The principles of the law of restitution
PREFACEI THE FUNDAMENTAL PRINCIPLES OF THE LAW OF RESTITUTIONTHE ESSENCE OF RESTITUTIONWHAT IS THE LAW OF RESTITUTION ABOUT?WHAT IS THE NATURE OF RESTITUTIONARY REMEDIES?(A) THE CATEGORIES OF RESTITUTIONARY REMEDY(i) Personal Restitutionary Remedies(ii) Proprietary Restitutionary Remedies(B) THE CHARACTERISTICS OF RESTITUTIONARY REMEDIES(i) Restoring What the Claimant Lost(ii) Disgorgement(iii) Giving Up Rights and Reinstatement of ObligationsWHEN WILL RESTITUTIONARY REMEDIES BE AWARDED?(A) THE REVERSAL OF UNJUST ENRICHMENT(i) The Descriptive Sense of Unjust Enrichment(ii) The Substantive Sense of Unjust Enrichment(B) THE DEPRIVATION OF BENEFITS FROM A WRONGDOER(i) The Nature of Restitution for Wrongs(ii) The Nature of the Restitutionary Remedy(C) THE VINDICATION OF PROPERTY RIGHTS WITH WHICH THE DEFENDANT HAS INTERFERED(i) The Nature of Restitutionary Claims Founded on the Vindication of Property Rights(ii) Is a Proprietary Restitutionary Claim Founded on the Unjust Enrichment Principle?(iii) Criticisms of the Vindication of Property Rights Principle(iv) Justifying the Award of Restitutionary Remedies to Vindicate Property Rights(D) SUMMARY OF THE KEY PRINCIPLESWHAT IS THE JUSTIFICATION FOR RECOGNIZING AN INDEPENDENT LAW OF RESTITUTION?THE PRINCIPAL TYPES OF RESTITUTIONARY REMEDY(A) MONEY HAD AND RECEIVED(B) REASONABLE VALUE OF PROPERTY AND SERVICES(C) ACCOUNT OF PROFITS(D) RESTITUTIONARY DAMAGES(E) RECOGNITION OF A BENEFICIAL INTEREST(F) EQUITABLE CHARGE(G) SUBROGATION(i) Contractual(ii) Restitutionary(H) RECTIFICATION(I) RESCISSION(i) The Nature of Rescission(ii) The Process of Rescission(iii) Restitution Following Rescission(iv) Bars to Rescission(v) Partial Rescission and Rescission on Terms(vi) The Future of RescissionTHEMES AND CONTROVERSIESTHE RELEVANCE OF FAULT(A) FAULT IS GENERALLY IRRELEVANT(B) CIRCUMSTANCES WHERE THE FAULT OF EITHER PARTY IS RELEVANTRISK-TAKINGRESPECTING AUTONOMYTHE NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES(A) RELEVANCE TO UNJUST ENRICHMENT CLAIMS(B) RELEVANCE TO THE IDENTIFICATION OF FIDUCIARY RELATIONSHIPSTHE PRINCIPLE AGAINST FICTIONSTHE ROLE OF PUBLIC POLICYTHE RELATIONSHIP BETWEEN LAW AND EQUITYRULES VERSUS DISCRETIONII UNJUST ENRICHMENTTHE PRINCIPLE OF UNJUST ENRICHMENTA BRIEF HISTORY OF THE LAW OF UNJUST ENRICHMENT(A) THE CONCEPTION OF THE UNJUST ENRICHMENT PRINCIPLE(B) THE BIRTH OF THE UNJUST ENRICHMENT PRINCIPLE(C) THE US INFLUENCEJUSTIFYING THE UNJUST ENRICHMENT PRINCIPLE(A) THE PLACE OF UNJUST ENRICHMENT WITHIN THE LAW OF OBLIGATIONS(B) ALTERNATIVE THEORIES(i) Proprietary Theory(ii) No Unifying Principle of Unjust Enrichment(iii) Unconscionable RetentionTHE FUNCTION OF THE UNJUST ENRICHMENT PRINCIPLE(A) POSSIBLE FUNCTIONS OF THE UNJUST ENRICHMENT PRINCIPLE(i) The Formulaic Function(ii) The Normative Function(B) THE APPROACH ADOPTED BY ENGLISH LAW(C) SHOULD THE UNJUST ENRICHMENT PRINCIPLE HAVE A NORMATIVE FUNCTION?(D) THE MIDDLE WAYTHE ROLE OF THE UNJUST ENRICHMENT PRINCIPLE IN PRACTICE(A) CURRENT PRACTICE(B) IDENTIFICATION OF THE CAUSE OF ACTION IN UNJUST ENRICHMENT CLAIMS(C) ESTABLISHING THE CLAIM IN UNJUST ENRICHMENT(D) THE LAW OF UNJUST ENRICHMENTENRICHMENTTHE RELEVANCE OF ENRICHMENT(A) UNJUST ENRICHMENT OR UNJUST BENEFIT?(B) DIFFERENT SENSES OF ENRICHMENT(C) THE ESSENCE OF ENRICHMENT(i) The Objective Test of Enrichment(ii) The Subjective Test of EnrichmentPARTICULAR TYPES OF ENRICHMENT(A) MONEY(i) Exchange Value(ii) Use Value(B) PROPERTY(C) SERVICES(i) Services Resulting in an End Product(ii) Pure Services(D) RELEASE OF OBLIGATIONS(E) FORGOING A CLAIMMETHODS OF DEFEATING SUBJECTIVE DEVALUATION(A) INCONTROVERTIBLE BENEFIT(i) Money(ii) Anticipation of Necessary Expenditure(iii) Failure to Return Property(iv) Benefit Realized in Money(v) Benefit Realizable in Money(B) REQUEST(C) FREE ACCEPTANCE(i) The Elements of Free Acceptance(ii) The Function of Free AcceptanceRESTITUTION WITHOUT ENRICHMENT(A) THE DEFENDANT IS ESTOPPED FROM DENYING THE ENRICHMENT(i) The Function of Estoppel(ii) The Conditions for Establishing an Estoppel(iii) The Application of the Estoppel Principle(B) UNJUST SACRIFICE(i) The Significance of Recognizing the Unjust Sacrifice Principle(ii) Is the Principle Recognized in English Law?