Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Wed, 9 May 2001 17:17:32 +0100 |
| Re: |
Eastbourne DC v Foster, QBD, 20 Dec 2000 |
At 13:40 09/05/01 +0100, "Dr Charles Mitchell"
wrote:
In Shaw, this defence failed because Bell
J followed Svenska to hold that you can't have C of P if you rely not
on your receipt of money but on the supposed validity of the void contract
under which the payments are made, a fine distinction as Colin Mackay
QC, sitting as a deputy HCJ, remarked in Foster in the course of allowing
the defence: It's an exceedingly fine distinction. But even if we
draw it, what good does it do? Someone who believed that the payments
were illegal but would never be demanded back (eg who had noticed the
error but believed that the payor never would) would not be entitled to
keep the money. So even if we make the distinction, it gives the payee
no escape - he still has to rely on his belief in the legality of the
payment, to justify his retention of the sums paid.
Perhaps a better approach is to ask how severe an infringement
of ultra vires is involved. To allow the payee to keep the money flouts
the ultra vires principle, but to remove it from the payee will sometimes
flout the security of transaction which is also a goal of the law. So
perhaps the way forward is to see what is at stake in the decision.
Steve Hedley
========================================= telephone and answering machine : (01223) 334931 Christ's College Cambridge CB2 3BU
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
messages : (01223) 334900
fax : (01223) 334967
=========================================
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
