--



>From arianna.pretto@brasenose.oxford.ac.uk Sat Jul 01 02:00:42 2000

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From: "arianna pretto" <arianna.pretto@brasenose.oxford.ac.uk>

To: <restitution @maillist.ox.ac.uk>

Subject: new subrogation case

Date: Sat, 1 Jul 2000 01:58:20 +0100

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Dear All,



Out on New Law Online is the headnote of a recent subrogation case called

Khan v Permayer, decided by the Court of Appeal (Civil Division) (Morritt

LJ, Sir Christopher Staughton) on 22.06.00.

Neither NLO nor Casetrack have the full transcript yet.

According to the digest, the facts were as follows. 

In 1989 K and another ("the partners") were granted a 25-year lease of

restaurant premises for the purposes of which they obtained a mortgage. The

mortgage left a shortfall of £50,000 outstanding to the grantor of the

lease. As a result a second mortgage was granted to secure the £50,000 that

had not been paid to him by the partners. In 1992 the reversion on the

lease and the benefit of the mortgage were assigned to the defendant, P.

>From then onwards the £50,000 became the debt of the partners to P. The

partners encountered financial difficulties. Under the terms of an

individual voluntary arrangement the partners duly repaid all sums owing to

P. However, the partners continued to labour under the mistaken belief that

a sum was still owing to P. In 1994 E purchased the lease and the

restaurant business from the partners. The partners were retained as

employees. E believed that the partners still owed P about £40,000. E paid

P the sum owed by instalments. The partners indemnified E through

deductions made from their wages. K brought a claim for restitution of the

deductions made from his wages from P. HHJ Cowell ruled that K was entitled

to recover the deductions that E had made from his wages from P because

they had been paid under a mistake, they were not paid voluntarily, and P

had been unjustly enriched at the expense of K and it was unjust to allow

him to retain the benefit. P appealed.

The Court (Morritt LJ, Sir Christopher Staughton) dismissed the appeal.

The issue being whether subrogation was available where, as a matter of

fact rather than contract or intention, the third party conferring the

benefit had been indemnified by the claimant, it was held that the claimant

was entitled to recover the sums that had been deducted from his wages from

P. P had been unjustly enriched at the expense of K who was entitled to

recover under the restitutionary device of subrogation. It was not possible

to trace the money from K to P but the payment by E could still be

recovered by K as it was precisely commensurate with his loss. 



Arianna



***************

Arianna Pretto

Brasenose College 

Oxford OX1 4AJ







>From lionel.smith@law.oxford.ac.uk Mon Jul 03 15:40:23 2000

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who restitution





>From lionel.smith@law.oxford.ac.uk Mon Jul 10 17:56:14 2000

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Subject: terminology

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 From the Financial Services and Markets Act 2000 (this section not 

yet in force):



Restitution orders



382. - (1) The court may, on the application of the Authority or the 

Secretary of State, make an order under subsection (2) if it is 

satisfied that a person has contravened a relevant requirement, or 

been knowingly concerned in the contravention of such a requirement, 

and-

 

                   (a) that profits have accrued to him as a result of 

the contravention; or

 

                   (b) that one or more persons have suffered loss or 

been otherwise adversely affected as a result of the contravention.

 

  (2) The court may order the person concerned to pay to the Authority 

such sum as appears to the court to be just having regard-

 

                   (a) in a case within paragraph (a) of subsection 

(1), to the profits appearing to the court to have accrued;

 

                    (b) in a case within paragraph (b) of that 

subsection, to the extent of the loss or other adverse effect;

 

                    (c) in a case within both of those paragraphs, to 

the profits appearing to the court to have accrued and to the extent 

of the loss or other adverse effect. (etc)





>From yerri@messageasap.com Tue Jul 11 01:29:32 2000

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>From swh10@cus.cam.ac.uk Tue Jul 11 12:23:45 2000

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Date: Tue, 11 Jul 2000 12:23:46 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: Terminology - "restitution"

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Inspired by Lionel's question, I have looked at the way in which

"restitution" is used in UK statutes. I'm not entirely sure what lay behind

his comment, but no doubt he'll tell us if he thinks it's worth hearing.



