Soton Equity and Trusts - alastairhudson.com

actions, then the claimant should be entitled to a remedy which subtracts that enrichment from
the defendant (as opposed to imposing damages simpliciter).
Mistake
o Recovery of money paid under mistake of fact
o Recovery of money paid under mistake of law
o Restitution in respect of services rendered under a mistake
o Restitution in relation to chattels transferred under a mistake
o Restitution in relation to land transferred under a mistake
o Reponses: rescission, rectification and reopening accounts
Compulsion
o Recovery of benefits conferred under undue influence*
o Recovery of benefits conferred under duress*
o Relief from unconscionable bargains*
o The right to contribution or recoupment
Necessity
Ineffective transactions
o Frustration
o Transfers void for lack of formality
o Lack of authority
o Lack of capacity
Illegality*
Acquisition of a benefit through a wrongful act
o Breach of fiduciary relationships*
o Breach of confidence*
o Property acquired through tortious acts
o Benefits accruing from crime*
*The starred items are already well-known in equity. So, why are they necessarily
restitutionary in all circumstances?
1. Resulting trusts
D. Restitution and Property Law
Birks, ‘Restitution and resulting trusts’, in Goldstein (ed), Equity: Contemporary
Legal Developments (Jerusalem University, 1992), 335.
Swadling, ‘A new role for resulting trusts?’ (1996) 16 Legal Studies 110.
Chambers, Resulting Trusts (Oxford: Clarendon Press, 1997).
2. Tracing
Argued for by Smith, L, The Law of Tracing (Oxford: Clarendon Press, 1997).
Again, tracing is said to effect restitution because it makes restitution of the property
whereas otherwise the defendant would have been unjustly enriched.
Birks, P, ‘Mixing and tracing’ (1992) 45(2) Current Legal Problems 69.
Birks, P, ‘On taking seriously the difference between tracing and claiming’ (1997)
11 Trusts Law International 2.
However, Virgo, Principles of the Law of Restitution (OUP, 1999) and Foskett v.
McKeown [2001] 1 AC 102 tells us that tracing operates to vindicate one’s property
rights. (Birks complained that vindication merely expresses one’s motivation for
imposing tracing but does not explain the legal basis on which it arises.)
In Foskett v McKeown, Lord Millett tells us that tracing is not part of unjust
enrichment.
3. Constructive trusts
Disliked by restitutionists because, they say (Birks, Introduction to Restitution
(Clarendon Press, 1989)) it is not possible for one to know on what legal basis the
constructive trust has been imposed. Conscience enthusiasts, however, see the
constructive trust as being a means of policing conscience in a range of
circumstances.
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