Waiver of Tort

AuthorG. H. L. Fridman
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00278.x
Publication Date01 Jan 1955
THE
MODERN LAW REVIEW
Volume
18
January
1955
No.
1
WAIVER
OF
TORT
WHEN
asked why writers continually dwelt upon the same few,
or
seemingly few, topics, Anatole France is reported to have explained
that
it
was because people continually needed to be reminded about
essentials. This remark seems particularly apposite
to
that branch
of law which has been variously termed
contracts implied by law,”
66
quasi-contract,” and
unjust enrichment.” For the literature
on
this subject is copious. However,
it
is not proposed in this paper
to
examine all the anomalies
to
which unanalytical methods have
given rise. What the present writer desires, and intends, to criticise
is that peculiar devicmr doctrine-known as waiver of tort.
After the decision of the House of Lords in
United Australia, Ltd.
V.
Barclays Bank, Ltd.,’
Lord Wright commented upon its effects.a
The conclusion at which his Lordship arrived was that a large part
of the cases in the books had become superannuated, as dealing with
obsolete views of forms of action
or
pr’oced~re.~
In
other words,
a lot of old learning must be disregarded. Lord Wright’s remarks
seem to have been limited to old lore about election. Perhaps
it
may
be respectfully submitted, therefore, that
so
far as waiver of tort
was concerned, the full effect of recent juridical, statutory, and
judicial developments has not been realised, even by
so
learned and
acute an observer as Lord Wright.
In
view of his Lordship’s
con-
sistent advocacy of the separate existence of a doctrine of unjust
enrichment, this is surprising. Few have
so
readily accepted unjust
enrichment as a doctrine existing in its
own
right, providing remedies
where
no
other proprietary remedy would be available at common
law, where the circumstances do not permit of a claim
in
either tort
or
contract. The importance of that advocacy must be stressed.
For the major premise upon which the argument to be submitted
below is based is that unjust enrichment is not an alternative head
of liability, to be used
if
and when desirable in lieu of some other
[1941]
A.C.
1.
Op.
cit.,
at
p.
198.
*
United
Australia
v.
Barclays Bank,
57
L.Q.R.
184.
1
VOL.
18
1

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