An American attempt to describe the law of restitution. Eventually, they did give up and just call it restitution, but the fact they didn’t do this straight away does show how they were struggling to understand how this “duck-billed platypus” of the common law fitted into the grand scheme of things. That struggle goes on, with unfortunate decisions such as Citigroup v Brigade Capital Management.
Restitution — a.k.a unjust enrichment, or money had and received — is a claim made feasible through an imaginative synthesis of long-“forgotten” rules of the common law, dreamt up by Lord Goff to bring justice to little old ladies, welsh hoteliers and others — not, apparently, including financial services conglomerates — who have been dealt a short hand by the cosmic game.
Difficult cases involving such unfortunates (and the odd gambling-addict conveyancer) gave rise to an entire branch of civil law known as restitution, a common lawyer’s duck-billed platypus: an ancient civil action, latterly back in fashion, that sounds neither in contract — there is none — or tort — there has been none — but sits uneasily between them, in its own jurisprudential space, rather like our old friend Bob Cunis: neither one thing nor the other; a sort of law of equity for people who don’t like the law of equity or the floppiness and uncertainty it tends to bring.
Restitution isn’t an action in contract, and it isn’t one in tort. It is precisely what you get where there isn’t a contract, and there hasn’t been a tort.
But the Americans do like their quasi-legal concepts. Quasi-agency is another.
- ↑ “Indebitatus assumpsit”, for example.
- ↑ See, particularly, Lipkin Gorman v Karpnale Ltd and Barclays Bank Ltd v WJ Simms