My enquiry turned up 38 distinct statutes, some of which use the word more

than once.  It did not turn up the provision Lionel quoted (no doubt

because, as he says, it is not yet in force), but it turned up the

remarkably similar Financial Services Act 1986 s 6, on which the new

provision is doubtless based.  I can send the edited results of the search

as a WORD file to anyone who wants it, but here is the headline version.



Numbers in (brackets) refer to the list of cases at the end.





The word "restitution" seems to be used in 3 different, if overlapping,

senses:



 



A. As a general reference to a general type of liability.  These references

are all in statutes dealing with civil liability in a very broad-brush way,

mostly in the context of  jurisdiction.



eg (11) :  "any liability in contract, tort or bailment and any liability

arising out of an obligation to make restitution"



eg (14) : "... a civil claim for damages or restitution ..."



 



B. Slightly more specifically, in the sense of "restoring matters to the

way they should be" - 



eg (20): "... restitution of conjugal rights ..."



eg (34): "... restitution of the surface ..."  [ie making good damage done

by gravel extraction]



eg (35): referring to a salvage award.



 

 

C. More specifically still, in the sense of "restoring property to its

rightful owner".  This is the most common meaning.  Sometimes the statute

means returning property which all along belonged to the claimant (eg 1,

31), sometimes it implies some sort of re-vesting (eg 2, 23, 27, 36), and

sometimes it means the return of a payment which (presumably passed

property in the money but) should never have been made in the first place

(eg 4, 6, 12). 



The interesting question is, what if the property can't be restored, for

one reason or another?  If a remedy is available regardless, is that remedy

"restitution"?  The drafters realise that they have to spell out precisely

what should happen in such a case, but apparently aren't too bothered

whether they label the result  "restitution" or not.  So "restitution" has

been used to refer to:



(3): "... restoring the parties to the position in which they were before

the payment ...".



(8): "the court may ... require the defendant to transfer to the plaintiff

any property acquired by the defendant under the contract, or any property

representing it".



(24): elaborate treatment of thieves apprehended with property on them.

Note that by s 28(1)(c) "restitution" may include payment to his victims

out of the thief's own money.



(29): where property is stolen from the Navy, an order for return of the

property is "restitution", but an order sweeping up the monetary

consequences is "compensation".



 

In these cases, the availability or extent of the remedy often depends on

discretion.  



eg (3): "... such steps as the court may direct ..."



eg (8): "... if it is just and equitable to do so ..."



eg (24): "... the court may order that there shall be paid ... a sum not

exceeding the amount paid for the purchase ..."





So, given the variation in the way the term "restitution" is used, I'm not

sure I see Lionel's difficulty, if he has one.  Is he referring to the fact

that the word is defined specifically for a limited purpose?  Is he

referring to the fact that it can require the court to ask about both loss

and gain?  Is he referring to the point that it is discretionary?  None of

these 3 matters make the usage in the statute exceptional. 







