Topic: Absence of juristic reason, unjust factors and the nature of intention

Presenter: Professor Duncan Sheehan - University of East Anglia

Canadian common law organises its law of unjust enrichment in terms of absence of juristic reason after Garland v Consumer Gas. The paper asks what this tells us about the underpinning rationale of Canadian (or Civilian) unjust enrichment law versus that of the unjust factors approach where a transfer is made between A and B and A’s putative purpose fails. McInnes has argued for a limited reconciliation between the two approaches, suggesting both systems are concerned with party autonomy and that Canadian law can still use the older jurisprudence.

In an absence of basis approach there can be only one putative basis in play; this is why the condictiones are mutually exclusive. Edelman (now Edelman J) has argued that mistake and failure of consideration cannot lie concurrently in English law because in a failure of consideration claim the defendant’s autonomy is also implicated. Unjust factors approaches do tend to allow this, however, as the English swaps cases indicate. To understand this, the paper examines how collective intention can be conceptualised. The first view is that collective intentions are merely interlocking personal intentions. The second is that when “we intend” something there is a plural subject separate from either of us and that “we” can intend something even if neither of us intend it individually. The paper suggests that the differing positions as to concurrency are based on differing views of collective intentions.

The Garland test is a two stage test. First the plaintiff must show that no juristic reason from an established category – contract, gift, statutory obligation - exists to deny recovery. Secondly, that prima facie case is rebuttable where the defendant shows there is another reason to deny recovery, bearing in mind e.g. the parties’ reasonable expectations. The paper asks to what extent Canadian law has grappled with how it views collective intention and how that fits with its more Civilian-esque absence of juristic reason structure. 

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