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The law of unjust enrichment and restitution in England is judge made, whereas it was codified in India in the Contract Act, 1872 and is contained in Chapter V of the Act, entitled "Of relations resembling those created by contract" which includes Ss. 68 to 72. Which area does the law of unjust enrichment and restitution cover. Restitution performs a corrective function where transactions fail, or are made by mistake, and money or wealth exchanges hands. Therefore the law of restitution is the law of failed or mistaken transactions. Given that almost as many transactions fail as succeed, it as important and essential an area of law which the student and lawyer needs to know as the law of contract.
The law of unjust enrichment has had a statutory basis in India since 1872, but it was only in 1991, in the landmark House of Lords case of Lipkin Gorman v Karpnale, that it was settled in England that the basis of the law of restitution is the unjust enrichment of the defendant. Once the basis of the law was settled in 1991, this area of the law saw stupendous development in England in the following decade. This book written in a very simple and clear style, makes this difficult and new area of law easily accessible to the lawyer and the student.
The largest number of cases in this area relate to S. 72 of the Contract Act, and have to do with overpaid income tax, sales tax or excise duty, and the most difficult question before the Court is the defences available to the defendant. There has been a great deal of development and case law in this particular area in England, and there are six chapters in the book that cover a treatment of "Defences". Even though Indian law has had a statutory basis since 1872, the law is comparatively underdeveloped in India. This book, by making available all the latest developments in English law in this area in the 1990s, precisely, simply and in a small volume, can greatly aid the development of the law in India.
Therefore this book would be invaluable to Contract lawyers, Tax lawyers, Corporate lawyers, Government lawyers, judges, students and academics who wish to understand this complex area of law and contribute to its development in India.
1. Unjust Enrichment and Restitution 3 1.1 Restitution in the map of the law 1.2 The structure of the unjust enrichment enquiry 1.3 Pervasive themes 1.4 Enrichment 2. The Legacy of History: Restitutionary Techniques at Common Law and in Equity 25 2.1 Theoretical foundations 2.2 Historical foundations 2.3 In personam and in rem 2.4 Common law and equity 2.5 Quasi-contract 2.6 Rescission 2.7 Tracing and claiming 2.8 ConclusionPART B - DEFECTIVE TRANSFERS3. Mistake 43 3.1 Theoretical foundations 3.2 Mistake and ignorance 3.3 Fact and law 3.4 The ground for restitution 3.5 Restrictions on recovery 3.6 Special problems of mistake of law 3.7 Contributory negligence 3.8 Non-money benefits 3.9 Practical issues 4. Rescission for Misrepresentation and Mistake 74 4.1 Introduction 4.2 What is an actionable misrepresentation? 4.3 Rescission and indemnity 4.4 Limits to the right to rescind 4.5 Section 2(2) of the Misrepresentation Act 1967 4.6 Rescission for mistake 5. Ignorance 81 5.1 Theoretical foundations 5.2 Birks's thesis: ignorance as a ground for restitution 5.3 Supporters and detractors 5.4 Conclusions 6. Duress 88 6.1 Theoretical foundations 6.2 The ingredients of duress 6.3 The traditional categories 6.4 The recognition of economic duress 6.5 Lawful act duress 6.6 Submission to an honest claim 6.7 Nature and limits of relief 7. Undue Influence 100 7.1 Theoretical foundations 7.2 The categories of undue influence 7.3 The impact of undue influence upon a transaction 7.4 Manifest disadvantage 7.5 Rebutting the presumption 7.6 Third party rights 7.7 Consequences 8. Inequality and Unconscionability 108 8.1 Theoretical foundations 8.2 Inequality of bargaining power? 