Transcript Principles of Private Law

Principles of Private
Law
The Melbourne JD
Trimester 2, 2005
Dr. Paul Vout
Lecture 10 – Restitution for Unjust
Enrichment
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The role of restitution for unjust enrichment
The demise of ‘quasi-contract’ and implied
assumpsit
Elements
What is ‘unjust’?
Defences
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Lecture Objectives
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By the end of this lecture you should:
Understand the concept of unjust enrichment
and its remedy
Understand where unjust enrichment fits into
the matrix of private law (the law of ‘snot?)
Be aware of the terms ‘quasi-contract’ and
‘implied assumpsit’
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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A Third Force?
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Seen by some as the third force in a trinity of private law:
contract, tort - and unjust enrichment
Legal relief in contract is based on compensation for a failure to
perform or complete an exchange – breach of voluntarily
assumed obligation
Legal relief in tort is based upon compensation for the harm
flowing from a legal wrong – breach of an imposed obligation
Legal relief in unjust enrichment involves neither the
requirement of a wrong, nor relief by way of compensation
It is the restitution or restoration of a benefit gained in specific
circumstances which are regarded in law as unjust
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Demise of Quasi-contract and
Implied Assumpsit
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Courts traditionally looked for some implied agreement
that if the intention behind a payment was vitiated, the
payment could be recovered
Referred to as quasi-contract, which in turn arose from
implied assumpsit – an implied undertaking by a party
This basis for restitution in a range of circumstances
was rejected in favour of the doctrine of restitution for
unjust enrichment in Pavey & Matthews Pty Ltd v Paul
(1987) 162 CLR 221 per Mason, Wilson and Deane JJ
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Elements
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See United States Restatement of Restitution
A benefit which has been unjustly received (the
“enrichment”)
A loss or detriment suffered, usually by the plaintiff
A rule of law which deems the enrichment (or the
retention of it) “unjust”
A prima facie duty to make restitution
Absence of a valid legal basis for the payment or
transaction (including voluntariness or election)
Absence of a defence
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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“Unjust”
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The doctrine seeks to unify the principles upon which
restitution has been required in diverse causes of action
These have in Australia included payments made by
mistake (of law or fact); and
Payments or benefits received under a contract made
invalid or unenforceable by statute – money had and
received, and quantum meruit
Other possibilities:
- compulsion;
- unconscionable conduct?
Must vitiate the intention to enrich the defendant.
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Restitution
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Implies the giving up of something
Is the same process as discussed in the case of
rescission of contracts
Involves giving up the benefit or its value in
money
Does not involve the payment of an expected
price or the compensation of a loss
Is the restoration of the items or the payment
of what is fair and reasonable in lieu thereof
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Defences
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Payer intends that the payee should have the payment in
all events (voluntary payment and/or election)
Payment is made for good consideration
Payee acted to its detriment in reliance on the payment
and in good faith – probably must point to expenditure
which can be ascribed to the mistaken payment – see
David Securities Pty Ltd v Commonwealth Bank of Australia
(1992) 175 CLR 353 at 385
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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Resulting or Implied Trusts
Included?
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Imperfect gifts, purchase in another’s name,
failure of an express trust, surplus after
fulfillment of purpose
Recipient holds the intended gift on trust for the
donor
Similar traits as unjust enrichment, though
different genesis
Involves a rebuttable presumption that the
resulting trust was intended
Trimester 2, 2005
Introduction to Private Law - The
Melbourne JD - Dr. Paul Vout
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