Notes and questions 1 The action for money had and received is a remedy which attaches itself, so to speak, to a specific amount of money in the defendant’s patrimony representing the unjust profit. The action for a quantum meruit looks to the more intangible benefit arising out of situations where one person confers upon another a service. Clearly, if I cut my neighbour’s grass while he is away, I have, in principle, conferred upon him a benefit. Should he have to pay for this benefit, however? English law takes the view that the mere conferring of a benefit upon another does not of itself give rise to a right to restitution (Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234, pp 248–49). In order to trigger liability, there must have been either a request for the service or some kind of acceptance indicating a willingness to pay for what has been received. Such requests or acceptances can, of course, be implied, and this allows the court a degree of latitude when it comes to analysing the facts. All the same, it is unlikely that the plaintiff in Bolton v Mahadeva (above, p 226) could have succeeded in a quantum meruit debt claim in respect of the benefit (that is, work done) conferred upon the defendant; all that might be available in such a situation is a claim for materials left on the site and used by the occupier. Should the contractor in Bolton v Mahadeva have had the right to bring a quantum meruit claim for the work done? 2 Quasi-contract is most useful in situations of pre-contractual work undertaken with a view to a formal contract being concluded. However, once such a contract has been concluded it will, in principle, govern the rights and duties. If one of the parties wishes to sue on a quantum meruit, the contract must be got rid of, so to speak, either by recourse to frustration or by the court declaring that it is void. What is the restitution position if a contract is rescinded in equity? 3 D hires P to repair his chimney after P has given him an estimate of £400. While P is repairing the chimney, he notices that another one is in equally bad repair and he spends an extra day repairing the second chimney. P does not seek D’s permission, because D is difficult to contact and, in addition, P assumes that D would want the work done, because two-thirds of the £400 estimate is taken up with the cost of erecting scaffolding. P sends D a bill for £500. Must D pay this bill, or can he insist on paying only £400?
Pages 1