Defences to Restitution

Question 1

Defences to Restitution

Answer 1

Change of Position.

Ministerial Receipt.

Bonafide Purchaser.

Estoppel.

Passing On.

Illegality.

Incapacity.

Where counter restitution is possible.

Question 2

Change of position

Answer 2

“Where an innocent defendant’s position is so changed that he will suffer an injustice if called upon to repay”

Westdeutsche Landesbank

Question 3

Ministerial Receipt

Answer 3

Open to an agent who receives a benefit for which it must account to its principal.

Question 4

Bona Fide Purchaser

Answer 4

Defendant should be able to argue that he/she should not be deprived of property that they have received bona fide and for good consideration.

Jones v Waring

Question 5

Estoppel

Answer 5

3 elements

Claimant under a duty to provide accurate info but failed.

Inaccurate info relied upon by defendant.

Defendant changed its position based on mistaken belief.

Jones, Avon v Howlett.

Question 6

Counter-restitution

Answer 6

Returning the benefit.

Question 7

Passing on

Answer 7

Claimant may lose right to restitution if benefit is passed on to third party.

This is supported by restitution’s primary objective of negating the unjust enrichment.

Benson v Birmingham

Question 8

Illegality

Answer 8

Defendant may be able to rely on the illegality of a transaction to defeat a restitutionary claim.

Question 9

Incapacity

Answer 9

One party may lack the capacity to enter into a contract.

Question 10

Instances where illegality cannot be used as a defence:

Answer 10

Parties are not equally at fault.

Withdrawal form an executory illegal contract.

Claimant can establish that defendant retains property belonging to him, without reliance on illegal contract.

Question 11

Limitation period for contribution claims:

Answer 11

2-years.

S10 (1) Limitation Act 1980

Question 12

Limitation Period for recovery of land:

Answer 12

12-years

S15 Limitation Act 1980