(iii) Should the Unjust Sacrifice Principle Be Recognized in English Law?PERFORMANCE OF A CONTRACT(A) THE DEFENDANT COMPLETED THE WORK(B) THE DEFENDANT PREVENTED THE CLAIMANT FROM PERFORMING(C) THE CLAIMANT BREACHED THE CONTRACT(D) THE CONTRACT WAS FRUSTRATED(E) ENTIRE CONTRACTTHE VALUATION OF THE ENRICHMENT(A) TIMING OF THE VALUATION(B) THE TEST OF VALUATION(i) Subjective Over-Valuation(ii) Valuing Services(iii) Estoppel(C) THE ROLE OF THE CONTRACT IN THE VALUATION OF THE ENRICHMENT(i) The Contract Price Should Operate as a Ceiling to the Valuation of the Benefit(ii) The Contract Price Should Not Operate as a Ceiling to the Valuation of the Benefit(D) INADEQUATE PERFORMANCEAT THE EXPENSE OF THE CLAIMANTGENERAL PRINCIPLESDIRECT AND INDIRECT ENRICHMENT(A) DIRECT ENRICHMENT(B) INDIRECT ENRICHMENT(i) Economic Reality(ii) Restitutionary Claims to Vindicate the Claimant’s Proprietary Rights(iii) Restitutionary Claims Founded on Wrongdoing(iv) Agency(v) Assignment of Right to Restitution(vi) Interceptive Subtraction(C) INCIDENTAL BENEFITS(D) CONSEQUENTIAL BENEFITSCORRESPONDENCE OF GAIN AND LOSS(A) THE CORRESPONDENCE PRINCIPLE(B) THE DEFENCE OF PASSING ONPRINCIPLES UNDERLYING THE RECOGNITION OF THE GROUNDS OF RESTITUTIONCLAIMANT-ORIENTED GROUNDS OF RESTITUTION(A) ABSENCE OF INTENTION(B) VITIATED INTENTION(C) QUALIFIED INTENTIONDEFENDANT-ORIENTED GROUNDS OF RESTITUTION(A) EXPLOITATION(B) FREE ACCEPTANCEPOLICY-ORIENTED GROUNDS OF RESTITUTIONFOUR ADDITIONAL CONSIDERATIONS(A) THE DANGER OF OVER-SIMPLIFICATION(B) THE GROUNDS OF RESTITUTION ARE NOT CLOSED(C) THE RELEVANCE OF THE TYPE OF ENRICHMENT(D) RESTITUTION AND THIRD PARTIESABSENCE OF BASIS(A) NO EXPLANATORY BASIS(B) CRITICISMS OF ABSENCE OF BASIS(i) State of the Authorities(ii) Different Results(iii) Analytical Complexity(iv) Too Much Restitution(v) Uncertainty as to BasisLAWFUL BASESCONTRACT(A) DISCHARGE OF A CONTRACTUAL OBLIGATION(B) CONTINUING CONTRACTUAL REGIME(C) EXCLUSION OF RESTITUTION BY CONTRACT(D) PROVISION FOR RESTITUTION BY CONTRACT(E) CONTRACT WITH A THIRD PARTY(F) SETTLEMENT AND COMPROMISE(G) UNENFORCEABLE CONTRACTSDISCHARGE OF A DEBTSTATUTORY AUTHORITYRES JUDICATANATURAL OBLIGATIONSGIFTSVOLUNTARY TRANSFERSIGNORANCEIS IGNORANCE A GROUND OF RESTITUTION?RELYING ON IGNORANCE AS A GROUND OF RESTITUTION(A) SERVICES PROVIDED IN CIRCUMSTANCES OF IGNORANCE(B) INTERCEPTIVE SUBTRACTIONELECTION BETWEEN PRINCIPLESTHE ROLE OF IGNORANCE AS A GROUND OF RESTITUTIONMISTAKEGENERAL PRINCIPLES(A) THE SIGNIFICANCE OF MISTAKE AS A GROUND OF RESTITUTION(B) THE KEY POLICIES WHICH DETERMINE WHEN A MISTAKE SHOULD GROUND A RESTITUTIONARY CLAIM(i) Security of Transactions(ii) Risk Allocation(iii) Concoction of Claims(iv) Justice for the Defendant(C) DIFFERENT TYPES OF ENRICHMENT(D) SIGNIFICANT DISTINCTIONS(i) Ignorance of and Mistake as to the Transfer(ii) Beliefs and Assumptions(iii) Law and Fact(iv) Mistakes and Mispredictions(v) Spontaneous and Induced Mistakes(vi) Ground of Restitution and Legally Effective BasisMISTAKE AS A GROUND OF RESTITUTION(A) SPONTANEOUS MISTAKES(i) Liability Mistakes(ii) Fundamental Mistakes(iii) Causative Mistakes(iv) Illegality(B) INDUCED MISTAKES(C) SHOULD MISTAKE BE RECOGNIZED AS A GROUND OF RESTITUTION?