1. See generally A. W. B. Simpson, ‘The rise and fall of the legal treatise: legal principles and the forms of legal literature’ (1981) 48 University of Chicago Law Review 632.

2. Glanville Williams and B. A. Hepple, Foundations of the law of tort (2nd edn 1984) pp 13–20.

3. Glanville Williams and B. A. Hepple, op cit p 24. For a similar contrast see A. M. Tettenborn, Introduction to the law of obligations (1984) pp 7, 124 and 101.

4. See especially ‘Contracts, Promises and the Law of Obligations’ (1978) 94 LQR 193, also reprinted in his Essays in Contract (1986).

5. Birks has written various articles on this issue, in addition to his treatment in Introduction to Restitution (1985) ch 2. See ‘Restitution and Wrongs’ [1982] CLP 53;‘Restitution and the Freedom of Contract’ [1983] CLP 141; ‘Six Questions in search of a subject - Unjust enrichment in a crisis of identity’ [1985] JR 227 (hereafter, ‘Six questions’); ‘Unjust enrichment-a reply to Mr. Hedley’ (1985) 5 LS 67 (hereafter, ‘Unjust enrichment-a reply’).

6. ‘Contract, Tort and Restitution - A satisfactory division or not?’ (1983) 99 LQR 217.

7. R. Goff and G. Jones, The Law of Restitution (3rd edn 1986) (hereafter Goff und Jones) pp 5–16.

8. I know of no more recent supporters than W. S. Holdsworth, ‘Unjustifiable Enrichment’ (1939) 55 LQR 37 and the Court of Appeal in Re Diplock [1948] Ch 465.

9. The ‘implied contract’ theory seems to form an integral part of the demonology of Restitution, or perhaps of the ‘unjust enrichment’ theorist's unbelief system. On unbelief systems, see Jon Elster, Sour Grapes - Studies in the subversion of rationality (1983) p 49. In the case of the ‘implied contract’, fanatical unbelief has undesirable consequences, in particular the tendency to deny that restitutionary remedies for defective or aborted contracts can have anything to do with agreement. On this point see Joseph M. Perillo, ‘Restitution in a contractual context’ (1973) 73 Columbia Law Review 1208; L. Fuller and W. Perdue, ‘The Reliance Interest in Contract Damages’ (1936-37) 46 Yale Law Journal 52 and 373 (hereafter 'The Reliance Interest), 72–73.

10. Goff and Jones (2nd edn 1978) regarded ultimate recognition of the ‘principle of unjust enrichment’ as inevitable, and looked forward to the day when a ‘principled’ approach can be made openly (p 24), though it did not yet regard it as appropriate to consider the subject along principled lines. In the third edition, this statement is modified to read that ‘The next step may well be’ for the courts to recognise the principle. In this and other respects the latest edition is more on the defensive than the earlier ones; and see Lord Justice Goff, ‘An innocent turns to crime’ 119841 Statute Law Review 5, 11–13; Judge, Jurist and Legislature, Child and Co Oxford Lecture 1986, pp 11–12.

11. The number of citations in any one year is not extravagant, but then neither is the number of technical restitutionary issues, nor the amount of judicial attention given to academic writings. Readers may make what they will of the statistic that Goff and Jones was referred to (in judgments available on LEXIS) fairly consistently over the period 1973–1985, with an average of approximately one citation per 1,000 cases. This note and the five following are based on LEXIS enquiries conducted late 1986 and early 1987.

12. Eg R v Secretary of state for Social Services, exp Westhead (1975) Times, 17 October: ‘Again, the applicants say that the overall history would not justify … any conclusion that they had become unjustly enriched in any way’. The context was a dispute over the level of charges made by opticians for National Health Service work.

13. Eg Re Peake's Abbattoirs [1986] BCLC 73 (subrogation).

14. Eg Lipkin Gorman v Karpnale (1986) Financial Times, 10 June. And note that while Goff and Jones is regularly referred to, other academic writings on restitution (even by the same authors) are not. A LEXIS search for the writings of Beatson, Birks, Fridman and McLeod, Goff, Jones and Stoljar turns up nothing except a brief reference to Beatson's ‘Duress as a vitiating factor in contract’ [1974] CLJ 97, cited by Mocatta, J, North Ocean Shipping Co v Hyundai Construction Co. The Atlantic Baron [1978] 3 Google Scholar All ER 1170 at 1182ce.

15. It is not insignificant that the most sophisticated and the most innovatory uses of restitutionary theory have received only limited applause from academic writers. Lord Denning's enthusiastic application of the ‘principle of unjust enrichment’ in Greenwood v Bennett [1973] QB 195 received only lukewarm support even from academics committed to the use of'unjust enrichment' concepts, see Birks, ‘Restitution for Services’ [1974] CLP 13, 19–26 and 35–36, and Goff and Jones pp 144–149; the Court of Appeal's adoption ofGoff and Jones's concept of'officiousness' in Owen v Tate [1976] QB 402 has been criticised by Birks and Beatson, ‘Unrequested payment of another's debt’ (1976) 92 LQR 188, 208–211; and Goulding J's innovative use of the ‘constructive trust’ concept in the Chase Manhattan case has produced mixed responses, see note 128 below. With hindsight, perhaps this is not too surprising: the academic theorists are using ‘unjust enrichment’ concepts to clarify and consolidate, and so must often be markedly more conservative than a judge who is innovating to prevent apparent injustice.

16. But see note 10 above.

17. J. Beatson and W. Bishop, ‘Mistaken payments in the law of restitution’ (1986) 36 University of Toronto Law Journal 149; and compare S. Levmore, ‘Explaining Restitution’ (1985) 71 Virginia Law Review 65.

18. For another approach see G. Samuel, ‘Equity and the legal divisions - 11’ (1986) 37 NILQ 315, 321–328. Another prominent critic was Lord Diplock: see Orakpo v Manson Investments [1978] AC 95 at 104cf. See also his similar anti-Equity remarks in United Scientific Holdings v Burnley Borough Council [1978] AC 904 at 924fh, and the enraged reply in R. P. Meagher, W. M. C. Gummow and J. R. F. Lehane, Equity – Doctrines and Remedies (2nd edn 1984) xi.

