
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 the reversal of unjust enrichment (a) Restitutionary claims founded on the reversal of 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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(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) Equitable wrongdoing (ii) Equitable wrongdoing
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(iii) Crime (iii) Crime
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(iv) Breach of contract (iv) Breach of contract
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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
Abstract
Incapacity can operate as a ground of restitution in its own right, in that it enables the claimant who is incapacitated to secure restitution where the incapacity arises from mental disorder, minority, or institutional incapacity. In each of these cases, there is a strong policy of protection to ensure that the person who is incapacitated does not suffer from entering into foolish transactions. This chapter examines whether the defendant's incapacity in some way can operate as a defence to defeat a restitutionary claim regardless of the nature of that claim. It discusses restitutionary claims founded on the reversal of unjust enrichment, restitutionary claims founded on wrongdoing such as tort and equitable wrongdoing, restitutionary claims founded on the vindication of property rights, mental incapacity, institutional incapacity, and whether a defence of incapacity should be recognised.
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