Over a period of time, issues of unjust enrichment have been a part of the law of restitution. This incorporates all the remedies depriving the defendant of a profit instead of granting reimbursement for the loss that the claimant has suffered. The law of restitution liberated itself only after the revolutionary judgement of the House of Lords in Lipkin Gorman v karpanle Ltd. and Woolwich Equitable Building Society v IRC. “The defence of change of position will be available to a defendant who has received property and on the faith of the receipt of that property, suffered some change in the personal circumstance”. A person, who has changed positions in ‘bad faith’, is not accessible to defence. Defence is accessible to someone whose position has changed in such a way that it would be prejudiced in all available circumstances for him to make restitution or also make restitution in full. Also, if a defendant has consumed all the money, this will not establish change of position. Some may be unaware, but law has accredited change of position for over 50 years but only in the framework of frustrated contracts. The House of Lords annulled the judgement of Baylis v Bishop of London in which a bishop was unsuccessful to raise a defence of change of position. Defence of change is position is based on the idea of ‘balance of justice’ between the parties. It is also known that change of position is centred on the idea of ‘principle’ and not on ‘discretion’. The defendant’s position must have changed detrimentally. When a defendant has control over a particular asset, the courts are usually hesitant to let the change of position defence, till the time the owner is still deepened by possession of that particular asset. Lord Temple... ... middle of paper ... ...ve no clear definition of the ‘wrongdoer’. We do not know if this word has something to do with illegality, or if someone has behaved in a morally offensive way. In the case of, Equiticop Industries Group v. R. , Smellie J held that the New Zealand government could not raise defence in certain matters of payments, which were made to purchase a share and buy-back schemes which infringed the New Zealand Companies Act 1955, s 62, which clearly forbids the buying of your company shares. In the case Philip Collins Ltd v Davis Jonathan Parker J identified that the burden of evidence was on the defendant to establish the change of position, but he also realised that the court should not implement a very strict standard of proof. Recent arguments about the type of the law of restitution have usually focussed on the theoretical issue and very less on the practical side.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
Question Presented: Petitioner Giridar C. Sekhar was convicted of extortion under the federal law for potentially exposing an extramarital affair unless the general counsel for the state comptroller recommended that the state pension fund invest in a fund managed by Sekhar’s company. The meaning of the word “property” would be determined by the courts under the federal extortion law. They would also decide whether the General Counsel had recommended the “property” and if it could be subject to extortion by the federal law. The petitioner had argued for a narrow of the meaning or definition of the word “Property”. He wished that it were brought to the meaning of something that is of value and that is transferable.
Liability in restitution with disgorgement of profit is an alternative to liability for contract damages measured by injury to the promisee.” (2011)
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Major problems were experienced in the early years after the Act over how the preserved common law conspiracy to defraud dovetailed with the new statutory conspiracy to commit a crime as frequently, an agreement to defraud will necessarily involve an agreement to commit a substantive offence entailing dishonesty such as theft or the new offence of fr...
Terence Etherton (2008) – Constructive trusts: a new model for equity and unjust enrichment. Cambridge Law Journal
In doing so, the court departed from the previous rulings in Lister and Sinclar which only found a personal claim. FHR has attracted academic debates, not least because the effect on unsecured creditors. In this respect, Goode 2011 finds it hardly justifiable to allow a principal to rank ahead of the unsecured creditors who have given consideration. Furthermore, Rotherham deems that the finding of constructive trust does not reflect the true intention of briber, because the bribe arguably was never intended for the principal. These points have been noted by Lord Neuberger in FHR, who opined that these should be outweighed by the principal’s proprietary claim. Firstly, the bribe money should not be in the fiduciary’s estate in the first place. Secondly, the payment as such had very often reduced the benefit of the principal relevant transaction and thus can be seen as belonging to the
Nozick’s entitlement theory includes three core principles: justice in acquisitions, justice in transfer, and rectification of injustice. These three principles dictate how holdings are to be acquired, transferred, and accounted for if holdings were illegitimately acquired. Nozick determines that as long as individual actions and holdings adhere to these justice-preserving principles, the resulting distribution is just. A distinction exists between historical principles and end state principles in terms of a distribution. Historical principles requires the examination of historical details about how a distribution resulted to determine whether or not the distribution is just. Conversely, an end state principle only requires examining the distribution itself.
"The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue."
...n the case of Bacchan Singh, it was given not to restore the interest of the plaintiff but to show what punishment should a person have to for committing a crime with that much level of seriousness.
...le who are in similar scenarios as Mr. Macaura, to be aware of their legal rights within a company and what their insurable interest would be. To be aware of what being a sole shareholder of a corporation entails and what would happen legally if anything went wrong. This case is a good example of how the law sees corporations and those who own and manage it, as well as legally what needs to be decided even if it may come across as “not fair”. The law generally does not operate under what is “fair” but instead under what is justified. Its true that the law was not “fair” towards Mr. Macaura, and in the end he was the one who suffered, however legally the decision was just and right.