Lecture 4

Question 1

Condictio ob turpen vel iniustam causa requires: (4)

Answer 1

1. Deliberate conferral/receipt under transaction that was illegal/immoral
2. No turpitude in pursuer, i.e. not morally reprehensible, in order to permit recovery
3. When turpitude is in evidence, i.e. the pursuer is morally reprehensible, recovery depends on relative degree of turpitude in each party
4. Turpitude is assessed according to the principle in pari turpitude potior set conditio possidentis

Question 2

in pari delictio/turpitudine rule

Answer 2

– a party who is not considered to be at fault may recover

• • when parties are equally at fault, no recovery
• • when not equally at fault, unclear…

Question 3

Cuthbertson v Lowes 1870

Answer 3

Leading case on Condictio ob turpen vel iniustam causa, even thought it’s not explicitly referred to. The victim was innocent - got all the money back.

Question 4

Jamieson v Watt’s Trustee 1950

Answer 4

Condictio ob turpen vel iniustam cause - he did it with knowledge that it was illegal - couldn’t recover anything

Question 5

Barr v Crawford 1983

Answer 5

“In my view positive and clear averments would have to be made before it would be possible to draw a conclusion, warranting an inquiry, that Mrs Barr was not in pari delicto if, indeed, such a doctrine applies to the present circumstances. Counsel was not able to indicate to me that he could satisfactorily amend. I accordingly dismiss the action.”

Question 6

McQuarrie v Crawford 1951

Answer 6

delictual wrong in order to make contract - the contract is tainted - no money recovered - D was not enriched at P’s expense

Question 7

Arrol v Montegomery 1826

Answer 7

one is less to blame than the other - the one who was less to blame was allowed to claim

Question 8

Woolwich Building Society 1993

Answer 8

ENGLISH CASE * NOT ABOUT CONDICTIO SINE CAUSA* but would probably be analysed this way in Scotland

Paying a tax bill thinking you shouldn’t. HMRC has statutory demands, so they were scared of what would happen if they didn’t pay

Question 9

British Oxygen v South of Scotland Electricity Board 1959

Answer 9

claim under condictio indebiti – but this was before Shilliday v Smith test - so would now probably be analysed under condictio sine causa