277:, the defendant ought to refund; it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a
28:
172:. Lord Mansfield gave a number of settled instances where the action lay, but the instant case did not fall within any of them. Lord Mansfield also sought to find a principle within which past, present, and future cases might be accommodated. Given what he saw as the rigidities of the common law, Lord Mansfield looked to equity for an appropriate analogy upon which the common law should draw."
135:
Macferlan, thus transferring over rights to the money. Prior to Moses endorsement, Macferlan assured him that his endorsement would not prejudice him. In other words, Macferlan would not seek to get the value of the notes from Moses. There was also an agreement signed by
Macferlan that Moses should "not be liable to the payment of the money or any part of it".
340:, which came out in 1768. Following Lord Mansfield almost verbatim, Blackstone says that the plaintiff is entitled to recover "where money is paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where undue advantage is taken of the plaintiff's situation".
326:
noted of
Mansfield's statement of law (cited above), "This corresponds very closely to the modern structure of the law of unjust enrichment. The phrase "unjust enrichment" does not actually appear. But "money which ought not in justice to be kept" is "unjust enrichment", cut down to money as the form
259:
Thirdly, Lord
Mansfield rejected the assertion that a court's judgment could not be revised by a new action; "Money may be recovered by a right and legal judgment; and yet the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defence against the judgment."
145:
The lawyer for Moses put the agreement before the court and offered to give evidence of it in Moses defence. However, the Court rejected this defence as beyond its jurisdiction, refused to receive evidence of it and gave judgment against Moses; holding that his endorsement establishing his liability.
149:
On the subsequent action of Moses in the King's Bench court to recover the £6, the jury found that Moses was entitled to the money subject to the opinion of the court on the question, "Whether the money could be recovered in the present form of action, or whether it must be recovered by an action
134:
Moses owed
Macferlan £26, did not pay him and was sued. A settlement was reached at arbitration whereby Moses would pay Macferlan £20; and endorse to Macferlan the four promissory notes he had received from Jacob, whose sum, 120 shillings, was equivalent to £6. Moses, endorsed these notes to
289:
taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of
119:
holding that in certain circumstances such as when money is paid by mistake, for failed consideration or under oppression; the law will allow the money to be recovered.
544:
271:
action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies for money which,
330:
Birks observes that
Mansfield's classification of unjust factors, "was endowed with the authority of scripture and broadcast to the world by
146:
Moses paid the money, to the value of the four promissory notes, into court. Macferlan then withdrew the money at the order of the court.
529:
354:
181:
82:
336:
316:
161:
41:
349:
312:
116:
94:
549:
201:
will lie, where an Action of Debt may not be brought"; and responded that the rule was "That an Action of
539:
534:
446:
169:
98:
360:
8:
27:
331:
281:
which happens to fail; or for money got through imposition, (express or implied) or
138:
Despite
Macferlan's assurances and agreement with Moses; he summoned Moses into the
273:
291:
286:
128:
365:
153:
523:
278:
295:
268:
184:
CJ dealt with a number of objections to allowing the plaintiff's action in
323:
282:
197:
185:
139:
102:
67:
142:
Court of
Conscience as the endorser of the four promissory notes.
494:
Zurich
Insurance PLC UK Branch v International Energy Group Ltd
511:
The
Foundations of Unjust Enrichment: Six Centennial Lectures
403:
Roxborough v
Rothmans of Pall Mall Australia Ltd HCA 68 at .
156:
has summarised the problem that the court had to deal with;
168:
was the absence of an accepted basis for the action for
513:. Wellington: Victoria University Press``. p. 50.
160:"The root of the doctrinal problem presented to the
311:is credited with founding the entire common law of
232:Contract"; answering "If the Defendant be under an
191:Firstly, he noted the objection "That an Action of
521:
361:Roxborough v Rothmans of Pall Mall Australia Ltd
220:Secondly, he dealt with the objection, "That no
115:(1760) 2 Bur 1005 is a foundational case in the
319:as "a corner-stone of common law restitution".
252:founded in the Equity of the Plaintiff's Case,
59:(1760) 2 Bur 1005; 97 ER 676; All ER Rep 581
334:. He adopted it in the third volume of his
150:brought upon the special agreement only".
26:
355:Landmark cases in the Law of Restitution
522:
444:
545:Court of King's Bench (England) cases
508:
504:
502:
428:
426:
424:
411:
409:
387:
385:
13:
530:English unjust enrichment case law
14:
561:
499:
447:"Moses v. Macferlan 250 Years On"
421:
406:
382:
127:Chapman Jacob had made out four
315:. It has been described in the
302:
487:
475:
463:
438:
397:
1:
376:
350:English unjust enrichment law
307:Lord Mansfield's judgment in
368:gives a detailed history of
317:United Kingdom Supreme Court
7:
343:
176:
10:
566:
484:(1760) 2 Bur 1005 at 1012.
