-- >From B.C.Allan@massey.ac.nz Wed Mar 01 04:44:11 2000 Received: from its-mail1.massey.ac.nz ([130.123.128.11] helo=cc-server9.massey.ac.nz) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Q0zY-0004L5-00 for restitution@maillist.ox.ac.uk; Wed, 1 Mar 2000 04:44:11 +0000 Received: from ac-pc46 (ac-pc46.massey.ac.nz [130.123.50.40]) by cc-server9.massey.ac.nz (8.9.3/8.9.3) with SMTP id RAA02746 for ; Wed, 1 Mar 2000 17:44:01 +1300 (NZDT) Message-ID: <019401bf8337$a5455e90$28327b82@ac-pc46.massey.ac.nz> From: "Barry Allan" To: Subject: RDG: tracing/following rules Date: Wed, 1 Mar 2000 17:36:00 +1300 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Greetings, colleagues I have a question to which I "know" the answer yet have not seen it articulated which possibly means it is just too obvious. I am currently writing a text on New Zealand's Personal Property Securities Act which, being based on the Canadian legislation, allows for tracing/following of proceeds of sale of collateral. I've read the standard texts/cases on following and tracing and am aware of the limits posed by mixed funds. The particular situation I wish to address is one which is common following a corporate failure: a single bank account through which there are voluminous transactions and all sorts of unpaid vendors of products which have been onsold trying to unravel the bank account and recover the proceeds of their individual sales. It seems self evident to me that even if there was a bank account with a credit balance, this process would be simply too difficult. I can analyse it through in terms of principle, but it would be nice to be able to refer to authority on point. Can anyone assist? Thanks Barry Allan Massey University >From lionel.smith@law.oxford.ac.uk Wed Mar 01 10:00:48 2000 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Q5w0-0005da-00 for restitution@maillist.ox.ac.uk; Wed, 1 Mar 2000 10:00:48 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12Q5w0-00057H-00 for restitution@maillist.ox.ac.uk; Wed, 1 Mar 2000 10:00:48 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12Q5w0-00028z-00 for restitution@maillist.ox.ac.uk; Wed, 01 Mar 2000 10:00:48 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <019401bf8337$a5455e90$28327b82@ac-pc46.massey.ac.nz> References: <019401bf8337$a5455e90$28327b82@ac-pc46.massey.ac.nz> Date: Wed, 1 Mar 2000 09:58:03 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re: RDG: tracing/following rules Content-Type: text/plain; charset="us-ascii" ; format="flowed" Much depends on the wording of your proceeds provision. UCC 9-306 has caused great difficulties of interpretation, especially 9-306(4)(d)(ii). See citations in the Law of Tracing, p. 26 n. 58; p. 142 n. 35. Revised article 9's provision will be reworded. My own view is that much depends on whether the debtor acted lawfully or wrongfully in mixing the proceeds of sale: Tracing, 199-201, 211-212. The process is not difficult if the rule of law is that holders of security interests are allowed to assert that their proceeds are in the account, so long as the balance is enough to be consistent with the assertion. It would be difficult if you used something like the rule in Clayton's Case. For a slightly different view from a PPSA expert, see RCC Cuming, "Protecting Interests in Proceeds: Equity and Canadian Personal Property Security Acts" ch 18 in DWM Waters ed., Equity Fiduciaries and Trusts 1993 (Carswell, 1993). >The particular situation I wish to address is one which is common following >a corporate failure: a single bank account through which there are >voluminous transactions and all sorts of unpaid vendors of products which >have been onsold trying to unravel the bank account and recover the proceeds >of their individual sales. It seems self evident to me that even if there >was a bank account with a credit balance, this process would be simply too >difficult. I can analyse it through in terms of principle, but it would be >nice to be able to refer to authority on point. >From richard.sutton@stonebow.otago.ac.nz Wed Mar 01 20:44:23 2000 Received: from arwen.otago.ac.nz ([139.80.64.160]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12QFyo-0005i9-00 for restitution@maillist.ox.ac.uk; Wed, 1 Mar 2000 20:44:22 +0000 Received: from [139.80.36.20] (ou036020.otago.ac.nz [139.80.36.20]) by arwen.otago.ac.nz (8.9.3/8.9.3) with ESMTP id JAA03430 for ; Thu, 2 Mar 2000 09:43:23 +1300 (NZDT) X-Sender: st012413@brandywine.otago.ac.nz Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 2 Mar 2000 09:00:13 +1200 To: From: "Professor Richard Sutton, Law" Subject: tracing Thanks, Barry, for raising this. Yes, it's a deep issue! We did some work on tracing here at Otago and found a line of authority on Canadian PPSA suggesting that some tracing problems at least are governed by the provisions of the statute and not by the common law - see eg Agricultural Credit Corp v Pettyjohn [1991] 3 WWR 689. Nor does the bank itself necessarily escape just because the account is no longer in credit, if the bank is treated as security holder rather than mere creditor. The cases relate to purchase money security interests and proceeds. Since the NZ PPSA is taken from the most recent Canadian legislation, this may be authoritative here. But I don't think we really got on top of it all! Your point on the generally unsatisfactory nature of tracing when there are multiple claims is well taken, and is in line with the thinking in the NZ Law Commission's recent Study Paper No 3 on Priority Debts in Insolvent Estates (1999). This strongly emphasises pro rata division as the paramount approach. Somewhat surprisingly, however, the Commission's brief did not extend to tracing, or to secured creditors (even though, in NZ, priority debts such as unpaid wages take precedence over charges against circulating capital). There's much thinking still to do. All the best with your book. Richard >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> > < > Richard Sutton, < > Faculty of Law, University of Otago < > PO Box 56, Dunedin, New Zealand < > Telephone: (64) (3) 479-8856 < > Fax: (64) (3) 479-8855 < > e-mail: richard.sutton@stonebow.otago.ac.nz < (Please note that my former styling, "richardj.sutton", has been changed and will soon fall into disuse.) > < <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<< >From mskj1@singnet.com.sg Sat Mar 04 02:10:30 2000 Received: from smtp2.singnet.com.sg ([165.21.7.82] helo=copper.singnet.com.sg) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12R41V-00050y-00 for restitution@maillist.ox.ac.uk; Sat, 4 Mar 2000 02:10:29 +0000 Received: from user (hs14117.singnet.com.sg [165.21.37.81]) by copper.singnet.com.sg (8.9.3/8.9.3) with SMTP id KAA05371; Sat, 4 Mar 2000 10:10:24 +0800 (SGT) Message-ID: <002701bf857f$cec94160$512515a5@user> From: "joseph" To: , Subject: Can A Witness Be Prevented From Giving Evidence On the Grounds of Irrelevancy? Date: Sat, 4 Mar 2000 10:16:23 +0800 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0024_01BF85C2.B1945060" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2615.200 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 This is a multi-part message in MIME format. ------=_NextPart_000_0024_01BF85C2.B1945060 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable A controversial question of evidence law - which I realise is not at the = heart of either of the lists I post this to - has emerged in Malaysia in = the even more controversial corruption conviction (now appeal) and the = on-going sodomy trial of former Malaysian Deputy Prime Minister, Anwar = Ibrahim. I wonder if list members could assist me - with reference to = evidence law in their respect jurisdictions - to unravel this question. During the course of the (no jury) corruption trial in the High Court, = Paul J prevented a number of defence witnesses from taking the standing = arguing that he found their evidence irrelevant. The defence argued that = - given that the witnesses were on the list and had been properly = subpoenaed - the judge could not ask counsel to explain the relevance of = their testimony prior to their taking the stand. However, Paul J ruled = that under the Malaysian Evidence Act 1950 the defence does not have an = automatic right to call a person as a witness and that the court is = empowered to enquire into the relevancy of the proposed witness before = the witness gives evidence.=20 He based his ruling on section 136(1) of the 1950 Act which provides = that: "When either party proposes to give evidence of any fact, the = court may ask the party proposing to give the evidence in what manner = the alleged fact, if proved, would be relevant; and the court shall = admit the evidence if it thinks that the fact, if proved, would be = relevant, and not otherwise." Moreover he said that admissibility of = evidence is as a matter of law for the judge to determine, and = concluded: "[I]f it is the duty of the judge to admit all relevant [and = admissible] evidence, it is no less his duty to exclude all irrelevant = evidence". Accordingly, if the defence could not show how the alleged = fact would be relevant, the judge could disallow such evidence if he is = of the view that it is irrelevant.(For all of this see [1999] 2 MLJ = (Malayan Law Journal) 1, 174, 175, 177). This ruling of Paul J is now = being challenged on appeal to the Court of Appeal. In the second on-going sodomy trial of the former DPM, the same question = has arisen in respect of whether the defence can call the Prime = Minister, Dr Mahathir Mohamed, to the stand. He has been served with a = subpoena and is on the witness list. The prosecution has argued that his = evidence is irrelevant and so he should not be called. The trial judge, = Arifin Jaka J, has adjourned the trial to hear arguments from counsel = over the next week. The reason why the defence wants to call the Prime = Minister is to establish that there was a high level political = conspiracy to oust the accused. The trial judge has already said that to = him the allegation of political conspiracy without it being connected = directly to the charges was irrelevant. What would the positions be in your respective jurisdictions in such = circumstances? Louis Joseph mskj1@singnet.com.sg p.s. If, like me, you are on both lists you will be double posted. I = apologise for that. ------=_NextPart_000_0024_01BF85C2.B1945060 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
A controversial question of evidence law - which I realise is not = at the=20 heart of either of the lists I post this to - has emerged in Malaysia=20 in the even more controversial corruption conviction (now = appeal)=20 and the on-going sodomy trial of former Malaysian Deputy Prime = Minister,=20 Anwar Ibrahim. I wonder if list members could assist me - with reference = to=20 evidence law in their respect jurisdictions - to unravel this = question.
 
During the course of the (no jury) corruption trial in the = High Court,=20 Paul J prevented a number of defence witnesses from taking the standing = arguing=20 that he found their evidence irrelevant. The defence argued that - given = that=20 the witnesses were on the list and had been properly subpoenaed - the = judge=20 could not ask counsel to explain the relevance of their testimony prior = to their=20 taking the stand. However, Paul J ruled that under the Malaysian = Evidence=20 Act 1950 the defence does not have an automatic right to call a = person as a=20 witness and that the court is empowered to enquire into the relevancy of = the=20 proposed witness before the witness gives evidence.
