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Duncan:

Maybe I'm being dense but doesn't the common law have a system for determining when obligations are reciprocal and when they are not? Isn't that what the Hong Kong Fir analysis (which has been accepted in Canada) is all about?

----- Original Message -----
From: "Duncan Sheehan (LAW)"
Date: Tuesday, November 27, 2007 5:05 am
Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law

I absolutely accept that sine causa makes sense as a system of unjust enrichment law, embedded in a legal system moulded around it (not sure that's quite the right expression). So it works fine in Germany, and with added unjust-factor like encrustations in Scotland, and South Africa. I'm not going after sine causa as a principle in all cases in all jurisdictions. That would be silly. My point is a somewhat more modest one that firstly the Birksian scheme takes too much into sine causa, and that at the same time it cannot be made to work in England without risking confusion with settled contract law. Hobhouse J in Westdeutsche talked of failure of consideration as a contractual idea, and absence of consideration as restitution. With a sine causa system that makes sense, but then we have to extract one contractual concept of consideration or mutuality/reciprocity from another concept of consideration also based on reciprocity which forms part of the basis for validity. The contractual mutuality requirement is fine for Scots law - there's no consideration requirement for the validity of a contract, similarly South African, so there's nothing to get confused with. I don't think English law will be able to separate the two things in time to save itself from incoherence, which is neither to its credit nor discredit. I would in fact say the same thing about Canadian law. The effects of termination for breach aren't something Canadian courts (so far as I am aware) have considered in this context. Mess around with the structure of a subject and it causes messes elsewhere, for very little gain. The final results of the cases will be different in very few instances. Too much pain for too little gain!

That said, my main problem with Garland et al is of course what Jason calls "the reasonable expectations/public policy mumbo jumbo", which I guess means there's more than one reason why Canada is heading for incoherence. If you can't decide what (all) your juristic reasons are, you have a problem with a juristic reasons approach.