Incapacity

Abstract

Abstract The key question considered in this chapter is whether the fact that the defendant was incapacitated in some way can act as a defence to defeat a restitutionary claim, regardless of the nature of that claim. Would the award of a restitutionary remedy to the claimant subvert the Law of Contract? Restitutionary claims founded on unjust enrichment, claims founded on wrongdoing, and the vindication of property rights are considered. Relevant policy and principle are identified. Particular forms of incapacity are then considered, notably minority, mental incapacity, and institutional incapacity. The significance of the enrichment being necessaries is analysed.