19. See ‘Contracts, Promises and the Law of Obligations’ (above, note 2) and The rise and fall of freedom of contract (1979) p 767.

20. See especially note 24 below.

21. ‘Contract, Tort and Restitution - A satisfactory division or not? (1983) 99 LQR 217, 217–218. Burrows’Remedies for Torts and breaches of Contract (1987), while taking a similar position on these issues (see especially pp 19ff) is largely doctrinal.

22. 99 LQR 255. For Atiyah's own reply to Burrows, see Essays in Contract (1986) pp 52–56.

23. See especially 99 LQR 255–263.

24. Burrows uses similar arguments to justify the recognition of Restitution as a distinct category: he defines the area ex cathedra and then looks for ‘the underlying principle behind decided cases’: 99 LQR 233–34. By assuming that there will be a single principle, he has again assumed the very point in issue.

25. 99 LQR 255–267.

26. Ibid, 255 et seq.

27. Ibid, 256–257.

28. Ibid, 256–262.

29. See generally Paul Vinogradoff, ‘Aristotle on Legal Redress’ (1908) 8 Columbia Law Review 548; John Finnis, Natural Law and Natural Rights (1980) ch 7.

30. And of course this example can easily be modified to provide examples of restitutionary liability, for example if I do typing work for you which was clearly meant to be paid for even though we did not agree a price.

31. 99 LQR 259 (emphasis in original); see also his ‘The will theory of contract revived Fried's Contract as Promise’ [1985] CLP 41.

34. Burrows sees this point but does not deal with it: 99 LQR 221 note 10.

33. 99 LQR 259.

34. Above, note 9. For a general discussion of this article, see Jay M. Feinman, ‘Promissory estoppel and judicial method’ (1984) 97 HLR 678, 684 et seq. The article has only been influential in this jurisdiction relatively recently. A LEXIS search reveals only two references in formal judgments, and in both cases it was smuggled in by referring to other cases where it was referred to: in C & P Haulage (a firm) v Middleton [1983] 3 All ER 94 at 98gj it came in with a quote from the judgment of Berger J in Bowlay Logging v Domtar [1978] 4 WWR 105 (Supreme Court of British Columbia); and in CCC Films (London) v Impact Quadrant Films [1984] 3 Al ER 298 at 307fh there is a lengthy quote from C & P Haulage itself.

35. 99 LQR 219–220.

36. Burrows discusses differences between his approach and that in ‘The Reliance Interest’ at 99 LQR 219–221.

37. 99 LQR 229–232, 254–255.

38. See 46 Yale Law Journal 71–75.

39. 46 Yale Law Journal 54–55, 71–73.

40. And even on that basis they are very circumspect: see 46 Yale Law Journal 57.

41. See especially their discussion of'The Divergence of Measure and Motive and the Problem of Mixed Motives', 46 Yale Law Journal 66–71.

42. The rise and fall of freedom of contract (1979) p 3.

43. 99 LQR 265.

44. See above, note 41.

45. See more generally M. Cain, ‘Necessarily out of touch: Thoughts on the social organisation of the bar’ (1976) 23 Sociological Review Monographs 226.

46. See ‘The Reliance Interest’, opening words. The original remark was of course Nietzsche's.

47. 46 Yale Law Journal 419. Given their reference to the ‘inescapable flexibility of the concept “benefit”’ (46 Yale Law Journal 72) it seems unlikely that they would have wished to treat Restitution as a conceptually distinct unit either.

48. 99 LQR 243.

49. Ibid, 244. Burrows' preferred view is that promissory estoppel is ‘really’ expectation-based. Compare H. C. Collins, The Law of Contract (1986) p 43, arguing that it is the ‘reliance’ interest that is crucial, the theory that the expectation is crucial having ‘obvious weaknesses’. Collins' mistake is the mirror-image of Burrows‘. You mightjust as well argue about whether it is the brown ink or the picture of Florence Eightingale that is the ‘real’ mark of a £10 note. Fuller and Perdue were much more careful here, acknowledging the artificiality of talk of'the reasons why’ the courts award a particular remedy: 46 Yale Law Journal 57 and 66–71.

50. Another such issue on the ‘reliance’/‘restitution’ borderline is that of the recovery of money paid on a total failure of consideration: see 99 LQR 221 note 12.

51. ‘Restitution and the freedom of contract’ [1983] CLP 141–142. For a list of Birks' recent comments on these issues see above, note 5. Other interesting pieces by Birks on related themes are ‘English and Roman learning in Moses v Macferlan’ [1984] CLP 1, ‘Restitution: A View of the Scots law’ [1985] CLP 57, and (with G. McLeod) ‘The implied contract theory of quasicontract: civilian opinion current in the century before Blackstone’ (1986) 6 OJLS 46. For Atiyah's reply to Birks, see Essays in Contract (1986) pp 47–52.

52. Introduction to Restitution, ch 2.

53. Birks defines ‘Restitution’ in his Introduction to Restitution, pp 9–16.

54. Ibid, pp 18–19.

55. Ibid, pp 22–27.

56. Ibid, pp 75–77.

57. Ibid, ch 9. Birks acknowledges on p 294 that all he means by ‘policy’ is that these remedies pursue different policies from those underlying the remedies in earlier chapters.

58. Review of Birks' Introduction to Restitution [1986] CLJ 128, 130. Moriarty's view is just tenable if we read the Introduction alone, but cannot survive a reading of'Restitution and the freedom of contract' [1983] CLP 141.

59. See'Unjust enrichment-a reply' (1985) 5 LS 56, 69, where the accusation is varied to ‘allowing the subject to become unintelligible’. For examples of this approach to borderline cases see ‘Restitution and the freedom of contract’ [1983] CLP 141, 151-2 (contract/restitution borderline). As to clarity of language, see Wittgenstein Philosophical Investigation (Basil Blackwell, 3rd edn 1968) proposition 68ff.

60. Atiyah's point is that unjust enrichment ideas are on the rise throughout Obligations, so the development is distorted by creating a distinct unit of'unjust enrichment' cases. ‘The various cases show little sign of coming together into one new body of law, and this may be just as well’: The rise and fall of freedom of contract (1979) p 767.

