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The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss.
Assumpsit, or more fully, the action of assumpsit, was a form of action at common law. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case.
Failure of consideration is a technical legal term referring to situations in which one person confers a benefit upon another upon some condition or basis ("consideration") which fails to materialise or subsist. It is also referred to as "failure of basis". It is an 'unjust factor' for the purposes of the law of unjust enrichment. Where there is a "total failure of consideration" the claimant can seek restitution of the benefit by bringing an action in unjust enrichment against the defendant. Historically speaking, this was as a quasi-contractual claim known as an action for money had and received to the plaintiff's use for a consideration that wholly failed. The orthodox view is that it is necessary for any relevant contract to be ineffective, for example because it is discharged for breach, void ab initio or frustrated. However, it will be available on a subsisting contract where it does not undermine the contractual allocation of risk.
Andrew Burrows QC (Hon) is a Professor of the Law of England and senior research fellow at All Souls College, Oxford. His work centres on private law, and is the main editor of the compendium English Private Law, the convenor of the advisory group that produced A Restatement of the English Law of Unjust Enrichment as well as textbooks on English contract law.
The English law of unjust enrichment is part of the English law of obligations, along with the law of contract, tort, and trusts. The law of unjust enrichment deals with circumstances in which one person is required to make restitution of a benefit acquired at the expense of another in circumstances which are unjust.
Philip Collins Ltd v Davis [2000] 3 All ER 808 is an English unjust enrichment case, an example of a restitution claim and the change of position defence.
The English law of Restitution is the law of gain-based recovery. Its precise scope and underlying principles remain a matter of significant academic and judicial controversy. Broadly speaking, the law of restitution concerns actions in which one person claims an entitlement in respect of a gain acquired by another, rather than compensation for a loss.
Tracing in English law is a procedure to identify property that has been taken from the claimant involuntarily. It is not in itself a way to recover the property, but rather to identify it so that the courts can decide what remedy to apply. The procedure is used in several situations, broadly demarcated by whether the property has been transferred because of theft, breach of trust, or mistake.
Knowing receipt is an English trusts law doctrine for imposing liability on people who receive property that belonged to a trust, or was held by a fiduciary, and knew that it been given to them in breach of trust. To be liable for knowing receipt, the claimant must show, first, a disposal of his trust assets in breach of fiduciary duty; second, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the claimant; and third, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.
Foskett v McKeown [2000] UKHL 29 is a leading case on the English law of trusts, concerning tracing and the availability of proprietary relief following a breach of trust.
Moses v Macferlan (1760) 2 Bur 1005 is a foundational case in the law of restitution holding that in certain circumstances such as when money is paid by mistake, for failed consideration or under oppression; the law will allow the money to be recovered.
The local authorities swaps litigation refers to a series of cases during the 1990s under English law relating to interest rate swap transactions entered into between banks and local authorities. The House of Lords ruled that such transactions were unlawful. As a result of the decision over 200 separate actions were filed as hundreds of interest rate swap contracts had to be unwound by the courts at great expense.
Barclays Bank Ltd v W J Simms, Son and Cooke (Southern) Ltd [1980] 1 QB 677, [1979] 3 All ER 522 was a decision of the High Court of Justice relating to the recovery of a payment mistakenly made by a bank after the customer had countermanded the cheque.
Goff and Jones on the Law of Unjust Enrichment is the leading authoritative English law textbook on restitution and unjust enrichment (ISBN 978-1847-039101). It is presently in its ninth edition. It is published by Sweet & Maxwell and forms part of the Common Law Library.
Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 is a judicial decision of High Court of Justice of England and Wales in relation to the banker-customer relationship, and in particular in connection with the bank's duties in relation to payment instructions which give rise, or ought to give rise, to a suspicion of fraud.