Table of cases



1. Appropriation Act 1999 (c 13), sch (B), Part 2 Supplementary, 1998-99,

and Part 11 Class IX, 1999-2000



2. Building Societies Act 1997 (c 32), s 38



3. Pensions Act 1995 (c 26), s 14 



4. Charities Act 1992 (c 41), s 61 



5. Companies Act 1989 (c 40), s 169 



6. Finance Act 1989 (c 26), s 29 



7. Criminal Justice Act 1988 (c 33), part XI, s 163 



8. Minors' Contracts Act 1987 (c 13), s 3 



9. Financial Services Act 1986 (c 60), ss 6, 51 and 61



10. Building Societies Act 1986 (c 53), ss 64, 66 and 66A



11. Insolvency Act 1986 (c 45), s 382 



12. Housing Act 1985 (c 68), s 449



13. Companies Act 1985 (c 6), s 322, 322A and 341



14. Civil Jurisdiction and Judgments Act 1982 (c 27), sch 1, 3C, 4, and 8



15. Wildlife and Countryside Act 1981 (c 69), s 31 



16. Criminal Appeal (Northern Ireland) Act 1980 (c 47), ss 27 and 40



17. Magistrates' Courts Act 1980 (c 43), s 39 



18. Armed Forces Act 1976 (c 52), s 14 and sch 3



19. Consumer Credit Act 1974 (c 39), s 119 



20. Matrimonial Causes Act 1973 (c 18), sch 1, part I  and part III 



21. Criminal Justice Act 1972 (c 71), s 6



22. Matrimonial Proceedings and Property Act 1970 (c 45), long title



23. Auctions (Bidding Agreements) Act 1969 (c 56), s 3 



24. Theft Act 1968 (c 60), ss 24 and 28



25. Courts-Martial (Appeals) Act 1968 (c 20), s 46



26. Criminal Appeal Act 1968 (c 19), s 30



27. Uniform Laws on International Sales Act 1967 (c 45), sch 1 Chapter V,

article 78



28. Perpetuities and Accumulations Act 1964 (c 55), s 10 



29. Naval Discipline Act 1957 (c 53), ss 76 and 77 



30. Geneva Conventions Act 1957 (c 52), s 4



31. German Conventions Act 1955 (c 2), preamble and s 1 



32. Air Force Act 1955 (c 19), s 138 



33. Judicial Proceedings (Regulation of Reports) Act 1926 (c 61), s 1



34. Commons Act 1876 (c 56), s 20



35. Naval Prize Act 1864 (c 25), s 40



36. Crown Private Estate Act 1800 (c 88), preamble



37. Distress For Rent Act 1737 (c 19), s 17 



38. Title Act 1536 (c 11), long title









                                       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 charles.mitchell@kcl.ac.uk Tue Jul 11 17:21:20 2000

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Date: Tue, 11 Jul 2000 17:26:12 +0100

To: restitution@maillist.ox.ac.uk

From: Charles Mitchell <charles.mitchell@kcl.ac.uk>

Subject: Banton v CIBC Trust Corp

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For tracing enthusiasts, and those with an interest in interest, Banton v

CIBC Trust Corp, a case in the Ontario Sup Ct of Justice, is now reported

at (1999) 182 DLR (4th) 486.  At 505 Cullity J holds that if the beneficial

owners of misappropriated trust assets can trace them into an

interest-bearing account, the interest accumulated in the account should be

seen as the fruits of the traceable proceeds of the trust assets, to a

rateable proportion of which the beneficiaries can accordingly lay claim.

At 506, however, the judge then muddies the waters by suggesting that the

justification for making an interest award may instead be found in the

general jurisdiction of a court of equity to award interest, and concludes

that the claimants in the case should either recover a proportionate part

of the interest actually earned by 'their' money or if this is too hard to

calculate, simple interest at 5%.

________________________________________________________________________



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 Jason.Neyers@jus.gov.on.ca Wed Jul 12 14:32:51 2000

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From: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

To: restitution@maillist.ox.ac.uk

Subject: The best 3 or 4 contract/UE interface cases

Date: Wed, 12 Jul 2000 09:31:31 -0400

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Dear All,



I will be teaching a contracts course this fall and I am gathering together

materials.  I was wondering if anyone had any suggestions as to the best 3

or 4 cases dealing with the interface between UE and contract. Thank-you in

advance for any suggestions.



Sincerely,





Jason Neyers





>From Jason.Neyers@jus.gov.on.ca Wed Jul 12 16:43:21 2000

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From: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

To: "'restitution@maillist.ox.ac.uk'" <restitution@maillist.ox.ac.uk>

Subject: Questions on Prof. Birks' "Equity, Conscience, and Unjust Enrichm

	ent".  

Date: Wed, 12 Jul 2000 11:42:11 -0400

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I have just finished reading Prof. Birks' very interesting article entitled:

"Equity, Conscience, and Unjust Enrichment".  Since the discussion group has

been fairly slow recently, I thought that it might be appropriate to have a

discussion on some portions of the article.  The following are 4

questions/comments, which the I had about the article:



[I apologise in advance for any typographical errors. Moreover, it should be

noted that I have not had the opportunity to read much of Prof. Birks' work.

So I apologise if he has already answered any of these questions in any

other book/article]. 



Question #1



I find Prof. Birks' classification of causative events (consent, wrongs,

unjust enrichments, and other events) very interesting but perhaps I am

missing something.  Is this a taxonomy dealing with only the law of

obligations? If not, where does one classify the title creating aspects of

the law of property, such as first possession, within the taxonomy?  Or does

the taxonomy just take property for granted and move on from there? Where

does Prof. Birks put breach of contract? In wrongs or consent?