(D) SPECIFIC BARS TO RESTITUTIONARY CLAIMS FOUNDED ON MISTAKE(i) Good Consideration Provided by the Defendant(ii) Potential Bars to Claims Founded on Mistake of LawRELIEF FROM TRANSACTIONS ENTERED INTO UNDER MISTAKE(A) TRANSACTIONS WHICH ARE VOID FOR MISTAKE(i) Common Mistakes(ii) Unilateral Mistakes(iii) Mutual Mistakes(iv) The Doctrine of Non Est Factum(v) The Consequences of a Contract Being Void for Mistake(B) CONTRACTS VOIDABLE FOR MISTAKE(i) Unilateral Mistake(ii) Misrepresentation(C) NON-DISCLOSURE(D) VOIDABLE VOLUNTARY TRANSFERSCOMPULSIONGENERAL PRINCIPLES(A) THE PRINCIPLE OF COMPULSION(B) DIFFERENT TYPES OF ENRICHMENT(C) VITIATION OF CONTRACTS FOR COMPULSION(i) The Time Factor(ii) The Contract Must Cease to Be Operative Before Restitutionary Remedies Can Be Awarded(D) THE GROUNDS OF RESTITUTION(i) Necessity(ii) Undue Influence(iii) Colore Officii(E) ILLEGALITYDURESS(A) THE RATIONALE OF DURESS AS A GROUND OF RESTITUTION(B) THE ELEMENTS OF DURESS(i) Illegitimate Threats and Pressure(ii) Causation(C) DURESS AND THIRD PARTIES(D) THE HEADS OF DURESS(E) DURESS OF THE PERSON(F) DURESS OF PROPERTY(G) ECONOMIC DURESS(i) The Essential Features of Economic Duress(ii) Establishing Economic Duress(iii) Summary of the Law on Economic DuressUNDUE PRESSURE(A) THE ESSENCE OF UNDUE PRESSURE(B) THE RECOGNIZED HEADS OF UNDUE PRESSURE(i) Threats to Invoke the Criminal Process(ii) Threats to Sue(iii) Threats to Publish Information(C) IS THERE A GENERAL GROUND OF UNDUE PRESSURE?LEGAL COMPULSION(A) THE ESSENTIAL CHARACTERISTICS OF LEGAL COMPULSION(B) DETERMINING WHETHER A DEBT HAS BEEN DISCHARGED(i) Request by the Defendant(ii) Acceptance by the Defendant(iii) Performance of an Act Which the Defendant Was Liable to Perform(iv) Automatic Discharge by an Unrequested Payment(C) RESTITUTION FROM THE DEBTOR(i) Reimbursement(ii) Contribution(D) RESTITUTION FROM THE CREDITOR(E) IS LEGAL COMPULSION A GROUND OF RESTITUTION?THREATS TO SECURE THE PERFORMANCE OF A STATUTORY DUTYEXPLOITATIONGENERAL PRINCIPLES(A) THE ESSENCE OF EXPLOITATION(B) THE RELATIONSHIP BETWEEN EXPLOITATION AND OTHER PRINCIPLES(C) IDENTIFYING THE ENRICHMENT(D) VITIATION OF TRANSACTIONS FOR EXPLOITATION(E) THE RELATIONSHIP BETWEEN EXPLOITATION AND WRONGDOINGUNDUE INFLUENCE(A) THE ESSENCE OF UNDUE INFLUENCE AS A GROUND OF RESTITUTION(i) Establishing Undue Influence(ii) The Rationale of Undue Influence as a Ground of Restitution(iii) Is Undue Influence Claimant- or Defendant-Oriented?(iv) Is Undue Influence a Form of Wrongdoing?(B) ACTUAL UNDUE INFLUENCE(i) Establishing Actual Undue Influence(ii) The Identification of Undue Influence(iii) The Question of Manifest and Unfair Disadvantage(C) USE OF PRESUMPTIONS TO ESTABLISH UNDUE INFLUENCE(i) The Essential Features of the Evidential Presumption(ii) Relationships of Influence(iii) Transaction Requires Explanation(iv) Rebutting the Presumption of Undue Influence(D) UNDUE INFLUENCE AND THIRD PARTIES(E) THE NATURE OF THE RELIEF(i) Restitution(ii) Rescission is Absolute(iii) Monetary Remedies in Lieu of RescissionABUSE OF FIDUCIARY RELATIONSHIPS OF CONFIDENCE(A) THE IDENTIFICATION OF FIDUCIARY RELATIONSHIPS OF CONFIDENCE(B) THE RELATIONSHIP BETWEEN UNDUE INFLUENCE AND ABUSE OF FIDUCIARY RELATIONSHIPS OF CONFIDENCE(C) ABUSE OF FIDUCIARY RELATIONSHIPS OF CONFIDENCE WITHIN THE LAW OF RESTITUTIONUNCONSCIONABLE CONDUCT(A) THE GENERAL PRINCIPLE OF UNCONSCIONABLE CONDUCT(i) Inequality Between the Parties(ii) Unconscionability(iii) Significant Imbalance in the Substance of the Transaction(iv) Whether the Transaction Was Fair, Just, and Reasonable(B) IDENTIFYING UNCONSCIONABLE CONDUCT(C) UNCONSCIONABLE CONDUCT AND THIRD PARTIES(D) EXAMPLES OF INEQUALITY(i) Transactions with the Poor and Ignorant(ii) Transactions with Expectant Heirs(iii) Salvage Agreements(iv) Gross Inequality of Bargaining Power(E) STATUTORY REGIMESTHE PARTIES ARE NOT PAR DELICTUM(A) OPPRESSION(B) EXPLOITATIONNECESSITYGENERAL