Restitution of Mistaken Enrichments

INTRODUCTIONThe restitution a mistaken payment is generally regarded as the paradigm example the restitution an enrichment. central issues are clear cut, the case law is voluminous, and mistaken payments are commonplace in everyday life. It follows that if we can be clear and content about our law on mistaken payments, we can use it as a model for much the rest the law on restitution an enrichment. This was the precise strategy used by Peter Birks in Unjust Enrichment.1 In the first paragraph, he described the mistaken payment a non-existent debt as the case; and he went on, The law is the law all events materially identical to the mistaken payment a non-existent debt.2 At the end the first chapter he wrote, Analysis the receipt a mistaken payment a non-existent debt reveals a causative event a third kind. It is not a manifestation consent such as a contract, and it is not a wrong. consequent liability, surprisingly first, is strict, albeit subject to defences. generic conception that causative event is the expense another. That generalization enables us to look for other examples materially identical to the core case.3We find a similar approach in the Restatement (Third) Restitution and Unjust Enrichment.4 introductory note under Benefits Conferred by in chapter 2 reads as follows:The relatively detailed treatment restitution for mistake within Chapter 2 should not be taken to indicate that the mistaken transferor receives broader protection from the law restitution than does, for example, the victim fraud or duress. . . . Mistake receives more extensive treatment because its relatively voluminous and accessible case law, and because it offers a reliable template for analogous restitution claims.5It follows that, in welcoming the Restatement (Third) and in seeking to compare the law in England and the United States, no apology is needed for a paper examining mistaken enrichments.My particular focus is on four mistaken enrichments issues that are, present, hotly debated in England. I shall set out in some detail the English law and why it is proving controversial before looking the position on each under the Restatement (Third).Before proceeding any further, it is important the outset to appreciate that the approach taken throughout the Restatement (Third) is more contextual and less conceptual than that which would be adopted by restitution scholars in England. This is not intended as a criticism but rather is designed to ensure that English and American scholars are fully aware that, in trying to learn from each other, we have different starting points. So, for example, in chapter 1 on General Principles there are only four black letter propositions;6 none these four deals with what is meant by enrichment or at the expense the claimant or the approach to deciding injustice; and no fundamental distinction is drawn in those general principles between restitution an and restitution for wrongs.7 Admittedly, there is a sentence on the meaning at the expense of in the commentary to section 18 and some more extensive discussion enrichment in the commentary to section 19 and in relation to some other black letter rules (such as on benefits other than money conferred by mistake).10 distinction between restitution for and for wrongs is referred to very briefly in the commentary to section 1 where it is said that nothing practical turns on this . . . except the identification the applicable period limitations.11 There is barely any discussion the unjust factors as opposed to the absence basis approach to injustice that has traditionally distinguished common-law and civilian approaches to the subject and underpinned Birks's dramatic change heart in Unjust Enrichment. …