CPLC Work in Progress Seminar: ‘We All Make Mistakes: a 'Duty of Virtue Theory of Restitutionary Liability for Mistaken Payments'

Speaker: Professor James Penner (NUS)

Location: Moot Court Room, Faculty of Law

This paper argue that in contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as being aspects or elements of ‘right’, to put it in quasi-Kantian terms, liability to return the value of mistaken payments is an example of the law’s enforcing a duty of virtue. In a way similar (though not identical) to how the law might instantiate a duty of easy rescue as the ‘replacement’ in particular cases of the general duty of beneficence, liability for mistaken payments counts as an instantiation of the same duty of beneficence in a particular sort of factual situation. Accordingly, one of Birks’s most cherished theses – that the law of unjust enrichment is a distinctive aspect of private law, not to be assimilated to contract, tort, or the law of property – can be made out: it is distinctive in having an entirely different normative source, in virtue, not in right. But this result comes at a cost:

1. A legal system could function more or less justly without a liability to return the value of mistaken payments;
2. Birks’s thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment would have to be abandoned; and
3. we would recognise that the liability to make restitution of mistaken payments falls under the category of policy-motivated justifications for restitutionary liability.

The work in progress seminars are open to all LLM and PhD students, Faculty members and Faculty visitors.

For more information about the activities of the Cambridge Private Law Centre, see the website or contact privatelaw@law.cam.ac.uk.