 
He based his ruling on section 136(1) of the 1950 Act which = provides that:=20 "When either party proposes to give evidence of any fact, the court may = ask the=20 party proposing to give the evidence in what manner the alleged fact, if = proved,=20 would be relevant; and the court shall admit the evidence if it thinks = that the=20 fact, if proved, would be relevant, and not otherwise." Moreover he = said=20 that admissibility of evidence is as a matter of law for the = judge to=20 determine, and concluded: "[I]f it is the duty of the judge to = admit all=20 relevant [and admissible] evidence, it is no less his duty to exclude = all=20 irrelevant evidence". Accordingly, if the defence could not show how the = alleged=20 fact would be relevant, the judge could disallow such evidence = if he=20 is of the view that it is irrelevant.(For all of this see [1999] 2 MLJ = (Malayan=20 Law Journal) 1, 174, 175, 177). This ruling of Paul J is now being = challenged on=20 appeal to the Court of Appeal.
 
In the second on-going sodomy trial of the former DPM, the same = question=20 has arisen in respect of whether the defence can call the Prime = Minister, Dr=20 Mahathir Mohamed, to the stand. He has been served with a subpoena = and is=20 on the witness list. The prosecution has argued that his evidence is = irrelevant=20 and so he should not be called. The trial judge, Arifin Jaka J, has = adjourned=20 the trial to hear arguments from counsel over the next week. The reason = why the=20 defence wants to call the Prime Minister is to establish that there was = a high=20 level political conspiracy to oust the accused. The trial judge has = already said=20 that to him the allegation of political conspiracy without it being = connected=20 directly to the charges was irrelevant.
 
What would the positions be in your respective jurisdictions in = such=20 circumstances?
 
Louis Joseph
 
 
p.s. If, like me, you are on both lists you will be double posted. = I=20 apologise for that.
------=_NextPart_000_0024_01BF85C2.B1945060-- >From gerard.mcmeel@bristol.ac.uk Sat Mar 04 17:05:29 2000 Received: from dire.bris.ac.uk ([137.222.10.60]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12RHzd-000032-00 for restitution@maillist.ox.ac.uk; Sat, 4 Mar 2000 17:05:29 +0000 Received: from sis.bris.ac.uk by dire.bris.ac.uk with SMTP-PRIV with ESMTP; Sat, 4 Mar 2000 17:03:27 +0000 Received: from law-brno.law.bris.ac.uk (brno.law.bris.ac.uk [137.222.84.104]) by sis.bris.ac.uk (8.9.3/8.9.3) with SMTP id RAA08494; Sat, 4 Mar 2000 17:01:38 GMT From: Gerard McMeel Sender: Gerard.McMeel@bristol.ac.uk Reply-To: gerard.mcmeel@bristol.ac.uk To: Lionel Smith Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: profitable breaches of contract In-Reply-To: Message-ID: Date: Sat, 4 Mar 2000 17:18:44 +0000 (GMT) Priority: NORMAL X-Mailer: Simeon for Win32 Version 4.1.5 Build (43) X-Authentication: IMSP MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII The House of Lords are hearing the appeal of George Blake against the notorious decision of the Court of Appeal on Tuesday and Wednesday, 7 and 8 March. Obviously the public law points will predominate. However their Lordships caused consternation with counsel by insisting (on 14 February) that the restitutionary damages for breach of contract point be fully argued. The Crown will also seek to argue that Blake should disgorge the profits of his "criminal" conduct. ---------------------- Gerard McMeel University of Bristol gerard.mcmeel@bristol.ac.uk >From charles.mitchell@kcl.ac.uk Tue Mar 07 08:48:26 2000 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12SFfG-0000jj-00 for restitution@maillist.ox.ac.uk; Tue, 7 Mar 2000 08:48:26 +0000 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id IAA11151 for ; Tue, 7 Mar 2000 08:48:25 GMT Message-Id: <3.0.6.32.20000307085359.007959c0@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Tue, 07 Mar 2000 08:53:59 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Looted art Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Subscribers to RDG will recall the discussion last year of Sotheby's v City of Gotha, and the tricky legal issues which arise in connection with claims to assert title to works of art stolen during the Holocaust period and the Second World War. In this connection, subscribers may now be interested to learn that various British museums and art galleries have been investigating the provenance of the paintings and other artworks in their collections, in an attempt to discover whether claims might be made against them by the original owners or their families. The guiding principles of this undertaking and other details can be found at the following web-site: www.nationalmuseums.org.uk/spoilation/ ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 >From swh10@cus.cam.ac.uk Tue Mar 07 21:38:51 2000 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12SRgp-0001PN-00 for restitution@maillist.ox.ac.uk; Tue, 7 Mar 2000 21:38:51 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10) by taurus.cus.cam.ac.uk with smtp (Exim 3.13 #1) id 12SRgm-0006K5-00 for restitution@maillist.ox.ac.uk; Tue, 07 Mar 2000 21:38:48 +0000 Message-Id: <3.0.6.32.20000307213851.0118ab90@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Tue, 07 Mar 2000 21:38:51 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Looted art Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" For those who are interested, this and other similar/related sites are already listed as part of my restitution pages at: http://www.law.cam.ac.uk/restitution/rest.htm At 08:53 07/03/00 +0000, you wrote: >Subscribers to RDG will recall the discussion last year of Sotheby's v City >of Gotha, and the tricky legal issues which arise in connection with claims >to assert title to works of art stolen during the Holocaust period and the >Second World War. In this connection, subscribers may now be interested to >learn that various British museums and art galleries have been >investigating the provenance of the paintings and other artworks in their >collections, in an attempt to discover whether claims might be made against >them by the original owners or their families. The guiding principles of >this undertaking and other details can be found at the following web-site: > >www.nationalmuseums.org.uk/spoilation/ >________________________________________________________________________ > >Dr Charles Mitchell Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From B.C.Allan@massey.ac.nz Thu Mar 09 22:58:30 2000 Received: from its-mail1.massey.ac.nz ([130.123.128.11] helo=cc-server9.massey.ac.nz) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12TBsy-0004WN-00 for restitution@maillist.ox.ac.uk; Thu, 9 Mar 2000 22:58:29 +0000 Received: from ac-pc46 (ac-pc46.massey.ac.nz [130.123.50.40]) by cc-server9.massey.ac.nz (8.9.3/8.9.3) with SMTP id LAA12267 for ; Fri, 10 Mar 2000 11:58:22 +1300 (NZDT) Message-ID: <008c01bf8a19$d7f44a70$28327b82@ac-pc46.massey.ac.nz> From: "Barry Allan" To: Subject: RDG: Tracing thanks Date: Fri, 10 Mar 2000 11:50:18 +1300 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Dear Colleagues I'd like to thank Richard Sutton, Lionel Smith Craig Rotherham for their useful comments on this question - you've all provided leads I can follow up on. In a text on the PPSA, my intention/constrain is that I can only do "Tracing for Dummies" but it may be that a deeper piece of writing will be generated by the work I need to get there over the next few months. Thanks again Barry >From omata@budlight.com Mon Mar 13 20:45:58 2000 Received: from mail.fisherdynamics.com ([209.131.30.132]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Ubiv-00063d-00 for restitution@maillist.ox.ac.uk; Mon, 13 Mar 2000 20:45:58 +0000 Received: from localhost ([216.1.23.85]) by mail.fisherdynamics.com (Lotus Domino Release 5.0.2a) with SMTP id 2000031315474207:498 ; Mon, 13 Mar 2000 15:47:42 -0500 To: X-References: 002BEE1A8, 0C6A37731 From: MIME-Version: 1.0 X-Mailer: Mozilla 3.58 [en] (WinNT; I) X-Accept-Language: en MessageID: Subject: Email Advertising Works for You--We Guarantee Response!!! X-See-Also: 0E7D4812C X-Other-References: 083EDBA92 References: 04F1EE0F1 Sensitivity: Personal Date: Mon, 13 Mar 2000 15:36:05 X-MIMETrack: Itemize by SMTP Server on Fisher_INet/Fisher(Release 5.0.2a |November 23, 1999) at 03/13/2000 03:47:42 PM, Serialize by Router on Fisher_INet/Fisher(Release 5.0.2a |November 23, 1999) at 03/13/2000 03:49:30 PM, Serialize complete at 03/13/2000 03:49:30 PM Message-ID: Content-Transfer-Encoding: 7bit Content-Type: text/html E-MAIL-IT SPECIAL(Ends March 14/00) ADVERTISING THAT WORKS FOR YOU Call Ins Receive 25,000 Additional Emails at No Cost! For More information call 919-839-2942 or include your name and number in an email CLICK HERE For removal see link below. We Will Assist You in Developing Your Entire Campaign WE CAN CREATE YOUR AD FOR YOU Whether You Are Looking For Sales, Leads or Exposure OBC OFFERS Targeted or General Mailings With Fresh Addresses Always We GUARANTEE response ! 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Call Ins Receive 25,000 Additional Emails at No Cost! +++++++++++++++++++++++++++++++++++++++++++ For Removal Mailto:leadtrash@mailcity.com?subject=remove >From jsdouglas@qldbar.asn.au Wed Mar 15 08:11:01 2000 Received: from dns.qldbar.asn.au ([203.12.171.50]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12V8tP-0003GR-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 08:11:00 +0000 Received: from [192.168.228.60] (proxy.eis.net.au [203.12.171.33]) by dns.qldbar.asn.au (8.9.1/8.8.3) with ESMTP id SAA05757 for ; Wed, 15 Mar 2000 18:10:51 +1000 (EST) User-Agent: Microsoft Outlook Express Macintosh Edition - 5.0 (1513) Date: Wed, 15 Mar 2000 18:10:40 +1000 Subject: RDG: Auckland Harbour Board v The King and change of position From: James Douglas To: Message-ID: Mime-version: 1.0 Content-type: multipart/alternative; boundary="MS_Mac_OE_3035988641_366098_MIME_Part" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --MS_Mac_OE_3035988641_366098_MIME_Part Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Is anybody in a position to advance the debate whether the principle in Auckland Harbour Board v The King can be defeated by a change of position argument beyond this statement in The Laws of Australia? "[105] It is uncertain whether general restitutionary defences such as provision of consideration (see [204-210]) and change of position (see [196-201]) are available to the Crown against a claim for recovery of an unlawful exaction. The principle in Auckland Harbour Board v The King [1924] AC 318, can lead to harsh results, leading to calls for allowing defendants to raise general restitutionary defences against the Crown.1 It is arguable that the absolute right of recovery conferred by this principle is particularly harsh and unfair given the lack of a reciprocal right by the citizen to recover ultra vires exactions from the Crown: see [90-94]. There is conflicting authority about whether the defence of the provision of good consideration is available as a defence in a claim by the Crown.2 There is no authority on whether the defence of change of position should be recognised in this context. It is at least arguable that the pro tanto nature of the defence 3 strikes a fair balance between the need on the one hand to protect parliamentary control over funds, and the desirability on the other hand of mitigating the harsh operation of this principle on recipients of government money.4 1 Law Reform Commission of British Columbia, Report on the Recovery of Unauthorised Disbursements of Public Funds, LRC 48, 1980; Burrows A, The Law of Restitution (London: Butt, 1993), 332. 