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1 Alta. L. Rev. 30 (1955-1961)
Unjust Enrichment and the Deglman Case

handle is hein.journals/alblr1 and id is 32 raw text is: UNJUST ENRICHMENT AND THE DEGLMAN CASE By L. A. SHELTON, B.A. In the recent case of Deglman v. Guaranty Trust Co. and Constantineau, the Supreme Court of Canada rather strongly indicated its position in the long- standing controversy as to whether the basis of quasi-contractual actions should be contracts implied by law according to decided cases, or whether the basis should be a broad principle of restitution where there is unjust enrichment. On this question there appear to be three main schools of thought and it is necessary to take a brief look at each of them in order to understand the sig- nificance of the Deglman case. The first school maintains that the existing case law sets out certain situ- ations where a contract will be implied, and that these show the complete extent of quasi-contractual remedies. Any underlying principle of unjust enrish- ment is entirely disclaimed. After 146 years of controversy which began with Lord Mansfield, the proponents of this opinion achieved triumph in England in the 1914 case of Sinclair v. Brougham,'-' in which Lord Sumner stated: The action for money had and received cannot now be extended beyond the principles illustrated in the decided cases, and although it is hard to reduce to one common formula the conditions under which the law will imply a promise to repay money received to the plaintiff's use. . .. and further: There is now no ground left for suggesting as a recognizable equity the right to recover money in personam merely because it would be fair and right thing that it shouid be refunded to the payer.4 This statement by Lord Sumner was a reiteration in the House of Lords of the position he had taken earlier as Hamilton L.J. when he was sitting in the Court of Appeal in Baylis v. Bishop of London, where he said: To ask what course would be ex aequo et bono has never been a very precise guide and as a working rule it has long since been buried in Standish v. Ross, and Kelly v. Solri.7 What- ever may have been the case 146 years ago, we are not now free in the twentieth century to administer that vague jurisprudence which is sometimes attractively styled justice as between man and man.8 In 1923 Scrutton L.J. showed great alacrity in coming to the support of the victors, quoting Lord Sumner and saying: the whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought.9 Since that time the doctrine of unjust enrichment has been so out of favour judicially in England that only the most adventuresome of judges have sup- ported it. In Nelson v. Larholt, Denning J. stated the principle without being overruled on appeal, because there was no appeal. However, he was not so fortunate when he did the same thing in Reading v. A.G., for when that case was appealed to the House of Lords, Lord Porter stated: My Lords, the exact status of the law of unjust enrichment is not assured. It holds a pre. dominant place in the law of Scotland and I think, of the United States, but I am content lot the purposes of this case to accept the view that it forms no part of the law of England and that a right to restitution so described would be too widely stated.'-

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