Library Catalogue
The modern law of unjust enrichment and restitutiuon
McMeel Gerard
The modern law of unjust enrichment and restitutiuon - New Delhi Oxford University Press 2003 - 513p xxxvii
Table Of Contents:
Preface xiii
Table of Cases xvii
Table of Statutes xxxi
Table of Secondary Legislation xxxv
Abbreviations of the Principal Works Cited xxxvii
PART A : FOUNDATIONS
1. Unjust Enrichment and Restitution 3
1.1 Restitution in the map of the law
1.2 The structure of the unjust enrichment enquiry
1.3 Pervasive themes
1.4 Enrichment
2. The Legacy of History: Restitutionary Techniques
at Common Law and in Equity 25
2.1 Theoretical foundations
2.2 Historical foundations
2.3 In personam and in rem
2.4 Common law and equity
2.5 Quasi-contract
2.6 Rescission
2.7 Tracing and claiming
2.8 Conclusion
PART B - DEFECTIVE TRANSFERS
3. Mistake 43
3.1 Theoretical foundations
3.2 Mistake and ignorance
3.3 Fact and law
3.4 The ground for restitution
3.5 Restrictions on recovery
3.6 Special problems of mistake of law
3.7 Contributory negligence
3.8 Non-money benefits
3.9 Practical issues
4. Rescission for Misrepresentation and Mistake 74
4.1 Introduction
4.2 What is an actionable misrepresentation?
4.3 Rescission and indemnity
4.4 Limits to the right to rescind
4.5 Section 2(2) of the Misrepresentation Act 1967
4.6 Rescission for mistake
5. Ignorance 81
5.1 Theoretical foundations
5.2 Birks's thesis: ignorance as a ground for restitution
5.3 Supporters and detractors
5.4 Conclusions
6. Duress 88
6.1 Theoretical foundations
6.2 The ingredients of duress
6.3 The traditional categories
6.4 The recognition of economic duress
6.5 Lawful act duress
6.6 Submission to an honest claim
6.7 Nature and limits of relief
7. Undue Influence 100
7.1 Theoretical foundations
7.2 The categories of undue influence
7.3 The impact of undue influence upon a transaction
7.4 Manifest disadvantage
7.5 Rebutting the presumption
7.6 Third party rights
7.7 Consequences
8. Inequality and Unconscionability 108
8.1 Theoretical foundations
8.2 Inequality of bargaining power?
8.3 Expectant heirs
8.4 Poor and ignorant persons
8.5 Mental disadvantage
8.6 Consequences and practical issues
9. Necessitous Intervention 114
9.1 Theoretical foundations
9.2 Maritime salvage
9.3 Agency of necessity
9.4 Bailment
9.5 Burial cases
9.6 Care for the mentally incompetent
9.7 Equitable analogies
PART C - INEFFECTIVE TRANSACTIONS
10. Contracts Discharged by Termination for Breach 123
10.1 Theoretical foundations
10.2 The nature of termination for breach
10.3 Contractual rights to repayment
10.4 Recovery against a non-party?
10.5 The requirement of total failure
10.6 Recovery of money by the innocent party
10.7 Non-money claims by an innocent party
10.8 Recovery of money by the party in breach
10.9 Recovery of non-money benefits by the party in breach
10.10 The future?
11. Contracts Discharged by Frustration 156
11.1 Theoretical foundations
11.2 Inadequacies of the common law
11.3 The scope of the 1943 Act and the primacy of contract
11.4 Money claims under the 1943 Act
11.5 Non-money claims under the 1943 Act
11.6 Post-discharge events
11.7 Practical issues
12. Void and Unenforceable Contracts 170
12.1 Theoretical foundations
12.2 Void contracts and money claims
12.3 Void contracts and non-money claims
12.4 The 'swaps' litigation
12.5 Unenforceable contracts
12.6 Unauthorised conduct of insurance business
13. Illegality and Public Policy as Grounds for Restitution 199
13.1 Theoretical foundations
13.2 The contractual rules
