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The Principles of the Law of Restitution$
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Graham Virgo

Print publication date: 2006

Print ISBN-13: 9780199298501

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199298501.001.0001

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(p.137) 8 Mistake
The Principles of the Law of Restitution

Graham Virgo

Oxford University Press

A claim to recover money mistakenly paid by the claimant to the defendant is often regarded as the paradigm example of a restitutionary claim founded on the principle of unjust enrichment. Mistake as a ground of restitution is complex for two reasons. First, the law remains unclear about what is the appropriate test for determining when a mistake can operate to vitiate the claimant's intention to benefit the defendant. Secondly, even where it is possible to show that the claimant's intention was vitiated by the mistake, it does not necessarily follow that restitutionary relief should be available. This chapter discusses the key policies which determine when a mistake should ground a restitutionary claim (security of transactions, risk allocation, concoction of claims, and relative conduct of the parties), restitution of benefits transferred by mistake, relief from transactions entered into under mistake, misrepresentation, non-disclosure, and reform of the law.

Keywords:   mistake, ground of restitution, restitutionary claim, security of transactions, risk allocation, claims, enrichment, non-disclosure, misrepresentation

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