PRINCIPLES(A) THE PRINCIPLE OF NECESSITY(B) THE PRINCIPLE OF VOLUNTARINESS(i) The Claimant Acted Selfishly Rather Than Benevolently(ii) The Claimant Intervened When Not Legally Obliged to Do So(iii) The Preferable Interpretation of Voluntariness(C) THE RATIONALE OF THE NECESSITY PRINCIPLE(i) Public Policy(ii) Interference with the Claimant’s Free Choice(iii) Distinguishing Between Necessity and Compulsion(D) DETERMINING WHETHER THE CLAIMANT ACTED IN CIRCUMSTANCES OF NECESSITY(E) THE DEFENDANT MUST HAVE BEEN ENRICHED AT THE CLAIMANT’S EXPENSE(i) Identifying the Enrichment(ii) Valuing the Enrichment(iii) Determining Whether the Enrichment Was Received at the Expense of the Claimant(iv) Limiting the Restitutionary RemedyNECESSITOUS INTERVENTION BY A STRANGER(A) DISCHARGE OF THE DEFENDANT’S LEGAL LIABILITY(i) Burial(ii) Provision of Medical Treatment(iii) Discharge of a Debt(B) PRESERVATION OF LIFE, HEALTH, AND PROPERTY(i) Preservation of Life or Health(ii) Supply of Necessaries(iii) Preservation of Property(C) A GENERAL PRINCIPLE OF NECESSITOUS INTERVENTIONAGENCY AND OTHER PRE-EXISTING LEGAL RELATIONSHIPS(A) AGENCY OF NECESSITY(B) FACTORS FOR THE IDENTIFICATION OF NECESSITY(C) PLACE WITHIN THE LAW OF UNJUST ENRICHMENTNECESSITY IN THE CONTEXT OF MARITIME ADVENTURES(A) SALVAGE(i) Establishing Maritime Salvage(ii) Characterizing the Salvage Award(B) GENERAL AVERAGEFAILURE OF BASISGENERAL PRINCIPLES(A) THE PRINCIPLE OF FAILURE OF BASIS(B) THE GROUNDS OF RESTITUTION FOUNDED ON THE PRINCIPLE OF FAILURE OF BASIS(C) THE DEFINITION OF BASIS(i) Failure of the Defendant to Perform His or Her Part of the Bargain(ii) Failure of a Contingent Condition(D) THE NATURE OF THE ENRICHMENT(E) THE RELATIONSHIP BETWEEN DAMAGES FOR BREACH OF CONTRACT AND RESTITUTION TO REVERSE UNJUST ENRICHMENTESTABLISHING TOTAL FAILURE OF BASIS(A) THE REQUIREMENTS FOR ESTABLISHING TOTAL FAILURE OF BASIS(i) The Contract Must Cease to Be Operative(ii) The Defendant is No Longer Ready, Willing, and Able to Perform(iii) The Basis Must Have Failed Totally(B) MANIPULATING THE NOTION OF TOTAL FAILURE OF BASIS(i) Receipt of Collateral Benefit(ii) Apportionment of the Basis(C) IS THE REQUIREMENT THAT THE BASIS MUST TOTALLY FAIL DEFENSIBLE?(i) Arguments in Favour of Recognizing Partial Failure of Basis(ii) Arguments Against Recognizing Partial Failure of Basis(iii) The Consequences of Recognizing Partial Failure of Basis(iv) Will the Courts Recognize Partial Failure of Basis?(D) TWO PROBLEMS IN THE APPLICATION OF TOTAL FAILURE OF BASIS(i) Restitution from Third Parties(ii) Denial of Restitution Where the Claimant Has Participated in an Illegal TransactionTHE OPERATION OF TOTAL FAILURE OF BASIS(A) CONTRACTS WHICH ARE DISCHARGED FOR BREACH(i) Breach of Contract by the Defendant(ii) Breach of Contract by the Claimant(B) ANTICIPATED AND INCOMPLETE CONTRACTS(i) Establishing Unjust Enrichment(ii) Risk-taking(iii) Introducing a Fault Requirement(iv) Unconscionability(v) Alternative Claims(C) UNENFORCEABLE CONTRACTS(D) WITHDRAWAL FROM AN ILLEGAL TRANSACTIONPARTIAL FAILURE OF BASIS(A) THE DEFINITION OF FRUSTRATION(B) RESTITUTION OF BENEFITS TRANSFERRED BEFORE A CONTRACT IS FRUSTRATED(i) The Common Law(ii) The Law Reform (Frustrated Contracts) Act 1943(C) THE NEED FOR PRINCIPLED REFORM(i) Arguments Against Loss Apportionment(ii) Arguments in Favour of Loss Apportionment(iii) A Middle Way(D) ANOTHER EXAMPLE OF PARTIAL FAILURE OF BASIS: REJECTION OF GOODSVOID TRANSACTIONS(A) UNCERTAINTYAS TO THE GROUND OF RESTITUTION(B) TOTAL FAILURE OF BASIS(i) Pre-Incorporation Contracts(ii) Infancy(iii) Absence of Authority(C) ABSENCE OF BASIS(i) The Annuity Cases(ii) Payments to Discharge a Liability Which Does Not Exist(iii) The Swaps Litigation(D) SHOULD ABSENCE OF BASIS BE RECOGNIZED AS A GROUND OF RESTITUTION?INCAPACITYGENERAL