61. See Introduction to Restitution, pp 72–74; also pp 15–16.

62. Ibid, pp 1–6 esp p 5. The reification is plain: Restitution ‘somehow escaped the attention of textbook writers’ before this century (p 2), as it was ‘split up and hidden under the fringes of other subjects’ (p5); it ‘ha[d] to wait for Goff and Jones in 1966’ before achieving recognition. This is Whig History, pure and simple. If lawyers before 1966 did not recognise its existence, then in what sense was it there at all?

63. For assertions that Contract is wholly based on the intentions of the parties whereas Tort and Restitution are never so based, see [1983] CLP 147-9; Introduction to Restitution pp 2, 22, 44; see also his suggestion that admitting unjust enrichment concepts into Contract ‘would subvert bargains’, as if this were an unpardonable sin: Introduction to Restitution, p 47.I stress that this is a step beyond Burrows' claim that these distinctions are observed on the whole or for the most part. For similar arguments on the Restitution-Tort borderline see (1985) 5 LS 73; for the Restitution-Property borderline see ‘Six Questions’ [1985] JR 228–30; Introduction to Restitution, pp 13–14; ‘Restitution and the Freedom of contract’ [1983] CLP 143–6.

64. See especially J R. Spencer, 'Signature, Consent, and the rule in L'Estrange v Graucob [1973] CLJ 104.

65. C. Fried, Contract as promise (1981) pp 60–63. It is instructive to compare the dogmatism of Birks with the relatively undogmatic Fried, who is nonetheless putting forward the strongest defence of ‘contract as promise’ in recent years.

66. Glanville Williams, ‘Language and Law’ (1945) 61 LQR 71, 179, 293 and 384, and (1946) 62 LQR 387, especially 61 LQR 402–406.

67. Compare Birks (1985) 5 LS 240; R. M. Goode, ‘Ownership and Obligation in Commercial Transactions’ (1987) 103 LQR 433.

68. Indeed, a rather half-hearted attempt to do so will be found at the start of most major Tort textbooks. For this and other approaches to Tort, see P. Cane, ‘Justice and justifications for tort liability’ (1982) 2 OJLS 30; and see the same author's ‘Contract, Tort and economic loss’ in Thc law of tort (1986) ed Furmston.

69. The property concerned in restitution cases is usually money. Compare generally S. Stoljar, The law of quasi-contract (1964).

70. This is not as radical as it might appear. Land Law especially gets by without drawing a sharp distinction between ‘property’ and ‘contractual’ rights. See for example restrictive covenants; options and other estate contracts; leases, both at law and under the rule in Walsh v Lonsdals (1882) 21 Ch D 9; licences and estoppels; and see R. J. Smith, “The Economic Torts: their impact on real property' (1977) 41 Conv NS 318”.

71. I am using the term ‘interest’ to denote any of the eight sub-classes into which I divide the class of a person's ‘assets’, ie their legal rights, actual or potential. For other uses of the word, see Restatement (2d) of the Low of Tort (1965) s 1; K. Lipstein, ‘Protected Interests in the law of Torts’ [1963] CLJ 85. Compare also Geoffrey Samuel, ‘“Le Droit Subjectif” and English Law’ [1987] CLJ 264.

72. And note that ‘asset’ and ‘owner’ are correlative: I do not confine ‘owner’ to cases of property rights stricto sensu.

73. This is part of a wider problem, of the way in which the courts treat conflicts between two asset-owners, each of whose rights would be absolute in the case in question but for the existence of the other's (eg conflicts between adjoining land owners as to the use of their property). As with the self-defence problem, the courts usually deal with the issue in the amorphous language of'reasonableness'.

74. ‘Conduct’ here includes the common law ‘negligence’ standard, the near-absolute duties in respect of dangerous escapes and premises adjoining the highway, and breach of statutory duty; also the amplifying effect on all of these of the notion of vicarious liability. Breach of contract is usually ‘receipt’ rather than ‘conduct’, but some duties imposed by contracts are effectively tort-like ‘conduct’ ones, such as that in The Moorcock (1889) 14 PD 64. Unlike ‘receipt’ liability, ‘conduct’ liability can usually be limited by arguments which show that the defendant's conduct did not cause all the loss in question: the principal concepts are ‘remoteness’, ‘causation’ and ‘contributory negligence’.

75. The general absence of a defence of'impossibility' in Contract is thus in my scheme analogous to the absence of a ‘fault’ requirement in the tort of conversion or the restitu-tionary remedy for money had and received: failure to perform a binding promise is not usually treated as ‘conduct’ but as the illegitimate receipt of an asset that ought to have been transferred to the promisee. The analogy between the contractual claim and the claim in conversion is clear in the case where I agree to sell you my antique clock and you pay the price: your tortious and contractual claims against me are virtually identical, and whether property in the clock has passed to you only decides the formal classification of the action as ‘contract’ or ‘tort’.

76. Several writers have recognised that the market value of an asset can often be recovered even when it is unrealistic to say that the claimant has ‘lost’ this value in the technical tort sense, typically because it cannot be shown that the claimant would have realised the value in any event. Alternatives to my ‘receipt’ approach to this problem can be found in Donald Harris, Anthony Ogus and Jennifer Phillips, ‘Contract remedies and the consumer surplus’ (1979) 95 LQR 581; Gareth Jones, ‘The recovery of benefits gained from a breach of contract’ (1983) 99 LQR 443; Robert J. Sharpe and S. M. Waddams, ‘Damages for lost opportunity to bargain’ (1982) 2 OJLS 290. Sharpe and Waddams' approach is closest to mine; it is entirely compatible with my ‘receipt’ notion and can be regarded as a sub-class of cases within it: their principle is explicitly residual and so does not cover ‘receipt’ claims based on well-known doctrines such as the standard contractual claim for the value of the asset promised, or restitutionary claims based on quantum meruit, quantum valebat, ‘free acceptance’ or money had and received.

