(B) REQUEST

Since the subjective devaluation defence operates to respect the defendant’s autonomy, such that the defendant is free to decide that he or she does not value the benefit which the claimant has transferred, it must follow that the defendant cannot rely on the defence where he or she requested the benefit in the first place.^[1] Proof of the request must mean that the defendant wanted the benefit and so valued it. The existence of a request by the defendant must, however, be treated with caution, since it may provide the basis for implying a contract to pay for the benefit.^[2] Where such a contract can be implied, the defendant will be liable on the contract rather than in the law of unjust enrichment.^[3]

Whether the defendant had requested the benefit will require careful analysis of the facts. In Re Cleadon Trust Ltd^[4] the secretary of the defendant company had requested the claimant, a director of the company, to pay a sum of money to meet the financial obligations of two of the defendant’s subsidiaries. The claimant paid the money which was due, on the footing that his payment was a loan to the defendant.^[5] A meeting of the defendant’s board of directors purported to confirm that the money had been paid at the defendant’s request. The defendant was wound up, and the claimant sought to recover the loan. His claim was unsuccessful because the directors’ meeting, which purported to confirm that the money had been paid at the company’s request, was inquorate. This meant that there was no organ of the company which was capable of requesting the benefit. It was, however, accepted that if the directors’ meeting had been quorate then the claim would have succeeded by reason of the defendant’s acceptance of the benefit.^[6]

• [1] Benedetti v Sawiris [2013] UKSC 50, [2014] AC 938, [25] (Lord Clarke). See also Lawford v TheBillericay RDC [1903] 1 KB 772.
• [2] See p 135, below. 143 See p 134, below. 144 [1939] Ch 286.
• [3] 145 This was not money paid to the defendant, which would have been an incontrovertible benefit, but
• [4] money paid on behalf of and for the benefit of the defendant, so it was possible for the defendant to subjectively
• [5] devalue it.
• [6] Re Cleadon Trust Ltd [1939] Ch 286, 298 (Sir Wilfrid Greene MR).