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Gordon Goldberg wrote:

"I respectfully suggest the analogy of condictio causa data causa non secuta to provide (as condictio indebiti does not) an explanation of what I respectfully submit to be the patent liability to repay money recovered under a judgment, once the judgment is unconditionally set aside. As I understand it, the former condiction is itself analogous to the action for money had and received on a total failure of consideration."

I would respectfully submit that the Mr Goldberg misunderstands the condictio causa data, causa non secuta as it operates in the law of Scotland. The condiction, properly understood, applies where A confers a benefit on B for a future purpose (outwith contract) which fails. I would simply refer MR Goldberg to Shilliday v Smith (1998) S.L.T. 976. Mr Goldberg is also quite correct to regard the condictio indebiti as inappropriate to a possibly Archer Type case. A condictio indebiti applies where A confers a benefit on B to discharge a legal duty which is turns out to be undue. Payments which are undue are received without a legal basis, and therefore cannot be retained. In my view the Archer type case falls outwith the condictio indebiti, though at first sight it may be tempting to include it within the condiction. Ex facie the Daily Star has conferred a benefit on B in order to discharge its legal liability (the decree of damages concluded against them), and then subsequently the decree being set aside the the payment is 'undue'. However, to accede to this proposition would be fallacious, and would involve the court altering retrospectively the basis of the transfer. The payment was made and was legally exigible at the time of the decree. It would be wholly inappropriate for a court later to change the proper basis of such a transfer. It might be that the House of Lords in Kleinwort Benson v Lincoln City Council did just this, but i respectfully dissent from such an approach, and take the view that the retrospective nature of a judicial pronouncement cannot alter that essential fact. All it can do, properly understood is declare that the decision null, it cannot falsify history.

However in my view, in Scots law, an Archer type case would have a means of recovery, and this is by way of the condiction sine causa. This condiction applies where A confers a benefit on B for a purpose which fails. The purpose of the transfer having failed, there can be no legal ground for retaining such a benefit. The paradigm case in this area is the mistaken gift. I give B £100 thinking it to be his birthday, when in fact it is actually C (his twin brother) birthday. The purpose of the transfer was to gift £100 to C, but in fact the purpose of the transfer has failed because it has mistakenly been given to B. Therefore, the purpose having failed, no legal ground exists to retain that £100, and B is bound to repay it to A. Take the Archer case, the Daily Star paid the claim to Archer for the purpose of performing its tortious liability. The purpose for the transfer(the award of having damages) having failed due to the judgement being set aside, the money is recoverable.

What in effect the Archer type case does is exemplify the inadequacy of a system cohered around a series of unjust factors, say English Law, which only very uncomfortably is able to embrace an alien concept such as unjust enrichment. Whereas a system based on the principle that benefits retained without a legal basis should be repaid is more adequately able to evolve and meet new situations which society may from time to time throw up. A rigid system of unjust factors will be found wanting where society, and its infinite possible range of human interactions, conjours a novel situation. This can be seen most notably by the invention of the idea of 'no consideration' by the House of Lords in Woolwich Equitable Building Society v IRC. Where in essence the court was forced to forego an analysis of the vitiation of the intent of the transferor, and look instead to the ultra vires nature of the demand.

Whatever might have been said in some of the postings there can be no doubt that academic lawyers have an important part to play in rationalising a seemingly incoherent body of case-law, and proposing a taxonomy for a system based on a unifying concept of unjust enrichment. Courts through the nature of judicial decisions, and the adversarial system, do not have time to embark on the esoteric. They are constrained by and restricted, to an extent by precedent. But in making an informed decision on how the law should develop, judges should, and quite properly do, have regard to the views and rationalisations of academics, however misconceived ultimately they may be.