W. M. C. Gummow


The continued influence of this decision of Lord Mansfield upon the scope of the action for money had and received is apparent in the Restatement (Third) of Restitution & Unjust Enrichment, recently adopted by the American Law Institute. The basic proposition that the action lies where the money was received in such circumstances that retention would offend equity and good conscience informs the Restatement. In particular, over definition and dissection of the defence of "change of position" by reference to "good faith" of the recipient diverts attention from the question whether in the circumstances of the case it would be inequitable for the claimant to require repayment. "Good faith" may require the exercise of caution and diligence by the recipient and, for example, may be lacking, even without dishonesty, if a financial institution fails to act in a commercially acceptable way.



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