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Category: Unjustified enrichment

Whose pint is it anyway?pint of beer

Whose pint is it anyway?

Published 19th January 2024

by Susanna Macdonald-Mulvihill, Early Career Fellow, Edinburgh Law School

A woman walks into a bar. Her name is Janet. Janet tells the bartender, Luca, that she would like a dram for herself and to buy a drink for all the other customers currently in the pub. Luca duly pours the whisky and rings up the total for all the drinks. Janet pays, drinks her whisky, and leaves. Luca pours the drinks Janet has bought for the other customers and distributes them to the relevant people, who happily accept and enjoy their beverages.

Kevin, one of the regular customers, was in the toilets when Janet came in and does not know about the transaction. Luca had included a pint of beer for him along with the drinks for the other customers that Janet paid for. Luca had poured it and left it on the bar where Kevin was previously sitting. However, when Kevin, unaware of Janet’s generousity, left the toilet, he walked straight out of the bar to go home. He did not see the beer and the drink remains untouched. Whose pint is it? And why does it matter? 

What this scenario demonstrates is an instance of an indirect donation. An indirect donation is where a donor engages in a transaction with a third party who in turn passes the benefit on to the donee. This can occur in a number of ways. For instance, a donor can be a parent who pays the rent of a university student child. The parent and landlord are the parties who transact but the student child receives the benefit of the accommodation. Alternatively, the donor may be a person who waives a right they have against a third-party in favour of the donee. An example of this could be the renunciation of an inheritance right resulting in that right vesting in the donee. Key to an indirect donation is that the donee is not actively involved in the transaction that leads to the benefit passing to them.

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Compensating unpaid domestic care in the testamentary context: An opportunity for Scots lawcarer

Compensating unpaid domestic care in the testamentary context: An opportunity for Scots law

Published 15th November 2022

by Professor Alexandra Braun, Lord President Reid Chair of Law

According to the Scotland’s Carers research report published in 2015, and the latest update release of April 2022, approximately 700,000 people provide unpaid care and the value of such unpaid care in Scotland is estimated at over £36 billion a year. For comparison, in 2019 the NHS Scotland budget was £13.4 billion. Often such unpaid care is provided by family members, frequently but not always women,[1] and in some cases neighbours and friends. The assumption seems to be that domestic care services are intended to be gratuitous and are thus provided for free. Indeed, domestic care services are sometimes described as ‘labours of love’. But while domestic care services might well be motivated partly by love and affection or a sense of duty, this does not necessarily mean that they should not be compensated, especially since such services can be of significant economic and personal benefit to the care-recipient. My question then is can domestic unpaid care services be compensated on death of the care-recipient through a claim against their estate?

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Unjustified Enrichment in Scots Law: Time for Consolidation, not Reappraisal?*

Unjustified Enrichment in Scots Law: Time for Consolidation, not Reappraisal?*

Published 5th May 2022
By Niall Whitty, Honorary Professor of Edinburgh Law School

1. 1961-1990. I must confess I have been fascinated by the Scots law of unjustified enrichment for over 60 years. My first contact with it occurred in autumn 1961 – in my first year at Edinburgh University Law Faculty.[1]

At that time, the English law of restitution, with its imputed contract theory of quasi-contract[2] and its Coronation cases,[3] (rejecting restitution after frustration of contract) was held up to students in the Civil Law class as evidence that the English law of obligations, while rich in detail, was poor in principle. By contrast, Scots enrichment law, with its obediential obligation theory and civilian Cantiere San Rocco case,[4] was said to be much superior as indeed in some respects it plainly was. In the next three decades, however, the condition and status of unjust enrichment in English law was completely transformed,[5] while the Scots law, starved of research and the stimulus of comparative law, tended to stagnate and sometimes took wrong turnings.[6] The reason was not so much complacency as the fact that the academic branch of the Scottish legal profession, though growing, was still relatively small and over-stretched.[7]  Probably more has been written on our enrichment law in the past 30 years than in the previous 300 years.

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