The Right and Wrong of “Knowing Receipt” in the Law of Restitution

• Main Author: Yeo, Tiong Min
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2011
• Subjects: Common Law
• Online Access: https://ink.library.smu.edu.sg/yph_lect/4; https://ink.library.smu.edu.sg/cgi/viewcontent.cgi?article=1002&context=yph_lect
• Institution: Singapore Management University

One distinctive feature of the common law system is its duality. No legal analysis is complete without considering both the rules of common law and the principles of equity. Civilians (non-lawyers in common law countries and lawyers from civil law countries) struggle to understand why there are two systems of justice in the legal discourse and how they interact with one another. The trite proposition that equity prevails whenever there is a conflict belies the complexity of the relationship. The other distinctive feature is that much of the law continues to be made in the courts rather than by legislation. Judge-made law derives empirically from cases, from which principles are then deduced, and not the other way around. The development of any new subject in the law is almost always a slow and tortuous process. The law of restitution is a relatively new subject, and its boundaries and content are still controversial. One of the enduring controversies is the place of the equitable liability in knowing receipt within the law of restitution. Recent decisions in the Commonwealth have shown how the boundaries may be redrawn.