(Download) "Incapacity, Non est Factum and Unjust Enrichment. (Australia)" by Melbourne University Law Review # eBook PDF Kindle ePub Free
eBook details
- Title: Incapacity, Non est Factum and Unjust Enrichment. (Australia)
- Author : Melbourne University Law Review
- Release Date : January 01, 2009
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 303 KB
Description
[Although the concept of enrichment is' fundamental to the law of unjust enrichment, there is relatively little case law on this issue. This is because most cases involve the receipt of money and, in general, money is regarded as incontrovertibly beneficial. Against this backdrop, the recent unanimous New South Wales Court of Appeal decision of Ford v Perpetual Trustees Victoria Ltd stands out as a singular opportunity for reflection on the nature of enrichment. The case concerned, inter alia, the restitutionary liability of a borrower who so lacked mental capacity at the time of entering into the impugned loan transaction that the transaction was void for non est factum. The Court of Appeal found that the borrower was not in fact benefited by his receipt of the loan and restricted his restitutionary liability to a small sum retained in his account. This article explores the doctrinal foundations that support this conclusion. It explains that findings of incapacity and non est factum have significant ramifications for the issue of enrichment, even in cases where the putative enrichment is money. Such findings may also affect the availability of the change of position defence. This is because the law requires that the tests generally applicable to resolving those matters be modified so that they do not undermine or stultify the policies of the law in protecting an incapax or a defendant whose mind did not go with their deed.] I INTRODUCTION
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