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Duncan Sheehan
Tue, 27 Nov 2007 10:00:00 -0000
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.



Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom


-----Original Message-----
From: HOGG Martin
Sent: Monday, November 26, 2007 12:56 PM
Subject: [RDG] RDG: Birksian/sine causa approach to enrichment law

Two brief comments on Duncan's interesting email critiquing the Birksian scheme:

(1) I think Duncan is right to say that error remains crucial in the traditional thinking about some Scots enrichment cases, e.g. transfers made in fulfilment of a supposed obligation which does not exist, as well as cases of enrichment by imposition taking the form of bona fide improvements to property believed to be owned by the improver. I (along with other Scots colleagues) have argued however that the reliance on the concept of mistake/error in such cases is not helpful, and it would be better to say that the requirement of the claim in each case should be (i) a transfer made in respect of a non-existent obligation, coupled with an available defence that the transferor knew the obligation was not due; (ii) similarly, an improvement made to property which is not owned by the improver, coupled with a defence that the improver knew the property was not his. Such a defence would in each case achieve the same result as is currently played by the error requirement, but would remove error from its current problematic central position. So, I don't think that Duncan's error point undermines a sine causa approach to classifying enrichment (which I support, and which I believe can make sense of the Scots authorities, as my colleagues Niall Whitty and Hector MacQueen, as well as myself, have argued in our respective writings on the topic).

(2) I do agree that cases such as Connelly v Simpson, where one would wish to unwind a rescinded contract in such a way that the party who has paid under the voidable contract is entitled to restitution of what he/she has paid, are best dealt with by providing a form of contractual restitution. To ignore the contractual context of the claim and treat it as an enrichment claim, thereby evaluating the nature of the claim as enrichment merely because it provides recovery in an enrichment measure, leads to confusing results. Such a classification of remedies based upon their measure of recovery would, for instance, treat a contractual damages claim assessed according to the status quo/restoration measure as a delictual remedy, a bizarre and undesirable result (I argue strongly as much in my Obligations book). However, I don't believe that recognising such a claim as a contractual form of enrichment somehow undermines a sine causa approach to enrichment classification.

The sine causa approach makes perfect sense for Scots enrichment law as it provides a principled map of the whole subject, something which is inherently more attractive to Scots lawyers than the piecemeal and incomplete approach of a perpetually expanding unjust factors list.

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