Basis for these purposes refers to the condition which constituted the ground for the claimant transferring a benefit to the defendant. The basis is to be determined objectively rather than by reference to the subjective motives of the claimant.[1] Any particular purpose or motive of the claimant in transferring the enrichment can, however, be taken into account in identifying the basis, but only if such a purpose or motive had been communicated to the defendant before the enrichment was transferred or any contract was made,[2] so that the defendant had an opportunity to object to it,[3] so that the basis can be considered to be shared.[4] So, for example, a basis will not be identified where the claimant cleaned the defendant’s car without the defendant’s knowledge or prior request, but in the expectation that the defendant would pay for the work. The claimant cannot establish that there has been a failure of basis if the defendant refuses to pay, since there was no understanding between the parties that it was a condition of the claimant doing the work that the defendant would pay. Denial of restitution in such circumstances is consistent with the general principle that no claimant can obtain restitution where he or she is a volunteer who has taken the risk of not being paid for doing the work.[5]

The basis for the transfer of an enrichment can be interpreted in two different ways, depending on the nature of the condition.

  • [1] 13 Lissack v Manhattan Loft Corporation Ltd [2013] EWHC 128 (Ch).
  • [2] 14 Giedo van der Garde BV v Force India Formula One Team Ltd [2010] EWHC 2373 (QB), [286]
  • [3] (Stadlen J).
  • [4] See Burgess v Rawnsley [1975] Ch 429, 442 (Browne LJ). In Lissack v Manhattan Loft Corporation Ltd[2013] EWHC 128 (Ch), [87] Roth J considered it sufficient that the defendant ought reasonably to haveknown that the claimant expected to be paid for the benefit transferred.
  • [5] See p 36, above.
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