The Varieties of Restitution: 2nd edition (Hardback) book cover

The Varieties of Restitution

2nd edition

By Ian Jackman

© 2017 – Federation Press

320 pages

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Hardback: 9781760021320
pub: 2017-06-13
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Description

Over the past decade, the High Court has repeatedly rejected the notion that there is a unifying principle of unjust enrichment at the plaintiff’s expense, in contrast to the position in the UK. This book provides a vigorous and sustained justification for the Australian position, and demonstrates that the law in the UK has generated more fictions than it was ever thought to abolish. The law of restitution is shown to comprise several fundamentally distinct legal concepts which fill gaps in the law of contract and tort, and which have nothing in common beyond the historical accident that they arose out of the action of indebitatus assumpsit. These are (i) the recovery of non-voluntary payments (by mistake, duress, undue influence, unconscionable dealing and total failure of consideration); (ii) remuneration for goods or services requested by the defendant in circumstances indicating a promise to pay for them; and (iii) the protection of certain facilitative institutions of private law (such as private property and fiduciary relationships). The book staunchly defends the traditional common law approach of analysing legal principles by the empirical method of treating like cases alike, rather than by derivation from supposedly unifying theories. This edition updates the first edition, which was published in 1998, in the light of almost 20 years of case-law and academic debate. It also adds a separate chapter dealing with the history of the law of restitution and why it matters.

Reviews

This is the second edition of a work which was first published in 1998 to wide acclaim for its illuminating and penetrating discussion concerning the taxonomical possibilities of that area of law which is sometimes referred to as “restitution”. The initial edition added substantially to the identification of the structure of this area of the law in its various incantations. This second edition modernises the discussion by taking into account the ever widening divergence between English and Australian law and the vigorous eschewing by the High Court of any unifying or underlying principle. …

It matters not on which side of the debate one positions themselves in relation to this book. It is, without doubt, an excellent contribution to the process of understanding the diffuse structure of the law in this area. It directly confronts the arguments advanced for the “unifying principle” approach and posits a strong, but measured, defence of the existing Australian position. It explains and analyses a difficult and abstruse area of the law and, in the process, assays the modern cases in an intelligible and comprehensive way.

Queensland Law Reporter – 31 March 2017 – [2017] 12 QLR

Table of Contents

CONTENTS

Preface

Abbreviations

Table of Cases

Table of Statutes

1. Introduction

2. The History of Restitution and Why It Matters

3. Mistaken Payments

4. Duress, Undue Influence and Unconscionable Dealing

5. Payments Made on a Total Failure of Consideration

6. Voluntary Provision of Benefits in Kind

7. Non-Voluntary Provision of Benefits in Kind

8. Restitution for Wrongs

9. Proprietary Claims and Proprietary Remedies

10. Defences

Index

About the Author

Ian Jackman is a Senior Counsel of the NSW Bar with nearly 30 years’ experience in commercial and company law. He was awarded First Class Honours in History at the University of Sydney and, as Rhodes Scholar for NSW, First Class Honours and the Gibbs Prize in Law at Oxford University, followed by the BCL. He was an Associate to the Honourable Justice Gummow, then of the Federal Court, before commencing practice as a barrister in 1990. His work has been published extensively in Australia and the United Kingdom. The first edition of this work was published in 1998.

Subject Categories

BISAC Subject Codes/Headings:
LAW000000
LAW / General