Doubt, Mistake and Risk-Taking in Restitutionary Claims

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Abstract:

This article considers the recent decision of Flaux J in Marine Trade v Pioneer Freight Futures concerning the relevance of doubt in restitutionary claims. A claimant may recover payments that they have made where they are mistaken. It remains a matter of considerable debate, however, as to whether that claimant may still recover if they had doubts surrounding their liability to pay but paid nonetheless. The article argues that Flaux J's decision that a party who believes that it is 'more likely than not' that they do not have to pay cannot be mistaken, fails to take account of the commercial realities that underlie restitutionary claims. It furthermore argues that Birks' absence of basis thesis fails to clarify our analysis of this unresolved area of the law of restitution.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/096157611796769550

Publication date: July 1, 2011

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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