472:(1760) 2 Bur 1005 at 1009.
435:(1760) 2 Bur 1005 at 1008.
418:(1760) 2 Bur 1005 at 1006.
394:(1760) 2 Bur 1005 at 1005.
254:as it were upon a Contract
213:and in many where it does
195:would not lie here and no
327:of action necessitated."
263:Lord Mansfield then held,
93:
88:
78:
73:
63:
55:
47:
37:
25:
20:
445:Gummow, William (2010).
122:
298:, to refund the money."
285:; or oppression; or an
131:to Moses for 30s each.
300:
174:
170:money had and received
99:Money had and received
509:Birks, Peter (2002).
265:
224:lies, except upon an
158:
42:Court of King's Bench
209:in many cases where
550:1760 in British law
250:gives this Action,
166:Moses v. Macferlan
117:law of restitution
95:Law of restitution
540:Unjust enrichment
482:Moses v Macferlan
470:Moses v Macferlan
433:Moses v Macferlan
416:Moses v Macferlan
392:Moses v Macferlan
370:Moses v Macferlan
364:HCA 68 - Justice
313:unjust enrichment
309:Moses v Macferlan
236:from the Ties of
112:Moses v Macferlan
108:
107:
21:Moses v Macferlan
557:
535:1760 in case law
515:
514:
506:
497:
491:
485:
479:
473:
467:
461:
460:
458:
456:
451:
442:
436:
430:
419:
413:
404:
401:
395:
389:
274:ex aequo et bono
238:natural Justice,
129:promissory notes
74:Court membership
30:
18:
17:
565:
564:
560:
559:
558:
556:
555:
554:
520:
519:
518:
507:
500:
492:
488:
480:
476:
468:
464:
454:
452:
449:
443:
439:
431:
422:
414:
407:
402:
398:
390:
383:
379:
346:
305:
292:natural justice
287:undue advantage
246:implies a Debt,
179:
125:
33:
12:
11:
5:
563:
553:
552:
547:
542:
537:
532:
517:
516:
498:
486:
474:
462:
437:
420:
405:
396:
380:
378:
375:
374:
373:
357:
352:
345:
342:
304:
301:
267:"This kind of
182:Lord Mansfield
178:
175:
154:William Gummow
124:
121:
106:
105:
91:
90:
86:
85:
83:Lord Mansfield
80:
76:
75:
71:
70:
68:Available here
65:
61:
60:
57:
53:
52:
49:
45:
44:
39:
35:
34:
32:Lord Mansfield
31:
23:
22:
9:
6:
4:
3:
2:
562:
551:
548:
546:
543:
541:
538:
536:
533:
531:
528:
527:
525:
512:
505:
503:
495:
490:
483:
478:
471:
466:
448:
441:
434:
429:
427:
425:
417:
412:
410:
400:
393:
388:
386:
381:
371:
367:
363:
362:
358:
356:
353:
351:
348:
347:
341:
339:
338:
333:
328:
325:
320:
318:
314:
310:
299:
297:
293:
288:
284:
280:
279:consideration
276:
275:
270:
264:
261:
257:
255:
251:
247:
243:
239:
235:
231:
227:
223:
218:
216:
212:
208:
204:
200:
199:
194:
189:
187:
183:
173:
171:
167:
163:
157:
155:
151:
147:
143:
141:
136:
132:
130:
120:
118:
114:
113:
104:
100:
96:
92:
87:
84:
81:
79:Judge sitting
77:
72:
69:
66:
62:
58:
54:
50:
46:
43:
40:
36:
29:
24:
19:
16:
510:
496:UKSC 33 at .
493:
489:
481:
477:
469:
465:
453:. Retrieved
440:
432:
415:
399:
391:
369:
359:
337:Commentaries
335:
329:
321:
308:
306:
303:Significance
272:
266:
262:
258:
253:
249:
245:
241:
237:
233:
229:
225:
221:
219:
214:
210:
206:
202:
196:
192:
190:
180:
165:
162:King’s Bench
159:
152:
148:
144:
137:
133:
126:
111:
110:
109:
15:
324:Peter Birks
234:Obligation,
51:19 May 1760
524:Categories
377:References
332:Blackstone
244:; the Law
64:Transcript
455:2 October
283:extortion
269:equitable
222:Assumpsit
211:Debt lies
203:Assumpsit
198:Assumpsit
186:Assumpsit
140:Middlesex
103:Assumpsit
344:See also
177:Judgment
89:Keywords
56:Citation
230:implied
226:express
48:Decided
366:Gummow
296:equity
242:refund
217:lie."
450:(PDF)
372:at -.
205:WILL
123:Facts
38:Court
457:2015
294:and
248:and
193:Debt
322:As
256:".
240:to
228:or
215:not
207:lie
164:in
526::
501:^
423:^
408:^
384:^
188:.
101:,
97:,
459:.
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.
