tailieunhanh - Unjustified Enrichment: Key Issues in Comparative Part 5

Một số áp dụng câu châm ngôn "sự mất mát nằm nơi nó rơi và tranh luận rằng trong ví dụ hiện nay, sự mất mát đã giảm trên A và ông không nên có thể chuyển nó đến B mà không có lý do chính đáng. Nhưng lập luận là sai lầm. | unwinding mutual contracts 277 of received enrichment and not surviving enrichment . Once the defence of change of position is recognised this explanation of model III will no longer do. j The loss lies where it falls Some apply the maxim the loss lies where it falls and argue that in the current example the loss fell on A and he should not be able to shift it on to B without good reason. But the argument is flawed. Under model II loss of the horse falls on B. It will lie there unless B has a good reason to shift it on to A. With model III the loss of the horse falls on A. It will lie on A unless there is some justification for shifting it on to B. These two models start from opposite ends. The maxim the loss lies where it falls is of no argumentative value when deciding whether to follow model II or model III. k He who seeks equity must do equity In English and Scots law this principle is mentioned as being at the root of model It seems to mean that a person seeking to unwind a contract should himself be in a position to give back what he received. The reference to equity is helpful as long as both the horse and the cow are in existence. However equity is not of much help once the horse has ceased to exist. l Summary In England Scotland and Germany but also in America and among Romanists there are a number of arguments that seem to suggest that model III is preferable. But none of these arguments were compelling enough to justify the conclusion that model III is the right choice for unwinding mutual contracts. 2. Are there internal arguments for a particular model The question I am concerned to answer in this subsection is whether or not any of these models achieve equitable results and provide the tools to deal with different possible fact patterns. a Model I I will not spend any time on total failure of consideration. It is now accepted in English law that total failure of consideration should be 98 Aguilar v. Aguilar 1820 5 Madd 414 at 416 n. 1 Scotland