Barclays Bank Ltd v WJ Simms: Difference between revisions

There is a conundrum at the heart of this decision, in that it depends whether you regard it primarily one of [[agency]] or [[restitution]]. As the [[ostensible agent]] of the debtor, the bank’s performance of the contract ought to bind the principal the same way the direct action of the principal would.<ref>It is not just the [[JC]] that says this: So did Professor Roy Goode in the Law Quarterly Review: "The bank’s right to recover money paid on a stopped cheque" (1981) 97 LQR 254. </ref> But this puts the bank in an invidious position: it has discharged the customer’s debt, but in acting outside its mandate, so the customer is not obliged to reimburse it. But an agent should not become liable as principal. The better approach is to say ''the sum was not due'', so was not obliged to be paid. Therefore it was paid outside the terms of the contract, and resitutionary principles can apply.

{{sa}}

*[[Durum caseum]]