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Unjust Enrichment and Restitution - The Modern Law of Unjust  Enrichment and Restitution by Gerard McMeel Unjust Enrichment and Restitution - The Modern Law of Unjust  Enrichment and Restitution by Gerard McMeel
× Unjust Enrichment and Restitution - The Modern Law of Unjust  Enrichment and Restitution by Gerard McMeel
Unjust Enrichment and Restitution - The Modern Law of Unjust Enrichment and Restitution by Gerard McMeel
by Gerard McMeel
Edition: 1st Indian Edition, 2003
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Product Details:
Format: Paperback
Pages: 536 pages
Publisher: Eastern Book Company
Language: english
ISBN: 195666550
Dimensions: 24.2 CM X 3.11 CM X 16 CM
Shipping Weight: 2.000(Kg)
Publisher Code: A/750
Date Added: 2001-01-01
Search Category: Lawbooks
Jurisdiction: Indian
Overview:

The law of unjust enrichment and restitution in England is judge made, whereas it was codified in India in the Contract Act, 1872 and is contained in Chapter V of the Act, entitled "Of relations resembling those created by contract" which includes Ss. 68 to 72. Which area does the law of unjust enrichment and restitution cover. Restitution performs a corrective function where transactions fail, or are made by mistake, and money or wealth exchanges hands. Therefore the law of restitution is the law of failed or mistaken transactions. Given that almost as many transactions fail as succeed, it as important and essential an area of law which the student and lawyer needs to know as the law of contract.

The law of unjust enrichment has had a statutory basis in India since 1872, but it was only in 1991, in the landmark House of Lords case of Lipkin Gorman v Karpnale, that it was settled in England that the basis of the law of restitution is the unjust enrichment of the defendant. Once the basis of the law was settled in 1991, this area of the law saw stupendous development in England in the following decade. This book written in a very simple and clear style, makes this difficult and new area of law easily accessible to the lawyer and the student.

The largest number of cases in this area relate to S. 72 of the Contract Act, and have to do with overpaid income tax, sales tax or excise duty, and the most difficult question before the Court is the defences available to the defendant. There has been a great deal of development and case law in this particular area in England, and there are six chapters in the book that cover a treatment of "Defences". Even though Indian law has had a statutory basis since 1872, the law is comparatively underdeveloped in India. This book, by making available all the latest developments in English law in this area in the 1990s, precisely, simply and in a small volume, can greatly aid the development of the law in India.

Therefore this book would be invaluable to Contract lawyers, Tax lawyers, Corporate lawyers, Government lawyers, judges, students and academics who wish to understand this complex area of law and contribute to its development in India.


Table Of Contents:
Preface xiii
Table of Cases xvii
Table of Statutes xxxi
Table of Secondary Legislation xxxv
Abbreviations of the Principal Works Cited xxxvii



