(D) SPECIFIC BARS TO RESTITUTIONARY CLAIMS FOUNDED ON MISTAKE
Once the claimant has established that the defendant was enriched at the expense of the claimant as a result of an operative mistake, a restitutionary remedy will be awarded. The claim for restitution will be barred, however, either where the claimant is considered to be a risk-taker,[1] or where there was a legal basis for the defendant’s receipt of the enrichment.2 3 There is one bar which has specifically been recognized as relevant to claims grounded on mistake, known misleadingly as ‘the defence of good consideration’. It has also sometimes been suggested that specific bars should be recognized where the claim is grounded on mistake of law. It is appropriate to consider these bars here. It is important to emphasize, however, that whilst these are sometimes analysed as defences, they are preferably treated as denials of the cause of action.[2] It follows that, whilst the defendant may plead these bars, the claimant bears the burden of proving that they do not apply, for otherwise the cause of action cannot be established.
