Abstract
The many manifestations of money had and received have come to be treated as a single claim, to reverse a defective transfer of value. I show here that this tendency towards unification has led us to exaggerate the role of value, thus obscuring the normative role played by the notion of a ‘transfer’ from claimant to defendant. I argue that ‘transfer’ labels the legal mechanism through which the parties’ balance sheet positions are affected. For cases that involve physical cash, the legal mechanism properly associated with a claim in unjust enrichment is a title transfer. For cases that involve bank money, the legal mechanism is a bank transfer, effected by participating banks as agents for payor and payee. I argue that we should welcome the move in Investment Trust Companies v Revenue and Customs Commissioners towards a transactional test, but that we must draw and defend narrow parameters for it.
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Tatiana R S Cutts, Modern Money Had and Received, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqy002. Published: 19 February 2018.
First posted 2018-02-24 07:23:40
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