77. Spartan Steel and Alloys v Martin & Co (Contractors) [1973] QB 27 is an example of ‘conduct’ liability.

78. Boardman v Phipps [1967] 2 AC 46.

79. This is one of several interrelated restrictions on the definition of the Money interest. See also notes 85, 88 and 116 below; Jon Elster, Making sense of Marx (1985) pp 97–99.

80. So, for that matter, would be the liability in any of those cases if the prima facie amount referred to were altered by a liquidated damages clause. These measures may not be combined to claim twice over in respect of the same aspects of the same asset.

81. Note that even in the case of an exchange there is no reason why the second transfer should necessarily be to the first transferor. So far as Contract is concerned, this is of course the area dominated by the doctrine of consideration, though the doctrines of promissory and proprietary estoppel are also relevant. Whether the court finds the transfer effective in any one case often depends on the extent to which the transferee has carried out the other transfer.

82. Forced transfers are generally classified either as not part of Obligations, or as not forced. So ‘voluntariness’ in my scheme is a purely formal notion, a reference to the problems of freedom here rather than a purported solution.

83. As a rough categorisation, I suggest that the implied terms in contractual and other transfers fall into four main classes: (i) terms actually implicit in the transfer but not openly stated; (ii) terms fleshing out the transfer in matters of detail on which the transferor did not decide; (iii) ‘business efficacy’ terms, imposing tort-like duties to facilitate the progress of the transfer and its object; and (iv) ‘reliance’ terms, typically to render concrete a transfer too vague to be enforced as it stands but which the court enforces in order to secure restitution for the assets transferred under it. It will be observed that both (iii) and (iv) represent substantial injections of tortious and restitutionary liability.

84. The choices are: (i) the transfer may be regarded as wholly invalid (eg Mistake at common law); (ii) the transfer may be re-written on fairer terms (eg Extortionate Credit Bargains); (iii) the transfer may be re-written to correct a mistake (eg Rectification); (iv) the transferor may be given the chance to avoid the transfer entirely, but only on conditions (eg Undue Influence); or (v) the transfer may be set aside only in so far as it came into erect after failure of reciprocation (eg Termination for Breach). It would be wrong to assert complete parallelism between mistake, undue pressure and in capacity on the one hand, and failure of reciprocation on the other; that would be to confuse the two distinct meanings of ‘recission’ expounded in Johnson v Agnew [1980] AC 367. However, at the very abstract level at which I am now dealing with the law the similarity is close. The entire area of'recission of contracts' is disputed territory between Contract and Restitution, Contract theorists feeling than anything affecting the validity of contracts is their business, whereas Restitution lawyers have undisputed rights to recission of property transfers and do not see why contracts should be different. See for example Robert Goff LJ in Whittaker v Campbell [1983] 3 All ER 582 at 586de.

85. And following my previous qualifications with regard to Money, I do not treat the substitution of money as the substitution of an asset within a different interest until the right to the money is independent of the asset it replaces - in other words I treat your wages as part of your Money interest only when you can establish your right to them directly, rather than by proving your transfer of Labour to your employer.

86. Or an aspect of its value. Assets may be indefinitely subdivided, and different sorts of remedies given for different aspects. Thus if I squat on your land you might receive an injunction to evict me for the future and ‘receipt’ damages (‘mesne profits’) for the period before trial.

87. See above, note 85.

88. I regard contractual rights of insurance, indemnity and guarantee as part of the protection of the asset for the protection of which the right is taken. This point may make more sense in the light of the place of Obligations within the legal system generally: see below, text following note 191.

89. See above, note 74 on The Moorcock.

90. Note that since I am classifying ultimately by reference to remedy, the right of a creditor under a loan is always a Money right, even when the loan is secured against property. So a security transaction such as a land mortgage will involve an asset changing classification as it changes ownership: the mortgagor of a house transfers part of the Land interest but the creditor receives an accretion to the Money interest. In this connection, note the courts' consistent policy of affording creditors neither more nor less than the remedies reflecting the money they have laid out, however absolute the rights transferred as security; and see especially Megarry and Wade, The law of real property (5th edn 1984) pp 943–944 and Cuckmere Brick Co v Mutual Finance [1971] Ch 633.

91. Another example is the sale of growing crops, delivery to be taken by picking them: the seller transfers Land but the buyer acquires Chattels.

92. Conversely, the rule in Bazn v Fothergill (l874) LR 7 HL 158 often effectively removes protection from certain contractual land rights, confining the claimant to protection of the Money interest infringed by the defendant's failure to make good title to the land in question.

93. Note how the concepts fit together: one who occupies land under a contract for a lease is protected from the lessor by the law of contract, as amplified by the rule in Walsh v Lonsdale (1882) 21 Ch D 9 (on which see Megarry and Wade, op cit, pp 640–645), but is protected from trespassers on the ground of possession.

94. Though this is very restricted when it involves evicting another from the land. See the Protection from Eviction Act 1977 and the Criminal Law Act 1977, ss 6–13.

95. Note that Trespass to land contributes to both the ‘conduct’ and ‘receipt’ categories: it can be used as the basis of a claim for damage to the land if negligence is shown, or as the basis of a claim for the use value enjoyed by the trespasser (eg Swordheath Properties v Tabet [1979] 1 WLR 285).

96. For ‘loss’ see Leakey v National Trust for places of Historic Interest or Natural Beauty [1980] QB 485; and Radford v De Froberville [1977] 1 WLR 1262 where failure to honour a contractual obligation to build a wall was compensated by the claimant's estimated cost of doing so himself. For ‘gain’ see for example Keech v Sandford (1726) Cas temp King 61.

97. Under the Defective Premises Act 1972; in Tort, after Annr v Merton London Borough Council [1978] AC 728 and Junior Books v Vietchi Co [1982] 3 WLR 477; or under contract (eg Otter v Church, Adams, Tatham and Co [1953] Ch 280) especially as amplified by implied terms (eg Hancock v B. W. Brazier (AnerLy)) [1966] 2 All ER 901.

