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Outline Contents PART I THE FUNDAMENTAL PRINCIPLES OF THE LAW OF RESTITUTION 1. The Essence of Restitution 3 2. Themes and Controversies 37 PART II UNJUST ENRICHMENT 3. The Principle of Unjust Enrichment 51 4. Enrichment 62 5. At the Expense of the Claimant 105 PART III THE GROUNDS OF RESTITUTION FOR THE PURPOSES OF ESTABLISHING UNJUST ENRICHMENT 6. Principles Underlying the Recognition of the Grounds of Restitution 119 7. Ignorance 131 8. Mistake 137 9. Compulsion 187 10. Exploitation 244 11. Necessity 283 12. Failure of Consideration 304 13. Incapacity 387 14. Restitution from Public Authorities 400 PART IV RESTITUTION FOR WRONGS 15. General Principles 425 16. Restitution for Torts 454 17. Restitution for Breach of Contract 478 18. Restitution for Equitable Wrongdoing 498 19. Criminal Offences 538 PART V PROPRIETARY RESTITUTIONARY CLAIMS 20. Establishing Proprietary Restitutionary Claims 569 21. Restitutionary Claims and Remedies to Vindicate Property Rights 636 22. The Defence of Bona Fide Purchase 656 PART VI THE GENERAL DEFENCES AND BARS TO RESTITUTIONARY CLAIMS 23. Fundamental Principles and General Bars 665 24. Defences Arising from Changes in the Defendant's Circumstances 675 25. Passing On and Mitigation of Loss 715 26. Illegality 721 27. Incapacity 738 28. Limitation Periods and Laches 747 Contents Table of Cases 00 Table of Statutes 00 PART I. THE FUNDAMENTAL PRINCIPLES OF THE LAW OF RESTITUTION 1. The Essence of Restitution 3 1. What is the law of restitution about? 3 2. What is the nature of restitutionary remedies 3 (a) The categories of restitutionary remedies 3 (i) Personal restitutionary remedies 3 (ii) Proprietary restitutionary remedies 4 (b) The characteristics of restitutionary remedies 4 (i) Restoring what the claimant lost 4 (ii) Disgorgement 5 3. When will restitutionary remedies be awarded 6 (a) The reversal of unjust enrichment 8 (i) The descriptive sense of unjust enrichment 8 (ii) The substantive sense of unjust enrichment 9 (b) The deprivation of benefits from a wrongdoer 9 (i) The nature of restitution for wrongs 9 (ii) The nature of the restitutionary remedy 10 (c) The vindication of property rights with which the defendant has interfered 11 (i) The nature of restitutionary claims founded on the vindication of property rights 11 (ii) Is a proprietary restitutionary claim founded on the unjust enrichment principle principle? 11 (iii) Criticisms of the vindication of proprietary rights principle 15 (iv) Justifying the award of restitutionary remedies to vindicate property rights 17 (d) Summary of the key principles 17 4. What is the justification for recognizing an independent law of restitution? 18 5. The obstacles of history 19 (a) The implied contract theory 19 (b) Rejection of the implied contract theory 20 (c) The legacy of implied contract 20 6. The principal types of restitutionary remedy 21 (a) Money had and received 21 (b) Reasonable value of property and services 21 (c) Account of profits 22 (d) Restitutionary damages 22 (e) Recognition of a beneficial interest 23 (f) Equitable charge 23 (g) Subrogation 23 (h) The award of interest 25 7. The role of rescission within the law of restitution 28 (a) Rescission as a remedy 28 (i) The nature of rescission 28 (b) The process of rescission 29 (i) Rescission at law 30 (ii) Rescission in equity 30 (c) Restitution following rescission 30 (i) Proprietary 30 (ii) Personal 31 (d) Bars to rescission 31 (i) Restitution and counter-restitution are impossible 31 (ii) Bona fide purchase for value 33 (iii) Affirmation 34 (iv) Lapse of time 34 (e) Partial rescission and rescission on terms 35 (f) The future of rescission 35 2. Themes and controversies 37 1. The relevance of fault 37 (a) Fault is generally irrelevant 37 (b) Circumstances where the fault of either party is relevant 38 2. Officiousness and voluntariness 39 3. The principle of sanctity of contract 40 (a) The application of the principle 40 (i) Restitutionary remedies are unavailable if the contractual regime subsists 40 (ii) Exclusion of restitution by contract 41 (iii) Provision for restitution by contract 42 (b) Limits to the sanctity of contracts principle 42 4. The nature of the relationship between the parties 43 (a) Relevance to unjust enrichment claims 43 (b) Relevance to the identification of fiduciary relationships 43 5. The principle against fictions 44 6. The role of public policy 44 7. The relationship between law and equity 45 8. Rules versus discretion 46 PART II. UNJUST ENRICHMENT 3. The principle of unjust enrichment 51 1. The recognition of the unjust enrichment principle 51 (a) The place of unjust enrichment within the law of obligations 51 (b) Alternative theories 52 (i) Proprietary theory 52 (ii) No unifying principle of unjust enrichment 53 (iii) Unconscious retention 54 2. The function of the unjust enrichment principle 57 (a) Possible functions of the unjust enrichment principle 57 (i) The formulaic function 57 (ii) The normative function 57 (b) The approach adopted by English law 57 (c) Should the unjust enrichment principle have a normative function? 