Peter Chau and Lusina Ho on Agreement and Restitutionary Liability for Mistaken Payments (OUP book chapter)

"Agreement and Restitutionary Liability for Mistaken Payments"
Peter Chau, Lusina Ho
in Sagi Peari (ed.), Warren Swain (ed.), Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory, (Oxford University Press,December 2023),pp. 181-200
Published online: December 2023

Abstract: This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, it argues that his account: (1) confuses the motivating causes of the payment with the terms of the payment; (2) rests on a long chain of inference that raises doubt as to the general applicability of his argument to cases of mistaken payment; and (3) offers little guidance on when restitutionary liability should be imposed. With respect to Titiana Cutts’s argument, which is inspired by TM Scanlon’s idea of reasonable agreement, the chapter argues that: (1) the principles considered in her contractualist pairwise comparison are unduly limited and (2) the considerations she takes into account in deciding between principles, such as the security of a party’s plans and the impact on people with limited means, are not specific enough for her conclusion. For example, these considerations cannot explain why reasonable people must choose a principle that gives payors who paid upon a relevant mistake a general right to restitution, but not when they paid upon a misprediction.