13.3 Repentance as a ground for restitution
13.4 Where the parties are not equally responsible for the illegality
13.5 Policy-motivated restitution
14. Anticipated Contracts That Do Not Materialise 207
14.1 Theoretical foundations
14.2 The negotiation process
14.3 Risk analysis
14.4 Enrichment
14.5 Fault
14.6 The ground for restitution
15. Free Acceptance 217
15.1 Theoretical foundations
15.2 The principles and the authorities
15.3 Free acceptance and unconscientious receipt
16. Resulting Trusts 224
16.1 Theoretical foundations
16.2 Orthodox resulting trust analysis
16.3 Lord Millett and resulting trusts
16.4 The Chambers thesis
PART D - RESTITUTION AND PUBLIC AUTHORITIES
17. Claims Against Public Authorities: The Woolwich Principle 233
17.1 Theoretical foundations
17.2 The Woolwich case
17.3 Limitations on the Woolwich principle
17.4 The ground for restitution
18. Restitution Claims by Public Authorities 240
PART E - COMPLEX ENTITLEMENTS AND LIABILITIES
19. Complex Entitlements 245
19.1 Theoretical foundations
19.2 Six questions distinguished
19.3 The bailee's right of action
19.4 The insured bailee
19.5 Indemnity insurance: subrogation and related
actions
19.6 Rights of suit in respect of goods carried by sea
19.7 Employers' rights of suit in construction contracts
19.8 The insured vendor of real property
19.9 Conclusionrestitution
20. Complex Liabilities: Recovery from a Party Primarily
Liable 264
20.1 Introduction
20.2 Legal compulsion and the action for money paid
20.3 The discharge of debts
20.4 The principle of primary or ultimate liability
20.5 Recoupment and leasehold interests
20.6 Other illustrations of the principle
20.7 Officiousness and Owen v Tate
20.8 Common interest in property restitution
20.9 The discharge of debts revisited restitution
21. Complex Liabilities: Recovery from a Party with
whom liability is shared 272
21.1 Introduction
21.2 Liability in debt: the co-surety cases
21.3 The scope of the 1978 Act
21.4 Claims under the 1978 Act
21.5 Double insurance and contribution
22. Subrogation 281
22.1 Theoretical foundations
22.2 The distinction between simple and reviving
subrogation
22.3 Reviving subrogation and claims by sureties
22.4 Simple subrogation and indemnity insurance
22.5 Valid loans and subrogation
22.6 Invalid loans and subrogation
22.7 Bankers' rights of subrogation
PART F - ENRICHMENT BY WRONGDOING
23. Breach of Fiduciary Duty 309
23.1 Theoretical foundations
23.2 Who is a fiduciary?
23.3 The obligations of the fiduciary
23.4 Remedies for breach
23.5 Diversion of opportunity
23.6 Corporate opportunity doctrine
23.7 Bribes and secret commissions
23.8 Practical issues
24. Breach of Confidence 320
24.1 Introduction
24.2 Remedies for breach of confidence
25. Restitutionary Damages for Tortious Wrongdoing 324
25.1 Theoretical foundations
25.2 From waiver of tort to restitutionary damages
25.3 Waiver of tort - advantages?
25.4 Trespass to land
25.5 Wrongful interference with goods
25.6 Nuisance
25.7 Deceit, passing off and injurious falsehood
25.8 Economic torts
25.9 Intellectual property torts
25.10 Miscellaneous torts
25.11 Election: cumulative and alternative remedies
26. Restitutionary Damages for Breach of Contract 347
26.1 Theoretical foundations
26.2 Orthodoxy and its defenders
26.3 Judicial recognition
26.4 Breach of fiduciary duty
26.5 Property and damages in lieu of an injunction
26.6 Skimped performance
26.7 Conclusion
PART G - TRACING, CLAIMING AND PROPRIETARY RESTITUTION
