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Florian Mohs
Wed, 28 Nov 2007 23:37:47 +0100
Birksian/sine causa approach to enrichment law


Dear all

I agree that there is a certain interrelation between the issues of mistake and change of position as to the relevant standard of knowledge of the transferor and the transferee.

But is it a risk that we look to both sides of the transaction and inquire into both sides' state of mind? I think no. In my view, it is rather a chance.

For me, a compelling example of a case against an absence of basis-analysis without regard to the transferor’s state of mind is:

National Bank of New Zealand v Waitaki International Processing (NI) Ltd [1999] 2 NZLR 211 (CA).

Summarized the facts of this case are as follows:

The defendant, Waitaki, had been paid money by the plaintiff, National Bank of New Zealand, under the mistaken assumption that the bank owed the money to Waitaki. The defendant knew that the payment lacked a legal basis and objected to the payment. The bank insisted and, finally, the defendant accepted the payment. The defendant then invested the money, at first in government stocks, and then in the property market, where the money was lost. On evidence, the defendant Waitaki had positive knowledge of the mistake of the plaintiff bank. This alone, however, did not suffice to disqualify the defendant from invoking the defence of change of position. The Court of Appeal entered into a balancing of equities and took into consideration the relative fault of both the plaintiff and the defendant.


Best wishes

Dr. Florian Mohs, LL.M.
University of Basel
Faculty of Law
Peter Merian-Weg 8
P.O. Box
4002 Basel

T: +41 61 267 05 20


Zitat von "Duncan Sheehan (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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