ABSTRACT
It may appear somewhat odd to begin a part entitled ‘The Condictio Indebiti’ with a chapter on policy-motivated restitution. The condictio indebiti, it will be remembered, is the claim for an enrichment which was not due. It will become clear in Chapter 11, however, that this is rarely the true reason for restitution. Where a payment is made under a void obligation, the reason for restitution can normally be identified in the reason for the invalidity of the obligation. That reason will not infrequently be policy-motivated. Likewise, in the swaps cases, the true reason for restitution was not, it is suggested, the fact that the contracts were void, but the reason why the contracts were void: the ultra vires doctrine, a policy in favour of maintaining the integrity of public finances. In this chapter, we will discuss this and other policies which may lead to the invalidity of obligations as well as to restitution of transfers made pursuant to those obligations.
