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Home > Journals > Michigan Law Review > MLR > Volume 7 > Issue 1 (1908)

 

Abstract

Few questions which come before the courts seem more difficult to settle than those growing out of the maxim, ignorantia juris non excusat. The fact that the most recent decisions bearing on the subject are as much at variance and as conflicting as those rendered more than a century ago, is the excuse, if not a justification, for this article. It is proposed, however, to examine only that phase of the subject found in this inquiry: "Can one recover from another money paid under mistake of law to which the payee is not entitled, and which he can not in good conscience retain?" No one looking at this question for the first time would hesitate to answer it in the affirmative. It is only after one has gone through the decisions and has felt the weight of precedent and stare decisis that he withholds his judgment. For is it not conceded that the defendant in such a case had no right to the property which by mistake he has received, and that, having thus obtained, he has no claim in conscience to keep, except perhaps that the law will prevent the true ovroer from interfering with his possession? But if one may judge from the number of decisions answering this question in the negative, from courts of recognized learning and ability, he must conclude that this view is sustained by the weight of authority, whether by the better reason or not. In the leading case of Clarke v. Dutchcr, Justice Sutherland draws the distinction quite clearly between payments under mistake of law and payments under mistake of fad and gives us to understand that it matters nothing that defendant holds the money against conscience if he secured it by mistake of law. He contends that there is strong and sufficient reason for holding that conscience and equity will govern a case where the mistake is one of fact, but that these elements do not in any wise govern in cases of mistake of law. A brief quotation will serve to show his position in this matter. He says: "If money paid under a mistake of the law, though with a full knowledge of the facts in the case, can be recovered back in all cases where the party to whom it is paid is not in conscience and equity entitled to it, what is the practical distinction between a mistake in fact and a mistake in law? A party who has paid money under a mistake in fact cannot recover it back unless he is equitably entitled to it. The inquiry in every case therefore would be, not whether the money was paid under a misapprehension of the law, or in ignorance of the fact, but whether the party to whom it was paid can in equity and conscience retain it." The learned Justice then proceeds in an elaborate argument to show that this proposition cannot be maintained, as it would completely break down the distinction between the right to recover under mistake of law and mistake of fact.

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