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Note by , created almost 6 years ago

Unjustified Enrichment Note on TRANSFER, created by alicetait on 10/04/2013.

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Created by alicetait almost 6 years ago
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Page 1

Applications of the CCDCNS(1) general application: transfers for future purpose not involving contract- Shilliday- In Shilliday Lord Rodger outlined CCDCNS covers situations where A is enriched because B has paid/tranferred to him in the expectation of  receiving a consideration from A, but a does not provide.- there is no requirment for a contract; mutual agreement- express/ implied from circumstances (shilliday/ satchwell apply) (2) application to “advances” made in contractual context- - situations in which an “advance” is paid to assist in the performance of a contract. Distinguish an “advance” from a “payment” of the contract price: An “advance” is a repayable transfer of funds made as an “advance” before payment is due under the contract;and is not payment of the contract price:lord dunedin in Cantiere San Rocco

3) no application in general to performance under valid contracts ● exception: frustrated contract= if no counter performance= entitled. watson and cantiere san rocco● possible exceptions: after breach of contract; breach does not itself extinguish any future obligations/effect validity=gives the innocent party the right to certain remedies. -But even if the innocent party rescinds a contract and does thereby extinguish future pending obligations, contractual remedies still remain available to them (e.g. damages), unlike frustration=cant sue-The cases go against the principle of entitlement after breach.so- not ccdcns BUT possible application of the CSC (no legal basis)when performance on one side has not been met by any counter-performance by the time of a breach. = Connelly  cases;cantiere san roccoconnelly satchwell watson 

CLAIM relevant in situations where a contract is deemed illegal and therefore unenforceable- meaning one party has conferred a benefit ue'ing the other party but cannot enforce any contractual rights. - sucess of claim depends on relative turpitude (moral blameworthiness) of parties;4 requirments for recovery;1- deliberate conferral/reciept under transaction which was illegal/immoral2-no turpitude in pursuer3- when turpitude is in evidence in P- recovery depends on relative degree of turp in parties4- t-tude assessed according to principle in pari turpidtudine PRINCIPLE OF PARITURPITUDINE; means; when both parties are at fault, the position of the possessor is stronger; 1- a party who is not considered to be at fault may recover2-when parties are equally at fault- no rec.3-when not equally- less guilty can recoverCuthbertson;statute directed at both parties- no turpitude in the pursuer selling not be imperial measurement cases- CUTHBERTSON-JAMIESON-

NO.3 csc- action for the return of a payment which defender has no legal basis for retaining against the pursuer-this  is the category which may be employed where a transfer doesnt fall in CI / CCDCNS / COTVIC- CONCERNS grounds for recovery of benefits retained without a legal basis- most common case is where there is no error but it is an undue payment- transfer under compulsion- (need for error when it is condictio indebti) woolwhich- payments not made in error- there was debate about error of law= they were aware- but payment was demanded. english case BUT would have been a succesful CSC case in scotlandCase; woolwich

4 PART test for applying the condictio indebti (claim for the return of a payment which was undue)1- deliberate conferral AND receipt of a benefit2-the purpose of the conferral was to discharge a legally recognised duty (eg. performance of a contract) 3- the purpose of the conferral failed- because the benefit transferred was undue4- the reason why the conferral was made must have been ERROR by the transferror as to legal liability MORGAN GUARANTY- CI was available for the recovery of money paid under an obligation which is void but was erroneously thought to be valid.list; (4)morgan guarantycredit lynnaisbank of newyorkpete walker and sons (edinburgh)ltd

application CCDCNS- 1,2

application CCDCNS 3

COTVIC

CONDICTIO SINE CAUSA

CI