2 In Commonwealth v Burns [1971] VR 825, Newton J at 827 suggested that payments made with consideration might fall outside of the Auckland Harbour Board principle. On the other hand, in A-G v Gray [1977] 1 NSWLR 406 (CA), Glass JA (Samuels JA agreeing) at 414 appeared to reject the argument that the provision of good consideration could render unauthorised payments irrecoverable. 3 The defence of change of position operates only to the extent that the money has been specifically paid out on an item of extraordinary expenditure: see [196-201]. 4 Contrast Mason K and Carter JW, Restitution Law in Australia (Sydney: Butt, 1995), 787, where it is argued that the requirement of detrimental reliance can never be met in this context, as reliance can not properly be based on an illegal payment." The English Law Commission in its Report on Restitution (Law.Com.No.227) para. 17.20 in the absence of authority on the point believed that the standard restitutionary defences of change of position and submission or compromise would and should apply. Mason and Carter in their work at p. 787 para. 2107 take the view that a change of position defence is precluded for similar reasons as preclude a defence of estoppel. They find it difficult to see how reliance could properly be placed upon the faith of a payment prohibited by law. It's an interesting debate arising, in the context that concerns me, in circumstances where a beneficiary of a State superannuation scheme has been overpaid by accident and the bulk of the overpayment came from consolidated revenue. -- Thanks in anticipation, James Douglas QC Level 18 Inns of Court 107 North Quay Brisbane QLD 4000 Australia Tel: +617 3236 2723 Fax: +617 3236 2730 --MS_Mac_OE_3035988641_366098_MIME_Part Content-type: text/html; charset="US-ASCII" Content-transfer-encoding: quoted-printable RDG: Auckland Harbour Board v The King and change of position</TITLE= > </HEAD> <BODY> Is anybody in a position to advance the debate whether the principle in <I>= Auckland Harbour Board v The King</I> can be defeated by a change of positio= n argument beyond this statement in <I>The Laws of Australia</I>?<BR> <BR> <BLOCKQUOTE>"[105]    It is uncertain whether general r= estitutionary defences such as provision of consideration (see [204-210]) an= d change of position (see [196-201]) are available to the Crown against a cl= aim for recovery of an unlawful exaction. The principle in <I>Auckland Harbo= ur Board v The King</I> [1924] AC 318, can lead to harsh results, leading to= calls for allowing defendants to raise general restitutionary defences agai= nst the Crown.1 It is arguable that the absolute right of recovery conferred= by this principle is particularly harsh and unfair given the lack of a reci= procal right by the citizen to recover ultra vires exactions from the Crown:= see [90-94].<BR> There is conflicting authority about whether the defence of the provision o= f good consideration is available as a defence in a claim by the Crown.2 The= re is no authority on whether the defence of change of position should be re= cognised in this context. It is at least arguable that the pro tanto nature = of the defence 3 strikes a fair balance between the need on the one hand to = protect parliamentary control over funds, and the desirability on the other = hand of mitigating the harsh operation of this principle on recipients of go= vernment money.4<BR> <BLOCKQUOTE>1    Law Reform Commission of British Columbia, = Report on the Recovery of Unauthorised Disbursements of Public Funds, LRC 48= , 1980; Burrows A, <I>The Law of Restitution</I> (London: Butt, 1993), 332.<= BR> 2    In <I>Commonwealth v Burns</I> [1971] VR 825, Newton J = at 827 suggested that payments made with consideration might fall outside of= the <I>Auckland Harbour Board</I> principle. On the other hand, in <I>A-G v= Gray</I> [1977] 1 NSWLR 406 (CA), Glass JA (Samuels JA agreeing) at 414 app= eared to reject the argument that the provision of good consideration could = render unauthorised payments irrecoverable.<BR> 3    The defence of change of position operates only to the = extent that the money has been specifically paid out on an item of extraordi= nary expenditure: see [196-201].<BR> 4    Contrast Mason K and Carter JW, <I>Restitution Law in A= ustralia</I> (Sydney: Butt, 1995), 787, where it is argued that the requirem= ent of detrimental reliance can never be met in this context, as reliance ca= n not properly be based on an illegal payment."<BR> <BR> </BLOCKQUOTE></BLOCKQUOTE>The English Law Commission in its Report on Resti= tution (Law.Com.No.227) para. 17.20 in the absence of authority on the point= believed that the standard restitutionary defences of change of position an= d submission or compromise would and should apply.  Mason and Carter in= their work at p. 787 para. 2107 take the view that a change of position def= ence is precluded for similar reasons as preclude a defence of estoppel. &nb= sp;They find it difficult to see how reliance could properly be placed upon = the faith of a payment prohibited by law.  <BR> <BR> It's an interesting debate arising, in the context that concerns me, in cir= cumstances where a beneficiary of a State superannuation scheme has been ove= rpaid by accident and the bulk of the overpayment came from consolidated rev= enue.<BR> -- <BR> Thanks in anticipation,<BR> <BR> James Douglas QC<BR> <BR> Level 18 Inns of Court<BR> 107 North Quay<BR> Brisbane QLD 4000<BR> Australia<BR> Tel: +617 3236 2723<BR> Fax: +617 3236 2730<BR> </BODY> </HTML> --MS_Mac_OE_3035988641_366098_MIME_Part-- >From charles.mitchell@kcl.ac.uk Wed Mar 15 09:57:49 2000 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12VAYn-000441-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 09:57:49 +0000 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id JAA02603; Wed, 15 Mar 2000 09:57:42 GMT Message-Id: <3.0.6.32.20000315100340.007ab100@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Wed, 15 Mar 2000 10:03:40 +0000 To: James Douglas <jsdouglas@qldbar.asn.au> From: Charles Mitchell <charles.mitchell@kcl.ac.uk> Subject: Re: RDG: Auckland Harbour Board v The King and change of position Cc: restitution@maillist.ox.ac.uk In-Reply-To: <B4F5829F.1396%jsdouglas@qldbar.asn.au> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" In this connection, you may find it interesting to look at an unreported English case, Hinckley and Bosworth BC v Shaw (21 Dec 1998) Unrep (QBD: Bell J). Shaw was the principal chief officer of the claimant borough council. In comparison with other local authority employees occupying similar posts he was significantly underpaid. The council wished to reorganize its administration, and as part of this reorganization, for Shaw to take early retirement. The council and Shaw therefore entered an agreement under which he promised to accept redundancy, and in return the council promised to increase his salary during his final year of employment by 30%, to pay him three months' salary in lieu of notice at the end of this year even though proper notice had been given, and thereafter to pay him larger redundancy and pension benefits than he could otherwise have claimed, as his entitlement to these was geared to the amount of his final salary. Pursuant to this agreement, the council then made him a series of payments in respect of salary increase, the money paid in lieu of notice, and those parts of the redundancy and pension benefits which related to the 30% final salary increase. Subsequently, however, the council brought an action for money had and received to recover all these payments on the ground that they had been made pursuant to an agreement that was ultra vires and illegal and therefore void. Shaw disputed this, and in the alternative raised a change of position defence in respect of various payments made by him to members of his family in reliance on his receipt of the payments in question. Bell J held that an agreement entered into by a statutory local authority to increase an employee's salary for the main purpose of enhancing the employee's redundancy or retirement benefits is unlawful and void because it is beyond the authority's powers, even if the pay increase can be justified and seen as reasonable in itself, following Pickwell v Camden LBC [1983] 1 QB 962 and Allsop v North Tyneside MBC [1992] ICR 639. An agreement entered into by a statutory local authority to pay redundancy and pension payments geared to an unlawfully inflated final salary is itself also unlawful and void because it is beyond the authority's powers. An agreement entered into by a statutory local authority to make a payment in lieu of notice when proper notice terminating an employee's employment has in fact been given is unlawful and void because it is beyond the authority's powers, as in reality it is a gift. The council was accordingly entitled to restitution of all the payments in question on the ground of failure of consideration, following Guinness Mahon & Co Ltd v Kensington and Chelsea RLBC [1998] QB 215. He also held that Shaw was not entitled to raise a change of position defence to the council's claim in respect of the gifts he made to his family, because he had not made these in reliance on receipt of the relevant payments by the council, but in reliance on his general financial position, which included reliance on the lawfulness of his agreements with the council - and following South Tyneside MBC v Svenska International plc [1995] All ER 545, a recipient of payments under a void contract may not raise a change of position defence to a claim to recover these payments where he has relied not on receipt of the payments but on the supposed validity of the transaction under which they were made. My own view on