant improves property knowing his ownership is disputed.

The series proceeds from the strongest claim to the weakest under the common law. There is an almost absolute right to recover an amount paid on a judgment. There is an almost equally strong right to recover a current property tax payment if ownership is lost. There is a very strong right to recover a disputed tax payment but it is not absolute. In the Third Restatement, the right to recover for contractual performance rendered in a dispute is qualified by a threshold requirement that the performance avoid a loss. Under the Third Restatement there is no right to recover for an improvement to property made with the knowledge that ownership is disputed.

None of this has anything to do with mistake. You could say the payment is recoverable because of failure of basis but that doesn't explain why sometimes the claim is denied.


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