Unjustified Enrichment Note on TRANSFER, created by alicetait on 10/04/2013.
Note by alicetait, updated more than 1 year ago
Created by alicetait about 11 years ago

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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 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




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