98. See the doctrine of Nuisance to Easements and Profits. There is also a very limited extent to which the tort of Inducing Breach of Contract can be invoked to protect contractual land rights: see generally R. J. Smith, ‘The Economic Torts: their impact on real property’ (1977) 41 Conv NS 318. An unusual case is Midland Bank Trust Co v Green (No 3) [1982] Ch 529, where the tort of conspiracy was successfully invoked to recover the value of an option deliberately destroyed by the claimant's parents. Other torts which may be invoked to protect the Land interest are liability for fire, animals and other dangerous things.

99. Various examples can be given where one who has enjoyed the use of land to which another is entitled has been made to pay over the value of the right taken. See Swordhcath Propcrfies v Tabet [1979] 1 WLR 285; Wrotham Park Estate Co v Parkside Homes [1974] 2 All ER 321 at 339b–342e; Penarth Dock Engineering Co v Pound [1963] 1 Lloyd's Rep 359; Dennis v McDonald [1982] 1 All ER 590.

100. A broad movement in favour of enforcing transfers actually relied on is discernible, deriving support from both ancient doctrines such as Part Performance and recently-extended ones such as Proprietary Estoppel and Acquiesence. A useful framework for arranging the law is provided by Stephen Moriarty, ‘Licences and Land Law: Legal Principles and Public Policies’ (1984) 100 LQR 376. However, despite the language of ‘intention’, ‘agreement’ and ‘reliance’ which pervades the cases, I am unhappy to regard cases on contribution to household finances as within this category: cases of express agreement apart, it seems to me that to give someone a share of the house in proportion to their contribution to its cost is most obviously to be regarded as involuntary substitutional ‘benefit’ protection for the assets contributed. For a brief but valuable discussion see John Dewar, ‘Promises, Promises’ (1984) 47 MLR 735.

101. Many, especially those under the Law of Property Act 1925, are simply rebuttable presumptions; and see at common law: Liverpool City Council v Irwin [1977] AC 239. The most obvious example of unexcludable terms are those under the Rents Acts, though confusingly those Acts draw a distinction between the ‘contractual tenancy’ and the ‘statutory tenancy’ which is deemed to come into existence on the expiry of the contract one.

102. On the difficult problems encountered here, see generally above, note 84; Goffand Jones chs 7–11; Cheshire, Fifoot and Furmston, op cit, chs 9 and 18; J. T. Farrand, Contract and Conveyance (4th edn 1983) pp 209–211.

103. This terminology is of course adapted from the Sale of Goods Act 1979. In my terminology, however, an ‘unascertained chattel’ becomes a ‘specific chattel’ when goods are appropriated to the contract. It is unnecessary to postulate a dichotomy of ‘specific’ and ‘unascertained’ for Land and Money, for opposite reasons: Land assets (almost) invariably relate to a specific piece of ground and so are all ‘specific’, whereas for Money I make the assumption (untrue in fact but true of nearly all situations met in the case law) that the rights involved are always ‘unascertained’.

104. Eg Howard E. Peny & Co v British Railways Board [1980] 1 WLR 1375; Lord Strathcona Steamship Co v Dominion Coal Co [1926] AC 108.

105. An unusual example is British Motor Trade Association v Gilbert [1951] 2 All ER 641. Usually of course the price has not been paid in advance, and so the remedy is not for the value of the goods but for the value less the price agreed: Sale of Goods Act 1979, s 51(3). Both statute (Consumer Credit Act 1974, s 75) and Contract (Shanklin Pier v Dctel Products [1951] 2 KB 854) occasionally entitle a chattel's owner to compensation for its poor quality from someone other than its supplier.

106. Eg goods supplied under void contracts (Goff and Jones pp 380–390) or under contracts already discharged (pp 449–484) or necessaries supplied to disabled persons (pp 337–349). Strongly analogous to ‘receipt’ are the few cases where your creditors can lawfully seize my goods to satisfy their debts against you: usually I may recoup the value of my goods from you (Goff and Jones ch 14): see below, note 122; also the rules on general average contribution (Goff and Jones pp 300–308).

107. Detention of chattels for a temporary period may result in an action for the reasonable value of the use over that period: Strand Electric and Engineering Co v Btiiford Entertainments [1952] 2 QB 246. Note that the murt in that case was divided on whether the remedy was ‘tortious’ or ‘restitutionary’, though they were not divided on its content. See also Hillesden Securities v Ryjack (1983) Times, 20 July. Other torts which may also protect the Chattel interest are the liabilities for fire, animals and other dangerous things.

108. As recently established in Leigh & Sillavan v Aliakmon Shipping Co [1986] 2 AllER 145. However, it would take a very wide reading of this case to deny the possibility of any such claim in negligence; and deliberate interference with contractual assets is actionable as inducing breach of contract: G. W. K. v Dunlop Rubber Co (1926) 42 TLR 593; British Motor Trade Association v Salvadori [1949] Ch 556.

109. In the ‘gain’ direction: Lamine v Dorrell (1701) 2 Ld Ray 1216; most examples of ‘waiver of tort’ are of this kind.

110. The only strict property rights at law are Ownership and Pledges, which I class as a species of Money right (see above, note 90). Equity is more flexible, allowing divisions along the time dimension as well. Note also the doctrines of Attornment and Bailee estoppel: Goff and Jones pp 521–522.

111. Validity of a transfer depends on a variety of matters, principally its form and whether there was any reciprocation for/reliance on it.

114. See generally the Sale of Coods Act 1979,s 12–14; Supply of Goods and Services Act 1982, ss 2–10. These implications are often unexcludable: see the Unfair Contract Terms Act 1977, s 6.

113. See generally Goff and Jones chs 9–11.

114. Though it appears from Torquay Hotel Co v Cousins [1969] 2Ch 106 that it is irrelevant whether damages could be claimed against the other party to the contract.

115. Against the party who contracted to supply: Sky Petroleum v VIP Petroleum [1974] 1 All ER 954. Against those intentionally preventing supply by the contractor: Torquay Hotel Co v Cousins, previous note.

116. I reiterate the limits I place on the definition of this interest, which do not apply to other interests: see above, notes 79, 85 and 88.

117. However, as I treat secured Money debts as Money (see above, note go), it is possible to conceive of a claim for damaging Money in a situation where a third party damages the security: eg I negligently allow a fire in my garden to burn down my neighbour's adjoining house, and their mortgage company (or the company's insurers) sue me for rendering their security worthless. And quite apart from this example, the doctrine of subrogation may often give proprietary protection to a debt.