this decision is that the courts can most sensibly determine whether benefits conferred under a void contract should be recoverable by examining the policy underlying the rule which makes the contract void, so as to decide whether recovery of the benefits is required by the policy, whether it is at least consistent with the policy and desirable for some other reason, or whether it would stultify the policy. And in cases like this, Auckland Harbour Board should provide them with a starting point for this kind of discussion. The problem with the Court of Appeal's approach in Guinness Mahon, at least insofar as it has been interpreted by Bell J, is that it leaves the courts with no room in which to embark on enquiries of this sort, since it apparently requires them to allow recovery on the ground of failure of consideration automatically, once they have held that the contract was void ab initio, regardless of whether the rule avoiding the contract was intended to protect the transferor or the recipient of the benefits in question. So far as change of position was concerned, Bell J's finding on the facts that Shaw had relied on the validity of his contract with the council rather than on his receipt of the council's payments when making gifts to his family also seems a little strained, as does his assumption that the series of one-off gifts made by Shaw was analogous to the back-to-back hedging contract in the Svenska case. Clarke J's remarks on change of position in the latter case were surely specific to the facts of that case, and their application to to the facts of the present case inappropriate. It may be, though, that Shaw should anyway have failed in his defence, since it appears that he was frequently generous to his family and might well have made them the gifts in question anyway. At 18:10 15/03/00 +1000, you wrote: > Is anybody in a position to advance the debate whether the principle in >Auckland Harbour Board v The King can be defeated by a change of position >argument beyond this statement in The Laws of Australia? > > >>" It is uncertain whether general restitutionary defences such as >>provision of consideration (see [204-210]) and change of position (see >>[196-201]) are available to the Crown against a claim for recovery of an >>unlawful exaction. The principle in Auckland Harbour Board v The King >>[1924] AC 318, can lead to harsh results, leading to calls for allowing >>defendants to raise general restitutionary defences against the Crown.1 >>It is arguable that the absolute right of recovery conferred by this >>principle is particularly harsh and unfair given the lack of a reciprocal >>right by the citizen to recover ultra vires exactions from the Crown: see >>[90-94]. >> There is conflicting authority about whether the defence of the >>provision of good consideration is available as a defence in a claim by >>the Crown.2 There is no authority on whether the defence of change of >>position should be recognised in this context. It is at least arguable >>that the pro tanto nature of the defence 3 strikes a fair balance between >>the need on the one hand to protect parliamentary control over funds, and >>the desirability on the other hand of mitigating the harsh operation of >>this principle on recipients of government money.4 >> >>> Law Reform Commission of British Columbia, Report on the Recovery of >>>Unauthorised Disbursements of Public Funds, LRC 48, 1980; Burrows A, >>>The Law of Restitution (London: Butt, 1993), 332. >>> In Commonwealth v Burns [1971] VR 825, Newton J at 827 suggested >>>that payments made with consideration might fall outside of the >>>Auckland Harbour Board principle. On the other hand, in A-G v Gray >>>[1977] 1 NSWLR 406 (CA), Glass JA (Samuels JA agreeing) at 414 appeared >>>to reject the argument that the provision of good consideration could >>>render unauthorised payments irrecoverable. >>> The defence of change of position operates only to the extent that >>>the money has been specifically paid out on an item of extraordinary >>>expenditure: see [196-201]. >>> Contrast Mason K and Carter JW, Restitution Law in Australia" >>> >>> > > > > It's an interesting debate arising, in the context that concerns me, in >circumstances where a beneficiary of a State superannuation scheme has been >overpaid by accident and the bulk of the overpayment came from consolidated >revenue. > -- > Thanks in anticipation, > > James Douglas QC > > Level 18 Inns of Court > 107 North Quay > Brisbane QLD 4000 > Australia > Tel: +617 3236 2723 > Fax: +617 3236 2730 > ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 [message removed at sender's request] >From lionel.smith@law.oxford.ac.uk Wed Mar 15 11:53:16 2000 Received: from oxmail2.ox.ac.uk ([163.1.2.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12VCMW-0005W5-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 11:53:16 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 12VCMW-00077u-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 11:53:16 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12VCMW-00070W-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 11:53:16 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: <v04210106b4f51866b86f@[163.1.228.82]> Date: Wed, 15 Mar 2000 11:50:37 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith <lionel.smith@law.oxford.ac.uk> Subject: attributions Content-Type: text/plain; charset="us-ascii" ; format="flowed" I have two quotations chasing each other around in my head, but the combination of my memory and my reference sources is failing to place either of them. I would be very grateful for any help. The first is something like this: "It is sometimes better to cross the Rubicon under cover of darkness, wearing a hat and a false moustache." [I may have added the last bit.] This might have been Lord Denning, or it might well have been said by someone who wanted to avoid the fate of many of Lord Denning's innovations. The second is something like this: "If you ask an Englishman about constructive trusts, he starts talking about renewal of leases." This I thought, and continue to suspect, was Jack Dawson, but I cannot find it. Thanks, Lionel >From jsdouglas@qldbar.asn.au Wed Mar 15 22:38:00 2000 Received: from dns.qldbar.asn.au ([203.12.171.50]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12VMQR-00005o-00 for restitution@maillist.ox.ac.uk; Wed, 15 Mar 2000 22:37:59 +0000 Received: from [192.168.228.60] (proxy.eis.net.au [203.12.171.33]) by dns.qldbar.asn.au (8.9.1/8.8.3) with ESMTP id IAA15888 for <restitution@maillist.ox.ac.uk>; Thu, 16 Mar 2000 08:37:52 +1000 (EST) User-Agent: Microsoft Outlook Express Macintosh Edition - 5.0 (1513) Date: Thu, 16 Mar 2000 08:37:51 +1000 Subject: FW: RDG: Auckland Harbour Board v The King and change of position From: James Douglas <jsdouglas@qldbar.asn.au> To: RDG <restitution@maillist.ox.ac.uk> Message-ID: <B4F64DDF.13AA%jsdouglas@qldbar.asn.au> In-Reply-To: <B4F64D70.13A9%jsdouglas@qldbar.asn.au> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit ---------- From: James Douglas <jsdouglas@qldbar.asn.au> Date: Thu, 16 Mar 2000 08:36:01 +1000 To: Charles Mitchell <charles.mitchell@kcl.ac.uk> Subject: Re: RDG: Auckland Harbour Board v The King and change of position Thanks very much for the reference to the case. I shall read it with interest. I had found an inconclusive discussion in an English unreported decision called R v Secretary of State for the Environment; ex parte London Borough of Camden (Schiemann J, 17 February 1995) but this sounds as if it carries the debate a bit further. The authorities here are opposed to estoppel as a defence and, I think by analogy, to change of position also. -- Kind regards, James Douglas Tel: +617 3236 2723 Fax: +617 3236 2730 > From: Charles Mitchell <charles.mitchell@kcl.ac.uk> > Date: Wed, 15 Mar 2000 10:03:40 +0000 > To: James Douglas <jsdouglas@qldbar.asn.au> > Cc: restitution@maillist.ox.ac.uk > Subject: Re: RDG: Auckland Harbour Board v The King and change of position > > Hinckley and Bosworth BC v Shaw >From joshua.getzler@law.oxford.ac.uk Thu Mar 16 11:28:39 2000 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12VYSF-0002Wt-00; Thu, 16 Mar 2000 11:28:39 +0000 Received: from heraldgate1.oucs.ox.ac.uk ([163.1.2.49] helo=frontend1.herald.ox.ac.uk ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12VYSE-0003YR-00; Thu, 16 Mar 2000 11:28:38 +0000 Received: from fellow10.sthughs.ox.ac.uk ([163.1.228.70] helo=law.ox.ac.uk) by frontend1.herald.ox.ac.uk with esmtp (Exim 2.02 #1) id 12VYSG-0004nU-00; Thu, 16 Mar 2000 11:28:40 +0000 Message-ID: <38D0C55B.576ECCEF@law.ox.ac.uk> Date: Thu, 16 Mar 2000 11:28:27 +0000 From: Dr Joshua Getzler <joshua.getzler@law.oxford.ac.uk> Reply-To: joshua.getzler@law.oxford.ac.uk Organization: Faculty of Law and St Hugh's College, University of Oxford X-Mailer: Mozilla 4.6 [en-gb] (Win98; I) X-Accept-Language: en-GB,en,en-* MIME-Version: 1.0 To: "Members, Law Faculty" <law-faculty@maillist.ox.ac.uk>, "law-postgrads@maillist.ox.ac.uk" <law-postgrads@maillist.ox.ac.uk>, "law-discuss@maillist.ox.ac.uk" <law-discuss@maillist.ox.ac.uk>, restitution discussion group <restitution@maillist.ox.ac.uk> Subject: UK Law Reports online Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit All common lawyers will be interested in the following - - ANNOUNCEMENT - LAUNCH OF BRITISH AND IRISH LEGAL INFORMATION INSTITUTE (BAILII) BAILII (http://www.bailii.org), the British and Irish Legal Information Institute Pilot Service, is the first web site to provide free access to case law and legislation from numerous British and Irish courts and legislatures, with a single search engine and uniform data formats. 