PRINCIPLES(A) INCAPACITY OF THE CLAIMANT(i) Absence or Vitiation of Intent(ii) Policy Demands Restitution(B) INCAPACITY OF THE DEFENDANT(i) Defendant’s Incapacity as a Defence(ii) Defendant’s Incapacity as a Ground of RestitutionTHE CATEGORIES OF INCAPACITY(A) MENTAL INCAPACITY(i) Powers of the Court of Protection(ii) Non Est Factum(iii) Exploitation(iv) Incapacity(B) INTOXICATION(C) SOMNAMBULISM(D) MINORITY(i) The Problems Raised by Minority(ii) The Effect of Minority on the Validity of Contracts(iii) The Effect of Minority on Other Transactions(iv) The Role of Minority in Restitutionary Claims(E) INCAPACITY OF PUBLIC AUTHORITIESRESTITUTION FROM PUBLIC AUTHORITIESGENERAL ISSUES(A) PRAGMATISM AND POLICY(i) Constitutional Considerations(ii) Implications for the General Community(iii) Balancing Principle and Pragmatism(B) DEFINING PUBLIC AUTHORITIES(C) ESTABLISHING UNJUST ENRICHMENT(i) Invalid Statutory Provisions(ii) Unauthorized Transactions(iii) MistakeTHE GROUNDS OF RESTITUTION(A) MISTAKE(B) DURESS(C) EXTORTION BY COLOUR OF OFFICE (COLORE OFFICII)(i) Defining Extortion by Colour of Office(ii) Identifying Extortion by Colour of Office(iii) Is Extortion by Colour of Office Still a Significant Ground of Restitution?(D) TOTAL FAILURE OF BASIS(E) ABSENCE OF BASIS(F) ULTRA VIRES RECEIPT(i) The Background(ii) The Woolwich Ground(iii) Determining the Ambit of the Ground of Ultra Vires ReceiptPARTICULAR STATUTORY PROVISIONS(A) TAXES MANAGEMENT ACT 1970(B) VALUE ADDED TAX ACT 1994, SECTION 80DEFENCES(A) LIMITATION PERIODS(B) CHANGE OF POSITION(C) PASSING ON(D) SETTLEMENT(E) CHANGE IN A SETTLED VIEW OF THE LAW(F) DISRUPTION OF PUBLIC FINANCESIII RESTITUTION FOR WRONGS GENERAL PRINCIPLESTHE ESSENCE OF RESTITUTION FOR WRONGS(A) THE RELATIONSHIP BETWEEN RESTITUTION FOR WRONGS AND THE REVERSAL OF UNJUST ENRICHMENT(i) Proof of a Cause of Action Involving Wrongdoing(ii) The Wrong Triggers Gain-Based Remedies(iii) The Defendant Obtained a Benefit(B) ADVANTAGES OF TREATING RESTITUTION FOR WRONGS AS NOT FOUNDED ON UNJUST ENRICHMENT(C) ALTERNATIVE ANALYSIS(D) DOES RESTITUTION FOR WRONGS PROPERLY FORM PART OF THE LAW OF RESTITUTION?(E) THE RELATIONSHIP BETWEEN RESTITUTION FOR WRONGS AND PROPRIETARY RESTITUTIONARY CLAIMSTHE PRINCIPLES UNDERLYING THE AWARD OF RESTITUTIONARY REMEDIES FOR WRONGS(A) THE FUNDAMENTAL PRINCIPLES(B) DETERMINING WHICH WRONGS WILL TRIGGER A GAIN-BASED RESPONSE(i) Interference with Property Rights(ii) Deterrence and Ethical Standards(iii) Inadequacy of Compensatory RemediesTHE TYPES OF GAIN-BASED REMEDY FOR WRONGDOING(A) MONEY HAD AND RECEIVED(B) ACCOUNT OF PROFITS(C) RESTITUTIONARY DAMAGES(i) The Nature of Restitutionary Damages(ii) Are ‘Restitutionary Damages’ Really Restitutionary?(D) NEGOTIATION DAMAGES(E) EXEMPLARY DAMAGES(F) CONSTRUCTIVE TRUST(G) RESTORATION OF PROPERTY(H) INJUNCTIONSCAUSATION AND REMOTENESS(A) THE GENERAL PRINCIPLE OF CAUSATION(B) ASSESSING THE DEFENDANT’S CONTRIBUTION(C) THE PRINCIPLE OF REMOTENESS OF GAIN(D) MORE THAN ONE VICTIMTHE RELATIONSHIP BETWEEN GAIN-BASED AND COMPENSATORY REMEDIES FOR WRONGDOING(A) ELECTION BETWEEN INCONSISTENT REMEDIES(B) WHEN MUST THE ELECTION BE MADE?(C) TANG MAN SIT V CAPACIOUS INVESTMENTS LTD(D) DETERMINING WHEN COMPENSATORY AND GAIN-BASED REMEDIES ARE INCONSISTENT(E) INADEQUACY OF COMPENSATORY DAMAGESTHE AVAILABLE DEFENCES FOR RESTITUTION FOR WRONGS(A) RESTITUTIONARY CLAIM FOUNDED ON THE DEFENDANT’S WRONGDOING(B) APPLICATION OF THE GENERAL DEFENCES TO RESTITUTIONARY CLAIMS(C) RESTITUTIONARY CLAIM FOUNDED ON THE REVERSAL OF THE DEFENDANT’S UNJUST ENRICHMENTRECOMMENDATIONS FOR REFORMRESTITUTION FOR TORTSGENERAL PRINCIPLES(A) THE DOCTRINE OF WAIVER OF TORT(i) Waiver of a Compensatory Remedy(ii) Waiver of the Cause of Action(iii) Ratification of the Defendant’s Wrongdoing(B) IS THERE A ROLE FOR THE DOCTRINE OF WAIVER OF TORT IN THE MODERN LAW OF RESTITUTION?