27. Tracing and Claiming at Common Law 359
27.1 Introduction
27.2 The early cases
27.3 The prospect of fusion
27.4 Marginalisation?
27.5 Continuing relevance?
27.6 What is the ground for restitution?
27.7 Conclusion
28. Tracing in Equity 369
28.1 Theoretical foundations
28.2 The basic concepts introduced
28.3 Victorian development and In re Diplock
28.4 The lowest intermediate balance rule
28.5 Modern evasion of Clayton's case
28.6 Tracing profits
28.7 Swollen assets
28.8 Conclusion: fusion of law and equity?
29. Personal Claims in Equity 385
29.1 Theoretical foundations
29.2 The ingredients of the receipt-based claim
29.3 The categories of knowledge
29.4 Knowledge in the corporate context
29.5 Knowing receipt and the dissipation of corporate assets
29.6 Dishonest accessory liability
29.7 Practical issues
29.8 Conclusion
30. Proprietary Claims in Equity 397
30.1 Introduction
30.2 The philosophy of insolvency law
30.3 The proprietary remedies introduced
30.4 Claiming after tracing
30.5 Claiming profits
30.6 Retention of title clauses
30.7 Proprietary claims in cases of subtractive unjust enrichment
30.8 Restitution for wrongs and constructive trusts
30.9 Complex entitlements and proprietary restitutionary claims
30.10 Conclusion
PART H - DEFENCES
31. Good Faith Purchase 419
31.1 Theoretical foundations
31.2 History and different manifestations of wealth
31.3 Money as currency
31.4 Mistaken payments and good faith purchase
31.5 Equitable claims
31.6 Related issues
31.7 Practical issues
32. Change of Position, Estoppel and Ministerial Receipt 426
32.1 Theoretical foundations
32.2 The recognition of change of position
32.3 Case law after Lipkin Gorman
32.4 Reinterpretation of authority
32.5 Academic analysis of change of position
32.6 The agent's defence of ministerial receipt
32.7 Practical issues
33. Compromise and Submission to an Honest Claim 443
33.1 Theoretical foundations
33.2 Mistaken payments
33.3 Duress and ultra vires demands
34. Passing On 448
34.1 Introduction
34.2 The taxation cases
34.3 Private transactions
34.4 Conclusion
35. Illegality and Public Policy as Defences 452
35.1 Introduction
35.2 The scope of the prohibition of restitutionary claims
35.3 Restitution prohibited if it is tantamount
to contractual enforcement
35.4 Proprietary claims under illegal transactions
35.5 Public policy precluding a restitutionary claim
36. Limitation 461
36.1 Introduction
36.2 The scheme of the Act
36.3 Equitable claims and laches
36.4 Reform
PART I - PRACTICAL MATTERS
37. Conflict of Laws 469
37.1 Introduction
37.2 Jurisdiction in non-Brussels Convention cases
37.3 Jurisdiction under the Brussels Convention
37.4 Jurisdiction under the Modified Convention
37.5 Choice of law
38. Interest 478
38.1 Introduction
38.2 The Westdeutsche case in the House of Lords:
simple or compound interest?
38.3 Statutory awards of interest
39. Practice and Procedure 484
39.1 Introduction
39.2 Pre-emptive justice
39.3 Accelerated justice
39.4 Obtaining evidence
39.5 Misfeasance proceedings and insolvent companies
40. Drafting Statements of Case 493
40.1 Introduction
40.2 Historical background
40.3 The structure of the unjust enrichment enquiry
40.4 Mistaken payments
40.5 Matters that need to be specifically pleaded
Index 499
9788170127505
1. Contract Law 2. Transactional Law3. Law of Restitution 4. Quasi Contract - Unjust Enrichment - Commentary
346.029000 / MCM
The modern law of unjust enrichment and restitutiuon - New Delhi Oxford University Press 2003 - 513p xxxvii
Table Of Contents:
