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The Origins of the Mistake of Law Bar in English Law

University of East Anglia Norwich Law School Working Paper No. NLSWP 08/01

24 Pages Posted: 28 Mar 2008 Last revised: 9 Apr 2009

Duncan Sheehan

University of Leeds, Law School

Date Written: March 19, 2008

Abstract

This paper examines the origins of the mistake of law bar in English law. It notes that it came about as a result of confusion, evident initially in Bilbie v Lumley and developed later between different concepts of voluntary payments and the idea of inexcusable mistake. There were other pressures - philosophers such as Austin thought the bar essential for the administration of justice. Influential commentary writers, such as Joseph Story believed it essential, and this won over judges such as Lord Brougham, who solidified the bar in Scots law. By the 1840s the view was that mistake of law barred recovery and the removal of the excusability requirement in mistake of fact cases could not alter that.

Keywords: Mistake of Law, Restitution, Legal History

JEL Classification: K19

Suggested Citation

Sheehan, Duncan, The Origins of the Mistake of Law Bar in English Law (March 19, 2008). University of East Anglia Norwich Law School Working Paper No. NLSWP 08/01. Available at SSRN: https://ssrn.com/abstract=1113723 or http://dx.doi.org/10.2139/ssrn.1113723

Duncan Sheehan (Contact Author)

University of Leeds, Law School ( email )

Leeds, LS2 9JT
United Kingdom

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