(C) RESTITUTIONARY REMEDIES FOR TORTS(i) General Principles(ii) The Obstacle of Phillips v HomfrayTORTS FOR WHICH GAIN-BASED REMEDIES ARE AVAILABLE(A) TRESPASS TO LAND(i) Capital Value of Land(ii) Use of Land(B) CONVERSION(C) INTERFERENCE WITH INTELLECTUAL PROPERTY RIGHTS(i) Breach of Copyright(ii) Infringement of Patents(iii) Passing Off(iv) Infringement of Trademarks(D) PRIVATE NUISANCE(E) DECEIT(F) RECEIPT OF PRIVATE INFORMATION(G) BREACH OF STATUTORY DUTYIS THERE A GENERAL PRINCIPLE IN FAVOUR OF THE AWARD OF GAIN-BASED REMEDIES FOR TORTS?RESTITUTION FOR BREACH OF CONTRACTGENERAL PRINCIPLES(A) THE GENERAL PRINCIPLE DENYING RESTITUTION FOR BREACH OF CONTRACT(B) METHODS FOR AWARDING GAIN-BASED REMEDIES FOR BREACH OF CONTRACT(i) Alternative Analysis(ii) Contractual Term Specifying a Restitutionary Remedy(iii) Identification of a Fiduciary Relationship(iv) Tortious Wrongdoing(v) Price Payable for Interference with Property Rights(C) ATTORNEY-GENERAL V BLAKE: THE NEW APPROACH(i) The Approach of the Court of Appeal(ii) Principles Underpinning the Decision of the Majority in the House of Lords(iii) Lord Hobhouse’s Dissent(iv) Subsequent Developments(v) Summary of the Key PrinciplesSHOULD GAIN-BASED REMEDIES GENERALLY BE AVAILABLE FOR BREACH OF CONTRACT?(A) HOW WRONGFUL IS A BREACH OF CONTRACT?(B) IDENTIFYING SITUATIONS WHERE THE BREACH OF CONTRACT IS SUFFICIENTLY WRONGFUL(i) Cynical Breach of Contract(ii) Defendant Entered into a More Profitable Contract(iii) Specifically Enforceable Contracts(C) CONCLUSIONSRESTITUTION FOR EQUITABLE WRONGDOINGGENERAL PRINCIPLES(A) THE RATIONALE BEHIND THE AWARD OF GAIN-BASED REMEDIES FOR EQUITABLE WRONGDOING(B) TYPES OF REMEDY WHICH ARE AVAILABLE FOR EQUITABLE WRONGDOING(i) Account of Profits(ii) Proprietary Remedies(iii) Equitable CompensationTHE CATEGORIES OF EQUITABLE WRONGDOING(A) BREACH OF FIDUCIARY DUTY(i) The Identification of Fiduciary Relationships(ii) The Nature and Ambit of Fiduciary Duties(iii) The Categories of Fiduciary Relationship(iv) Gain-Based Remedies Which Are Available for Breaches of Fiduciary Duty(B) BREACH OF CONFIDENCE(i) The Doctrinal Basis of Breach of Confidence(ii) The Identification of the Duty of Confidence(iii) Gain-Based Remedies for Breach of Confidence(C) EQUITABLE ESTOPPEL(i) Establishing the Estoppel(ii) Identifying the Appropriate Relief(D) DISHONESTLY INDUCING OR ASSISTING IN A BREACH OF TRUST OR FIDUCIARY DUTY(i) Establishing Liability for Dishonest Assistance(ii) Determining the Remedy Which is AwardedCRIMINAL OFFENCESGENERAL PRINCIPLES AND POLICIESRESTITUTIONARY CLAIMS BROUGHT BY THE VICTIM(A) THE GENERAL PRINCIPLE(B) CLAIMS FOUNDED ON UNJUST ENRICHMENT(C) CLAIMS FOUNDED ON THE VINDICATION OF PROPERTY RIGHTS(D) CLAIMS FOUNDED ON WRONGDOING(i) Torts and Breaches of Fiduciary Duty(ii) Founding a Claim on the Crime Itself(iii) Obstacles to Restitutionary Claims Founded on Crimes(iv) The Potential Implications of Recognizing Restitutionary Claims Founded on Crimes(v) Restitution from Third PartiesRESTITUTIONARY CLAIMS BROUGHT BY THE STATE(A) THE STATUTORY CONFISCATION REGIME FOLLOWING CRIMINAL CONVICTION(i) Definition of Benefit(ii) Obtaining a Benefit(iii) Total Value or Profit?(iv) Joint Receipt(v) Couriers or Custodians(vi) Money Launderers(vii) Tainted Gifts(B) CRIMINAL MEMOIRS(C) CIVIL RECOVERY ORDER(D) COMMON LAW CLAIMS FOR RESTITUTIONDENIAL OF BENEFITS ARISING FROM THE COMMISSION OF CRIMES(A) DOES THE DENIAL OF BENEFITS TO A CRIMINAL FORM PART OF THE LAW OF RESTITUTION?