58 (d) The middle way 59 3. The role of the unjust enrichment principle in practice 60 (a) Current practice 60 (b) A preferable approach 61 4. Enrichment 62 1. The relevance of enrichment 62 (a) Unjust enrichment or unjust benefit 62 (b) The essence of enrichment 64 (i) The objective test of enrichment 65 (ii) The subjective test of enrichment 66 2. Particular types of enrichment 69 (a) Money 70 (b) Property 70 (c) Services 70 (i) Services resulting in an end-product 71 (ii) Pure services 71 (d) Payment made to a third party on behalf of the defendant 72 3. Methods of overriding subjective devaluation 72 (a) Contract 72 (i) Express contracts 72 (ii) Implied contracts 73 (iii) The relationship between implied contracts and free acceptance 74 (b) Incontrovertible benefit 74 (i) Money 75 (ii) Anticipation of necessary expenditure 75 (iii) Failure to return property 77 (iv) Benefit realized in money 78 (v) Benefit realizable in money 81 (c) Free acceptance 82 (i) The elements of free acceptance 85 (ii) The function of free acceptance 87 4. Subjective revaluation 88 (a) Recognizing the principle of subjective revaluation 88 (b) Establishing subjective revaluation 89 5. Restitution without enrichment 90 (a) The defendant is estopped from denying the enrichment 90 (i) The function of estoppel 90 (ii) The conditions for establishing an estoppel 90 (iii) The application of the estoppel principle 91 (b) Unjust sacrifice 93 (i) The significance of recognizing the unjust sacrifice principle 93 (ii) Is the principle recognized in English law? 93 (iii) Should the unjust sacrifice principle be recognized in English law? 94 6. Part performance of a contract 94 (a) The defendant completed the work 95 (b) The defendant prevented the claimant from performing 95 (c) The claimant breached the contract 95 (d) The contract was frustrated 96 (e) Entire contract 96 7. The valuation of enrichment 96 (a) Timing of the valuation 96 (b) The test of valuation 97 (i) Valuing services 98 (ii) Free acceptance 99 (iii) Estoppel 100 (c) The role of contract in the valuation of the enrichment 100 (i) The contract price should operate as a ceiling to the valuation of the benefit 101 (ii) The contract price should not operate as a ceiling to the valuation of the benefit 102 (iii) When the contract price should be relevant to the valuation of the benefit 103 (d) Inadequate performance 104 5. At the expense of the claimant 105 1. General principles 105 2. The privity principle 105 (a) The nature of the privity principle 105 (b) The rationale of the privity principle 106 (c) Exceptions to the privity principle 107 (i) Restitutionary claims to vindicate the claimant's proprietary rights 107 (ii) Restitutionary claims founded on wrongdoing 107 (iii) Agency 108 (iv) The principle of interceptive subtraction 108 3. Correspondence of gains and loss 112 4. Non-money benefits 115 PART III THE GROUNDS OF RESTITUTION FOR THE PURPOSE OF ESTABLISHING UNJUST ENRICHMENT 6. Principles underlying the recognition of the grounds of restitution 119 1. Claimant-oriented grounds of restitution 120 (a) Absence of intention 120 (b) Vitiated intention 120 (c) Qualified intention 120 2. Defendant-oriented grounds of restitution 121 (a) Exploitation 121 (b) Free acceptance 121 3. Policy-oriented grounds of restitution 124 4. Four additional grounds of restitution 124 (a) The danger of over-simplification 124 (b) The grounds of restitution are not closed 125 (c) The relevance of the type of enrichment 125 (d) Restitution and third parties 126 5. Absence of basis 127 7. Ignorance 131 1. Is ignorance a ground of restitution? 131 2. Relying on ignorance as a ground of restitution 132 (a) Services provided in circumstances of ignorance 132 (b) Interceptive subtraction 133 3. Election between principles 134 4. The role of ignorance as a ground of restitution 136 8. Mistake 137 1. General principles 137 (a) The significance of mistake as a ground of restitution 137 (b) The key policies which determine when a mistake should ground a restitutionary claim 138 (i) Security of transactions 138 (ii) Risk allocation 138 (iii) Concoction of claims 138 (iv) Relative conduct of the parties 138 (c) Different types of enrichment 139 (d) Some fundamental distinctions 139 (i) Ignorance and mistake 139 (ii) Mistakes of law and fact 140 (iii) Mistakes and mispredictions 143 (iv) Passive and active mistakes 145 (v) Spontaneous and induced mistakes 146 (vi) Different types of claim 146 2. Restitution of benefits transferred by mistake 146 (a) Spontaneous mistakes 146 (i) Liability mistakes 147 (ii) Fundamental mistakes 151 (iii) Causative mistakes 154 (iv) Illegality 168 (b) Induced mistakes 169 (c) Should mistake be recognized as a ground of restitution? 