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FOR FURTHER INFORMATION WEB SITES - * The 'About BAILII' page at http://www.bailii.org/bailii/ provides details on the development of BAILII and its background. * The UK Society for Computers & Law 'Free the Law' pages - http://www.scl.org/ * Laurence West-Knight's pages - http://www.lawonline.cc/ukileli.htm * AustLII - http:www.austlii.edu.au * BAILII - http://www.bailii.org CONTACTS - * Associate Professor Andrew Mowbray , Co-Director, AustLII <andrew@austlii.edu.au> +61 418 635 275 * Professor Graham Greenleaf, Co-Director, AustLII <graham@austlii.edu.au> +61 2 9569 5310 * Philip Chung, Executive Director, AustLII <philip@austlii.edu.au> +61 2 9514 3175 * Laurence West-Knights, Vice-Chairman, UK Society for Computers & Law <ljwk@lix.co.uk> +44 860 315556 * John Mee, Dean of Law, University College Cork; <j.mee@ucc.ie> +353-21-903249 * Ruth Baker, Secretariat, UK Society for Computers & Law <ruth.baker@scl.org> +44 017 923 7393 ----------------------------------------------------------------------------- 15 March 2000 Please forward this Announcement to any relevant lists that have not yet received it, particularly those in Britain and Ireland. Apologies for any cross-posting that may occur. A copy of this Announcement is at http://www2.austlii.edu.au/~graham/BAILII/announcement.html >From lionel.smith@law.oxford.ac.uk Thu Mar 16 16:53:38 2000 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12VdWk-0002WO-00 for restitution@maillist.ox.ac.uk; Thu, 16 Mar 2000 16:53:38 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12VdWj-0001HH-00 for restitution@maillist.ox.ac.uk; Thu, 16 Mar 2000 16:53:37 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12VdWj-000332-00 for restitution@maillist.ox.ac.uk; Thu, 16 Mar 2000 16:53:37 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: <v04210102b4f67ed1a9d5@[163.1.228.82]> Date: Thu, 16 Mar 2000 16:50:59 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith <lionel.smith@law.oxford.ac.uk> Subject: modes of crossing Rubicon Content-Type: multipart/alternative; boundary="============_-1258897036==_ma============" --============_-1258897036==_ma============ Content-Type: text/plain; charset="us-ascii" ; format="flowed" P. Devlin, The Judge (Oxford, OUP, 1979), p. 12: "It is facile to think that it is always better to throw off disguises. The need for disguise hampers activity and so restricts the power. Paddling across the Rubicon by individuals in disguise who will be sent back if they proclaim themselves is very different from the bridging of the river by an army in uniform and with bands playing." Thanks to Peter Birks. --============_-1258897036==_ma============ Content-Type: text/enriched; charset="us-ascii" <fontfamily><param>Geneva</param>P. Devlin, <underline>The Judge</underline> (Oxford, OUP, 1979), p. 12: "It is facile to think that it is always better to throw off disguises. The need for disguise hampers activity and so restricts the power. Paddling across the Rubicon by individuals in disguise who will be sent back if they proclaim themselves is very different from the bridging of the river by an army in uniform and with bands playing." Thanks to Peter Birks. </fontfamily> --============_-1258897036==_ma============-- >From drfilios@hellasnet.gr Sat Mar 18 10:48:00 2000 Received: from mail.hellasnet.gr ([212.54.192.3]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12WGm0-0003q5-00 for restitution@maillist.ox.ac.uk; Sat, 18 Mar 2000 10:48:00 +0000 Received: from filios (ppp104-V90-voula.athe.hellasnet.gr [212.54.194.232]) by mail.hellasnet.gr (8.9.1/8.9.1) with SMTP id MAA17313 for <restitution@maillist.ox.ac.uk>; Sat, 18 Mar 2000 12:46:57 +0200 (GMT) Message-ID: <007201bf90c7$499d4b00$e8c236d4@filios> From: "Drfilios" <drfilios@hellasnet.gr> To: <restitution@maillist.ox.ac.uk> Subject: French cases. Date: Sat, 18 Mar 2000 12:46:56 +0200 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_006F_01BF90D8.0B7ADC00" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2014.211 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2014.211 This is a multi-part message in MIME format. ------=_NextPart_000_006F_01BF90D8.0B7ADC00 Content-Type: text/plain; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable Two new judgements coming from Courts of Appeal are recently appear = on the French Law of unjustified enrichment:=20 =20 1. One of the Court of Appeal of N=EEmes (28 Jan. 1999) consider = that unjustified enrichment created between two homosexual concubines = finds her legal cause in =ABthe will of two women to continue the common = life=BB (decision which appears in the review "Semaine juridique, = general edition, March 8 2000, No 10, IVe party, No 1432");=20 2. The other come from the Court of Appeal of Nancy, which have = consider that =ABthe downward which himself be occupied to its sick = mother until its death=BB its not allowed to claim the unjustified = enrichment by the inheritance of the de cujus, because the profit of the = died mother has its legal cause in =ABthe affection relationships which = link the two person=BB (decision with appears in the review "Semaine = juridique, general edition, February 16 2000, No 7-8, IVe party, No = 1306).=20 The two judgements seem in contradiction with dominant jurisprudence = coming from the Supreme Court (v. in particular Cour de cassation: civ. = ch. 1, Oct. 15, 1996, Revue trimestielle de droit civil 1997, p. 102, = note HAUSER; civ. ch. 1, July 12, 1994, Recueil Dalloz 1995, J, p. 623, = note TCHENDJOU.=20 Dr. Christian P. FILIOS (Ph.D.) Universit=E9 de Lille II=20 ------=_NextPart_000_006F_01BF90D8.0B7ADC00 Content-Type: text/html; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"> <HTML><HEAD> <META content=3D"text/html; charset=3Dx-user-defined" = http-equiv=3DContent-Type> <META content=3D"MSHTML 5.00.2014.210" name=3DGENERATOR> <STYLE></STYLE> </HEAD> <BODY bgColor=3D#00ffff> <DIV align=3Djustify><STRONG><FONT face=3D"Comic Sans MS" size=3D2><FONT = color=3Dred>    Two new judgements coming from Courts=20 of Appeal are recently appear on the French Law of = unjustified=20 enrichment: </FONT></FONT></STRONG></DIV> <DIV><STRONG><FONT face=3D"Comic Sans MS" size=3D2><FONT=20 color=3Dred></FONT></FONT></STRONG> </DIV> <DIV align=3Djustify><STRONG><FONT face=3D"Comic Sans MS" size=3D2><FONT = color=3Dred>    1. One of the Court of Appeal of N=EEmes = (28 Jan.=20 1999) consider that unjustified enrichment created between two = homosexual=20 concubines finds her legal cause in =ABthe will of two women = to continue=20 the common life=BB (decision which appears in the review "Semaine=20 juridique, general edition, March 8 2000, No 10, IVe party, No = 1432");=20 </FONT></FONT></STRONG></DIV> <DIV align=3Djustify><STRONG><FONT face=3D"Comic Sans MS" size=3D2><FONT = color=3Dred>    2. The other come from the = Court of=20 Appeal of Nancy, which have consider that =ABthe downward which himself=20 be occupied to its sick mother until its = death=BB its=20 not allowed to claim the unjustified enrichment by=20 the inheritance of the <EM>de cujus</EM>, because the = profit of the=20 died mother has its legal cause in =ABthe affection = relationships which=20 link the two person=BB (decision with appears in the review "Semaine=20 juridique, general edition, February 16 2000, No 7-8, IVe = party, No=20 1306). </FONT></FONT></STRONG></DIV> <DIV align=3Djustify><STRONG><FONT face=3D"Comic Sans MS" size=3D2><FONT = color=3Dred>    The two judgements seem in = contradiction with=20 dominant jurisprudence coming from the Supreme Court (v. in = particular=20 <EM>Cour de cassation</EM>: civ. ch. 1, Oct. 15, 1996, <EM>Revue=20 trimestielle de droit civil</EM> 1997, p. 102, note HAUSER; = civ. ch. 1,=20 July 12, 1994, <EM>Recueil Dalloz </EM>1995, J, p. 623, note = TCHENDJOU.=20 </FONT></FONT></STRONG></DIV> <DIV align=3Djustify> </DIV> <DIV align=3Djustify><FONT face=3D"Comic Sans MS" size=3D2><STRONG>Dr. = Christian P.=20 FILIOS (Ph.D.)</STRONG></FONT></DIV> <DIV align=3Djustify><FONT face=3D"Comic Sans MS" = size=3D2><STRONG>Universit=E9 de Lille=20 II </STRONG></FONT></DIV></BODY></HTML> ------=_NextPart_000_006F_01BF90D8.0B7ADC00-- >From deet34@bigassweb.com Sun Mar 19 08:09:57 2000 Received: from 216-118-26-42.pdq.net ([216.118.26.42] helo=ns1.Massaad.com) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Wama-0001U9-00 for restitution@maillist.ox.ac.uk; Sun, 19 Mar 2000 08:09:57 +0000 Received: from localhost (athena.pwebtech.com [209.123.151.2]) by ns1.Massaad.com with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id GXYG9P3Z; Sun, 19 Mar 2000 02:10:21 -0600 X-Mailer: Internet Mail Service [1.0.3861.30] (Solaris; Sparc12) Date: Sun, 19 Mar 2000 03:09:38 X-Accept-Language: en From: <deet34@bigassweb.com> To: <lyricalline-announcement@mailserv.tenagra.com> Subject: Expose your business to the Internet X-References: 0F38F3B0A, 072E41AAD X-See-Also: 0B8DE5E29 MessageID: <2fjvstam5pbmp7x.190320000309@localhost> Content-Type: text/plain Message-Id: <E12Wama-0001U9-00@bagpuss.oucs.ox.ac.uk> PUT EMAIL MARKETING TO WORK FOR YOU... 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Just Click or copy and paste the link below in you Internet Explorer Browser: http://angelfire.com%40%77%77%77%2E%63%79ber%67%61%74%65w%61%79%2E%6E%65%74/t%68e%72%65%6D%6F%76e%31/r%65%6Do%76%65%2E%68%74%6D#@f%72%65%65%79%65%6C%6C%6Fw.%63%6F%6D/%6D%65%6D%62%65%72%73/b%69%67%6Der%63%68a%6E%74%73%74%75%66%66/i%6Edex%2E%68%74%6D%6C >From drfilios@hellasnet.gr Wed Mar 22 16:16:01 2000 Received: from mail.hellasnet.gr ([212.54.192.3]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Xnnc-0000bE-00 for restitution@maillist.ox.ac.uk; Wed, 22 Mar 2000 16:16:00 +0000 Received: from filios (ppp80-V90-voula.athe.hellasnet.gr [212.54.194.208]) by mail.hellasnet.gr (8.9.1/8.9.1) with SMTP id SAA02978 for <restitution@maillist.ox.ac.uk>; Wed, 22 Mar 2000 18:14:11 +0200 (GMT) Message-ID: <000201bf9419$af0cad00$d0c236d4@filios> From: "Drfilios" <drfilios@hellasnet.gr> To: <restitution@maillist.ox.ac.uk> Subject: Defences against unjust enrichment action in French Law Date: Wed, 22 Mar 2000 18:02:34 +0200 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_003C_01BF9428.CCF25720" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2014.211 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2014.211 This is a multi-part message in MIME format. ------=_NextPart_000_003C_01BF9428.CCF25720 Content-Type: text/plain; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable Here is a new sentence of the Supreme Court of France (Cour de = cassation): Com. ch., 18 mai 1999, Bulletin d'information de la Cour de = cassation 1999, No 1000:=20 =ABthe action of de in rem verso cannot succeed when impoverishment = is the result of mistake of the plaintiff.=20 Consequently, must be annulled the judgement (arr=EAt) which, after = having retained the error of impoverished, condemns the defendant, on = the base of this error, to restitute the received sum=BB. =20 This sentence recently published is in total contradiction with the = other's of the same section (commercial) of Cour de cassation (v. as = ex.: Com. ch., 19 May 1998, Semaine juridique (JCP) 1999, Ed. G., I = party, 114, obs. VIRASSAMY) and this coming from the other civil = sections (as. ex.: in particular civ. 1 ch., 11 mars 1997, Receuil = Dalloz 1997, J., p. 407, note BILLIAU ; and, civ. 2 ch., 2 dec. 1998, = Semaine juridique (JCP) 1999, Ed. G., IV party, 1128). Dr. Christian P. FILIOS (Ph.D.) =20 ------=_NextPart_000_003C_01BF9428.CCF25720 Content-Type: text/html; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"> <HTML><HEAD> <META content=3D"text/html; charset=3Dx-user-defined" = http-equiv=3DContent-Type> <META content=3D"MSHTML 5.00.2014.210" name=3DGENERATOR> <STYLE></STYLE> </HEAD> <BODY bgColor=3D#ffffff> <DIV><FONT face=3D"Comic Sans MS" size=3D2><STRONG>    = Here is a new=20 sentence of the Supreme Court of France (<EM>Cour de = cassation</EM>): <FONT=20 color=3D#000080>Com. ch., 18 mai 1999, <EM>Bulletin d'information de la = Cour de=20 cassation </EM>1999, No 1000</FONT>: </STRONG></FONT></DIV> <DIV align=3Djustify><STRONG><FONT color=3D#000080 face=3D"Comic Sans = MS"=20 size=3D2>    =ABthe action of <EM>de in = rem verso</EM>=20 cannot succeed when  impoverishment is the result of mistake=20 of the plaintiff. </FONT></STRONG></DIV> <DIV align=3Djustify><FONT color=3D#000080><STRONG><FONT face=3D"Comic = Sans MS"=20 size=3D2>Consequently, must be annulled the judgement = (arr=EAt) which,=20 after having retained the error of impoverished, condemns the = defendant, on=20 the base of this error, to restitute the received=20 sum=BB.  </FONT></STRONG> </FONT></DIV> <DIV align=3Djustify><STRONG><FONT color=3D#000080 face=3D"Comic Sans = MS"=20 size=3D2><B><FONT face=3D"Comic Sans MS" size=3D2><FONT = color=3D#000000>This sentence=20 recently published is in total contradiction with the other's of the = same=20 section (commercial) of <I>Cour de cassation </I>(v. as ex.: Com. ch., = 19 May=20 1998, Semaine juridique (JCP) 1999, Ed. G., I party, 114, obs. = VIRASSAMY) and=20 this coming from the other civil sections (as. ex.: in particular = <U>civ. 1 ch.,=20 11 mars 1997</U>, Receuil Dalloz 1997, J., p. 407, note BILLIAU ; and, = <U>civ. 2=20 ch., 2 dec. 1998</U>, Semaine juridique (JCP) 1999, Ed. G., IV party,=20 1128).</FONT></DIV> <DIV align=3Djustify> <P><FONT color=3D#000000>Dr. Christian P. FILIOS (Ph.D.)</FONT></P> <P> </P></B></FONT><FONT color=3D#000000> =20 </FONT></FONT></STRONG></DIV></BODY></HTML> ------=_NextPart_000_003C_01BF9428.CCF25720-- >From lionel.smith@law.oxford.ac.uk Fri Mar 24 14:13:55 2000 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12YUqZ-0004lL-00 for restitution@maillist.ox.ac.uk; Fri, 24 Mar 2000 14:13:55 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12YUqY-0006ge-00 for restitution@maillist.ox.ac.uk; Fri, 24 Mar 2000 14:13:54 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12YUqY-0000xT-00 for restitution@maillist.ox.ac.uk; Fri, 24 Mar 2000 14:13:54 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: <v04210104b5012748a80f@[163.1.228.82]> Date: Fri, 24 Mar 2000 14:11:15 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith <lionel.smith@law.oxford.ac.uk> Subject: Blackstone Lecture Content-Type: text/plain; charset="us-ascii" ; format="flowed" In the new Oxford Journal of Legal Studies: P Birks, "Rights, Wrongs, and Remedies" (2000) 20 OJLS 1, the text of the 1999 Blackstone Lecture. Also, in the new MLR is a review by Margaret Halliwell of Andrew Skelton's book, Restitution and Contract. (2000) 63 MLR 308. Lionel >From admins@post.com Mon Mar 27 21:42:10 2000 Received: from rly-ip01.mx.aol.com ([205.188.156.49]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12ZgKv-0003IT-00 for restitution@maillist.ox.ac.uk; Mon, 27 Mar 2000 21:42:10 +0100 Received: from tot-te.proxy.aol.com (tot-te.proxy.aol.com [152.163.195.131]) by rly-ip01.mx.aol.com (8.8.8/8.8.8/AOL-5.0.0) with ESMTP id PAA07789; Mon, 27 Mar 2000 15:41:30 -0500 (EST) Received: from showme (98A6906F.ipt.aol.com [152.166.144.111]) by tot-te.proxy.aol.com (8.10.0/8.10.0) with SMTP id e2RKeot20350; Mon, 27 Mar 2000 15:40:57 -0500 (EST) Reply-To: spy2@post.com Subject: INTERNET SPY! 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Only our qualified sa= les team will have access to your order information) =20 *************************************************************************= ************************************************** "The Internet DeskTop Spy" ORDER FORM - PLEASE WRITE CLEARLY =20 Name: ________________________________ =20 Address: ________________________________ =20 City, State, ZIP: ________________________________ =20 Country: ______________ (International Orders) =20 Phone Number: ______________ (In case we can't make out your = order)=20 TOTAL COST OF ORDER IS $20.00=20 ALL ORDERS WILL BE PROCESSED WITHIN 48 HOURS OF RECEIPT =20 METHOD OF PAYMENT =96 ID Code AXXX =20 [ ]Visa [ ]MasterCard =20 Credit Card #: __________________________________=20 Exp Date: _______________ =20 Signature: ____________________________ (Required)=20 E-Mail Address: ____________________________ *(VERY IMPORTANT-PRINT CLEA= RLY!!)=20 -NOTES: - This program will not work on Windows 3.11 and older.=20 - Sorry, Mac versions not yet available. - DISCLAIMER - The seller of this powerful software resource will not be= held responsible for how the purchaser chooses to use its resources.=20 =20 >From arianna.pretto@brasenose.oxford.ac.uk Thu Mar 30 13:40:06 2000 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12aeF4-00021k-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 13:40:06 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 12aeF4-0003sy-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 13:40:06 +0100 Received: from dhcpsx22.bnc.ox.ac.uk ([163.1.174.22] helo=girin) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12aeF4-0000BX-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 13:40:06 +0100 From: "arianna pretto" <arianna.pretto@brasenose.oxford.ac.uk> To: <restitution@maillist.ox.ac.uk> Subject: Hong Kong Securities Ordinance and the Grocer's Dilemma Date: Thu, 30 Mar 2000 13:40:19 +0100 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit Message-Id: <E12aeF4-0000BX-00@sable.ox.ac.uk> Dear All, I would welcome any comments on one small issue regarding the HK Securities Ordinance (Chap 333), which I cannot figure out for myself without resorting to contorted explanations. Lionel Smith was quick in enlightening me as to possible ways of interpreting what follows, but he also suggested that I post it all to the list. S 84 says stockbrokers/dealers must pay into a trust account money received from clients to buy shares and from buyers where they have sold shares for the clients. That is all normal. Equally normal is s 85(1) which says the money in the trust account is not available for payment of the debts of the dealer or liable to be taken in execution. But 85(2) says any payment in contravention of 85(1) is void ab initio 'and no person to whom the money is paid shall obtain any title to it'. Does this last phrase cover the shopkeeper, who is paid for the eggs and the butter with money the dealer has taken from the trust account? Will he therefore have to give the money back? Instinct would tell me that the sub-section is nonsense in the case I put, and that the money belongs to the innocent grocer as soon as the eggs are bought (i.e. the banknotes are delivered to him). The only solutions to this impasse I can come up with are not really satisfactory. For instance, s 86 reads 'claims not affected': 'Nothing in this part shall be construed as taking away or affecting any lawful claim or lien which any person has (1) in respect of any money held in a trust account or (2) in respect of any money received for the purchase of securities or from the sale of securities before the money is paid into a trust account'. Can the shopkeeper's claim to the value of the eggs and butter be construed as one such claim? Arianna Pretto Brasenose College Oxford >From drfilios@hellasnet.gr Thu Mar 30 14:11:29 2000 Received: from mail.hellasnet.gr ([212.54.192.3]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12aejP-0002dH-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 14:11:28 +0100 Received: from filios (ppp68-V90-voula.athe.hellasnet.gr [212.54.194.196]) by mail.hellasnet.gr (8.9.1/8.9.1) with SMTP id PAA27115 for <restitution@maillist.ox.ac.uk>; Thu, 30 Mar 2000 15:10:03 +0200 (GMT) Message-ID: <000c01bf9a49$3ec12a40$c4c236d4@filios> From: "Drfilios" <drfilios@hellasnet.gr> To: <restitution@maillist.ox.ac.uk> Subject: French Law of quasi-contracts Date: Thu, 30 Mar 2000 16:09:51 +0300 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0009_01BF9A62.61A159E0" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2014.211 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2014.211 This is a multi-part message in MIME format. ------=_NextPart_000_0009_01BF9A62.61A159E0 Content-Type: text/plain; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable A new book has published in French Law of quasi-contacts: M=E9lina DOUCHY, La notion de quasi-contrat en droit positif = fran=E7ais, pr=E9face d'Alain S=C9RIAUX, Editions ECONOMICA, Paris, = 1997. =20 =ABThe principal contribution of this book rests on the rejection of the = antiquated concept of quasi contract, conceived almost like a contract, = and on the connection with the objective concept of transfer of values = deprived of cause. Escaping, however, its reduction in a countable = action, the spontaneous character of the transfer of values gives to the = concept a great social importance, where the private initiatives find by = this way to be expressed again=BB. Extract of the postface of the book.=20 Dr. Christian P. FILIOS (Ph.D.) ------=_NextPart_000_0009_01BF9A62.61A159E0 Content-Type: text/html; charset="x-user-defined" Content-Transfer-Encoding: quoted-printable <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"> <HTML><HEAD> <META content=3D"text/html; charset=3Dx-user-defined" = http-equiv=3DContent-Type> <META content=3D"MSHTML 5.00.2014.210" name=3DGENERATOR> <STYLE></STYLE> </HEAD> <BODY bgColor=3D#ffffff> <DIV><FONT face=3D"Comic Sans MS" size=3D2><STRONG>A new book has = published in=20 French Law of quasi-contacts:</STRONG></FONT></DIV> <DIV><FONT face=3D"Comic Sans MS" size=3D2><STRONG><FONT=20 color=3D#ff0000>    M=E9lina DOUCHY, <EM>La notion de = quasi-contrat=20 en droit positif fran=E7ais</EM>, pr=E9face d'Alain S=C9RIAUX, Editions = ECONOMICA,=20 Paris, 1997</FONT>. </STRONG></FONT></DIV> <DIV> </DIV> <DIV><STRONG><FONT face=3D"Comic Sans MS" size=3D2>=AB<FONT = color=3D#ff0000><EM>The=20 principal contribution of this book rests on the rejection of the=20 antiquated concept of quasi contract, conceived almost like a=20 contract, and on the connection with the = objective concept=20 of  transfer of values deprived of cause. Escaping, however, = its=20 reduction in a countable action, the spontaneous character of=20 the transfer of values gives to the concept a great = social importance,=20 where the private initiatives find by this way to be expressed=20 again</EM></FONT>=BB. <FONT color=3Dred><FONT color=3D#000000>Extract of = the postface=20 of the book.</FONT> </FONT></FONT></STRONG></DIV> <DIV> </DIV> <DIV><FONT face=3D"Comic Sans MS" size=3D2><STRONG>Dr. Christian P. = FILIOS=20 (Ph.D.)