8.3 Expectant heirs 8.4 Poor and ignorant persons 8.5 Mental disadvantage 8.6 Consequences and practical issues 9. Necessitous Intervention 114 9.1 Theoretical foundations 9.2 Maritime salvage 9.3 Agency of necessity 9.4 Bailment 9.5 Burial cases 9.6 Care for the mentally incompetent 9.7 Equitable analogiesPART C - INEFFECTIVE TRANSACTIONS10. Contracts Discharged by Termination for Breach 123 10.1 Theoretical foundations 10.2 The nature of termination for breach 10.3 Contractual rights to repayment 10.4 Recovery against a non-party? 10.5 The requirement of total failure 10.6 Recovery of money by the innocent party 10.7 Non-money claims by an innocent party 10.8 Recovery of money by the party in breach 10.9 Recovery of non-money benefits by the party in breach 10.10 The future? 11. Contracts Discharged by Frustration 156 11.1 Theoretical foundations 11.2 Inadequacies of the common law 11.3 The scope of the 1943 Act and the primacy of contract 11.4 Money claims under the 1943 Act 11.5 Non-money claims under the 1943 Act 11.6 Post-discharge events 11.7 Practical issues 12. Void and Unenforceable Contracts 170 12.1 Theoretical foundations 12.2 Void contracts and money claims 12.3 Void contracts and non-money claims 12.4 The 'swaps' litigation 12.5 Unenforceable contracts 12.6 Unauthorised conduct of insurance business 13. Illegality and Public Policy as Grounds for Restitution 199 13.1 Theoretical foundations 13.2 The contractual rules 13.3 Repentance as a ground for restitution 13.4 Where the parties are not equally responsible for the illegality 13.5 Policy-motivated restitution 14. Anticipated Contracts That Do Not Materialise 207 14.1 Theoretical foundations 14.2 The negotiation process 14.3 Risk analysis 14.4 Enrichment 14.5 Fault 14.6 The ground for restitution 15. Free Acceptance 217 15.1 Theoretical foundations 15.2 The principles and the authorities 15.3 Free acceptance and unconscientious receipt 16. Resulting Trusts 224 16.1 Theoretical foundations 16.2 Orthodox resulting trust analysis 16.3 Lord Millett and resulting trusts 16.4 The Chambers thesisPART D - RESTITUTION AND PUBLIC AUTHORITIES17. Claims Against Public Authorities: The Woolwich Principle 233 17.1 Theoretical foundations 17.2 The Woolwich case 17.3 Limitations on the Woolwich principle 17.4 The ground for restitution 18. Restitution Claims by Public Authorities 240PART E - COMPLEX ENTITLEMENTS AND LIABILITIES19. Complex Entitlements 245 19.1 Theoretical foundations 19.2 Six questions distinguished 19.3 The bailee's right of action 19.4 The insured bailee 19.5 Indemnity insurance: subrogation and related actions 19.6 Rights of suit in respect of goods carried by sea 19.7 Employers' rights of suit in construction contracts 19.8 The insured vendor of real property 19.9 Conclusionrestitution 20. Complex Liabilities: Recovery from a Party Primarily Liable 264 20.1 Introduction 20.2 Legal compulsion and the action for money paid 20.3 The discharge of debts 20.4 The principle of primary or ultimate liability 20.5 Recoupment and leasehold interests 20.6 Other illustrations of the principle 20.7 Officiousness and Owen v Tate 20.8 Common interest in property restitution 20.9 The discharge of debts revisited restitution 21. Complex Liabilities: Recovery from a Party with whom liability is shared 272 21.1 Introduction 21.2 Liability in debt: the co-surety cases 21.3 The scope of the 1978 Act 21.4 Claims under the 1978 Act 21.5 Double insurance and contribution 22. Subrogation 281 22.1 Theoretical foundations 22.2 The distinction between simple and reviving subrogation 22.3 Reviving subrogation and claims by sureties 22.4 Simple subrogation and indemnity insurance 22.5 Valid loans and subrogation 22.6 Invalid loans and subrogation 22.7 Bankers' rights of subrogationPART F - ENRICHMENT BY WRONGDOING23. Breach of Fiduciary Duty 309 23.1 Theoretical foundations 23.2 Who is a fiduciary? 23.3 The obligations of the fiduciary 23.4 Remedies for breach 23.5 Diversion of opportunity 23.6 Corporate opportunity doctrine 23.7 Bribes and secret commissions 23.8 Practical issues 24. Breach of Confidence 320 24.1 Introduction 24.2 Remedies for breach of confidence 25. Restitutionary Damages for Tortious Wrongdoing 324 25.1 Theoretical foundations 25.2 From waiver of tort to restitutionary damages 25.3 Waiver of tort - advantages? 