170 (d) Specific defences to restitutionary claims founded on mistake 172 (i) Good consideration provided by the defendant 172 (ii) Defences to claims founded on a mistake of law 176 3. Relief from transactions entered into under mistake 177 (a) Transactions which are void for mistake 178 (i) Common mistakes 179 (ii) Unilateral mistakes 181 (iii) Mutual mistakes 181 (iv) The doctrine of non est factum 181 (v) The consequences of a contract being void for mistake 182 (b) Misrepresentation 183 (i) The test for misrepresentation 183 (ii) The consequences of misrepresentation 184 (iii) Misrepresentation and third parties 185 (c) Non-disclosure 186 4. Reform of the law 186 9. Compulsion 187 1. General principles 187 (a) The principle of compulsion 187 (b) Different types of enrichment 187 (c) Vitiation of contracts for compulsion 188 (i) The time factor 188 (ii) The contract must cease to be operative before restitutionary remedies can be awarded 188 (d) The grounds of restitution 189 (i) Necessity 189 (ii) Undue influence 189 (iii) Colore officii 190 (e) Illegality 190 2. Duress 190 (a) The rationale of duress as a ground of restitution 190 (b) The elements of duress 191 (i) Illegimate threats and pressure 191 (ii) Causation 193 (c) Duress and third parties 195 (d) The heads of duress 196 (e) Duress of the person 196 (i) Threats to kill 196 (ii) Threats to injure 197 (iii) Threats to interfere with liberty 197 (f) Duress of property 197 (g) Economic duress 198 (i) The essential features of economic duress 198 (ii) Establishing economic duress 203 (iii) Summary of the law on economic duress 215 3. Undue pressure 215 (a) The essence of undue pressure 215 (b) The recognized heads of undue pressure 216 (i) Threats to invoke the criminal process 216 (ii) Threats to sue 217 (iii) Threats to publish information 218 (c) Is there a general ground of undue pressure? 219 4. Legal compulsion 220 (a) The essential characteristics of legal compulsion 220 (b) Determining whether a debt has been discharged 222 (i) Request by the defendant 222 (ii) Acceptance by the defendant 222 (iii) Performance of an act which the defendant was liable to perform 222 (iv) Automatic discharge by an unrequested payment 223 (c) Restitution from the debtor 226 (i) Reimbursement 227 (ii) Contribution 234 (d) Restitution from the creditor 240 (e) Is legal compulsion a ground for restitution? 241 5. Threats to secure the performance of a statutory duty 242 10. Exploitation 244 1. General principles 244 (a) The essence of exploitation 244 (b) The relationship between exploitation and other principles 244 (c) Identifying the enrichment 245 (d) Vitiation of transactions for exploitation 245 (e) The relationship between exploitation and wrongdoing 246 2. Undue influence 247 (a) The essence of undue influence as a ground of restitution 247 (i) The types of undue influence 247 (ii) The rationale of undue influence as a ground of restitution 247 (iii) Is undue influence claimant- or defendant-oriented? 248 (iv) Is undue influence a form of wrongdoing? 249 (b) Actual undue influence 250 (i) Establishing actual undue influence 250 (ii) The identification of actual undue influence 252 (iii) The question of manifest and unfair disadvantage 252 (c) Presumed undue influence 253 (i) The essential features of presumed undue influence 253 (ii) Relationships of influence 254 (iii) Transaction requires explanation 257 (iv) Rebutting the presumption of undue influence 259 (d) Undue influence and third parties 261 (e) The nature if the relief 262 (i) Rescission is absolute 262 (ii) Monetary remedies in lieu of rescission 266 3. Abuse of fiduciary relationships of confidence 267 (a) The identification of fiduciary relationships of confidence 268 (b) The relationship between undue influence and abuse of fiduciary relationships of confidence 268 (c) Abuse of fiduciary relationships of confidence within the law of restitution 269 4. Unconscionable conduct 270 (a) The general principle of unconscionable conduct 271 (i) Special disability 272 (ii) Unconscionable conduct 273 (iii) Whether the transaction was fair, just and reasonable 274 (b) Identifying unconscionable conduct 275 (c) Unconscionable conduct and third parties 276 (d) Vitiation of gifts by unconscionable conduct 276 (e) Examples of special disability or disadvantage 276 (i) Transactions with the poor and ignorant 277 (ii) Transactions with expectant heirs 277 (iii) Salvage agreements 278 (iv) Gross inequality of bargaining power 278 (v) Statutory regimes 280 