Lessons from a 'Conversation' About Restitution

  • The Honourable Justice Susan Kiefel AC Justice of the High Court of Australia


In Australia, the law of restitution adheres to the approach exemplified by Lord Mansfield in Moses v Macferlan. It does not recognise ‘unjust enrichment’ as a definitive principle. In the late 20th century, the English courts recognised the principle and, shortly after, the defence of change of position. These developments may owe much to a ‘conversation’ between English and German legal scholars. The German Bürgerliches Gesetzbuch [Civil Code] (‘BGB’) has long recognised the defence, as a counterpoint to its broad ‘absence of basis’ ground for liability. Notably, however, English law has not (yet) embraced such a broad ground for liability, and still requires a vitiating factor, such as mistake, to found a restitutionary claim. This article considers what implications the adherence to the considerations in Moses v Macferlan may have for the acceptance in Australia of the change of position defence as it is known to English and German law.
Jul 15, 2014
How to Cite
KIEFEL AC, The Honourable Justice Susan. Lessons from a 'Conversation' About Restitution. QUT Law Review, [S.l.], v. 14, n. 2, july 2014. ISSN 2201-7275. Available at: <https://lr.law.qut.edu.au/article/view/576>. Date accessed: 01 feb. 2021. doi: https://doi.org/10.5204/qutlr.v14i2.576.
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