25.4 Trespass to land 25.5 Wrongful interference with goods 25.6 Nuisance 25.7 Deceit, passing off and injurious falsehood 25.8 Economic torts 25.9 Intellectual property torts 25.10 Miscellaneous torts 25.11 Election: cumulative and alternative remedies 26. Restitutionary Damages for Breach of Contract 347 26.1 Theoretical foundations 26.2 Orthodoxy and its defenders 26.3 Judicial recognition 26.4 Breach of fiduciary duty 26.5 Property and damages in lieu of an injunction 26.6 Skimped performance 26.7 ConclusionPART G - TRACING, CLAIMING AND PROPRIETARY RESTITUTION27. Tracing and Claiming at Common Law 359 27.1 Introduction 27.2 The early cases 27.3 The prospect of fusion 27.4 Marginalisation? 27.5 Continuing relevance? 27.6 What is the ground for restitution? 27.7 Conclusion 28. Tracing in Equity 369 28.1 Theoretical foundations 28.2 The basic concepts introduced 28.3 Victorian development and In re Diplock 28.4 The lowest intermediate balance rule 28.5 Modern evasion of Clayton's case 28.6 Tracing profits 28.7 Swollen assets 28.8 Conclusion: fusion of law and equity? 29. Personal Claims in Equity 385 29.1 Theoretical foundations 29.2 The ingredients of the receipt-based claim 29.3 The categories of knowledge 29.4 Knowledge in the corporate context 29.5 Knowing receipt and the dissipation of corporate assets 29.6 Dishonest accessory liability 29.7 Practical issues 29.8 Conclusion 30. Proprietary Claims in Equity 397 30.1 Introduction 30.2 The philosophy of insolvency law 30.3 The proprietary remedies introduced 30.4 Claiming after tracing 30.5 Claiming profits 30.6 Retention of title clauses 30.7 Proprietary claims in cases of subtractive unjust enrichment 30.8 Restitution for wrongs and constructive trusts 30.9 Complex entitlements and proprietary restitutionary claims 30.10 ConclusionPART H - DEFENCES31. Good Faith Purchase 419 31.1 Theoretical foundations 31.2 History and different manifestations of wealth 31.3 Money as currency 31.4 Mistaken payments and good faith purchase 31.5 Equitable claims 31.6 Related issues 31.7 Practical issues 32. Change of Position, Estoppel and Ministerial Receipt 426 32.1 Theoretical foundations 32.2 The recognition of change of position 32.3 Case law after Lipkin Gorman 32.4 Reinterpretation of authority 32.5 Academic analysis of change of position 32.6 The agent's defence of ministerial receipt 32.7 Practical issues 33. Compromise and Submission to an Honest Claim 443 33.1 Theoretical foundations 33.2 Mistaken payments 33.3 Duress and ultra vires demands 34. Passing On 448 34.1 Introduction 34.2 The taxation cases 34.3 Private transactions 34.4 Conclusion 35. Illegality and Public Policy as Defences 452 35.1 Introduction 35.2 The scope of the prohibition of restitutionary claims 35.3 Restitution prohibited if it is tantamount to contractual enforcement 35.4 Proprietary claims under illegal transactions 35.5 Public policy precluding a restitutionary claim 36. Limitation 461 36.1 Introduction 36.2 The scheme of the Act 36.3 Equitable claims and laches 36.4 ReformPART I - PRACTICAL MATTERS37. Conflict of Laws 469 37.1 Introduction 37.2 Jurisdiction in non-Brussels Convention cases 37.3 Jurisdiction under the Brussels Convention 37.4 Jurisdiction under the Modified Convention 37.5 Choice of law 38. Interest 478 38.1 Introduction 38.2 The Westdeutsche case in the House of Lords: simple or compound interest? 38.3 Statutory awards of interest 39. Practice and Procedure 484 39.1 Introduction 39.2 Pre-emptive justice 39.3 Accelerated justice 39.4 Obtaining evidence 39.5 Misfeasance proceedings and insolvent companies 40. Drafting Statements of Case 493 40.1 Introduction 40.2 Historical background 40.3 The structure of the unjust enrichment enquiry 40.4 Mistaken payments 40.5 Matters that need to be specifically pleaded Index 499
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