
Published online:
20 June 2024
Published in print:
25 April 2024
Online ISBN:
9780191993954
Print ISBN:
9780198885320
Contents
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1. Questions of Policy 1. Questions of Policy
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(A) Does an Incapacitated Defendant Deserve to be Protected from Restitutionary Claims? (A) Does an Incapacitated Defendant Deserve to be Protected from Restitutionary Claims?
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(B) Would the Award of a Restitutionary Remedy to the Claimant Subvert the Law of Contract? (B) Would the Award of a Restitutionary Remedy to the Claimant Subvert the Law of Contract?
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2. Minority 2. Minority
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(A) Restitutionary Claims Founded on Unjust Enrichment (A) Restitutionary Claims Founded on Unjust Enrichment
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(i) The Supply of Necessaries (i) The Supply of Necessaries
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(ii) The Supply of Non-Necessary Benefits (ii) The Supply of Non-Necessary Benefits
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(1) Decisions Which Recognize a Defence of Minority (1) Decisions Which Recognize a Defence of Minority
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(2) Should a Defence of Minority Be Recognized? (2) Should a Defence of Minority Be Recognized?
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(B) Restitutionary Claims Founded on Wrongdoing (B) Restitutionary Claims Founded on Wrongdoing
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(i) Tort (i) Tort
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(ii) Breach of Contract (ii) Breach of Contract
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(iii) Equitable Wrongdoing (iii) Equitable Wrongdoing
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(iv) Crime (iv) Crime
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(v) Conclusions (v) Conclusions
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(C) Restitutionary Claims Founded on the Vindication of Property Rights (C) Restitutionary Claims Founded on the Vindication of Property Rights
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3. Mental Incapacity 3. Mental Incapacity
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4. Institutional Incapacity 4. Institutional Incapacity
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(A) Rejection of a Defence of Institutional Incapacity (A) Rejection of a Defence of Institutional Incapacity
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(B) Implicit Recognition of a Defence of Institutional Incapacity (B) Implicit Recognition of a Defence of Institutional Incapacity
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5. Should a Defence of Incapacity Be Recognized? 5. Should a Defence of Incapacity Be Recognized?
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Cite
Virgo, Graham, 'Incapacity', The Principles of the Law of Restitution, 4th edn (Oxford , 2024; online edn, Oxford Academic, 20 June 2024), https://doi.org/10.1093/oso/9780198885320.003.0028, accessed 5 May 2025.
Abstract
The key question considered in this chapter is whether the fact that the defendant was incapacitated in some way can act as a defence to defeat a restitutionary claim, regardless of the nature of that claim. Would the award of a restitutionary remedy to the claimant subvert the Law of Contract? Restitutionary claims founded on unjust enrichment, claims founded on wrongdoing, and the vindication of property rights are considered. Relevant policy and principle are identified. Particular forms of incapacity are then considered, notably minority, mental incapacity, and institutional incapacity. The significance of the enrichment being necessaries is analysed.
Keywords:
general defence, incapacity, minority, mental incapacity, institutional incapacity, necessaries
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/9780198885320.003.0028
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