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Published online by Cambridge University Press: 16 January 2009
When we contemplate the havoc which has been wrought in the field of English law by the enunciation of maxims of a rhetorical character —some of which are of uncertain origin and still more uncertain operation—it may, perhaps, seem strange that our law is so unreceptive when it comes to be a question of applying a broad general principle such as that of unjustified enrichment. The explanation seems to be that our law of quasi-contract, such as it is, has developed along a channel which was carved out for it by indebitatus assumpsit, and that this has proved to be too restricted to permit of the growth of remedies of a non-contractual nature, though it did not interfere with the destructive force of maxims of a negative character, as, for instance, when Lord Ellenborough applied the maxim of ignorantia iuris haud excusat in Bilbie v. Lumley to the case of money paid under a mistake of law.
85 In Yarmouth v. France (1887) 19 Q. B. D. 647, 653 Lord Esher said : ‘I detest the attempt to fetter the law by maxims. They are almost invariably misleading; they are for the most part eo large and general in their language that they always include something which really is not intended to be included in them.‘
85 (1802) 2 East 469.
86 [1914] A. C. 398. In fact the existence of any such doctrine would seem to have been negatived long before this date in Marriot v. Hampton (1797) 7 T. R. 269.
87 [1914] A. C. at p. 434.
88 At p. 456. See also Baylis v. Bishop of London [1913] 1 Ch. at p. 140; per Scrutton L.J. in Holt v. Maritham [1923] 1 K. B. at p. 513.
89 Moses v. Macferlan (1760) 2 Burr. 1005; Towers v. Barrett (1786) 1 T. R. 133.
90 See Winfield, The Province of the Law of Tort, p. 130. and the cases cited in note (4) on that page. Cf. Hanbury, ‘The Recovery of Money,’ 40 L. Q. R. 31–42.
91 Winfield, op. cit. p. 139.
92 Holdsworth, History of English Law, vol. i, p. 559:, vol. viii, pp. 265 and 269: Falcke v. Scottish Imperial Insurance Co. (1887) 34 Ch. D. at p. 249; The Gaetano and Maria (1882) 7 P. D. at p. 143. It is interesting to observe that French law also deals with ‘sauvetage’ and ‘assistance’ on a special footing. See Walton, The Egyptian Law of Obligations, p. 165.
93 It is protected by a maritime lien and is enforceable by suit in a Court of Admiralty. Maelachlan, Law of Merchant Shipping (6th ed.) p. 529.
94 Maclachan, op. cit. p. 529, note (1). See, however, per Lord Esher in Burton v. English (1883) 12 Q. B. D. p. 218; per Lush J. in Crooks v. Allan (1879) 5 Q. B. D. 38.
95 Carver, Carriage by Sea, § § 363 and 364; per Bramwell L.J. in Wright v. Marwood (1881) 7 Q. B. D. at p. 67.
96 Winfield, op. cit. p. 139.
97 [1912] 2 K. B. 419.
98 [1914] 3 K. B. 607.
99 [1906] A. C. 148.
1 (1802) 2 East 469. The earliest case in which the point seems to have been raised is Lowrie v. Bourdieu (1780) 2 Doug. 469; and see also per Willes J., King v. Shipley (1784) 3 Doug. 177. Professor Keener seems to be correct in attributing the origin of the rule to Lord Ellenborough'e dictum in Bilbie v. Lumley, supra. See Keener, Law of Quasi-Contracts, p. 85.
2 Vol. ii, p. 203 passim.
3 (1889) 24 Q. B. D. 166.
4 [1903] 1 K. B. 772. See now section 266 of the Local Government Act, 1933.
5 [1921] 1 K. B. 321. As to whether the Common Law may also be effective in such a case, see the judgment of Atkin L.J. at p. 335.
6 [1928] 1 K. B. 48.
7 Nordenfeldl v. Maxim Nordenfeldt Co. [1894] A. C. at p. 573.
8 Supra.
9 (1889) 15 Q. B. D. 60.
10 Supra.
11 Per Hamilton L.J. in Baylis v. Bishop of London [1913] 1 Ch. at p. 140.
12 Per Scrutton L.J. in Holt v. Markham [1933] 1 K. B. at p. 533.
13 Sinclair v. Brougham, supra.
14 Banque Beige v. Hambrouck [1921] 1 K. B. at p. 335.
15 Supra.
16 Winfield, op. cit. p. 150. This is a special case falling within the rules of Conflict of Laws, and it depends on considerations alien to English law as a whole. See British Tear Book of International Law, 1932, at p. 52.
17 [1913] 1 Ch. 127.
18 (1885) 14 Q. B. D. at p. 815:
19 Winfield, op. cit. p. 141.
20 p. 140.
21 Supra.
22 Supra.
23 E.g. in Barclay v. Pearson [1893] 2 Ch. 154 the action was in the Chancery Division and was brought to administer an alleged trust. Taylor v. Bowers (1876) 1 Q. B. D. 291 was an action in detinue to recover chattels.
24 Supra.
25 Banque Beige v. Hambrouck, supra.
26 See the observations of Lord Dunedin on this aspect of the matter in Cantiare San Rocco v. Clyde Shipbuilding Co. [1924] A. O. at p. 248.