The Law of Unjust Enrichment in the House of Lords : Judging the Judges

2014 ◽  
Keyword(s):  
Unjust Enrichment ◽  
House Of Lords ◽  
The Law

Excising Estoppel by Representation as a Defence to Restitution

1995 ◽  
Vol 54 (3) ◽  
pp. 525-535
Author(s):  
Paul Key
Keyword(s):  
Theoretical Justification ◽  
Unjust Enrichment ◽  
House Of Lords ◽  
The Law

Both the existence of and theoretical justification for defences to an action in unjust enrichment have been the source of controversy since the action was first recognised in Moses v. Macferlam.* The House of Lords' recognition of a defence of change of position in Lipkin Gorman v. Karpnale Ltd1 goes some way towards meeting the criticisms levelled at the courts' general failure to develop and clarify the defences to restitution. The judgments of Lord Goff and Lord Templeman have properly been acclaimed for imposing some measure of order upon an important aspect of the law of restitution. However, problems remain. Lipkin Gorman does not provide an exhaustive analysis of either change of position or its inter-relationship with other defences.

created by the common law rule were addressed by Parliament in the Law Reform (Frustrated Contracts) Act 1943, considered below, but the unjust enrichment principle is also relevant in other respects in determining whether a particular event is capable of frustrating a contract. If the decision to treat a contract as frustrated might give one of the parties an undue advantage this may operate as a justification for refusing to treat the contract as frustrated. For example, in Tamplin SS Co v Anglo-Mexican Petroleum Products Co Ltd, an oil tanker was chartered for a period of five years, but was subject to government requisition when the charterparty still had nearly three years to run. In the circumstances, there was no prejudice to the charterers, since the government compensation payable to the charterers exceeded the agreed hire charges. However, the owners of the ship claimed that the contract was frustrated. The House of Lords held, by a narrow majority, that the contract was not frustrated. One explanation for the action of the owners is that they wanted to secure the increased benefit of the government compensation in replacement for the lower hire charges. In this case, it is readily understandable that the majority of the House of Lords preferred not to allow the owners to benefit in this way at the expense of the charterers. Remedies, unjust enrichment and frustration Money paid or payable before the date of frustration

1995 ◽  
pp. 382-382
Keyword(s):  
Common Law ◽  
Petroleum Products ◽  
Law Reform ◽  
Unjust Enrichment ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Government ◽  
Undue Advantage ◽  
Oil Tanker

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

The House of Lords on the Law of Trespass to Realty and Children as Trespassers

1910 ◽  
Vol 23 (6) ◽  
pp. 491
Author(s):  
F. M. B. ◽  
Thomas Beven
Keyword(s):  
House Of Lords ◽  
The Law

Consent after the House of Lords: Taking and leading astray the Law of Theft

Legal Studies ◽  
1993 ◽  
Vol 13 (3) ◽  
pp. 308-322
Author(s):  
Mitchell C. Davies
Keyword(s):  
Criminal Law ◽  
House Of Lords ◽  
The Law ◽  
Definition Of ◽  
Specific Definition

The objectives of the Criminal Law Revision Committee when drafting the radical reforms proposed by the 1966 Theft Bill were described by a contemporary commentator2 as being: ‘. . . to do away with the more embarrassing and restrictive technicalities of the existing law . . .’In the same place it was observed that the Committee faced a choice between creating a specific definition of the various theft offences and their elements, or one whose generality would allow it to evolve to meet the challenges presented by ever more complex and sophisticated dishonest dealing.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Criminal Responsibility of the Insane

1894 ◽  
Vol 40 (171) ◽  
pp. 609-621
Author(s):  
Oscar Woods
Keyword(s):  
Criminal Responsibility ◽  
House Of Lords ◽  
The Law

Many of those now present will probably agree with me that the law of criminal responsibility, as at present laid prisoners is not the same in England, Ireland, and Scotland. The existing law is ruled by the answers of the judges to certain questions put to them by the House of Lords in reference to the case of the “Queen v. McNaghten,” tried in 1843.

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

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