Law of Restitution – Sample Essays
Score: 66
(i)
I disagree with the statement. I argue that [1] the line between mistakes and mispredictions is
not conceptually flawed: by definition, mispredictions are not mistakes. [2] We cannot divide
cases into those which contain mistakes only and those which contain mispredictions only, but
we can distinguish each belief as mistake/misprediction. The mistake/misprediction distinction
can and should be maintained in practice: even though in many cases both mistakes and
mispredictions can be found, it is still necessary to correctly identify the mistake to formulate
a claim. [3] Distinguishing mistakes and mispredictions clearly helps us in deciding whether a
claim should succeed.
[1]
A mistaken belief must be “logically demonstratable” as being wrong at the time of the
enrichment (Seah). A misprediction is never analytically/logically demonstratable as being
wrong at the time of the enrichment.
While a mistake can vitiate a claimant’s decision-making process, a misprediction cannot
(Seah). A mispredictor did not want the recipient to retain the enrichment in the circumstances
as they turned out; but in the circumstances as they were at the time of the transfer, there was
no lack of intent to pass the enrichment.
A mispredictor is a risk-taker; one who is mistaken is not. As Birks noted, a mispredictor who
subsequently complains to have been “mistaken” is “merely asking to be relieved of a risk
knowingly run”. If the mispredictor subjected the enrichment to a condition communicated to
the other party, he could have recovered based on failure of consideration if the condition failed;
he ran the risk of disappointment if he failed to do so.
[2]
, The reason why it seems that a line cannot be drawn between mistake and misprediction is that,
in many cases, a claimant can be said to have both mispredicted and been mistaken. It is
impossible to neatly divide all cases into ones that only involve mistakes, and ones that only
involve mispredictions. A line cannot be drawn in that sense. But it does not mean that we
cannot distinguish mistakes and mispredictions when we consider each belief a claimant holds
in a case.
It is important to maintain the mistake/misprediction conceptual distinction in practice: a
mistake claim can only be established if a causative mistake is identified. A misprediction per
se, even related to the mistake, cannot found a restitutionary claim. Misprediction is a “non-
qualifier”, not a “disqualifier” (Seah).
E.g. in Dextra Bank it was held that, as the claimant merely made a misprediction, it could not
recover the enrichment. However, the existence of the misprediction per se does not make the
claim unactionable. Seah argued that the case was wrongly decided, as there was a causative
mistake as to the trustworthiness of the agents. Here, by carefully distinguishing mistake and
misprediction, we can identify the true belief that could have established a restitutionary claim.
[3]
Arguably, most of the time, in making a misprediction, we must have made at least a mistaken
assumption. If we step back to a sufficient level of generality, there is almost always a mistake.
However, it does not mean that we can just stop distinguishing mistakes and mispredictions
and assume that there will always be a relevant mistake; there are cases in which a mistake and
a misprediction can both be found, but should not generate a restitutionary claim. Only by
distinguishing mistake and misprediction can we clearly discern the reason why such cases
should fail.
Imagine a gambler who bet on the outcome of a horse race (and lost – thus misprediction),
mistakenly believing that a skilled jockey is fit and capable of riding in the race. Seah argued
that the law should not afford the gambler a restitutionary claim, as the mistake is a
“subordinate aspect of a wider and obvious risk-taking adventure”. Any unjustness about the
mistake is negated by the greater risk that the gambler deliberately took. Only by distinguishing
and comparing the mistaken belief and the misprediction can we determine whether the
mistake is so subordinate.
There are mistaken beliefs which are too general to found a claim: e.g. Mackay v Wesley. Only
by identifying the mistake can we determine whether it is sufficient enough to be actionable.
Even if we can identify more specific beliefs in such cases, if they are mispredictions, they
cannot make a case actionable. In mispredicting that, specifically, the government would lift
all restrictions on 21 June, I might also have made a mistaken belief that the government would
always regard the interests of business owners as the most important consideration when
making decisions, where in reality the government took into account a wider range of equally
important considerations – there is a mistake, but it is too general. The two beliefs must be
distinguished, as it is the mistaken belief which needs to be considered.
