AGENCY AND OTHER PRE-EXISTING LEGAL RELATIONSHIPS

The only substantive difference between this ground of restitution and that of necessitous intervention by a stranger is that this second ground depends on there being some form of pre-existing legal relationship between the parties.[1] The importance of this difference is simply that, where there is such a relationship, when the claimant intervenes in circumstances of necessity he or she will generally be considered to have been an appropriate person to intervene, with the consequence that it will be much more difficult to characterize the claimant as a volunteer.78 Nevertheless, even though there is a pre-existing legal relationship between the parties, it will still be vital for the claimant to show that his or her conduct was reasonable before restitution can be awarded and the general principles as to what constitutes reasonable conduct are relevant here, as in the case where a stranger has intervened.[2] Whether, however, this ground of restitution has any remaining significance to the law of unjust enrichment turns on whether the defendant’s liability arises by virtue of the pre-existing relationship or by reference to the law of unjust enrichment.[3]

  • [1] 78 The Winson [1982] AC 939, 961 (Lord Diplock).
  • [2] See p 293, above. 2 See further p 304, below. 3 Gaudetv Brown (1873) LR 5 PC 134.
  • [3] 82 (18 74) LR 9 Ex 132. This is now properly analysed as a case where the defendant’s liability to the claimant
 
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