118. Especially interesting here is Balsumo v Medici [1984] 2 All ER 304, on which see Simon Whittaker (1985) 48 MLR 86.

119. Whether at common law or under the Misrepresentation Act 1967, s 2(1). An unusual case is Ross v Caunters [1980] Ch 297, where the money lost was a sum the plaintiff never had but would have received if the defendant had not been negligent: in other words this is a Money version of Anns v Merton London Borough Council [1978] AC 728.

120. Goff and Jones pp 337–349. The duties concerned are parents' duties to support their children, and duties to bury the dead. The case law is very old, and occurred in a rather dimerent atmosphere regarding the role of the local authority in dealing with such matters. For the record, though, I think these cases fit best into Obligations here, rather than being expressed in terms of'benefit'.

121. See Coff and Jones pp 64–65, notes 29 and 30. The distinction in this area between ‘trover’/‘conversion’ (Tort) and ‘money had and received’ (Restitution) is really only intelligible as a matter of history; there seems little reason to keep them distinct after the abolition of the Forms of Action. See also Greenwood D Bennett [1973] QB 195.

122. The notion of a ‘hierarchy of debts’ is vague, but then so are the legal rules in this area. The basic idea is that while several people may be equally liable to pay a debt at the instance of the primary creditor, as between themselves some may be more liable than others. In some cases the claimant has been caught up in the creditor's enforcement procedures against the primary debtor: ‘recoupment’ (Goff und Jones ch 14; and see there the analogous Chattel and Labour claims). Usually today however the claim is for money extracted by the court or in settlement of litigation: the claimant may seek a fixed proportion of what was so taken (‘contribution’, Coff and Jones pp 274–289), or a proportion set by the court (Goff and Jones pp 289–299), or the whole (‘subrogation’, Goff and Jones ch 27).

123. The problem is most pressing in relation to personal injury cases, where the courts are frequently asked to assess damages for the claimant's future expenses, especially medical expenses.

124. Fraud cases apart, it is difficult to claim loss consequential on a Money loss, the courts' usual attitude being that an award of interest is suficient compensation. But see Wudsworth D Lydall [198l] 2 All ER 401.

125. Eg the liability found in Thurstan v Nottingham Permanent Benefit Building Society [1902] 1 Ch 1 (reversed on grounds irrelevant here [1903] AC 6); and see above, note 100 on contributions to household finance.

126. See Introduction to Restitution chs 5 and 6.

127. Statute and the doctrine of consideration together make signed writing a necessity for abandoning debts, though see Hirachand Punamchand v Temple [1911] 2 KB 330 and the doctrine of promissory estoppel.

128. Chase Manhattan Bank N.A. v Israel-British Bank (London) [1980] 2 WLR 202 is controversial amongst Restitution lawyers, because it regards mistake as to liability as a ground for denying that equitable title passes. See Tettenborn [1980] CLJ 272; Gareth Jones [1980] CLJ 275.

129. Retention of equitable title for failure of reciprocation appears in Barclays Bank v Quistclose Investments [1970] AC 567.

130. For a general treatment - which for Restitution theorists would be an amalgam of ‘tracing’ and the rules on equitable vitiation of transactions - see Goff and Jones pp 60–77 and chs 10–11. It is rather curious that ‘tracing’ is regarded as part of Restitution at all, given that most Restitution theorists regard ‘Restitution’ and ‘Property’ as distinct. See Birks, Introduction to Restitution pp 54–67.

131. Eg cases where the claimant paid to avoid seizure of assets, and can recoup this loss: Goff and Jones ch 14.

132. Logically this point can be made also about Tort claims for Money, but this would be superfluous: the torts mentioned above quietly ignore the defence of'consent', presumably because the arguments by which it would be established are effectively negatived by the rules on substantive liability: see for example J. E. B. Fasteners v Marks Bloom B Co (afirmj [1983] 1 All ER 583. Goff and Jones assert defences of'voluntary submission' (pp 36–38, 105-108 and 240–244) and ‘officiousness’ (pp 42–43 and passim), but this seems to me unnecessary; these are simply additional factors on the question whether the payment was voluntary, and are better taken account of within Birks' wider framework rather than as distinct defences. See generally Birks, ‘Restitution and the freedom of contract’ [1983] CLP 141, 149–159.

133. This interest is defined by exclusion: thus rights to services improving a particular piece of property are treated as part of that property interest, and a (contractual) right that a surgeon perform an operation is treated together with, and indeed for practical purposes melts into, the (contractual/tortious) duty to cause no harm by negligence. So claims within this interest are usually ‘unascertained’ (see note 103 above), and in Employment contexts the ascertainment is done by the employer. Compare the approaches in S. Coval, J. C. Smith and Simon Coval, ‘The foundations of property and property law’ [1986] CLJ 457 and D. F. Libling, ‘The concept of property: property in intangibles’ (1978) 94 LQR 103.

134. Consistently with this, home-making services are given no recompense by Obligations where the market gives none. A claimant is thus usually in a poor position to claim for home-making services rendered from a defendant cohabitee, whether on a quantum meruit basis or on a ‘gain’ claim for a share of the home. To make a successful claim it is usually necessary to show something in addition, eg Transfer of Land in reliance (Tanner v Tanner [1975] 1 WLR 1346) or Labour of a type the court considers unusual (Eves v Eves [1975] 1 WLR 1338).

135. Though after the Wages Act 1986 it is no longer required to be money.

136. Except to enforce restrictive trade covenants.

137. Contract and Restitution overlap here. See Birks, ‘Restitution for Services’ [1974] CLP 13; Goff and Jones chs 17–24 insofar as they relate to services; Gareth Jones, ‘Restitu-tionary claims for services rendered’ (1977) 93 LQR 273. Maritime Salvage (Coff and Jones ch 16) follows special valuation rules but is otherwise a standard example of a ‘receipt’ claim.