</STRONG></FONT></DIV> <DIV> </DIV></BODY></HTML> ------=_NextPart_000_0009_01BF9A62.61A159E0-- >From Jason.Neyers@jus.gov.on.ca Thu Mar 30 15:47:36 2000 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12agER-0005iH-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 15:47:35 +0100 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id <H9TRY6FX>; Thu, 30 Mar 2000 09:46:33 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF5803425321@JUS00AEX0310> From: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca> To: 'arianna pretto' <arianna.pretto@brasenose.oxford.ac.uk>, "'restitution@maillist.ox.ac.uk'" <restitution@maillist.ox.ac.uk> Subject: RE: Hong Kong Securities Ordinance and the Grocer's Dilemma Date: Thu, 30 Mar 2000 09:46:16 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain Dear Arianna, Maybe this will be of assistance. I do not see the difficulty with the shopkeeper having to return the money for the milk and eggs. This is a legislative norm that renders otherwise normal transactions invalid for a reason of policy or public order (protection of the public, efficiency of the market, etc). However, I don't think that such a section would preclude the grocer from suing the dealer for the return of (or the value of) the eggs/milk because there is no longer a juristic reason for the retention of this value on the dealer's part (i.e. the contract which justified the depravation is void). Sincerely, Jason W. Neyers -----Original Message----- From: arianna pretto [SMTP:arianna.pretto@brasenose.oxford.ac.uk] Sent: Thursday, March 30, 2000 7:40 AM To: restitution@maillist.ox.ac.uk Subject: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma Dear All, I would welcome any comments on one small issue regarding the HK Securities Ordinance (Chap 333), which I cannot figure out for myself without resorting to contorted explanations. Lionel Smith was quick in enlightening me as to possible ways of interpreting what follows, but he also suggested that I post it all to the list. S 84 says stockbrokers/dealers must pay into a trust account money received from clients to buy shares and from buyers where they have sold shares for the clients. That is all normal. Equally normal is s 85(1) which says the money in the trust account is not available for payment of the debts of the dealer or liable to be taken in execution. But 85(2) says any payment in contravention of 85(1) is void ab initio 'and no person to whom the money is paid shall obtain any title to it'. Does this last phrase cover the shopkeeper, who is paid for the eggs and the butter with money the dealer has taken from the trust account? Will he therefore have to give the money back? Instinct would tell me that the sub-section is nonsense in the case I put, and that the money belongs to the innocent grocer as soon as the eggs are bought (i.e. the banknotes are delivered to him). The only solutions to this impasse I can come up with are not really satisfactory. For instance, s 86 reads 'claims not affected': 'Nothing in this part shall be construed as taking away or affecting any lawful claim or lien which any person has (1) in respect of any money held in a trust account or (2) in respect of any money received for the purchase of securities or from the sale of securities before the money is paid into a trust account'. Can the shopkeeper's claim to the value of the eggs and butter be construed as one such claim? Arianna Pretto Brasenose College Oxford ____________________________________________________________________________ ____ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe restitution" in the body of a message to <majordomo@maillist.ox.ac.uk>. To unsubscribe, send "unsubscribe restitution" to the same address. To make a posting to all group members, send to <restitution@maillist.ox.ac.uk>. The list is run by Lionel Smith of St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email <lionel.smith@law.ox.ac.uk>. >From shiersra@nortonrose.com Thu Mar 30 17:07:58 2000 Received: from mailgate.nortonrose.co.uk ([195.50.84.34] helo=nortonrose.com) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12ahUD-0006ta-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 17:07:57 +0100 Received: by gateway.nortonrose.com id <26282>; Thu, 30 Mar 2000 16:05:51 +0000 Message-Id: <00Mar30.160551gmt.26282@gateway.nortonrose.com> From: "Shiers, Rupert" <shiersra@nortonrose.com> To: "'arianna.pretto@brasenose.oxford.ac.uk'" <arianna.pretto@brasenose.oxford.ac.uk> Cc: "'restitution@maillist.ox.ac.uk'" <restitution@maillist.ox.ac.uk> Subject: RE: Hong Kong Securities Ordinance and the Grocer's Dilemma MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Date: Thu, 30 Mar 2000 16:05:42 +0000 I wonder whether this just one of those situations where the drafting of the legislation forces us into a nonsense position. Without seeing the background, I my feeling is that the effect of 85 is that the shopkeeper would not take title to the money. Which offends my sensibilities as much as it does yours (tho, of course, might have been the legislative intention - Hong Kong may prefer to protect the stockbroker's client at the expense of the shopkeeper). Nor do I think that 86 helps. The grocer's claim is not within 86(1) as, by this time, the money is no longer in the account. 86(2) is also irrelevant. 85(2) is presumably, largely, to prevent the dodgy stockbroker "washing" the money by giving it to his friends, etc. Therefore, it should probably have said that the dodgy stockbroker cannot GIVE title to the money. In that case, the shopkeeper would be protected. That is because his title does not derive from the stockbroker, but from the operation of law. (This, of course, assumes that Hong Kong has the same approach to the doctrine of currency as we do in England). Sadly, I don't see much of a way round this, and the legislation may require amendment. Unless, of course, the courts were to put a heavy spin on the legislation, and read in a qualification to 85(2) that it does not prevent title passing in currency (the House of Lords took a step down this sort of road in a case this year where the legislation governing appeals through the UK courts was defective - unfortunately, the name of the case totally escapes me.) Finally, I have only dealt with the proprietary situation here. Of course, there may be a personal remedy to protect the poor man wrongfully deprived of his eggs, as Jason Neyers suggested. Jason, did you really mean to accuse the shop-keeper of depravity? -----Original Message----- From: arianna pretto [mailto:arianna.pretto@brasenose.oxford.ac.uk] Sent: 30 March 2000 14:32 To: restitution@maillist.ox.ac.uk Subject: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma Dear All, I would welcome any comments on one small issue regarding the HK Securities Ordinance (Chap 333), which I cannot figure out for myself without resorting to contorted explanations. Lionel Smith was quick in enlightening me as to possible ways of interpreting what follows, but he also suggested that I post it all to the list. S 84 says stockbrokers/dealers must pay into a trust account money received from clients to buy shares and from buyers where they have sold shares for the clients. That is all normal. Equally normal is s 85(1) which says the money in the trust account is not available for payment of the debts of the dealer or liable to be taken in execution. But 85(2) says any payment in contravention of 85(1) is void ab initio 'and no person to whom the money is paid shall obtain any title to it'. Does this last phrase cover the shopkeeper, who is paid for the eggs and the butter with money the dealer has taken from the trust account? Will he therefore have to give the money back? Instinct would tell me that the sub-section is nonsense in the case I put, and that the money belongs to the innocent grocer as soon as the eggs are bought (i.e. the banknotes are delivered to him). The only solutions to this impasse I can come up with are not really satisfactory. For instance, s 86 reads 'claims not affected': 'Nothing in this part shall be construed as taking away or affecting any lawful claim or lien which any person has (1) in respect of any money held in a trust account or (2) in respect of any money received for the purchase of securities or from the sale of securities before the money is paid into a trust account'. Can the shopkeeper's claim to the value of the eggs and butter be construed as one such claim? Arianna Pretto Brasenose College Oxford ____________________________________________________________________________ ____ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe restitution" in the body of a message to <majordomo@maillist.ox.ac.uk>. To unsubscribe, send "unsubscribe restitution" to the same address. To make a posting to all group members, send to <restitution@maillist.ox.ac.uk>. The list is run by Lionel Smith of St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email <lionel.smith@law.ox.ac.uk>. _____________________________________________________________________ CONFIDENTIALITY NOTICE The contents of this e-mail are confidential to the ordinary user of the e-mail address to which it was addressed and may also be privileged. If you are not the addressee of this e-mail you may not copy, forward, disclose or otherwise use it or any part of it in any form whatsoever. If you have received this e-mail in error please e-mail the sender by replying to this message. A list of the partners of Norton Rose, Solicitors, can be inspected at www.nortonrose.com ______________________________________________________________________ >From axelrod@andromeda.rutgers.edu Thu Mar 30 17:46:15 2000 Received: from andromeda.rutgers.edu ([128.6.10.4]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12ai5H-0007R8-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 17:46:15 +0100 Received: from andromeda.rutgers.edu (law-school-general-23.rutgers.edu [165.230.69.152]) by andromeda.rutgers.edu (8.9.3/8.9.3) with ESMTP id LAA03143; Thu, 30 Mar 2000 11:46:00 -0500 (EST) Message-ID: <38E3852D.2250758E@andromeda.rutgers.edu> Date: Thu, 30 Mar 2000 11:47:41 -0500 From: Allan Axelrod <axelrod@andromeda.rutgers.edu> X-Mailer: Mozilla 4.72 [en] (Win95; U) X-Accept-Language: en MIME-Version: 1.0 To: arianna pretto <arianna.pretto@brasenose.oxford.ac.uk> CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma References: <E12aeF4-0000BX-00@sable.ox.ac.