Preface xiii
Table of Cases xvii
Table of Statutes xxxi
Table of Secondary Legislation xxxv
Abbreviations of the Principal Works Cited xxxvii
PART A : FOUNDATIONS
1. Unjust Enrichment and Restitution 3
1.1 Restitution in the map of the law
1.2 The structure of the unjust enrichment enquiry
1.3 Pervasive themes
1.4 Enrichment
2. The Legacy of History: Restitutionary Techniques
at Common Law and in Equity 25
2.1 Theoretical foundations
2.2 Historical foundations
2.3 In personam and in rem
2.4 Common law and equity
2.5 Quasi-contract
2.6 Rescission
2.7 Tracing and claiming
2.8 Conclusion
PART B - DEFECTIVE TRANSFERS
3. Mistake 43
3.1 Theoretical foundations
3.2 Mistake and ignorance
3.3 Fact and law
3.4 The ground for restitution
3.5 Restrictions on recovery
3.6 Special problems of mistake of law
3.7 Contributory negligence
3.8 Non-money benefits
3.9 Practical issues
4. Rescission for Misrepresentation and Mistake 74
4.1 Introduction
4.2 What is an actionable misrepresentation?
4.3 Rescission and indemnity
4.4 Limits to the right to rescind
4.5 Section 2(2) of the Misrepresentation Act 1967
4.6 Rescission for mistake
5. Ignorance 81
5.1 Theoretical foundations
5.2 Birks's thesis: ignorance as a ground for restitution
5.3 Supporters and detractors
5.4 Conclusions
6. Duress 88
6.1 Theoretical foundations
6.2 The ingredients of duress
6.3 The traditional categories
6.4 The recognition of economic duress
6.5 Lawful act duress
6.6 Submission to an honest claim
6.7 Nature and limits of relief
7. Undue Influence 100
7.1 Theoretical foundations
7.2 The categories of undue influence
7.3 The impact of undue influence upon a transaction
7.4 Manifest disadvantage
7.5 Rebutting the presumption
7.6 Third party rights
7.7 Consequences
8. Inequality and Unconscionability 108
8.1 Theoretical foundations
8.2 Inequality of bargaining power?
8.3 Expectant heirs
8.4 Poor and ignorant persons
8.5 Mental disadvantage
8.6 Consequences and practical issues
9. Necessitous Intervention 114
9.1 Theoretical foundations
9.2 Maritime salvage
9.3 Agency of necessity
9.4 Bailment
9.5 Burial cases
9.6 Care for the mentally incompetent
9.7 Equitable analogies
PART C - INEFFECTIVE TRANSACTIONS
10. Contracts Discharged by Termination for Breach 123
10.1 Theoretical foundations
10.2 The nature of termination for breach
10.3 Contractual rights to repayment
10.4 Recovery against a non-party?
10.5 The requirement of total failure
10.6 Recovery of money by the innocent party
10.7 Non-money claims by an innocent party
10.8 Recovery of money by the party in breach
10.9 Recovery of non-money benefits by the party in breach
10.10 The future?
11. Contracts Discharged by Frustration 156
11.1 Theoretical foundations
11.2 Inadequacies of the common law
11.3 The scope of the 1943 Act and the primacy of contract
11.4 Money claims under the 1943 Act
11.5 Non-money claims under the 1943 Act
11.6 Post-discharge events
11.7 Practical issues
12. Void and Unenforceable Contracts 170
12.1 Theoretical foundations
12.2 Void contracts and money claims
12.3 Void contracts and non-money claims
12.4 The 'swaps' litigation
12.5 Unenforceable contracts
12.6 Unauthorised conduct of insurance business
13. Illegality and Public Policy as Grounds for Restitution 199
13.1 Theoretical foundations
13.2 The contractual rules
13.3 Repentance as a ground for restitution
13.4 Where the parties are not equally responsible for the illegality
13.5 Policy-motivated restitution
14. Anticipated Contracts That Do Not Materialise 207
14.1 Theoretical foundations
14.2 The negotiation process
14.3 Risk analysis
14.4 Enrichment
14.5 Fault
14.6 The ground for restitution
15. Free Acceptance 217
15.1 Theoretical foundations
15.2 The principles and the authorities
15.3 Free acceptance and unconscientious receipt
16. Resulting Trusts 224
16.1 Theoretical foundations
16.2 Orthodox resulting trust analysis
16.3 Lord Millett and resulting trusts
16.4 The Chambers thesis
PART D - RESTITUTION AND PUBLIC AUTHORITIES
17. Claims Against Public Authorities: The Woolwich Principle 233
17.1 Theoretical foundations
17.2 The Woolwich case
17.3 Limitations on the Woolwich principle
17.4 The ground for restitution
18. Restitution Claims by Public Authorities 240
PART E - COMPLEX ENTITLEMENTS AND LIABILITIES
19. Complex Entitlements 245
19.1 Theoretical foundations
19.2 Six questions distinguished
19.3 The bailee's right of action
19.4 The insured bailee
19.5 Indemnity insurance: subrogation and related
actions
19.6 Rights of suit in respect of goods carried by sea
19.7 Employers' rights of suit in construction contracts
19.8 The insured vendor of real property
19.9 Conclusionrestitution
20. Complex Liabilities: Recovery from a Party Primarily
Liable 264
20.1 Introduction
20.2 Legal compulsion and the action for money paid
20.3 The discharge of debts
20.4 The principle of primary or ultimate liability
20.5 Recoupment and leasehold interests
20.6 Other illustrations of the principle
20.7 Officiousness and Owen v Tate
20.8 Common interest in property restitution
20.9 The discharge of debts revisited restitution