138. The existence of a contract selling the labour concerned is always relevant in Tort and is often crucial in the calculation of damages, but the absence of a specific contract to sell it is not fatal to a claim for damages provided the claimant can show it probably would have been so sold. Note especially that earnings lost through the defendant's conduct can often be claimed even though the claimant could not have sued the recipient of the services even had they been completed: eg barristers' earnings, and tips. Compare text at note 161 below.

139. Also (much less frequently) Assault, Battery, Nuisance and Breach of Contract.

140. Deceit can lead to physical injury (eg Burrows v Rhodes [1899] 1 QB 816), but a situation which does not and yet might constitute actionable injury to the Labour interest is suggested by Diamond v Bank of London and Montreal [1979] 1 All ER 561.

141. Eg Ratcliffe v Evans [1892] 2 QB 524; and see the Defamation Act 1952, s 3, which gives the courts a free hand in assessing damages where the statement is calculated to injure this interest.

144. Eg Quinn v Leath [1901] AC 495.

143. Eg Bird v O'Neal [1960] AC 907.

144. Eg Rookes v Barnard [1964] AC 1129. See also the not-quite-Intimidation tort in Thomas v National Union of Mineworkers [1985] 2 All ER 1.

145. Eg Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 1 1 QBD 674.

146. Eg Bourgoin SA v Ministry of Agriculture Fisheries and Food [1985] 3 WLR 1027.

147. See the Defamation Act 1952, s 2.

148. See the Sex Discrimination Act 1975, ss 65–66; Race Relations Act 1976, ss 56–57.

149. Really only bribery of an employee in a fiduciary position: see Coff and Jones pp 654–658. Note especially the refusal to give substitutional protection for home-making services in Burns v Burns [1984] Ch 317.

150. See the Trade Union and Labour Relations Act 1974, s 13; Employment Act 1980, s 17.

151. Companies are in a special position in relation to this interest, and obviously the concepts of'Family' and ‘Personal Dignity’ have no application; but otherwise companies own assets in much the same way as human beings.

152. In the modern law there is no requirement that the contract be in writing, though see the Employment Protection (Consolidation) Act 1980, ss 1–11.

153. Summed up in the ‘restraint of trade’ doctrine, the given policy basis of which has shifted considerably over the centuries it has existed.

154. Upton Rural District Council v Powell [1942] 1 All ER 220.

155. Andrew v St. Olave's Board of Works [1898] 1 QB 775.

156. Plunchiv Colburn (1831) 8 Bing 14. However, the status of this case today is unclear. A recurrent problem for Restitution lawyers is whether Boomer v Muir 24 P 2d 570 (1933, California District Court of Appeals) would be followed in this jurisdiction. In my terminology, when may someone who has contracted to supply services, and has already done so in part, repudiate the contract for non-reciprocation and sue for the services on a ‘receipt’ basis, claiming the market value instead of the contract price? For a general discussion, see Coff and Jones ch 23 and M. Owen, ‘Some aspects of the recovery of reliance damages in the law of contract’ (1984) 4 OJLS 393,402–405. Note also the rule in White and Carter (Councils) v McGregor [1962] AC 413, that you do not have to exercise your right to repudiate for non-reciprocation unless you want to; forcing the Labour on the unwilling buyer and then suing for the agreed price is usually a perfectly legitimate tactic.

157. ‘Labour’ cannot be recovered back in the normal sense, but only in the more limited sense that unperformed obligations to render services may be cancelled, and ‘receipt’ liability be available for Labour already transferred. Some Labour lawyers object to the treatment of the Labour interest within a similar framework to commodities such as Land or Money: eg Hugh Collins, ‘Market Power, Bureaucratic Power, and the Contract of Employment’ [1986] ILJ 1; contrast Jon Elster, op cit, pp 199–200.

158. See above, note 133.

159. For this concept see Robert Coff J in BP Exploration Co (Libya) v Hunt (No 2) [1982] 1 All ER 925 at 938j-943c; though I would quibble with his example of the prospector (9391). If the prospector produces a report under contract, why should not the report itself constitute the ‘end product’, as a specific chattel or as intellectual property? Note that the ‘end product’ concept is being used for rather different purposes from those here.

160. Though dicta suggest that this need not always be so: per Lord Denning MR in Torquay Hotel Co v Cousins [1969] 2 Ch 106 at 138; per Lord Diplock in Merkur Island Shipping Corpn v Laughton [1983] 2 All ER 189 at 195ej.

161. See Trade Union and Labour Relations Act 1974, s 16.

162. An unusual example of recovery within this interest is Anglia Teleuition v Reed [1972] QB 60, where the plaintiff company engaged the defendant to star in a film they were making; he then realised he had double-booked himself, and cancelled the arrangement. The plaintiffs were held able to sue for money thrown away in preparing for the production. This would be a simple case of the Money interest, were it not for the fact that much of the money involved was spent before Reed was engaged, and so it is hard to see on what basis he was held responsible for the loss. It seems best to regard the case as one where the defendant's own wrong precluded accurate ascertainment of the loss, and so the court assumed in the plaintiffs favour that they would have broken even, had Reed done the job. Thus Reed was held liable to indemnify the plaintiffs for all expenditure. This is however certainly not what the Court said. See generally M. Owen, ‘Some aspects of the recovery of reliance damages in the law of contract’ (1984) 4 OJLS 393.

163. Under the tort of Interference with Contractual Relations as modified by the Trade Union and Labour Relations Act 1974, s 13 and the Employment Act 1980, s 17. And see the recent litigation between Peter Harrington and the Polytechnic of North London, where the tort was used to involve a number of third parties: [1984] 1 WLR 1293, and four other unreported judgments between May and September 1984, available on LEXIS.

164. See Goff and Jones ch 35; P. M. North, 'Breach of confidence - Is there a new tort? (1972) 12 JSPTL 149. The interrelation of property in a confidence and property in the physical materials on which the confidence is recorded has given rise to difficulties: see kspecially Sccrctaty of State for Dcfcnce v Guardian Newspapers [1984] 3 All ER 601.

165. [1967] 2 AC 46.

166. [1892] 1 Ch 104.

167. [1955] 1 WLR 761.

168. The last four would not be classified by most writers as part of obligations, though see Tim Frazer, ‘Appropriation of personality - a new tort?’ [1983] 99 LQR 281.

