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Sender:
Steve Hedley
Date:
Wed, 17 Dec 1997 13:31:31
Re:
Barclays: the suing bank

 

At 12:08 17/12/97 +0000, Lionel Smith wrote:

Eoin O'Dell wrote:

the invalidity of a contract and a consequential restitutionary remedy are two separate matters.

That seems right but it does not follow that setting aside a contract is not itself a matter of unjust enrichment.

Whether or not a contract will be enforced is a matter for the law of contract; ditto the question whether it will be "set aside" (i.e. not enforced).. I didn't understand Eoin to assert that unjust enrichment is irrelevant to the question whether contracts should be enforced - does anyone believe this ? And aren't the formation and enforcement of contracts something to do with unjust enrichment, too ?

IF (which some will contest)legal responses can be said to arise from wrongs, consent, unjust enrichment, and other causes, THEN while enforcing a contract is a response deriving from consent, setting one aside is not necessarily so.

You seem to be assuming that "the law of contract" is reducible purely to issues of consent, and that issues such as (say) unjust enrichment are irrelevant to it. Yet what scholar of the law of contract believes this ?

I wonder if it is arrogant to say that I think I am both an equity lawyer and a restitution lawyer? Or just someone who likes to read about private law.

Arrogance doesn't enter into it, but the traditions are certainly different ones, and many people have seen inconsistency between them.

And yet I feel neither internal strife nor internal indifference. (At least not on this point.) Internal ignorance, perhaps. And some idea that it is not too much to ask of a legal system that its parts should cohere.

Lionel

A law of contract based purely on consent does not cohere with a law of restitution in no way based on consent - which is precisely why it is unconvincing to portray them each that way.

 

Steve Hedley

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