(B) THE FORFEITURE PRINCIPLE (i) The Ambit of the Forfeiture Principle(ii) The Relationship Between the Forfeiture Principle and the Illegality Defence(iii) The Rationale of the Forfeiture Principle(C) THE FORFEITURE RULE(i) The Types of Unlawful Killing Which Trigger the Forfeiture Rule(ii) Proving the Killer’s Guilt(iii) Application of the Forfeiture Rule(iv) The Forfeiture Act 1982IV PROPRIETARY RESTITUTIONARY CLAIMSESTABLISHING PROPRIETARY RESTITUTIONARY CLAIMSTHE NATURE OF PROPRIETARY RESTITUTIONARY CLAIMS(A) QUESTIONS OF TERMINOLOGY(B) THE NATURE OF THE RESTITUTIONARY REMEDY(i) Personal Restitutionary Remedies(ii) Proprietary Restitutionary Remedies(C) THE NATURE OF THE CLAIM(i) Distinguishing Between Vindication of Property Rights and Reversal of Unjust Enrichment(ii) The Relationship Between Proprietary Restitutionary Claims and Restitution for Wrongs(D) THE ROLE OF DISCRETION(E) A FRAMEWORK FOR ANALYSING A TYPICAL PROPRIETARY RESTITUTIONARY CLAIMIDENTIFICATION OF THE PROPRIETARY INTEREST(A) RETENTION OF A PROPRIETARY INTEREST(i) The General Rules for the Passing of Title(ii) Circumstances in Which Title Will Not Pass(iii) Particular Circumstances in Which Title Will Pass(iv) Particular Circumstances in Which Title Will Be Revested in the Claimant(v) Retention of Equitable Title(B) CREATION OF A PROPRIETARY INTEREST(i) The Express Trust(ii) The Resulting Trust(iii) The Constructive TrustFOLLOWING AND TRACING(A) THE FUNCTION OF FOLLOWING AND TRACING(i) The Essence of Following(ii) The Essence of Tracing(iii) Tracing into Substitute Assets(iv) Distinguishing Between Tracing and Claiming(v) Distinguishing Between Tracing at Common Law and in Equity(B) FOLLOWING(C) TRACING AT COMMON LAW(i) Tracing into Pure Substitutes and Products(ii) Tracing into Profits(iii) Tracing into Mixed Products(D) TRACING IN EQUITY(i) The Fiduciary Requirement(ii) Unmixed Funds(iii) Mixed Funds(iv) Restrictions on Equitable Tracing(v) A Move to a More Pragmatic Approach?(E) THE FUTURE OF THE TRACING RULESRESTITUTIONARY CLAIMS AND REMEDIES TO VINDICATE PROPERTY RIGHTSGENERAL PRINCIPLES(A) PROPRIETARY AND PERSONAL REMEDIES(B) DISTINGUISHING BETWEEN CLAIMS AND REMEDIESPROPRIETARY CLAIMS AND REMEDIES(A) COMMON LAW PROPRIETARY CLAIMS AND REMEDIES(B) EQUITABLE PROPRIETARY CLAIMS AND REMEDIES(i) Constructive Trust(ii) Equitable Charge(iii) SubrogationPERSONAL CLAIMS AND REMEDIES(A) PERSONAL CLAIMS AND REMEDIES AT LAW(i) Conversion(ii) Action for Money Had and Received(iii) Action for Debt(B) PERSONAL CLAIMS AND REMEDIES IN EQUITY(i) Administration of Estates(ii) Action for Unconscionable Receipt(iii) SubrogationTHE DEFENCE OF BONA FIDE PURCHASETHE FUNCTION OF THE DEFENCEAMBIT OF THE DEFENCE(A) COMMON LAW(i) The Defence is Generally Inapplicable(ii) Proprietary Restitutionary Claims to Money(B) EQUITYCONDITIONS FOR ESTABLISHING THE DEFENCE(A) GOOD FAITH(i) Common Law(ii) Equity(B) PURCHASE FOR VALUEOPERATION OF THE DEFENCE(A) A COMPLETE DEFENCE(B) THE DEFENCE MAY BE APPLICABLE EVEN THOUGH THE DEFENDANT WAS NOT A BONA FIDE PURCHASER(C) THE DEFENCE APPLIES REGARDLESS OF WHETHER THE CLAIMANT SEEKS A PERSONAL OR PROPRIETARY RESTITUTIONARY REMEDY(D) RESURRECTION OF THE PROPRIETARY INTERESTV GENERAL DEFENCES TO RESTITUTIONARY CLAIMSFUNDAMENTAL PRINCIPLESTHE FUNCTION AND AMBIT OF GENERAL DEFENCES(A) THE DISTINCTION BETWEEN DEFENCES AND DENIALS(B) THE PRINCIPLES UNDERLYING THE GENERAL DEFENCES(i) Justice Favours the Defendant Retaining the Benefit(ii) Security of Receipt(C) CLASSIFICATION OF DEFENCES AS ‘ENRICHMENT-RELATED’ AND ‘UNJUST-RELATED’DEFENCES ARISING FROM CHANGES IN THE DEFENDANT’S CIRCUMSTANCESESTOPPEL BY REPRESENTATION(A) THE CONDITIONS FOR ESTABLISHING THE DEFENCE OF ESTOPPEL(i) The Defendant is Led to Believe that He or She is Entitled to the Benefit(ii) Reliance by the Defendant(iii) Change of Circumstances(iv) The Justice of the Case(B) THE CONSEQUENCE OF THE CLAIMANT BEING ESTOPPED(i) De Minimis(ii) Apportionment of Payments(iii) Imposition of Conditions(iv) Shifting the Burden of