5. The parties are not in pari delicto 280 (a) Oppression 281 (b) Statutory protection of the claimant 282 11. Necessity 283 1. General principles 283 (a) The principle of necessity 283 (b) The principle of officiousness 283 (i) The claimant acted selfishly rather than benevolently 284 (ii) The claimant intervened when he or she was not legally obliged to do so 284 (iii) The preferable interpretation of officiousness 285 (c) The rationale of necessity principle 285 (i) Public policy 285 (ii) Interference with the claimant's free choice 286 (iii) Distinguishing between necessity and compulsion 287 (d) Determining whether the claimant acted in circumstances of necessity 287 (e) The defendant must have been enriched at the claimant's expense 290 (i) Identifying the enrichment 290 (ii) Valuing the enrichment 290 (iii) Determining whether the enrichment was received at the expense of the claimant 291 (iv) Limiting the extent of the restitutionary remedy 291 2. Necessitous intervention by a stranger 292 (a) Discharge of the defendant's legal liability 292 (i) Burial 292 (ii) Provision of medical treatment 293 (iii) Discharge of a debt 294 (b) Preservation of life, health and property 294 (i) Preservation of life or health 295 (ii) Supply of necessaries 295 (iii) Preservation of property 296 (c) A general principle of necessitous intervention 297 3. Agency and other pre-existing legal relationships 297 4. Necessity in the context of maritime adventures 301 (a) Salvage 301 (i) Establishing maritime salvage 302 (ii) Characterizing the salvage award 302 (b) General average 303 12. Failure of consideration 304 1. General principles 304 (a) The principle of failure of consideration 304 (b) The grounds of restitution which are founded on the principle of failure of consideration 305 (c) The definition of consideration 306 (i) Failure of the defendant to perform his or her part of the bargain 306 (ii) Failure of a contingent condition 307 (d) The nature of the enrichment 308 (e) The relationship between damages for breach of contract and restitution to reverse unjust enrichment 308 2. Total failure of consideration 310 (a) The requirements for establishing total failure of consideration 310 (i) The contract must cease to be operative 310 (ii) The defendant is no longer ready, willing and able to perform his or her part of the bargain 313 (iii) The consideration must have failed totally 315 (b) Manipulating the notion of total failure of consideration 318 (i) Receipt of collateral benefits 319 (ii) Apportionment of the consideration 320 (c) Is the requirement that the consideration must totally fail defensible 323 (i) Arguments in favour of recognizing partial failure of consideration 323 (ii) Arguments against recognizing partial failure of consideration 324 (iii) The consequences of recognizing partial failure of consideration 325 (iv) Will the courts recognize partial failure of consideration? 326 (d) Two problems in the application of total failure of consideration 326 (i) Restitution from parties who were not expected to provide the consideration 327 (ii) Denial of restitution where the claimant has participated in an illegal transaction 328 (e) The role of total failure of consideration 330 (f) Contracts which are discharged for breach 330 (i) Breach of contract by the defendant 331 (ii) Breach of contract by the claimant 334 (g) Anticipated and incomplete contracts 342 (i) Establishing unjust enrichment 343 (ii) Establishing total failure of consideration 344 (iii) Agreements which are subject to contract 345 (iv) Introducing a fault requirement 347 (v) Unconscionability 348 (vi) Alternative claims 349 (h) Unenforceable contracts 349 (i) Withdrawal from an illegal transaction 352 (i) No part of the illegal purpose must have been carried into effect 353 (ii) The claimant must have withdrawn from the illegal transaction 354 3. Partial failure of consideration 355 (a) The definition of frustration 356 (b) Restitution of benefits transferred before a contract is frustrated 356 (i) The common law 356 (ii) The Law Reform (Frustrated Contracts) Act 1943 358 (c) The need for principled reform 369 (i) Arguments against loss apportionment 369 (ii) Arguments in favour of loss apportionment 369 (iii) A middle way 370 4. Void contracts 371 (a) Uncertainty as to the ground of restitution 371 (b) Total failure of consideration 372 (i) Pre-incorporation contracts 372 (ii) Infancy 372 (iii) Want of authority 373 (c) Absence of consideration 374 (i) Cases which support the recognition of absence of consideration 374 (ii) Determining the ambit of the ground of absence of consideration 377 (d) Should absence of consideration be recognized as a ground of restitution 383 (i) Criticisms of absence of consideration 383 (ii) An alternative approach 384 (iii) The advantages of rejecting absence of consideration as a ground of restitution 386 13. Incapacity 387 1. General principles 387 (a) Incapacity of the claimant 387 (i) Absence or vitiation of intent 387 (ii) Policy demands restitution 387 (b) Incapacity of the defendant 388 (i) Defendant's incapacity as a defence 388 (ii) Defendant's incapacity as a ground of restitution 388 2. The categories of incapacity 389 (a) Mental disorder 389 (i) Protection of the court 389 (ii) Non est factum 390 (iii) Other transactions 390 (iv) Exploitation 391 (b) Intoxication 392 (c) Somnambulism 392 (d) Minority 392 (i) The problems raised by minority 392 (ii) The effect of minority on the validity of contracts 393 (iii) The effect of minority on other transactions 394 (iv) The role of minority in restitutionary claims 394 (e) Corporate incapacity 397 (i) Restitution at common law 397 (ii) The implications of statutory reform of the ultra vires doctrine 397 (f) Incapacity of public authorities 397 14. Restitution from public authorities 400 1. General issues 400 (a) Why should public authorities be treated differently from other defendants? 400 (i) Constitutional considerations 400 (ii) Implications for the general community 401 (ii) Balancing principle and pragmatism 402 (b) Defining public authorities 402 (c) Establishing unjust enrichment 402 (i) Invalid statutory provisions 403 (ii) Unauthorized transactions 403 (iii) Mistake 403 2. The grounds of restitution 404 (a) Mistake 404 (b) Duress 404 (c) Extortion by colour of office (colore officii) 405 (i) Defining extortion by colour of office 405 (ii) Identifying extortion by colour of office 406 (iii) Is extortion by colour office still a significant ground of restitution? 407 (d) Total failure of consideration 407 (e) Absence of consideration 407 (f) Ultra vires receipt 408 (i) The background 408 (ii) The Woolwich principle 409 (iii) Determining the ambit of the ground of ultra vires receipt 411 (g) Particular statutory provisions 417 (i) Taxes Management Act 1970 s 33 417 (ii) Value Added Tax Act 1994 s 80 418 3. Reform of the law 419 (a) Recommendation of the Law Commission as to the right to restitution 420 (b) Recommendations of the law Commission as to the special defences 420 (i) Failure to exhaust statutory remedies 421 (ii) Change in a settled view of the law 421 (iii) Compromise 422 (iv) Unjust enrichment 422 (c) The future 422 PART IV. RESTITUTION FOR WRONGS 15. General principles 425 1. The essence of restitution for wrongs 425 (a) The relationship between restitution for wrongs and the reversal of the defendant's unjust enrichment 425 (i) The claimant is a victim of a wrong 426 (ii) The wrong triggers restitutionary remedies 426 (iii) The defendant obtained a benefit 427 (b) The advantages of treating restitution for wrongs as not being founded on the unjust enrichment principle 427 (c) Alternative analysis 428 (d) Does restitution for wrongs form part of the law of restitution? 429 (e) The relationship between restitution for wrongs and proprietary restitutionary claims 430 2. The principles underlying the award of restitutionary remedies for wrongs 431 (a) The fundamental principles 431 (b) Determining which wrongs will trigger a restitutionary response 432 (i) Interference with property rights 432 (ii) Deterrence and ethical standards 434 (iii) Inadequacy of compensatory remedies 435 3. The types of restitutionary remedy for wrongdoing 435 (a) Money had and received 435 (b) Account for profits 436 (c) Restitutionary damages 437 (i) The nature of restitutionary damages 437 (ii) Are 'restitutionary damages' really restitutionary? 439 (d) Constructive trust 440 (e) Exemplary damages 441 (f) Restoration of property 442 (g) Injunctions 442 4. The relationship between restitutionary and compensatory remedies for wrongdoing 442 (a) Election between inconsistent remedies 442 (b) When must the election be made? 443 (c) Tang Man Sit v Capacious Investments Ltd 443 (d) Determining when compensatory and restitutionary remedies are inconsistent 443 5. Causation 445 (a) The general principle of causation 445 (b) Assessing the defendant's contribution 446 (c) The principle of remoteness of benefit 447 (d) More than one victim 449 6. The available defences for restitution for wrongs 450 (a) Restitutionary claim founded on the defendant's wrongdoing 450 (b) Application of the general defences to restitutionary claims 451 (c) Restitutionary claim founded on the reversal of the defendant's unjust enrichment 451 7. Recommendations for reform 452 16. Restitution for torts 454 1. General principles 454 (a) The doctrine of waiver of tort 454 (i) Waiver of a compensatory remedy 454 (ii) Waiver of the cause of action 456 (iii) Ratification of the defendant's wrongdoing 457 (b) Is there a role for the doctrine of waiver of tort in the modern law of restitution? 