PART A : FOUNDATIONS
1. Unjust Enrichment and Restitution    3
                           1.1  Restitution in the map of the law
                           1.2  The structure of the unjust enrichment enquiry
                           1.3  Pervasive themes
                           1.4  Enrichment
                   2. The Legacy of History: Restitutionary Techniques     
                       at Common Law and in Equity	25
                           2.1  Theoretical foundations
                           2.2  Historical foundations
                           2.3  In personam and in rem
                           2.4  Common law and equity
                           2.5  Quasi-contract 
                           2.6  Rescission
                           2.7  Tracing and claiming
                           2.8  Conclusion
PART B - DEFECTIVE TRANSFERS
3. Mistake	43
                           3.1 Theoretical foundations
                           3.2 Mistake and ignorance
                           3.3 Fact and law
                           3.4 The ground for restitution
                           3.5 Restrictions on recovery
                           3.6 Special problems of mistake of law
                           3.7 Contributory negligence
                           3.8 Non-money benefits
                           3.9 Practical issues
                   4. Rescission for Misrepresentation and Mistake	74
                           4.1 Introduction
                           4.2 What is an actionable misrepresentation?
                           4.3 Rescission and indemnity
                           4.4 Limits to the right to rescind
                           4.5 Section 2(2) of the Misrepresentation Act 1967
                           4.6 Rescission for mistake
                   5. Ignorance	81
                           5.1 Theoretical foundations
                           5.2 Birks's thesis: ignorance as a ground for restitution
                           5.3 Supporters and detractors
                           5.4 Conclusions
                   6. Duress	88
                           6.1 Theoretical foundations  
                           6.2 The ingredients of duress 
                           6.3 The traditional categories 
                           6.4 The recognition of economic duress
                           6.5 Lawful act duress 
                           6.6 Submission to an honest claim 
                           6.7 Nature and limits of relief
                   7. Undue Influence	100
                           7.1 Theoretical foundations  
                           7.2 The categories of undue influence
                           7.3 The impact of undue influence upon a transaction 
                           7.4 Manifest disadvantage 
                           7.5 Rebutting the presumption 
                           7.6 Third party rights
                           7.7 Consequences
                   8. Inequality and Unconscionability	108
                           8.1 Theoretical foundations  
                           8.2 Inequality of bargaining power?
                           8.3 Expectant heirs 
                           8.4 Poor and ignorant persons 
                           8.5 Mental disadvantage 
                           8.6 Consequences and practical issues
                   9. Necessitous Intervention	114
                           9.1 Theoretical foundations  
                           9.2 Maritime salvage 
                           9.3 Agency of necessity 
                           9.4 Bailment 
                           9.5 Burial cases 
                           9.6 Care for the mentally incompetent 
                           9.7 Equitable analogies
PART C - INEFFECTIVE TRANSACTIONS
10. Contracts Discharged by Termination for Breach	123
                           10.1 Theoretical foundations   
                           10.2 The nature of termination for breach  
                           10.3 Contractual rights to repayment  
                           10.4 Recovery against a non-party?  
                           10.5 The requirement of total failure  
                           10.6 Recovery of money by the innocent party  
                           10.7 Non-money claims by an innocent party 
                           10.8 Recovery of money by the party in breach  
                           10.9 Recovery of non-money benefits by the party in breach  
                           10.10 The future? 
                   11. Contracts Discharged by Frustration	156 
                           11.1 Theoretical foundations   
                           11.2 Inadequacies of the common law  
                           11.3 The scope of the 1943 Act and the primacy of contract  
                           11.4 Money claims under the 1943 Act  
                           11.5 Non-money claims under the 1943 Act  
                           11.6 Post-discharge events  
                           11.7 Practical issues 
                   12. Void and Unenforceable Contracts	170 
                           12.1 Theoretical foundations  
                           12.2 Void contracts and money claims 
                           12.3 Void contracts and non-money claims  
                           12.4 The 'swaps' litigation  
                           12.5 Unenforceable contracts  
                           12.6 Unauthorised conduct of insurance business 
                   13. Illegality and Public Policy as Grounds for Restitution	199 
                           13.1 Theoretical foundations  
                           13.2 The contractual rules  
                           13.3 Repentance as a ground for restitution  
                           13.4 Where the parties are not equally responsible for the illegality  
                           13.5 Policy-motivated restitution 
                   14. Anticipated Contracts That Do Not Materialise	207 
