Failure of consideration

The Sophistication of Unjustified Enrichment: A Response to Nils Jansen

“…44 In Scotland today, as Evans-Jones remarks, "[a] consensus has emerged [amongst legal writers] that the causes of action of the law of unjustified enrichment as a whole are usefully grouped according to the manner in which the enrichment was acquired". 45 Thus an approach founded on the manner of enrichment (whether by way of deliberate transfer to or unauthorised imposition upon the enriched party, including unauthorised performance of that party's separate obligation, or by that party's interference with the rights of the other), plus the absence of a legally valid basis for retention of the enrichment by the defender (such as contract or gift), is to be seen in Martin Hogg's Obligations, 46 the relevant chapter of the last two editions of Gloag & Henderson (with another on the way in 2017), 47 and an elementary student introduction to the subject which has so far appeared in four successive incarnations between 2003 and 2013. 48 This consensus in the literature is not yet, however, reflected in the decisions of the courts, even though it was indeed the judges who in the 1990s overthrew the old world of the 51 Relatively few enrichment cases since then have found their way to the upper levels of the Scottish court system, so the lack of authoritative judicial endorsement of the academic position is perhaps not surprising; but it makes life difficult for judges in lower courts and those arguing the law before them.…”

Payment of Another's Debt, Unjustified Enrichment and ad hoc Agency

“…Nor does this article consider the controversial issue whether payment by a bank of its customer's stopped cheque discharges the customer's debt. 16 This is a special area of law since a bank pays its customer's cheque in order to implement its customer's mandate and not in order to pay any debt of its customer; for aught the bank knows or needs to know, there may be no debt. 17 Finally the article does not deal with unauthorised performance of another's obligation ad factum praestandum, which requires extra safeguards for the creditor.…”