Principles of the Law of Restitution in Singapore
When should one invoke an account of profits? How should one go about asserting an equitable claim over property? Why does the old count for “money had and received” still appear in 2019 despite regular judicial disapproval? It is no secret that many lawyers are not familiar with the law surrounding restitutionary remedies. Perhaps this is understandable – few practitioners can spare the countless hours it would take to read and understand all the cases (local and otherwise) in this notoriously complicated area of law. With the publication of Professor Tang Hang Wu’s book, Principles of the Law of Restitution in Singapore, lawyers no longer face that obstacle: the work has already been done for them.
Students of Professor Tang invariably remember his classes as a model of clarity and succinctness. His book is no different. In only 468 pages, it does precisely what its title promises: condense the cases on and debates over these areas of law into principles which any lawyer can apply confidently to the matters facing them.
Professor Tang takes the reader through a whirlwind tour of the structure of the meta-area of restitution in his introduction, dividing the subject (for the purpose of this book) into restitution for unjust enrichment and restitution for wrongs. As a reference for the law of restitution in Singapore, the sections on unjust enrichment are helpfully structured in accordance with the present legal local framework. In Singapore, an action is available where a defendant has been enriched at the plaintiff’sexpense, there is an unjust factor known to the law, and the defendant has no recognised defences to this action. (Readers should note that this controversial area may differ significantly between jurisdictions; for example, our learned friends across the Causeway have an entirely different framework.)
The first two substantive chapters deal with the elements of “at the plaintiff’s expense and “enrichment”. I suggest every litigator read these two chapters, if nothing else; it is very helpful to have in mind the sorts of broad factual scenarios which an unjust enrichment claim may be available. “Money had and received” is not only out of date; it is also misleading. It is not only transferred money that may give rise to such a claim. Quantum meruit, for one, is now generally agreed to be an unjust enrichment action. The reader should also note that Singapore has a “direct transfer rule”, requiring the defendant to have been the immediate recipient of a benefit from the plaintiff, or holding value traceable from the plaintiff’s assets. This may produce different results to cases heard under, for example, English law. This book, of course, explains the differences.
Subsequent sections cover the major unjust factors known to Singapore law. Chapters are dedicated to mistake, the Lipkin Gorman factor, however named (of which much academic ink has been spilled elsewhere; Professor Tang has suggested a helpfully practical way out of the morass), failure of consideration, duress, undue influence, unconscionable dealing, and illegality. Little more needs to be said about his characteristically lucid statements of the law, which he very clearly separates from his opinions (if they differ).
The only possible criticism this reviewer could make of these sections is that a number of unjust factors are mentioned in the introduction, but have no chapters devoted to them. But this is understandable. No reported case involving unjust enrichment which I am aware of in Singapore has centred on the factors not covered in this book. I have only come across the interesting but apparently rare (in Singapore, at least) unjust factor of legal compulsion being directly relevant in a very small matter. Where it is relevant it will also often be subsumed within the law of contribution and indemnity. Much space is also devoted in English texts to restitution of overpaid tax; curiously, in Singapore, it appears that it is the tax authorities who now seek restitution for underpaid tax under the common law. The availability of such an action does not appear to have been decided yet. So as a practical reference book, this is no flaw; Singapore law does not appear to have dealt with these factors yet.
The book also deals with restitution for wrongs. These areas are more familiar to practitioners, and less needs to be said here about the legal substance of these chapters. What is helpful is the treatment of such restitutionary remedies as remedies, not as an adjunct to the doctrinal category of “torts” or “contract” or even “trusts and equity”. As a reference for those of us who want to know what the real impact of “winning” or “losing” is, this is an essential reference.
The book concludes with the general defences available to restitutionary claims. What if I paid away money which was mistakenly paid to me? Certainly I would not be liable for any proprietary claim without a successful tracing exercise into my other properties, but is that payment in itself enough to extinguish my liability? The defence of change of position is covered in detail, as befits perhaps the most major general defence to a restitutionary claim. A number of other defences are also covered, including the interesting issue of whether one can recover a voluntary payment of a debt made after the expiry of a limitation period.
Principles of the Law of Restitution in Singapore is, in short, an excellent reference for the practitioner, and should be the first port of call for any one of us who wishes to commence or has to face a restitutionary claim.
This is not to say that Professor Tang’s book has no interest for academics. Besides being an excellent reference point for the law in Singapore in general, and recent flashpoints in the field of restitution specifically (for example, the thorny issue of illegality), this book deftly weaves in theoretical and normative discussions around the law of restitution. Restitution scholars and students alike will be interested to know that Professor Tang takes a position on the famously contentious “unjust factors” vs “absence of basis” debate – which this review will not spoil.
A final virtue of Professor Tang’s book (and one which is not as common as perhaps it ought to be) is that it draws a clear demarcation between description and prescription. Professor Tang can be relied on to state the law as it is, even where that is inconvenient for his own theses; equally, when stating what he thinks the law should be, Professor Tang does so in clear and unapologetic terms. A notable example comes in the chapter on change of position, where he advances a “purely prescriptive” argument that some mistaken payors, especially institutional actors, ought not to get restitution of their mistaken payments – or should even have to account for the payee’s “distress, anxiety, and frustrated expectation”!
This book is a long-awaited addition to the core texts which should be on every lawyer’s bookshelf. This reviewer hopes it will find its way onto yours.
The book is available here: https://www.sal-e.org.sg/principles-of-the-law-of-restitution-in-singapore