                           14.1 Theoretical foundations   
                           14.2 The negotiation process  
                           14.3 Risk analysis  
                           14.4 Enrichment  
                           14.5 Fault  
                           14.6 The ground for restitution 
                   15. Free Acceptance	217 
                           15.1 Theoretical foundations   
                           15.2 The principles and the authorities  
                           15.3 Free acceptance and unconscientious receipt 
                   16. Resulting Trusts	224 
                           16.1 Theoretical foundations   
                           16.2 Orthodox resulting trust analysis  
                           16.3 Lord Millett and resulting trusts  
                           16.4 The Chambers thesis
PART D - RESTITUTION AND PUBLIC AUTHORITIES
17. Claims Against Public Authorities: The Woolwich Principle	233  
                           17.1 Theoretical foundations   
                           17.2 The Woolwich case   
                           17.3 Limitations on the Woolwich principle   
                           17.4 The ground for restitution  
                   18. Restitution Claims by Public Authorities	240
PART E - COMPLEX ENTITLEMENTS AND LIABILITIES
19. Complex Entitlements	245  
                           19.1 Theoretical foundations 
                           19.2 Six questions distinguished 
                           19.3 The bailee's right of action  
                           19.4 The insured bailee  
                           19.5 Indemnity insurance: subrogation and related     
                                 actions  
                           19.6 Rights of suit in respect of goods carried by sea  
                           19.7 Employers' rights of suit in construction contracts  
                           19.8 The insured vendor of real property  
                           19.9 Conclusionrestitution  
                   20. Complex Liabilities: Recovery from a Party Primarily     
                         Liable	264  
                           20.1 Introduction  
                           20.2 Legal compulsion and the action for money paid  
                           20.3 The discharge of debts   
                           20.4 The principle of primary or ultimate liability  
                           20.5 Recoupment and leasehold interests 
                           20.6 Other illustrations of the principle  
                           20.7 Officiousness and Owen v Tate 
                           20.8 Common interest in property restitution  
                           20.9 The discharge of debts revisited restitution  
                   21. Complex Liabilities: Recovery from a Party with     
                         whom liability is shared	272  
                           21.1 Introduction   
                           21.2 Liability in debt: the co-surety cases   
                           21.3 The scope of the 1978 Act   
                           21.4 Claims under the 1978 Act   
                           21.5 Double insurance and contribution  
                   22. Subrogation	281
                           22.1 Theoretical foundations 
                           22.2 The distinction between simple and reviving     
                           subrogation 
                           22.3 Reviving subrogation and claims by sureties  
                           22.4 Simple subrogation and indemnity insurance   
                           22.5 Valid loans and subrogation 
                           22.6 Invalid loans and subrogation  
                           22.7 Bankers' rights of subrogation
PART F - ENRICHMENT BY WRONGDOING
23. Breach of Fiduciary Duty	309  
                           23.1 Theoretical foundations   
                           23.2 Who is a fiduciary?   
                           23.3 The obligations of the fiduciary   
                           23.4 Remedies for breach   
                           23.5 Diversion of opportunity   
                           23.6 Corporate opportunity doctrine   
                           23.7 Bribes and secret commissions   
                           23.8 Practical issues  
                   24. Breach of Confidence	320  
                           24.1 Introduction   
                           24.2 Remedies for breach of confidence  
                   25. Restitutionary Damages for Tortious Wrongdoing	324  
                           25.1 Theoretical foundations   
                           25.2 From waiver of tort to restitutionary damages   
                           25.3 Waiver of tort - advantages?   
                           25.4 Trespass to land   
                           25.5 Wrongful interference with goods   
                           25.6 Nuisance   
                           25.7 Deceit, passing off and injurious falsehood   
                           25.8 Economic torts   
                           25.9 Intellectual property torts   
                           25.10 Miscellaneous torts   
                           25.11 Election: cumulative and alternative remedies  
                   26.  Restitutionary Damages for Breach of Contract	347  
                           26.1 Theoretical foundations   
                           26.2 Orthodoxy and its defenders  
                           26.3 Judicial recognition   
                           26.4 Breach of fiduciary duty   
                           26.5 Property and damages in lieu of an injunction   
                           26.6 Skimped performance  
                           26.7 Conclusion
PART G - TRACING, CLAIMING AND PROPRIETARY RESTITUTION
27. Tracing and Claiming at Common Law	359  
                           27.1 Introduction   
                           27.2 The early cases   
