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BIRKSIAN THEMES AND THEIR IMPACT IN ENGLAND AND SINGAPORE: THREE POINTS OF DIVERGENCE

Lloyd's Maritime and Commercial Law Quarterly

BIRKSIAN THEMES AND THEIR IMPACT IN ENGLAND AND SINGAPORE: THREE POINTS OF DIVERGENCE

Rachel Leow * and Timothy Liau

This article evaluates the impact of Birksian themes through a comparative lens. It is shown how, unlike the English courts, the Singaporean courts have accepted “lack of consent” as an unjust factor, held that actions for restitution of mistaken payments, being based on unjust enrichment, fall outside the scope of the Limitation Act, and accepted Birks’ lack-of-intention analysis of the resulting trust. On these points, perhaps surprisingly, one could even say that Birks’ thinking has found greater traction in Singaporean private law than in its English counterpart. To explain this observation, five possible reasons are ventured.

1. Introduction

These are exciting times for scholars of unjust enrichment and restitution.1 Powerful objections and new accounts abound.2 The subject’s vibrancy belies its youth: the modern starting point for the subject, Peter Birks’s seminal work An Introduction to the Law of Restitution,3 was published only thirty-odd years ago.
This article, an early version of which was presented at a conference celebrating Introduction’s publication,4 aims to evaluate its impact through a comparative lens. It proceeds first by setting out the necessary background, comparing the relative impact of Birks’ writings in England and Singapore. In light of this, three points of divergence between Singaporean and English law are then explored. It is shown how, unlike the English courts, the Singaporean courts have (a) accepted “lack of consent” as an unjust factor, (b) held that actions for restitution of mistaken payments, being based on unjust
* Assistant Professor of Law, National University of Singapore.
† Assistant Professor of Law, National University of Singapore.
1. For ease of reference, hereafter “unjust enrichment”. This is not to take a position on the precise relationship between “restitution” and “unjust enrichment”, a contentious matter.
2. See eg Robert Stevens, “The Unjust Enrichment Disaster” (2018) 134 LQR 574; Lionel Smith, “Restitution: A New Start?”, in Rohan Havelock and Peter Devonshire (eds), The Impact of Equity and Restitution in Commerce (Oxford, 2019). In response, see Andrew Burrows, “In Defence of Unjust Enrichment” (2019) 78 CLJ 521; Andrew Burrows, “‘At the Expense of the Claimant’: A Fresh Look” [2017] RLR 167. Other recent contributions include Peter Watts, “‘Unjust Enrichment’—the Potion that Induces Well-meaning Sloppiness of Thought” [2016] CLP 289; Charlie Webb, Reason and Restitution: A Theory of Unjust Enrichment (Oxford, 2016); Frederick Wilmot-Smith, “Should the Payee Pay?” (2017) 37 OJLS 844; Tatiana Cutts, “Materially Identical to Mistaken Payment” (2020) Can J of Law & Jurisprudence 31; Tatiana Cutts, “Unjust Enrichment: What We Owe to Each Other” [2021] 41 OJLS 114.
3. Peter Birks, An Introduction to the Law of Restitution (Oxford, 1985; rev. edn, 1989) (“Introduction”).
4. “The Place of Restitution in the Modern Law: 30 Years after An Introduction to the Law of Restitution” Conference, University of Leeds, June 2019.
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