Proof(v) Unconscionability(C) IS THERE A CONTINUING ROLE FOR THE ESTOPPEL DEFENCE?TRANSFER OF A BENEFIT BY AN AGENT TO HIS OR HER PRINCIPAL(A) FEATURES OF THE AGENT’S DEFENCE(i) The Defendant Must Have Received the Benefit as Agent(ii) The Benefit Must Be Transferred to the Principal(iii) The Agent Must Not Have Notice of the Grounds for a Restitutionary Claim(iv) The Agent Must Not Be Implicated in Wrongdoing(v) No Need to Show Detriment(vi) The Defence Operates Pro Tanto(vii) The Defence is Available to All Restitutionary Claims(B) THE RATIONALE OF THE AGENT’S DEFENCE(i) The Defendant is No Longer Enriched(ii) The Justice of the Case(iii) Determining the Proper Party to Sue(iv) EstoppelCHANGE OF POSITION(A) RECOGNITION OF THE DEFENCE(B) THE RATIONALE OF THE CHANGE OF POSITION DEFENCE(C) THE CONDITIONS FOR ESTABLISHING THE CHANGE OF POSITION DEFENCE(i) Causation(ii) Whether it is Inequitable to Make Restitution(D) THE APPLICATION OF THE DEFENCE(i) Claims Founded on the Reversal of the Defendant’s Unjust Enrichment(ii) Restitution for Wrongs(iii) Restitutionary Claims Founded on the Vindication of Proprietary Rights(E) THE RELATIONSHIP BETWEEN CHANGE OF POSITION AND OTHER DEFENCES(i) The Relationship Between Change of Position and Estoppel(ii) The Relationship Between Change of Position and the Agent’s DefencePASSING ON AND MITIGATION OF LOSSPASSING ON(A) THE GENERAL PRINCIPLE(B) JUDICIAL EXAMINATION OF THE DEFENCE(i) Recognition of the Defence(ii) Rejection of the Defence(C) SHOULD THE DEFENCE OF PASSING ON BE RECOGNIZED?MITIGATION OF LOSSILLEGALITYGENERAL PRINCIPLES(A) PUBLIC POLICY AND JUSTICE(B) THE EX TURPI CAUSA PRINCIPLE(C) QUALIFYING EX TURPI CAUSA(D) PUBLIC POLICY AND THE LAW OF RESTITUTION(E) ILLEGALITY IN EQUITYTHE POLICIES UNDERPINNING THE ILLEGALITY DEFENCE(A) CONSISTENCY(B) DETERRENCE(C) PUNISHMENT(D) DIGNITY OF THE COURT(E) SUMMARYDEFINING TURPITUDEMECHANISMS FOR EXCLUDING THE ILLEGALITY DEFENCE(A) NO RELIANCE ON ILLEGALITY(B) WITHDRAWAL FROM AN ILLEGAL TRANSACTION(C) THE PARTIES ARE NOT IN PARI DELICTO(i) Compulsion(ii) Actual or Potential Exploitation(iii) Restitution for Wrongs(iv) Failure of Basis(v) Summary(D) THE POLICY BEHIND THE ILLEGALITY(E) CLOSE CONNECTION OR INEXTRICABLE LINKSERIOUS CRIMINAL CULPABILITYTHE PREFERRED APPROACHINCAPACITYQUESTIONS OF POLICY(A) DOES AN INCAPACITATED DEFENDANT DESERVE TO BE PROTECTED FROM RESTITUTIONARY CLAIMS?(B) WOULD THE AWARD OF A RESTITUTIONARY REMEDY TO THE CLAIMANT SUBVERT THE LAW OF CONTRACT?MINORITY(A) RESTITUTIONARY CLAIMS FOUNDED ON THE REVERSAL OF UNJUST ENRICHMENT(i) The Supply of Necessaries(ii) The Supply of Non-Necessary Benefits(B) RESTITUTIONARY CLAIMS FOUNDED ON WRONGDOING(i) Tort(ii) Equitable Wrongdoing(iii) Crime(iv) Breach of Contract(v) Conclusions(C) RESTITUTIONARY CLAIMS FOUNDED ON THE VINDICATION OF PROPERTY RIGHTSMENTAL INCAPACITYINSTITUTIONAL INCAPACITY(A) REJECTION OF A DEFENCE OF INSTITUTIONAL INCAPACITY(B) IMPLICIT RECOGNITION OF A DEFENCE OF INSTITUTIONAL INCAPACITYSHOULD A DEFENCE OF INCAPACITY BE RECOGNIZED?LIMITATION PERIODS AND LACHESLIMITATION PERIODS(A) REVERSAL OF THE DEFENDANT’S UNJUST ENRICHMENT(i) The Usual Limitation Period(ii) Qualification of the General Limitation Period for Particular Restitutionary Claims(iii) The Determination of When Time Starts to Run(iv) Should a Different General Limitation Period Be Recognized?(B) RESTITUTION FOR WRONGS(i) Restitutionary Claims Founded on the Commission of Tort or Breach of Contract(ii) Restitutionary Claims Founded on Equitable Wrongs(C) VINDICATION OF PROPRIETARY RIGHTS(i) Land(ii) Restitutionary Claims in Respect of Converted Goods(iii) Recovery of Stolen Property(iv) Equitable Proprietary ClaimsLACHES(A) THE FUNCTION OF THE LACHES DEFENCE(B) ESTABLISHING LACHESREFORM OF THE LAW ON LIMITATION PERIODSBIBLIOGRAPHY
