Saturday, April 5, 2008
Sheehan on The Origins of the Mistake of Law Bar in English Law
Posted by Mary L. Dudziak
Duncan Sheehan, University of East Anglia, has posted a new paper, The Origins of the Mistake of Law Bar in English Law. Here's the 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.