Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Wed, 17 Dec 1997 10:52:15 |
| Re: |
Barclays: the suing bank |
At 09:32 17/12/97
GMT, Eoin O'Dell wrote:
BARCLAYS BANK v O'BRIEN IS
*NOT* A RESTITUTION CASE Barclays Bank v O'Brien and
its extensive progeny merely state the test to be applied as a matter
of contract to determine the validity of a contract. Thus, where A unduly
influences B to contract with C, the test in Barclays Bank v O'Brien
simply determines the validity of the contract between B and C. It does
no more. Finally, neither in O'Brien,
nor in any subsequent case, has there been a claim for restitution.
Every single such case has been as to whether the Bank C can enforce
the contract as against the surety (usually wife) B. No case has arisen
in which B has sought restitution from C. Thus, O'Brien and
its progeny form part of the law of the contract, and have no place
in the law of restitution (in exactly the same way as the doctrine of
ultra vires is part of the law of contract relating to companies and
has no place in the law of restitution). The invalidity of the contract
for the undue influence, like the ultra vires, may form the occasion
for the restitution analysis, but it is not an element of the restitution
analysis. I entirely agree, although (as a secondary issue) I would
ask why the consequences of unravelling a contract aren't part of the
law of contract as well. The interesting question is why anyone ever thought
restitution had anything to do with it, given the strength of the usual
insistence that contract and restitution are distinct - expressed over,
for example, the alleged importance of separating 'genuine' implied contracts
from 'fictitious' implied contracts.
At least part of the problem is the reluctance of (English)
restitution lawyers to get involved in any debate about the relation between
their subject and equity - in marked contrast to (say) Australia, where
the incompatibility is much more well known. We therefore seem to have
a situation where English restitution lawyers tend to lay claims to significant
portions of equity, without ever providing an intellectual basis for it.
Knowing Assistance is another area which has been sort-of-claimed by restitution
lawyers; ditto tracing, though in the last year or so we are beginning
to see attempts to justify its being part of restitution as distinct from
property - though manifestly there is a way to go there.
Would it be fair to say that while in Australia, equity
and restitution lawyers are at daggers drawn, whereas in England they
are politely ignoring one another ?
Steve Hedley
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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
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messages : (01223) 334900
fax : (01223) 334967
Christ's College Cambridge CB2 3BU
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