169. [1977] AC 405.

170. [1976] AC 104.

171. [1913] AC 30. Boardman v Phipps (above, note 165) is another examp1e; the case is thus doubly unusual, as it gives substitutional protection to confidence by giving a Share interest. Reference to Shares was rather more common in Obligations cases late last century -indeed, the basis of the modern law of Misrepresentation is in a string of Victorian cases on this interest.

172. Eg William v William [1957] 1 WLR 148.

173. [1951] 2 KB 215.

174. [1919] 2 KB 571. See my own ‘Keeping Contract in its place - Balfour v Balfour and the enforceability of informal agreements’ (1985) 5 OJLS 391.

175. See the torts abolished by the Administration of Justice Act 1982, s 2.

176. I say ‘anomalous’ not because I think the family should be denied a remedy but because it seems more sensible to allow the deccused's estate a remedy under normal rules, and then allow the survivors to exercise their remedies against the estate: see S. M. Waddams, ‘Damages for wrongful death: Has Lord Campbell's Act outlived its usefulness?’ (1984) 47 MLR 437.

177. Matrimonial Homes Act 1967, now consolidated into Matrimonial Homes Act 1983.

178. In Defamation cases, the reason given is a desire to maintain freedom of speech: see for example Harakas v Baltic Mercantile and Shipping Exchange [1982] 2 All ER 701. A case where even the common law allows a mandatory order is habeas corpu.

179. Lack of fault is sometimes but not always a defence. And note the Defamation Act 1952, s 4: lack of fault in Defamation is not a defence but it may reduce damages quite substantially. Proof of malice may negative various defences in Defamation.

180. A fuller list is Defamation, False Imprisonment, and tortious or contractual liability for personal injury, Wrongful invocation of (civil or criminal) legal process, Deceit, Discrimination, and non-performance of ‘contracts of enjoyment’ eg Jackson v Horizon Holidays [1975] 1 WLR 1468.

181. The orthodox line (Rookes v Barnard [1964] AC 1129) is that ‘exemplary damages’ may only be awarded (a) against servants of the Crown, (b) against defendants motivated by profit to commit the wrong, and (c) where statute so provides. But this line has proved unpopular, and is hard to reconcile with more recent cases eg Perry v Sidney Phillips and Son (a firm) [1982] 3 All ER 705.

182. The loss in reported cases is usually a Money loss - eg Breiss v Woolley [1954] AC 333.

183. Damages and Injunction available almost invariably protect Labour.

184. Whether at common law or under the Misrepresentation Act 1967, s 2(1). As with Deceit, the interest protected is usually Money - eg Howard Marine and Dredging Co v A. Ogden and Sons (Excavations) [1978] QB 574.

185. Usually invoked to protect Labour - eg Quinn v Leathem [1901] AC 495 - but see Belmont Finance Corpn v Williams Furniture (No 2) [1980] I All ER 393 at 417h et seq (Money).

186. Usually invoked to protect Services-eg South Wales Miners' Federation v Glamorgan Coal Co [1905] AC 239.

187. Usually invoked to protect Labour- eg Rookes v Barnard [1964] AC 1129. Money is an obvious interest to need protection against Intimidation, but such claims seem largely to be handled under restitutionary rules, presumably because there is no need to prove fault on the defendant's part but only lack of voluntariness on the claimant's.

188. Usually invoked to protect Personal Dignity - eg Tempest v Snourdm [1952] 1 KB 130-though see Berry v British Transport Commission [1962] 1 QB 306 (Money). Some cases talk of'fair fame and credit' as an interest protected by this tort; in practice this seems to mean either Personal Dignity or (in the case of Companies and Sole Traders) Labour. See also Speed Seal Products v Puddington [1986] 1 WLR 672 (Money).

189. Usually invoked to protect the interests infringed by Personal Injury: Labour, Money and Personal Dignity. See Glanville Williams, ‘The effect of penal legislation in the law of tort’ (1960) 23 MLR 233. An unusual case is Monk v Warbey [1935] 1 KB 75, where the plaintiff was injured in a road accident and was held able to sue the car's owner for failing to insure it. But this too was a Personal Injury case, if the ‘conduct’ concerned was a little unusual as a ground for civil liability. See also Yvonne Cripps' note on the Bourgoin case (above, note 146), [1986] CLJ 165.

190. The development of the law on the recovery of'pure economic loss' could easily poke large holes in any ‘protected interest’ analysis, but the case law to date is easily accommodated here.

191. This is however only true by definition: Contract and Restitution share the elaborate rules for telling complete and uncoerced exchanges from incomplete and coerced ones.

192. To ask how realistic it is to see the whole of Administrative Law as fitting into my analysis of the first six interests is effectively the same question as whether a ‘private right’ or ‘special damage’ must be shown to gain locus standi for the prerogative orders. See generally P. Craig, Administrative Law (1983) ch 12. The broader and more developed Administrative Law becomes, the greater will be the extent to which the availability of orders under RSC (3rd 53 must be put into my ‘Personal Dignity and Citizenship’ interest.

193. It will be noted that as my scheme classifies rights rather than duties, it cannot accommodate duties with no obvious individual right attached, for example traffic regulations.

194. See G. Samuel, ‘Roman law and modern capitalism’ (1984) 4 LS 185, 187.

195. See C. Harlow and R. Rawlings, Law and Administration (1984) chs 1–2.

196. See Roberts v Rambottom [1980] 1 All ER 7 at 16b. See also A. W. B. Simpson, ‘Innovation in nineteenth century contract law’ (1975) 91 LQR 247, 277–278.

197. See David Sugarman, ‘Legal Theory, the Common Law Mind and the making of the textbook tradition’ in W. Twining ed, Legal theory and common law (1986).

198. Compare T. Downes, ‘Contracts and Legal Method: An attempt at integration’ (1985) 19 Law Teacher 133.

199. For general ruminations see N. Simmonds, ‘The changing face of private law: doctrinal categories and the regulatory state’ (1982) 2 LS 257; Ella Rule, ‘Legal Education: A major problem for the Marre Committee’ (1987) 21 Law Teacher 249.