(B) CRITICISMS OF ABSENCE OF BASIS
In most cases it will not matter whether the unjust enrichment claim is analysed as involving positive grounds of restitution or absence of basis, as reflected by the fact that Birks was able to reach the same result in many of the cases which relied on these specific grounds by resorting to his absence of basis analysis. Indeed, in Kelly v Solari,[1] one of the leading cases on restitution for mistake, Parke B adopted a dual analysis. He concluded that insurers, who had mistakenly paid money under an insurance policy which had lapsed, were able to obtain restitution, both because the defendant was not entitled to receive the money and because the insurers’ mistaken belief as to the liability to pay meant that they did not intend the defendant to receive the money.
Even so, Birks was adamant that a choice had to be made between the two approaches, both as a matter of principle and also because sometimes different results would be achieved depending on which approach was adopted. It is therefore necessary to decide whether the absence of basis approach is preferable to that which requires the identification of specific grounds of restitution. The preference is most definitely for the latter approach, for a number of reasons.[2]
- [1] (1841) 9 M&W 45, 59; 152 ER 24, 26 (Parke B). See p 165, below.
- [2] See also HW Tang, ‘Natural Obligations and the Common Law of Unjust Enrichment’ (2006) 6 OUCLJ133; D Sheehan, ‘Unjust Factors or Restitution of Transfers Sine Causa’ (2008) Oxford University ComparativeLaw Forum 1; GJ Virgo, ‘Demolishing the Pyramid—the Presence of Basis and Risk-Taking in the Law ofUnjust Enrichment’ in A Robertson and HW Tang (eds), The Goals of Private Law (Oxford: Hart Publishing,2009), 477.
