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Cases and Materials on the Law of Restitution - Assignment Example

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The paper “Cases and Materials on the Law of Restitution” looks at the branch of law that is footed on the cannons of reversing a defendant’s unjust enrichment at the expenses of the complainant. The law relates to a fiduciary liability to vouch for the recession of an executed contract…
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Cases and Materials on the Law of Restitution
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Download file to see previous pages In normal parlance, English did not cognize a law of restitution footed on the cannons of reversing unjust enrichment. It is to be noted, the passing comment made by the great judges like Lord Wright in Fibrosa and Lord Mansfield in Moses v Macferlan was mostly uncared for the restitution till 1966. (Gilliker 2007:101). Goff and Jones in 1966 published “the Law of Restitution” which assaulted the customary English approach and tried to show that, looking across both equity and common law, there is a coherent English law of restitution, which is footed on the cannon of putting back unjust enrichment. The above authors viewed the law of restitution as belonging alongside tort and contract as a third branch of the law of obligations. Slowly, Goff and Jones’s findings gained momentum in legal practitioners, academia and judges, thereby ending in the acknowledgment by House of Lords the law of restitution in Lipkin Gorman v Karpnale Ltd in 1991, which can be considered as Donoghue v Stevenson1 of the law of Restitution. In Woolwich Equitable Building Society v IRC, the cannon of unjust enrichment was relied upon by the Lordships to deliver a sweeping decision that in case of payment demanded by a public authority ultra vis, a claimant is entitled as of right to restitution against the same. Thereafter, unambiguous reference to unjust enrichment as the source of the claims made by judges at all categories in various cases in the UK. (Burrows, Mthe Kendrick & Edelman 2007:1). English courts have generally been reluctant to acknowledge restitution as a separate norm of recovery due to the availability of the substitute legal remedies under common law like recovery such recoveries and quantum valebat and the doctrine of waiver that is available inequitable and tort claims. Nonetheless, the law of restitution is often confused through the English courts’ synthesis of equity and contract founded reliefs vindicated under the head of restitution. It is to be noted that the inherent issues with the restitution footed claims are the doctrinal complexity of measuring the notion of unjust enrichment. In the case Westdeutsche Landesbank Girozentrale v Islington LBC, the underlying aim of restitution has frequently been puzzled with equitable trust law notions, thereby increasing the perplexity in this domain of law as corroborated by the main issue in the above case being swap litigation. (Burrows et al 2007:40). The English courts have given for the claims under restitution a synthetic “quasi-contract” hypothesis, which is damned for being “intrinsically hollow, mirroring a vague concept. The core issue in applying the quasi-contract rationale is that in restitution claims, the defendants were being demanded to make payment on the footage of wrongdoing without any backing doctrinal rationale for making such damage payment to the claimant under logical legal standards. ...Download file to see next pagesRead More
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