
Published online:
20 June 2024
Published in print:
25 April 2024
Online ISBN:
9780191993954
Print ISBN:
9780198885320
Contents
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1. General Principles 1. General Principles
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(A) The Significance of Mistake as a Ground of Restitution (A) The Significance of Mistake as a Ground of Restitution
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(B) The Key Policies which Determine when a Mistake should Ground a Restitutionary Claim (B) The Key Policies which Determine when a Mistake should Ground a Restitutionary Claim
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(i) Security of Transactions (i) Security of Transactions
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(ii) Risk Allocation (ii) Risk Allocation
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(iii) Concoction of Claims (iii) Concoction of Claims
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(iv) Justice for the Defendant (iv) Justice for the Defendant
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(C) Different Types of Enrichment (C) Different Types of Enrichment
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(D) Significant Distinctions (D) Significant Distinctions
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(i) Ignorance of and Mistake as to the Transfer (i) Ignorance of and Mistake as to the Transfer
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(ii) Beliefs and Assumptions (ii) Beliefs and Assumptions
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(iii) Law and Fact (iii) Law and Fact
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(iv) Mistakes and Mispredictions (iv) Mistakes and Mispredictions
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(v) Spontaneous and Induced Mistakes (v) Spontaneous and Induced Mistakes
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(vi) Ground of Restitution and Legally Effective Basis (vi) Ground of Restitution and Legally Effective Basis
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2. Mistake as a Ground of Restitution 2. Mistake as a Ground of Restitution
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(A) Spontaneous Mistakes (A) Spontaneous Mistakes
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(i) Liability Mistakes (i) Liability Mistakes
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(1) Existing Legal Liabilities Owed to the Defendant (1) Existing Legal Liabilities Owed to the Defendant
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(2) Existing Liabilities Owed to Third Parties (2) Existing Liabilities Owed to Third Parties
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(3) Future Liabilities (3) Future Liabilities
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(4) Moral Duties (4) Moral Duties
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(5) Is Restitution Confined to Liability Mistakes? (5) Is Restitution Confined to Liability Mistakes?
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(ii) Fundamental Mistakes (ii) Fundamental Mistakes
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(iii) Causative Mistakes (iii) Causative Mistakes
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(1) Justifications for the Operating Cause Test (1) Justifications for the Operating Cause Test
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(2) Defining the Operating Cause Test (2) Defining the Operating Cause Test
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(3) Voluntariness and Risk-Taking (3) Voluntariness and Risk-Taking
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(4) Mistaken Gifts (4) Mistaken Gifts
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(5) Identifying Mistakes of Law (5) Identifying Mistakes of Law
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(B) Induced Mistakes (B) Induced Mistakes
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(C) Should Mistake be Recognized as a Ground of Restitution? (C) Should Mistake be Recognized as a Ground of Restitution?
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(D) Specific Bars to Restitutionary Claims Founded on Mistake (D) Specific Bars to Restitutionary Claims Founded on Mistake
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(i) Good Consideration Provided by the Defendant (i) Good Consideration Provided by the Defendant
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(ii) Potential Bars to Claims Founded on Mistake of Law (ii) Potential Bars to Claims Founded on Mistake of Law
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(1) Settled View of Law (1) Settled View of Law
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(2) Defendant’s Honest Receipt (2) Defendant’s Honest Receipt
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(3) Completed Invalid Transactions (3) Completed Invalid Transactions
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3. Relief from Transactions 3. Relief from Transactions
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(A) Transactions Which are Void for Mistake (A) Transactions Which are Void for Mistake
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(i) Common Mistakes (i) Common Mistakes
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(ii) Unilateral Mistakes (ii) Unilateral Mistakes
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(iii) Mutual Mistakes (iii) Mutual Mistakes
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(iv) Non Est Factum (iv) Non Est Factum
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(v) The Consequences of a Contract Being Void for Mistake (v) The Consequences of a Contract Being Void for Mistake
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(B) Misrepresentation (B) Misrepresentation
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(i) The Test of Misrepresentation (i) The Test of Misrepresentation
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(ii) The Consequences of Misrepresentation (ii) The Consequences of Misrepresentation
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(iii) Misrepresentation and Third Parties (iii) Misrepresentation and Third Parties
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(C) Non-Disclosure (C) Non-Disclosure
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(D) Voluntary Dispositions (D) Voluntary Dispositions
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Cite
Virgo, Graham, 'Mistake', The Principles of the Law of Restitution, 4th edn (Oxford , 2024; online edn, Oxford Academic, 20 June 2024), https://doi.org/10.1093/oso/9780198885320.003.0009, accessed 4 May 2025.
Abstract
This chapter examines mistake as a ground of restitution within the Law of Unjust Enrichment. It defines a mistake and distinguishes between mistakes and mispredictions. The chapter further examines the different tests of mistake encompassing liability mistakes and fundamental mistakes and concludes that the ‘but for’ test of causation is now recognized. It considers the operation of the test of mistake of law and particular issues relating to the restitution of gifts made by mistake. It examines the role of mistake in vitiating contracts and considers when mistake can operate to make a transaction voidable, particularly for misrepresentation and in Equity.
Keywords:
mistake, misprediction, liability mistake, fundamental mistake, causative mistake, mistake of law, gift, misrepresentation, voidable
Subject
Civil Law
Collection:
Oxford Scholarship Online
The Principles of the Law of Restitution. Fourth Edition. Graham Virgo, Oxford University Press. © Graham Virgo 2024. DOI: 10.1093/oso/9780198885320.003.0009
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