Question #2



In his article, Prof. Birks criticises Prof. Jackman's conception of

UE/restitution (which I have not read) because Jackman tries to use the

concept of coherence to show that other "unjust factors" do not fit within

the system.  In response, Prof. Birks argues: "every wrong is a wrong for a

slightly different reason, which is as much to say that each wrong rests on

its own conception of justice. There are as many such conceptions as there

are protected interests".  He goes on to call the category of wrongs

"heterogeneous".  



My question, What does Birks mean by this?  In my understanding there are

only two conceptions of justice: Corrective and Distributive. Is Birks

saying that each of the wrongs responds to different criteria of

distribution? Or is he saying that each of the wrongs is but an instance of

the idea of corrective justice doctrinally framed in slightly different

manner.  In other words, a manifestation of this central idea?  



	Question #3



	This brings me to my third question.  Why does Prof. Birks continue

to use the concept of an "unjust factor"?  Firstly, the category of unjust

factors does not seem to encompass a logically unitary whole.  For example,

what does mistake have to do legal compulsion or failure of basis, besides

the factual realisation that the courts have sometimes awarded restitution

on these bases or the fact that they are grouped together in a leading

casebook.  Second, are some of the unjust factors really unjust in a

traditional sense?  For example, how can doing something you agreed to do

(as in the surety example) be unjust? How is legal compulsion, that is

compulsion sanctioned by the rule of law, unjust -- isn't that a

contradiction in terms? As a person who believes "that rationality and

justice go hand in hand" these problems surely give Prof. Birks reason for

pause?



	Third, aren't the majority of unjust factors accounted by, or

instances/explanations of, the "Canadian civilian" concept of lack of

juristic reason and the idea that non-consensual transfers of value must be

given back.  For example, mistake rather than being an "unjust factor"

merely explains how a non-consensual transfer factually occurred. From my

experience, the Canadian civilian concept is a much simpler and coherent

explanation of the idea UE than that based on unjust factors. 



In his article, Prof. Birks seems to retort that this conception of

non-consensual transfer (as at least formulated by Jackman) can't account

for the surety's ability to claim indemnity from a primary debtor.  This may

be right (I cannot say as I have not read the book) but there are logical

views of the law that correspond to Birks classification of causative events

that can explain the surety's right.  For example, the Civil Law of Quebec

posits that the right of the surety to sue for indemnity is based on

contract and the logic of what it means to indemnify (this idea also seems

to be elucidated in Mercantile Law Amendment Act as well).  In light of this

experience, one could argue that the surety's indemnity properly belongs to

the Consent category, not to UE on the basis of some strange category (is it

legal compulsion?)  Before dismissing this consent characterization

altogether, I would hope that Prof. Birks, as a professor of civil law,

would demonstrate why this view of the situation is less

persuasive/coherent/logical than the one he currently seems attached to.  



On a similar note, it seems as if there have been persuasive arguments made

to show why restitution for failure of consideration properly belongs in the

same category as damages for breach of contract, rather than with UE. Since

Prof. Birks has now acknowledged that restitution is multi-causal, these

arguments at least require a demonstration as to why the orthodox position

is more persuasive/coherent/logical way to order this area of law in the

taxonomy.



	Question #4



In his article, Professor Birks makes much of the problems of semantic

bending. He rightly claims that restitution as a descriptive word is

semantically bent, in that the authors who utilised the word never meant it

to encompass all of what the word natural means.  My question is, Why isn't

"unjust enrichment" just as semantically bent as restitution?  In my mind,

unjust carries numerous natural meanings which the legal concept is not

meant to describe (e.g., unfair, not moral, unconscionable).  I am sure that

very few of us mean to say that this area of law responds to intuitive

fairness or that the judge should do distributive justice as between the

parties when faced with a UE problem.  Yet the term unjust enrichment tempts

judges, especially Canadian judges, to view these types of situations as a

problem of fairness or equity.  Although I am hesitant to suggest another

term, perhaps unjustified enrichment is more appropriate because it is

narrower and attempts to focus the judge's attention on the private law, and

non-distributive, reason justifying the retention of the enrichment.  Which

is seemingly, at some levels, what we are all speaking about.  



