Mistaken Payments in Three-Party Situations: A German View of English Law

Abstract

According to the English law of restitution, a payment under a mistake of fact can usually be recovered from the recipient, at least if the mistake is a liability mistake or “fundamental”. In three-party situations the situation therefore seems to be straight-forward: independently of the relationship of each of the three parties to each other, the plaintiff is the payer and the defendant is the recipient. However, a closer look into the case law and literature reveals that there are problems.