NECESSITY

GENERAL PRINCIPLES

(A) THE PRINCIPLE OF NECESSITY

In the same way that there are general principles of compulsion and exploitation on which a number of specific grounds of restitution are based, there is also a general principle of necessity by reference to which a number of specific grounds of restitution can be identified. Although the existence of a general principle of necessity is beyond doubt in English law,[1] the principle is not well developed in Common Law legal systems, unlike civil law systems which have a well developed doctrine of negotiorum gestio which is applicable where the claimant has provided a benefit to the defendant in circumstances of necessity.[2] Consequently, in English law the ambit and rationale of necessity within the law of restitution is a matter of some uncertainty. But it is clear that restitution by reference to necessity exists. This has been recognized by the Supreme Court in The Kos,[3] where, whilst a general rule against restitution on the ground of necessity was acknowledged,[4] the exceptions to it were considered to be more important.

  • [1] It was recognized by the House of Lords in Re F (Mental Patient:Sterilisation) [1990] 2 AC 1.
  • [2] See JP Dawson, ‘Negotiorum Gestio: The Altruistic Intermeddler’ (1961) 74 Harv LR 817; J Kortmann,Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford: Oxford University Press,2005).
  • [3] ENE Kos 1 Ltd v Petroleo Brasileiro SA (No 2) [2012] UKSC 17, [2012] 2 AC 164, [20] (Lord Sumption).
  • [4] Citing Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234, 248 (Bowen LJ).
 
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