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit arianna pretto wrote: > > > S 84 says stockbrokers/dealers must pay into a trust account money received > from clients to buy shares and from buyers where they have sold shares for > the clients. That is all normal. Equally normal is s 85(1) which says the > money in the trust account is not available for payment of the debts of the > dealer or liable to be taken in execution. > But 85(2) says any payment in contravention of 85(1) is void ab initio 'and > no person to whom the money is paid shall obtain any title to it'. > > Does this last phrase cover the shopkeeper, who is paid for the eggs and > the butter with money the dealer has taken from the trust account? Will he > therefore have to give the money back? > Instinct would tell me that the sub-section is nonsense in the case I put, > and that the money belongs to the innocent grocer as soon as the eggs are > bought (i.e. the banknotes are delivered to him). > > > Arianna Pretto > > Brasenose College > Oxford > the statutory language seems to create an effect previously unknown to our law---ie permitting the recovery in specie of [or a judgment for the amount of] stolen money taken in trade without knowledge is there any reason to suppose such a result comes from serious legislative policy rather than uninformed drafting?? many american courts faced with unattractive consequences from exuberant use of the word 'void' have interpreted this as 'voidable': such an interpretation would give the malefactor enough title to create a bona-fide purchase in the storekeeper. > another approach---- fight one bit of brainless literalism with another: confine the stautory operation to the 'money' of which the drafter speaks, and interpret that as 'currency', thus preserving for the store any received 'credits'---ie the most likely form of its acquisition finally as prof smith has surely suggested, allow the store to prevail unless the applicant can prove that the 'money' paid over by the malefactor was traceable to the trust money, and use a tracing rule which supposes that the malefactor would pay out his/her/its own money before that of the trust _______________________________________________________________________ > >From gordon.goldberg@buckingham.ac.uk Thu Mar 30 18:50:50 2000 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12aj5m-0008Vy-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 18:50:50 +0100 Received: from STF-LAW009 ([194.66.205.169]) by gila.buckingham.ac.uk with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id HSLJ032H; Thu, 30 Mar 2000 18:56:42 +0100 Message-ID: <004501bf9a6f$af94b8b0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk> To: "Allan Axelrod" <axelrod@andromeda.rutgers.edu>, "arianna pretto" <arianna.pretto@brasenose.oxford.ac.uk> Cc: <restitution@maillist.ox.ac.uk> Subject: Re: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma Date: Thu, 30 Mar 2000 18:45:06 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 Perhaps this will be another occasion for a common law court to refuse to apply legislation on the ground of its being "so inaccurately penned" - R. v. King (1826) 2 C. & P. 412. -----Original Message----- From: Allan Axelrod <axelrod@andromeda.rutgers.edu> To: arianna pretto <arianna.pretto@brasenose.oxford.ac.uk> Cc: restitution@maillist.ox.ac.uk <restitution@maillist.ox.ac.uk> Date: 30 March 2000 17:53 Subject: Re: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma > > >arianna pretto wrote: > >> >> >> S 84 says stockbrokers/dealers must pay into a trust account money received >> from clients to buy shares and from buyers where they have sold shares for >> the clients. That is all normal. Equally normal is s 85(1) which says the >> money in the trust account is not available for payment of the debts of the >> dealer or liable to be taken in execution. >> But 85(2) says any payment in contravention of 85(1) is void ab initio 'and >> no person to whom the money is paid shall obtain any title to it'. >> >> Does this last phrase cover the shopkeeper, who is paid for the eggs and >> the butter with money the dealer has taken from the trust account? Will he >> therefore have to give the money back? >> Instinct would tell me that the sub-section is nonsense in the case I put, >> and that the money belongs to the innocent grocer as soon as the eggs are >> bought (i.e. the banknotes are delivered to him). >> >> >> Arianna Pretto >> >> Brasenose College >> Oxford >> > >the statutory language seems to create an effect previously unknown to >our law---ie permitting the recovery in specie of [or a judgment for the >amount of] stolen money taken in trade without knowledge > > is there any reason to suppose such a result comes from serious >legislative policy rather than uninformed drafting?? > > many american courts faced with unattractive consequences from >exuberant use of the word 'void' have interpreted this as 'voidable': >such an interpretation would give the malefactor enough title to create >a bona-fide purchase in the storekeeper. > > > another approach---- fight one bit of brainless literalism with >another: confine the stautory operation to the 'money' of which the >drafter speaks, and interpret that as 'currency', thus preserving for >the store any received 'credits'---ie the most likely form of its >acquisition > >finally as prof smith has surely suggested, allow the store to prevail >unless the applicant can prove that the 'money' paid over by the >malefactor was traceable to the trust money, and use a tracing rule >which supposes that the malefactor would pay out his/her/its own money >before that of the trust >_______________________________________________________________________ > >> > >___________________________________________________________________________ _____ >This message was delivered through the Restitution Discussion Group, an >international internet LISTSERV devoted to all aspects of the law of unjust >enrichment. To subscribe, send "subscribe restitution" in the body of a >message to <majordomo@maillist.ox.ac.uk>. To unsubscribe, send "unsubscribe >restitution" to the same address. To make a posting to all group members, >send to <restitution@maillist.ox.ac.uk>. The list is run by Lionel Smith of >St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email ><lionel.smith@law.ox.ac.uk>. > >From pjones@waikato.ac.nz Thu Mar 30 20:18:26 2000 Received: from mailserv.waikato.ac.nz ([130.217.66.61]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12akSX-0000tz-00 for restitution@maillist.ox.ac.uk; Thu, 30 Mar 2000 20:18:26 +0100 Received: from win95.waikato.ac.nz (modem36.slip.waikato.ac.nz [130.217.97.135]) by mailserv.waikato.ac.nz (8.9.3/8.9.0) with SMTP id HAA35150 for <restitution@maillist.ox.ac.uk>; Fri, 31 Mar 2000 07:18:39 +1200 Message-Id: <200003301918.HAA35150@mailserv.waikato.ac.nz> Date: 31 Mar 00 07:19:14 +1200 From: Peter Jones <pjones@waikato.ac.nz> Subject: RE: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma To: Restitution RDG <restitution@maillist.ox.ac.uk> X-Mailer: QuickMail Pro 1.5.4 (Windows32) X-Priority: 3 MIME-Version: 1.0 Reply-To: Peter Jones <pjones@waikato.ac.nz> Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset="US-Ascii" Dear All I wonder if there is a simpler solution to Arianna's problem, in the = ordinary law of banking (not often enough considered by judges, I = respectfully suggest, in restitutionary claims). = Money deposited, in banking law, becomes the property of the bank and the = bank owes a debt back to the customer. So the title does not pass on = lodgement as a consequence of the HK legislation. So when money is taken out, it is *other* money of the bank, in any event, = and the grocer gets to keep the payment for the milk and eggs. Peter Jones School of Law University of Waikato >From lionel.smith@law.oxford.ac.uk Fri Mar 31 10:55:10 2000 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12ay90-0002eM-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 10:55:10 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 12ay90-0001bq-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 10:55:10 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12ay90-00049I-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 10:55:10 +0100 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: <v04210102b50a32293c7c@[163.1.228.82]> Date: Fri, 31 Mar 2000 10:52:38 +0000 To: restitution@maillist.ox.ac.uk From: owner-restitution@maillist.ox.ac.uk (by way of Lionel Smith) Subject: BOUNCE restitution@maillist.ox.ac.uk: Non-member submission from ["Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>] Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: kempsonhouse From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk> Subject: Re: RDG: Hong Kong Securities Ordinance and the Grocer's Dilemma Perhaps this will be another occasion for a common law court to refuse to apply legislation on the ground of its being "so inaccurately penned" - R. v. King (1826) 2 C. & P. 412. >From arianna.pretto@brasenose.oxford.ac.uk Fri Mar 31 15:05:49 2000 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12b23Z-0006lK-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 15:05:49 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 12b23Z-0007PA-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 15:05:49 +0100 Received: from dhcpsx49.bnc.ox.ac.uk ([163.1.174.49] helo=girin) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12b23Z-00006t-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 15:05:49 +0100 From: "arianna pretto" <arianna.pretto@brasenose.oxford.ac.uk> To: <restitution@maillist.ox.ac.uk> Subject: HK Securities Ordinance and the grocer's dilemma Date: Fri, 31 Mar 2000 15:05:58 +0100 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit Message-Id: <E12b23Z-00006t-00@sable.ox.ac.uk> Many thanks to all members of the list who tried to solve the shopkeeper's dilemma. A number of us, including our moderator, seem to agree that the provision was badly drafted. A grocer's opinion would give us the whole picture. It is a pity indeed that no grocer subscribes to the RDG. Arianna >From lionel.smith@law.oxford.ac.uk Fri Mar 31 16:46:56 2000 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12b3dQ-0007l0-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 16:46:56 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 12b3dP-0001wk-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 16:46:55 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12b3dP-0004FA-00 for restitution@maillist.ox.ac.uk; Fri, 31 Mar 2000 16:46:55 +0100 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: <v04210100b50a8594af6d@[163.1.228.82]> Date: Fri, 31 Mar 2000 16:44:21 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith <lionel.smith@law.oxford.ac.uk> Subject: CLJ Content-Type: text/plain; charset="us-ascii" ; format="flowed" In the new Cambridge Law Journal ([2000] CLJ 28) is David Fox's note on Bank of America v. Arnell, which has been discussed on the RDG. Lionel