dependent upon the requirement of a total failure of consideration (Rover International Ltd v Canon Films Ltd [1989] 1 WLR 912). 2 Both Rowland v Divall and Lipkin Gorman are not without their difficulties. In both cases, it could be argued that the plaintiff benefited from the success of each debt claim. One plaintiff got six months’ free use of a car, while the other got most its money back without too many questions being asked about its own responsibility in the whole sad affair. One may dream of hard and fast principles to govern these kinds of case, but the truth is that they are complex facts where the line between just and unjust benefits is almost impossible to draw. A similar difficulty is to be observed with the claim in Surrey CC v Bredero Homes (above, p 295), not, admittedly, a debt claim, but a damages action raising similar problems. Could it really have been right to allow a local authority to grab money in respect of a loss they did not suffer simply on the basis that the defendants had committed a wrong? Admittedly, a local authority could be said to represent the interests of the local inhabitants of its area (Local Government Act 1972, s 222) and thus, it might be the only institution capable of extracting an unjust profit. Yet, the law of tort does not allow a damages claim simply on the basis that a defendant has behaved unlawfully, nor perhaps should the law of restitution. Restitution lawyers might think differently, of course, but then restitution lawyers thought that the decision in Bolton v Mahadeva (p 226) gave rise to unjustified enrichment (Law Commission, Pecuniary Restitution for Breach of Contract, Report No 121, 1983). It took a practising lawyer to point out just how detached they were from the real world. (c) The action for money paid
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This was an action in debt by bailees (a firm of bonded warehousemen) against the bailors of a consignment of firs in respect of customs duty that the bailees were compelled by statute to pay when the firs were stolen from their warehouse. The Court of Appeal, rejecting the bailors’ counterclaim for the value of the firs, held that the bailees were entitled to recover the money as a debt.