Unjustified Enrichment Flashcards

Question

Authority for frustration and condictio causa date ?

Answer 1

Cantiere San Rocco v Clyde Shipbuilding & Engineering Authority for the fact that when transfer occurs under a valid contract, and that contract is subsequently frustrated, and an counter-performance has been performed, then condictio causa data is operative, and the transfer can be recovered If equitable to redress the enrichment and no defences

Answer 2

Two areas of uncertainty after breach of contract: rescinded contracts, where no counter-performance received acceptance of benefit after material breach of contract

Answer 3

General rule restitution not available under principles of unjustified enrichment and the CCDCNS (Connelly v Simpson) However, separate contractual restitutionary remedy might still be available (Stork Technical Services (RBG) Ltd v Ross's Executor 2015 S.L.T. 160) - a contractual remedy, not UE

Answer 4

if contracting party chooses to retain benefits arising from performance offered prior to rescission, then Unjustified Enrichment may apply in two situations: 1. Building Contracts: Ramsay v Brand (1898) 25 R 1212 2. Services Contracts: Graham v United Turkey Red 1922 SC 533

Answer 5

Graham v United Turkey Red Establishes that when performance is accepted during ongoing breach, but prior to rescission, the period between the breach and the rescission is operative for UE and condictio causa data

Answer 6

Recovery in UE when contracting parties have made part-performance of an illegal contract the condictio ob turpem is the claim for recovery of benefits transferred for illegal or immoral/blameworthy purpose.

Answer 7

Cuthbertson v Lowes 1. benefit arising from deliberate conferral/receipt under illegal transaction which therefore cannot be enforced 2. conduct must be free of turpitude, i.e. not morally reprehensible: if so, then recovery is permitted 3. if pursuer morally reprehensible (conduct shows turpitude), then defence of in pari delicto applies and no recovery

Answer 8

1. Illegality itself may constitute turpitude: e.g. Jamieson v Watts Trs 1950 SC 265 2. But illegality might not always amount to turpitude: e.g. Cuthbertson v Lowes (1870) 8M 1073 Must construe the statute that makes the contract illegal. Jamieson v Watts Trs involved war time regulations, so turpitude was present as it went against the interests of the state, and was liable to a penalty. Wheres in Cuthbertson v Lowes, the statute was merely regulatory and was not liable for penalty. Therefore no turpitude (moral blameworthiness was present).

Answer 9

in pari delicto (a defence used when both parties are both equally involved in the wrongdoing) plea is raised as a defence against a claim in UE brought by a pursuer trying to recover benefits transferred under an illegal contract if pursuer’s conduct shows turpitude (i.e. party morally blameworthy), then cannot recover: Jamieson v Watt’s Trs if pursuer’s conduct shows no turpitude (i.e. party not morally blameworthy), parties not in pari delicto and can recover: Cuthbertson v Lowes if both parties implicated in turpitude (i.e. morally blameworthy), parties are in pari delicto and no recovery Barr v Crawford

Answer 10

Barr v Crawford - when both parties conduct show turpitude, then they are in pari delicto, and no recovery can be made in condictio ob turpem

Answer 11

Patel v Mirza Establishes that turpitude will only be present if public interest would be harmed. GThje decision is based on the rationale that private law does not aim to punish wrong doing, this is the job for criminal public law. The test to determine this is: 1. to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim 2. to consider any other relevant public policy on which the denial of the claim may have an impact and 3. to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Relevant factors include: seriousness of the conduct its centrality to the contract whether it was intentional whether there was marked disparity in the parties’ respective culpability.

Answer 12

Recognised as an authority in several Scots cases (low level cases) Would replace the in pari delicto rule and the evaluation of turpitude (has not happened yet) For present purposes and the exam, apply present law (turpitude, in pari delicto), but mention Patel v Mirza at the end

Answer 13

denotes an essential residual category covering a number of cases where Scots law recognises a right to repayment in situations which do not fit conveniently under any of the previous headings Gloag & Henderson Shilliday v Smith affirmed its existence, but specific application unclear, because has not yet been applied since the affirmation current understanding comes from modern academic commentary

Answer 14

Could use the argument that condictio sine causa is operative (on the basis of shilliday v smith) to a fact scenario when someone over pays for something by compulsion, rather than error (differentiates condictio indebiti and condictio sine causa)

Answer 15

unauthorised improvement to another’s property performance of another’s obligation

Answer 16

unauthorised use of another’s property

Answer 17

Newton v Newton 1925 SC 715 enrichment (of true owner) caused by improvement of property possession of improver is in good faith error by improver in believing self to be owner

Answer 18

the good faith test is not whether there was a title or not, but whether there was bona fides on the part of the pursuer. Bona fides meaning honesty and sincere intention. If one truly believes he has the title, a claim will be available When determine if the pursuer is in error, the courts should not assess it objectively, but subjectively. It is about assessing the mental attitude of the pursuer Newton v Newton

Answer 19

Reid v Lord Ruthven 1917 2 SLT 238 Requirements: The obligation must be discharged. The means the creditor must accept the payment. When obligation is discharged, the third party has the right in unjustified enrichment to demand repayment from the original debtor Typical fact scenario where this applies: Original Debtor owes money to creditor, a bank. The debt is paid by the debtor's guarantor. The guarantor then dies, and his debts must be paid to the bank by his guarantor, a third party. These debts include the original debtor, and therefore he has been unjustly enriched. Third party debtor can have a claim.

Answer 20

Earl of Fife v Wilson (1867) 3 M 323 ● a use of property rights ● without authority of owner ● benefit measured by “just and reasonable consideration” for value of hypothetical bargain

Answer 21

change of position, which essentially means loss of enrichment.

Answer 22

Credit Lyonnais v George Stevenson & Co Available when defender: (1) has reasonable grounds for believing benefit is theirs (2) acted in reliance upon that reasonable belief: causal link required between receipt of the benefit and the change of position (3) altered position so as to make reversal of the enrichment unjust

Answer 23

It establishes that to satisfy the first criteria (reasonable grounds for believing benefit is theirs) there must be good faith in handling the money AND reasonable conduct in receiving the money (they cannot receive it negligently) For the second criteria (acted in reliance upon that reasonable belief), the case establishes that proof of the causal link is required.

Answer 24

Recompense Repetition Restitution Shilliday v Smith Must state what remedies are applicable at end of question. Can be multiple

Answer 25

return of a fixed sum of money Perhaps applies to undue transfers made in error

Answer 26

return of a fixed thing Example may be an engagement ring

Answer 27

return of value of unquantified benefit measured by extent it enriched the benefited party

Unjustified Enrichment Flashcards

(51 cards)