458 (c) Restitutionary remedies for torts 458 (i) General principles 458 (ii) The obstacle of Phillips v Homfray 461 2. Torts for which restitutionary remedies are available 465 (a) Trespass to land 465 (i) Are restitutionary remedies available for trespass to land? 465 (ii) Valuing the defendant's benefit 466 (iii) Inverugie Investments Ltd v Hackett 467 (b) Trespass to goods 469 (c) Conversion 470 (d) Interference with intellectual property rights 470 (i) Breach of copyright 471 (ii) Infringement of patents 471 (iii) Passing off 472 (iv) Infringement of trademarks 472 (e) Nuisance 472 (f) Deceit 473 (g) Invasion of privacy 475 3. Is there a general principle in favour of the award of restitutionary remedies for torts? 475 17. Restitution for breach of contract 478 1. General principles 478 (a) The general principle denying restitution for breach of contract 478 (b) Methods for awarding restitutionary remedies for breach of contract 479 (i) Alternative analysis 479 (ii) Contractual term specifying a restitutionary remedy 480 (iii) Identification of a fiduciary relationship 480 (iv) Tortious wrongdoing 481 (v) Price payable for interference with property rights 481 (c) Attorney-General v Blake: the new approach 485 (i) The approach of the Court of appeal 485 (ii) The principles underpinning the decision of the majority in the House of Lords 486 (iii) Lord Hobhouses' dissent 488 (iv) Subsequent developments 489 (v) Summary of the key principles 492 2. Should restitutionary remedies generally be available for breach of contract? 492 (a) How wrongful is a breach of contract? 493 (b) Identifying situations where the breach of contract is sufficiently wrongful 493 (i) Cynical breach of contract 494 (ii) Defendant entered into a more profitable contract 494 (iii) Specifically enforceable contracts 495 (iv) Corrective justice and deterrrence 496 (c) Conclusions 497 18. Restitution for equitable wrongdoing 498 1 General principles 498 (a) The rational behind the award of restitutionary remedies for equitable wrongdoing 498 (b) Types of remedy which are available for equitable wrongdoing 499 (i) Account of profits 499 (ii) Proprietary remedies 499 (iii) Interest 499 (iv) Equitable compensation 499 2. The categories of equitable wrongdoing 500 (a) Breach of fiduciary duty 500 (i) The identification of fiduciary relationships 501 (ii) The nature and ambit of fiduciary obligations 503 (iii) The categories of fiduciary relationship 504 (iv) The nature of restitutionary remedies which are available for breach of fiduciary duty 514 (b) Breach of confidence 525 (i) The identification of the duty of confidence 526 (ii) Breach of privacy 527 (iii) Restitutionary remedies for breach of confidence 527 (c) Unconscionability 530 (i) Equitable estoppel 530 (ii) Other forms of unconscionability 533 (d) Dishonesty inducing on assisting in a breach of trust or fiduciary duty 533 (i) Establishing liability for dishonest assistance 533 (ii) Determining the remedy which is awarded 535 (iii) Unconscionable receipt 536 19. Criminal offences 538 1. General principles and policies 538 2. Restitutionary claims brought by the victim 538 (a) The general principle 538 (b) Claims founded on unjust enrichment 539 (c) Claims founded on the vindication of property rights 539 (d) Claims founded on wrongdoing 540 (i) Torts and breaches of fiduciary duty 540 (ii) Founding a claim on the claim itself 540 (iii) Obstacles to restitutionary claims founded on crimes 543 (iv) The potential implications of recognizing restitutionary claims founded on crimes 546 (v) Restitution from third parties 548 3. Restitutionary claims brought by the State 548 (a) Confiscation orders 549 (b) Civil recovery 550 (c) Common law claims for restitution 550 4. Denial of benefits arising from the commission of crimes 550 (a) Does the denial of benefits to a criminal form part of the law of restitution? 550 (b) The forfeiture principle 551 (i) The ambit of the forfeiture principle 551 (ii) The relationship between the forfeiture principle and the in pari delicto defence 552 (iii) The rationale of the forfeiture principle 553 (c) The forfeiture rule 554 (i) The types of unlawful killing which trigger the forfeiture rule 554 (ii) Proving the killer's guilt 556 (iii) Application of the forfeiture rule 556 (iv) The Forfeiture Act 1982 563 PART V. PROPRIETARY RESTITUTIONARY CLAIMS 20. Establishing proprietary restitutionary claims 569 1. The nature of proprietary resitutionary claims 569 (a) Questions of terminology 569 (b) The nature of the cause of action 570 (i) Distinguishing between vindication of property rights and the reversal of unjust enrichment 570 (ii) The relationship between proprietary restitutionary claims and restitution