I note two things:

1. that the Law Revision Committee on limitation in 1936 was headed by Lord Wright - one can perhaps presume that the absence of a specific provision dealing with unjust enrichment was deliberate - at that time, although the "principle" of unjust enrichment had been recognised, it had not yet emerged from the tangle of the various forms of action and the implied contract "theory";

2. a similar point arose in the recent Kleinwort Benson -v- Birmingham appeal to the House of Lords. The respondent councils argued that relief for mistakes of law was not contemplated by the LRC in 1936 and that, accordingly, s. 32(1)(c) of the Limitation Act 1980 (derived from s. 26(c) of the Limitation Act 1939) should not be applied to a claim for relief from a mistake of law.

As to the other point which appears to have been discussed (i.e. the relationship between claims in contract and restitution), I recall reading something on the application of Henderson -v- Merrett to this issue. Can anybody help me to refresh my memory as to the source (by private message)? As I understand it, the rationale of Henderson is that the existence of a duty of care in tort is not inconsistent with a contractual duty of care and, indeed, the duty in tort may be wider than the contractual duty. In most cases, however, the presence of a contract will be inconsistent with a claim for unjust enrichment in respect of benefits conferred under that contract. As Lord Hope recently said:

"There can be no better justification for an enrichment than that it was obtained and is being retained in the exercise of a contractual right against the party who seeks to invoke the remedy."

However, there will be cases in which there is no inconsistency. Possible examples include the following:

(a) if one party does not perform in accordance with the contract but temporarily offers a different performance which is accepted by the other party (Miles -v- Wakefield);

(b) if the recipient, instead of having a contractual entitlement to retain, has a contractual duty to return:

(i) if A gives B (for consideration) a £5 note to keep for him for a week. B fails to return the note. His conduct constitutes a breach of contract. Can A maintain an action for money had and received (failure of consideration). Must he accept B's repudiatory breach before doing so?

(ii) What if the relationship between A and B is not bailor and bailee but customer and banker and B's obligation is not to return the same £5 note but to pay A £5 on demand? Can B's refusal render his initial enrichment unjust?

(iii) if the recipient is obliged to account to the payer for the excess (Bangladesh Sugar).

Any thoughts?

Andrew