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Niall Whitty
Wed, 28 Nov 2007 21:35:26 -0000
Birksian/sine causa approach to enrichment law



Perhaps the following argument by Professor Paolo Gallo may provide a satisfactory answer to your last question. The starting point in cases of condictio indebiti or condictio sine causa / mistaken payment / payment without legal ground cases is that the payment was indebitum, ie not due. Therefore the recipient is prima facie unjustifiably enriched by the payment. This is the background to Paolo Gallo's brief but telling argument that the policy of reversing the burden of proof (ie the German solution of knowledge of absence of ground as a defence rather than error as a ground of restitution) "seems to be the most efficient and rational one. In effect between a payor who tries to avoid a loss and a recipient who tries to hold on to an improper benefit, the former is to be preferred". See P Gallo, "Unjust Enrichment: A Comparative Analysis" (1992) 40 Amer J Comp Law 431 at p 444.


Kind regards,
Niall R Whitty.


----- Original Message -----
From: "Duncan Sheehan (LAW)"
Sent: Wednesday, November 28, 2007 5:42 PM
Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law

In some cases this would presumably in English law and other common law systems be treated as change of position or sometimes estoppel, given the emphasis on reliance. If we're going wider than this to the recipient's impression that he could keep the transfer, do we not risk moving from looking at whether the transferor was mistaken/in doubt/ignorant whatever to the same question of the transferee. If you dislike the question in relation to one party why is it easier in relation to the other? Or have I missed something?

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