for wrongs 574 (c) The nature of the resititutionary remedy 575 (i) Personal restitutionary remedies 575 (ii) Proprietary restitutionary remedies 575 (d) The framework for analysing a typical proprietary restitutionary claim 579 (e) A model case 579 2. Identification of the proprietary interest 580 (a) Retention of a proprietary interest 581 (i) The general rules for the passing of title 581 (ii) Circumstances in which title will not pass 583 (iii) Particular circumstances in which title will pass 590 (iv) Particular circumstances in which title will be re-vested in the claimant 593 (v) Retention of equitable title 593 (b) Creation of a proprietary interest 594 (i) The express trust 594 (ii) The resulting trust 595 (iii) The constructive trust 605 (c) The vindication of proprietary rights despite illegality 615 (i) The principle of no reliance on the illegality 615 (ii) A critique of the no reliance on illegality principle 618 3. The following and tracing rules 619 (a) The function of following and tracing 619 (i) The essence of following 619 (ii) The essence of tracing 620 (iii) Tracing to substitute assets 622 (iv) Distinguishing between tracing and claiming 623 (v) Distinguishing between tracing at law and in equity 624 (b) Following 624 (c) Tracing at common law 625 (i) The basic rules 625 (ii) Tracing into profits 626 (iii) Tracing into mixed products 626 (d) Tracing in equity 628 (i) The fiduciary requirement 628 (ii) Mixing of money 630 (iii) Restrictions on equitable tracing 632 (iv) A move to a more pragmatic approach? 634 (e) The future of the tracing rules 635 21. Restitutionary claims and remedies to vindicate property rights 636 1. General principles 636 (a) Proprietary and personal remedies 636 (b) Distinguishing between claims and remedies 636 2. Proprietary claims and remedies 637 (a) Common law proprietary claims and remedies 637 (b) Equitable proprietary claims and remedies 637 (i) Constructive trust 638 (ii) Equitable charge or lien 639 (iii) Subrogation 640 3. Personal claims and remedies 644 (a) Personal claims and remedies at common law 644 (i) Tort 644 (ii) Action for money had and received 645 (iii) Action for debt 646 (b) Personal claims and remedies in equity 646 (i) Administration of estates 646 (ii) Action for unconscionable receipt 647 (iii) Subrogation 654 (c) The future of personal claims and remedies 655 22. The defence of bona fide purchase 656 1.The function of the defence656 2.The ambit of the defence657 (a) Common law (i) The defence is generally inapplicable 657 (ii) Proprietary restitutionary claims to money 657 (b) Equity 658 (c) Rescission 658 3. Conditions for establishing the defence 658 (a) Good faith 659 (i) Common law 659 (ii) Equity 659 (b) Purchase for value 659 4. Operation of the defence 660 (a) A complete defence 660 (b) The defence may be applicable even though the defendant was not a bona fide purchaser 660 (c) The defence applies regardless of whether the claimant seeks a personal or proprietary restitutionary remedy 660 PART VI. THE GENERAL DEFENCES AND BARS TO RESTITUTIONARY CLAIMS 23. Fundamental principles and general bars 665 1. The function and ambit of general defences and bars 665 (a) The distinction between defences and bars 665 (b) The principles underlying the general defences and bars 665 (i) Justice favours the defendant retaining the benefit 665 (ii) Security of receipt 666 (c) Classification of defences as 'enrichment-related' and 'unjust-related' 666 2. General bars to restitutionary claims 667 (a) Exclusion of the right to restitution by contract 667 (b) Voluntary transfers 668 (i) True voluntary transfers 668 (ii) Deemed voluntary transfers 669 (iii) Compulsion of legal process 669 (iv) Settlements and compromises 670 (c) Res judicata or issue estoppel 671 (i) The function of res judicata 671 (ii) Limitations on the res judicata bar 671 (d) Counter-restitution is not possible 672 (i) Determining what constitutes counter-restitution 672 (ii) Circumstances when the requirement to make counter-restitution is inapplicable 673 (iii) Circumstances in which restitution is denied even though the claimant can make counter-restitution 673 24. Defences arising from changes in the defendant's circumstances 675 1. Estoppel 675 (a) The conditions for establishing the defence of estoppel 676 (i) The defendant is led to believe that he or she is entitled to the benefit 676 (ii) Reliance by the defendant 679 (iii) Change of circumstances 679 (iv) The justice of the case 681 (b) The consequences of the claimant being estopped 681 (i) De minimis 682 (ii) Apportionment of payments 682 (iii) Imposition of conditions 682 (iv) Shifting the burden of proof 682 (v) Unconscionability 683 (c) Is there a continuing role for the estoppel defence? 