21. Complex Liabilities: Recovery from a Party with
whom liability is shared 272
21.1 Introduction
21.2 Liability in debt: the co-surety cases
21.3 The scope of the 1978 Act
21.4 Claims under the 1978 Act
21.5 Double insurance and contribution
22. Subrogation 281
22.1 Theoretical foundations
22.2 The distinction between simple and reviving
subrogation
22.3 Reviving subrogation and claims by sureties
22.4 Simple subrogation and indemnity insurance
22.5 Valid loans and subrogation
22.6 Invalid loans and subrogation
22.7 Bankers' rights of subrogation
PART F - ENRICHMENT BY WRONGDOING
23. Breach of Fiduciary Duty 309
23.1 Theoretical foundations
23.2 Who is a fiduciary?
23.3 The obligations of the fiduciary
23.4 Remedies for breach
23.5 Diversion of opportunity
23.6 Corporate opportunity doctrine
23.7 Bribes and secret commissions
23.8 Practical issues
24. Breach of Confidence 320
24.1 Introduction
24.2 Remedies for breach of confidence
25. Restitutionary Damages for Tortious Wrongdoing 324
25.1 Theoretical foundations
25.2 From waiver of tort to restitutionary damages
25.3 Waiver of tort - advantages?
25.4 Trespass to land
25.5 Wrongful interference with goods
25.6 Nuisance
25.7 Deceit, passing off and injurious falsehood
25.8 Economic torts
25.9 Intellectual property torts
25.10 Miscellaneous torts
25.11 Election: cumulative and alternative remedies
26. Restitutionary Damages for Breach of Contract 347
26.1 Theoretical foundations
26.2 Orthodoxy and its defenders
26.3 Judicial recognition
26.4 Breach of fiduciary duty
26.5 Property and damages in lieu of an injunction
26.6 Skimped performance
26.7 Conclusion
PART G - TRACING, CLAIMING AND PROPRIETARY RESTITUTION
27. Tracing and Claiming at Common Law 359
27.1 Introduction
27.2 The early cases
27.3 The prospect of fusion
27.4 Marginalisation?
27.5 Continuing relevance?
27.6 What is the ground for restitution?
27.7 Conclusion
28. Tracing in Equity 369
28.1 Theoretical foundations
28.2 The basic concepts introduced
28.3 Victorian development and In re Diplock
28.4 The lowest intermediate balance rule
28.5 Modern evasion of Clayton's case
28.6 Tracing profits
28.7 Swollen assets
28.8 Conclusion: fusion of law and equity?
29. Personal Claims in Equity 385
29.1 Theoretical foundations
29.2 The ingredients of the receipt-based claim
29.3 The categories of knowledge
29.4 Knowledge in the corporate context
29.5 Knowing receipt and the dissipation of corporate assets
29.6 Dishonest accessory liability
29.7 Practical issues
29.8 Conclusion
30. Proprietary Claims in Equity 397
30.1 Introduction
30.2 The philosophy of insolvency law
30.3 The proprietary remedies introduced
30.4 Claiming after tracing
30.5 Claiming profits
30.6 Retention of title clauses
30.7 Proprietary claims in cases of subtractive unjust enrichment
30.8 Restitution for wrongs and constructive trusts
30.9 Complex entitlements and proprietary restitutionary claims
30.10 Conclusion
PART H - DEFENCES
31. Good Faith Purchase 419
31.1 Theoretical foundations
31.2 History and different manifestations of wealth
31.3 Money as currency
31.4 Mistaken payments and good faith purchase
31.5 Equitable claims
31.6 Related issues
31.7 Practical issues
32. Change of Position, Estoppel and Ministerial Receipt 426
32.1 Theoretical foundations
32.2 The recognition of change of position
32.3 Case law after Lipkin Gorman
32.4 Reinterpretation of authority
32.5 Academic analysis of change of position
32.6 The agent's defence of ministerial receipt
32.7 Practical issues
33. Compromise and Submission to an Honest Claim 443
33.1 Theoretical foundations
33.2 Mistaken payments
33.3 Duress and ultra vires demands
34. Passing On 448
34.1 Introduction
34.2 The taxation cases
34.3 Private transactions
34.4 Conclusion
35. Illegality and Public Policy as Defences 452
35.1 Introduction
35.2 The scope of the prohibition of restitutionary claims
35.3 Restitution prohibited if it is tantamount
to contractual enforcement
35.4 Proprietary claims under illegal transactions
35.5 Public policy precluding a restitutionary claim
36. Limitation 461
36.1 Introduction
36.2 The scheme of the Act
36.3 Equitable claims and laches
36.4 Reform
PART I - PRACTICAL MATTERS
37. Conflict of Laws 469
37.1 Introduction
37.2 Jurisdiction in non-Brussels Convention cases
37.3 Jurisdiction under the Brussels Convention
37.4 Jurisdiction under the Modified Convention
37.5 Choice of law
38. Interest 478
38.1 Introduction
38.2 The Westdeutsche case in the House of Lords:
simple or compound interest?
38.3 Statutory awards of interest
39. Practice and Procedure 484
39.1 Introduction
39.2 Pre-emptive justice
39.3 Accelerated justice
39.4 Obtaining evidence
39.5 Misfeasance proceedings and insolvent companies
40. Drafting Statements of Case 493
40.1 Introduction
40.2 Historical background
40.3 The structure of the unjust enrichment enquiry
40.4 Mistaken payments
40.5 Matters that need to be specifically pleaded
Index 499
9788170127505
1. Contract Law 2. Transactional Law3. Law of Restitution 4. Quasi Contract - Unjust Enrichment - Commentary
346.029000 / MCM