Emeritus Professor Richard Sutton

• Recent Publications
• Current Work
• Reseach Interests
• Contact

I have been a member of this faculty since 1980, and before that I taught law at Auckland University for 15 years. During my time in the law, I have tried my hand at a lot of things - including conveyancing, opinion work, and law reform. I often draw on these experiences in what I do now. Yet for me the most important thing is still teaching and legal research. There is a fascination in the way the law works, and how lawyers go about everyday tasks. I want to get beyond the rule or principle I am studying, to find out how it really ticks! What kind of things make judges do what they do, and how does everything fit together? I find in this, not just more refined legal ideas, but also moral principles and pre-logical symbols. I am quite often surprised by what I come across.

My main interests have always been in private law, particularly the principle of "unjust enrichment". This is relevant most frequently in the law of contract, the law of restitution and in commercial law situations (such as bankruptcy) where there are conflicting claims to property. The basic idea is that if you are enriched as a result of something another person has done - often inadvertently, no-one is to blame - then you ought to give the benefit back. For example, if I pay money which we both think I owe to you, you have to give it back if it turns out later that I didn't owe the money in the first place. We don't need to worry whether you promised to give it back, or did anything wrong in order to acquire the benefit. There is a strict legal obligation to pay back the money.

In the last few years, I've also been thinking about how different legal systems work. On my leave in 2001, as well as working in England, I spent time South Africa, France, Quebec and the Czech Republic. I am also very privileged to have an association a project called "Te Matahauariki" at the University of Waikato, where they are looking at the fundamentals of law from a Maori perspective, and working towards a genuinely bi-cultural set of laws.

Although I'm now 'retired', I am still teaching Creditors' Remedies, as well as being a grandparent (by distance learning!), playing chess, being a member of the Anglican General Synod, and playing classical music on the piano (indifferently). Oh yes, and generally making myself agreeable around the place - so I welcome casual visitors!

Recent Publications

Richard Sutton, “Mistake: Symbol, Metaphor and Unfolding” (2002) Restitution Law Review 9.

This article asks the question, “Can  someone be said to have paid money under  s ‘mistake’ if they could not have known the truth at the time of the payment?”  The payment in question, and discussed in an important House of Lords’ decision,  was made at a time when no-one knew what the law was.  People did not even think that there was a legal question involved.  Later on, the courts ruled that the paying company had no obligation to pay the money.  The payer could not have known that this would be the outcome, even if it had sought expert advice.  Conventional wisdom would say that a “mistake” is something human, an error that could have been corrected.

My article probed more deeply into the nature of “mistake” as a head of legal liability. I argued that the term served symbolic purposes, at a highly abstract level of meaning.   The symbol (or metaphor) of mistake is conceived at the abstract level.  It “unfolds” as judges choose subheadings, from a variety of meanings that could grow out of the symbol. Only after that do they reach the framing of ordinary rules of law.  The conventional view of “mistake” is aimed at the wrong level of legal discourse.

The judges who decided that there was a “mistake” in these circumstances, made a wise choice because the larger notion of invincible, inevitable “mistake” was more valuable as a symbol, than the narrower notion of human error.  King Oedipus, for example, who unknowingly killed his own father and married his own mother, stands forever as an example of this larger kind of mistake. He had to bear the consequences even though he had no means of finding out the truth.  So too does the payee of money, who receives it in a situation where his or her right to take the money cannot be known until later.

Richard Sutton, “’We Just Mislaid It’; The Great Project and the Problem of Order in Private Law” (2005) 11 Otago Law Review 97

This article, though supposedly my “valedictory lecture”, has set me off on a whole new mode of enquiry. It explores the puzzle of order in private law – how did we stumble across our fundamental divisions of law, our basic notions such as “contract?, “unjust enrichment” and “tort”? What standing do these ideas now have in our law?  Again,  the question of symbols or metaphors comes up - should we expect our heads of law to have definite meaning, which are elaborated further by the subsidiary rules?  Or are they more like beacons, good to steer towards (up to a point) but useless in mapping out the detail of the law?

I argue that conventional notions of “order” in private law tend to distort the reality, by looking too earnestly for meaning and not attentively enough for the symbolic function of headings such as “mistake”, “undue influence” and “frustration”.  A new “diagram” of the legal process is offered, which is sensitive to the dynamic process of movement from headings to legal rules and results.

Current work

My present work follows on from these two articles. I have been working on the idea that there is a dynamic structure in law,  comprising three distinct discourses:

• “the actual” (the texts of the law, ie what is said in statutes and decided cases)
• “meaning”, that is to say, the process of extracting some sensible set of legal principles from the actual
• “the possible”, that is to say, an overview of the law which determines conclusively the way we look at the actual and give it meaning.

I am trying to show that these three modes of discourse are present in even the most rationalistic legal enterprise. There is also, at each corner of the triangle formed by these three modes of discourse, a “gap” which tends to undermine the rationality of the whole enterprise.  It is here we encounter the “transcendental”, that aspect of law which is beyond the reach of conventional, professional discourse, though possibly open to exploration by non-conventional  means, and by interdisciplinary study.

Research Interests

Commercial Law, Bankruptcy and Creditors' Remedies, Unjust Enrichment, Law Reform, Estates and the Law of Succession, Maori Succession

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