684 2. Transfer of a benefit by an agent to his or her principal 685 (a) Features of the agent's defence 685 (i) The defendant must have received the benefit as agent 685 (ii) The benefit must be transferred to the principal 685 (iii) The agent must not have notice of the grounds for a restitutionary claim 686 (iv) The agent must not be implicated in wrongdoing 686 (v) No need to show detriment 687 (vi) The defence operate pro tanto 687 (vii) The defence is available to all restitutionary claims 687 (b) The rationale of the agent's defence 688 (i) The defendant is no longer enriched 688 (ii) The justice of the case 688 (iii) Determining the proper party to sue 688 (iv) Estoppel 689 3. Change of position 689 (a) Recognition of the defence 689 (b) The nature of the change of position defence 691 (c) The conditions for establishing the change of position defence 693 (i) Causation 693 (ii) Whether it is inequitable to make restitution 703 (d) The application of the defence 708 (i) Claims founded on the reversal of the defendant's unjust enrichment 708 (ii) Restitution for wrongs 708 (iii) Restitutionary claims founded on the vindication of proprietary rights 708 (e) The relationship between the change of position and other defences 711 (i) The relationship between change of position and estoppel 711 (ii) The relationship between change of position and the agent's defence 713 (iii) The relationship between change of position and the bona fide purchaser 714 25. Passing on and mitigation of loss 715 1. Passing on 715 (a) The general principle 715 (b) Judicial examination of the defence 716 (i) Recognition of the defence 716 (ii) Rejection of the defence 717 (c) Should the defence of passing on be recognized? 718 2. Mitigation of loss 719 26. Illegality 721 1. Genzeral principles 721 (a) Definition of illegality 721 (i) Illegality at common law 722 (ii) Illegality by statute 722 (iii) The significance of the parties' knowledge of the illegality 723 (iv) Disregarding illegality 723 (b) The consequences of a transaction being tainted by illegality 723 (i) The in pari delicto defence 723 (ii) Denial of restitution in equity 724 (c) The policy behind the in pari delicto defence 725 (i) Deterrence 725 (ii) Morality 726 (iii) The dignity of the court 726 2. Methods for avoiding the operation of the in pari delicto defence 726 (a) The vindication of proprietary rights despite illegality 727 (b) The parties are not in pari delicto 727 (i) Mistake 727 (ii) Compulsion 727 (iii) Actual or potential exploitation 727 (iv) Restitution for wrongs 728 (v) Failure of consideration 728 (c) Withdrawal from an illegal transaction 728 (d) A limitation upon the methods for avoiding the in pari delicto defence 729 3. Reform of the law 729 (a) A general discretion to award restitutionary relief despite illegality 730 (i) Common law 730 (ii) Statutory reform 732 (b) Disgorgement to a third party 732 (c) Rejection of the in pari delicto defence 733 (i) Arguments in favour of abolishing the defence 733 (ii) The consequences of abolishing the defence 734 (d) The next step 736 27. Incapacity 738 1. Questions of policy 738 (a) Does an incapacitated defendant deserve to be protected from restitutionary claims? 738 (b) Would the award of a restitutionary remedy to the claimant subvert the law of contract? 738 2. Minority 739 (a) Restitutionary claims founded on the reversal of unjust enrichment 739 (i) The supply of necessaries 739 (ii) The supply of non-necessary benefits 739 (b) Restitutionary claims founded on a wrongdoing 741 (i) Tort 741 (ii) Equitable wrongdoing 742 (iii) Crime 742 (iv) Breach of contract 742 (v) Conclusions 742 (c) Restitutionary claims founded on the vindication of property rights 743 3. Mental incapacity 743 4. Institutional incapacity 744 (a) Rejection of a defence of institutional incapacity 744 (b) Implicit recognition of a defence of institutional incapacity 745 5. Should a defence of incapacity be recognized? 746 28. Limitation periods and laches 747 1. Limitation periods 747 (a) Reversal of the defendant's unjust enrichment 748 (i) The usual limitation period 748 (ii) Qualification of the general limitation period for particular restitutionary claims 749 (iii) The determination of when time starts to run 749 (b) Restitution for wrongs 752 (i) Restitutionary claims founded on the commission of tort or breach of contract 752 (ii) Restitutionary claims founded on equitable wrongs 753 (c) Vindication of proprietary rights 753 (i) Land 753 (ii) Restitutionary claims in respect of converted goods 754 (iii) Recovery of stolen property 754 (iv) Equitable proprietary claims 754 2. Laches 755 (a) The function of the laches defence 755 Bibliography 758 Index 000
Library of Congress Subject Headings for this publication:
Restitution -- Great Britain.
Unjust enrichment -- Great Britain.