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Hello all

I started a thread on banks taking money (more precisely, increasing a customer's debit (eg overdraft) or reducing a credit) and it's become a debate about whether the liability to make restitution for unjust enrichment was sufficiently separate as a category to merit separate reference in a limitation statute, which was in turn an element of the more general question of whether it was sufficiently coherent as a legal category in its own right.

However, if I understand correctly Steve Hedley's arguments in the past, he does not so much deny a category of causes of action which effect restitution as deny that the category is underpinned by a logically and historically consistent principle against unjust enrichment. On that view, a category of causes of action which effect restitution becomes no more than a mix-um gather-um of actions, similar to the state of the law of tort(s). However, the legislator has decided that torts are sufficiently similar that they should have a prima facie limitation period of six years, unless they involve personal injury, in which case, the period is three years. It would not be illogical for a legislator to decide that actions which effect restitution are sufficiently similar that they should have a prima facie unitary limitation period of, for example, six years. But ascribing such a limitation period would not say anything to the more general question of whether there is a single principle underlying liability in the various tort actions brought within the umbrella limitation period; similarly, for those actions which effect restitution. Hence, I think it is possible to conduct a debate about limitation periods for such actions without committing to a particular answer to the more general question of whether the various actions for restitution of an unjust enrichment are sufficiently coherent to form a single legal category.

On the question of limitation, Steve Hedley is perfectly right to point out, I think, that the modern English limitation statutes trace back to 1939. Ireland usually adopts English statutes about 20 years later (guess the statutes of which the Companies Act, 1963, and the Copyright Act, 1957 are breaches of copyright). Hence, it came to pass that Ireland needed a new Statute of Limitations, and got one in 1957 (just within the 20 year deadline). But it is interesting, at least for the purposes of the Hedley / Stevens exchange, in that s11(1) expressly states a six-year limitation period for actions founded, inter alia, on "tort", "breach of contract" and "quasi-contract". The addition of this last category has always intrigued me, not least because of the absence of a similar subsection in the English 1939 legislation which was the model for the 1957 Act. The category of "quasi-contract", as a matter of history, included the action for money had and received, the action for money paid to the defendant to the use of the plaintiff, quantum meruit, and quantum valebant, ie the common counts; and it is these common counts which form the raw material of the common law actions which effect restitution of an unjust enrichment. In this way, it might be said that Irish law does have an express statutory limitation period for (what might be described as) common law actions for restitution of unjust/unjustified enrichments. And it does so without committing to any specific answer to the question of whether the various actions for restitution of an unjust enrichment are sufficiently coherent to form a single legal category.

Best from a dull Dublin afternoon,

Eoin

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)