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I post on behalf of Martin Hogg.

Two brief comments on Duncan's interesting email critiquing the Birksian scheme:

(1) I think Duncan is right to say that error remains crucial in the traditional thinking about some Scots enrichment cases, e.g. transfers made in fulfilment of a supposed obligation which does not exist, as well as cases of enrichment by imposition taking the form of bona fide improvements to property believed to be owned by the improver. I (along with other Scots colleagues) have argued however that the reliance on the concept of mistake/error in such cases is not helpful, and it would be better to say that the requirement of the claim in each case should be (i) a transfer made in respect of a non-existent obligation, coupled with an available defence that the transferor knew the obligation was not due; (ii) similarly, an improvement made to property which is not owned by the improver, coupled with a defence that the improver knew the property was not his. Such a defence would in each case achieve the same result as is currently played by the error requirement, but would remove error from its current problematic central position. So, I don't think that Duncan's error point undermines a sine causa approach to classifying enrichment (which I support, and which I believe can make sense of the Scots authorities, as my colleagues Niall Whitty and Hector MacQueen, as well as myself, have argued in our respective writings on the topic).

(2) I do agree that cases such as Connelly v Simpson, where one would wish to unwind a rescinded contract in such a way that the party who has paid under the voidable contract is entitled to restitution of what he/she has paid, are best dealt with by providing a form of contractual restitution. To ignore the contractual context of the claim and treat it as an enrichment claim, thereby evaluating the nature of the claim as enrichment merely because it provides recovery in an enrichment measure, leads to confusing results. Such a classification of remedies based upon their measure of recovery would, for instance, treat a contractual damages claim assessed according to the status quo/restoration measure as a delictual remedy, a bizarre and undesirable result (I argue strongly as much in my Obligations book). However, I don't believe that recognising such a claim as a contractual form of enrichment somehow undermines a sine causa approach to enrichment classification.

The sine causa approach makes perfect sense for Scots enrichment law as it provides a principled map of the whole subject, something which is inherently more attractive to Scots lawyers than the piecemeal and incomplete approach of a perpetually expanding unjust factors list.

Martin

Dr Martin A Hogg
Director of Teaching
The School of Law
The Old College
University of Edinburgh
EH8 9YL
Scotland

Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx

Tel: +44 131 650 2071
Fax: +44 131 650 6317