                           27.3 The prospect of fusion   
                           27.4 Marginalisation?   
                           27.5 Continuing relevance?   
                           27.6 What is the ground for restitution?   
                           27.7 Conclusion  
                   28. Tracing in Equity	369  
                           28.1 Theoretical foundations   
                           28.2 The basic concepts introduced  
                           28.3 Victorian development and In re Diplock   
                           28.4 The lowest intermediate balance rule   
                           28.5 Modern evasion of Clayton's case  
                           28.6 Tracing profits   
                           28.7 Swollen assets   
                           28.8 Conclusion: fusion of law and equity?  
                   29. Personal Claims in Equity	385  
                           29.1 Theoretical foundations   
                           29.2 The ingredients of the receipt-based claim   
                           29.3 The categories of knowledge   
                           29.4 Knowledge in the corporate context   
                           29.5 Knowing receipt and the dissipation of corporate assets   
                           29.6 Dishonest accessory liability  
                           29.7 Practical issues  
                           29.8 Conclusion  
                   30. Proprietary Claims in Equity	397  
                           30.1 Introduction   
                           30.2 The philosophy of insolvency law   
                           30.3 The proprietary remedies introduced   
                           30.4 Claiming after tracing  
                           30.5 Claiming profits   
                           30.6 Retention of title clauses   
                           30.7 Proprietary claims in cases of subtractive unjust enrichment   
                           30.8 Restitution for wrongs and constructive trusts   
                           30.9 Complex entitlements and proprietary restitutionary claims   
                           30.10 Conclusion
PART H - DEFENCES
31. Good Faith Purchase	419   
                           31.1 Theoretical foundations    
                           31.2 History and different manifestations of wealth    
                           31.3 Money as currency    
                           31.4 Mistaken payments and good faith purchase    
                           31.5 Equitable claims    
                           31.6 Related issues   
                           31.7 Practical issues   
                   32. Change of Position, Estoppel and Ministerial Receipt	426   
                           32.1 Theoretical foundations    
                           32.2 The recognition of change of position    
                           32.3 Case law after Lipkin Gorman    
                           32.4 Reinterpretation of authority    
                           32.5 Academic analysis of change of position    
                           32.6 The agent's defence of ministerial receipt    
                           32.7 Practical issues   
                   33. Compromise and Submission to an Honest Claim	443   
                           33.1 Theoretical foundations    
                           33.2 Mistaken payments    
                           33.3 Duress and ultra vires demands   
                   34. Passing On	448   
                           34.1 Introduction    
                           34.2 The taxation cases    
                           34.3 Private transactions    
                           34.4 Conclusion   
                   35. Illegality and Public Policy as Defences	452   
                           35.1 Introduction    
                           35.2 The scope of the prohibition of restitutionary claims    
                           35.3 Restitution prohibited if it is tantamount     
                           to contractual enforcement   
                           35.4 Proprietary claims under illegal transactions   
                           35.5 Public policy precluding a restitutionary claim   
                   36. Limitation	461   
                           36.1 Introduction    
                           36.2 The scheme of the Act    
                           36.3 Equitable claims and laches    
                           36.4 Reform
PART I - PRACTICAL MATTERS
                   37. Conflict of Laws	469    
                           37.1 Introduction     
                           37.2 Jurisdiction in non-Brussels Convention cases     
                           37.3 Jurisdiction under the Brussels Convention     
                           37.4 Jurisdiction under the Modified Convention     
                           37.5 Choice of law    
                   38. Interest	478    
                           38.1 Introduction     
                           38.2 The Westdeutsche case in the House of Lords:     
                           simple or compound interest?     
                           38.3 Statutory awards of interest    
                   39. Practice and Procedure	484    
                           39.1 Introduction     
                           39.2 Pre-emptive justice     
                           39.3 Accelerated justice     
                           39.4 Obtaining evidence     
                           39.5 Misfeasance proceedings and insolvent companies    
                   40. Drafting Statements of Case	493    
                           40.1 Introduction     
                           40.2 Historical background     
                           40.3 The structure of the unjust enrichment enquiry     
                           40.4 Mistaken payments     
                           40.5 Matters that need to be specifically pleaded    
                       
                   Index			499


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