Sincerely,



Jason Neyers





>From gerard.mcmeel@bristol.ac.uk Wed Jul 12 17:18:29 2000

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From: Gerard McMeel <gerard.mcmeel@bristol.ac.uk>

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To: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

Cc: restitution@maillist.ox.ac.uk

Subject: Re: RDG: The best 3 or 4 contract/UE interface cases

In-Reply-To: <8D394232A687D211A0DD0008C7A4DF58068BA5C7@JUS00AEX0310>

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>From the viewpoint of an English lawyer howabout:



1.	Pan Ocean v Creditcorp, The Trident Beauty [1994] 1 WLR 161 

(the importance of the contractual regime; claims against a non-party)



2.	Hyundai v Papadopolous [1980] 1 WLR 1129, still more 

interesting than the more recent Stocznia v Gdanska [1998] 1 WLR 574 

(claims by the party on breach; construction and the persistence of the 

contractual regime)



3.	Westdeutsche v Islington LBC [1996] AC 669 (restitution and 

void contracts; the staus of the totality restriction)



4. 	Surrey County Council v Bredero Homes [1993] 1 WLR or soon 

perhaps the decision of the House of Lords in Attorney-General v Blake 

(restitutionary damages for breach of contract)



Gerard McMeel



On Wed, 12 Jul 2000 09:31:31 -0400 "Neyers, Jason (JUS)" 

<Jason.Neyers@jus.gov.on.ca> wrote:



> Dear All,

> 

> I will be teaching a contracts course this fall and I am gathering together

> materials.  I was wondering if anyone had any suggestions as to the best 3

> or 4 cases dealing with the interface between UE and contract. Thank-you in

> advance for any suggestions.

> 

> Sincerely,

> 

> 

> Jason Neyers

> 

> ________________________________________________________________________________ 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>.

> 



----------------------

Gerard McMeel

gerard.mcmeel@bristol.ac.uk







>From mpmcinne@julian.uwo.ca Wed Jul 12 17:33:42 2000

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Although (or perhaps because) the decision does not expressly discuss

unjust enrichment, Bowlay Logging v Domtar, which is a staple of

Canadian casebooks on contracts, provides a very good introduction to

the intersection. Students can be primed in first year for the

possibility that unjust enrichment may provide an alternative source of

relief where a contractual claim fails. 



Mitchell McInnes





>From gerard.mcmeel@bristol.ac.uk Wed Jul 12 17:44:23 2000

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    restitution@maillist.ox.ac.uk

Subject: Re: RDG: The best 3 or 4 contract/UE interface cases

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I should , of course, have mentioned, the decision of Robert Goff J in 

British Steel v Cleveland Bridge [1984] 1 All ER 504 (pre-contractual 

liability based on benefits received).



What is the report for this Canadian case? 



Gerard McMeel



On Wed, 12 Jul 2000 12:32:09 -0400 Mitchell McInnes 

<mpmcinne@julian.uwo.ca> wrote:



> Although (or perhaps because) the decision does not expressly discuss

> unjust enrichment, Bowlay Logging v Domtar, which is a staple of

> Canadian casebooks on contracts, provides a very good introduction to

> the intersection. Students can be primed in first year for the

> possibility that unjust enrichment may provide an alternative source of

> relief where a contractual claim fails. 

> 

> Mitchell McInnes

> 

> ________________________________________________________________________________ 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>.

> 



----------------------

Gerard McMeel

gerard.mcmeel@bristol.ac.uk







>From Andrew.Dickinson@cliffordchance.com Wed Jul 12 19:17:23 2000

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From: Andrew.Dickinson@CliffordChance.com

To: restitution@maillist.ox.ac.uk

Subject: RE: RDG: The best 3 or 4 contract/UE interface cases

Date: Wed, 12 Jul 2000 18:30:54 +0100

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I am a little surprised that the same Judge's decision in BP -v- Hunt did

not make the top 5.  As for 1-4, A-G -v- Blake would, for me, probably edge

out Surrey CC and my selection from the Westdeutsche case would be Hobhouse

J's judgment at first instance.  Kleinwort Benson -v- Lincoln is another

obvious choice.



-----Original Message-----

From: Gerard McMeel [mailto:gerard.mcmeel@bristol.ac.uk]

Sent: Wednesday, July 12, 2000 6:03 PM

To: Mitchell McInnes

Cc: Neyers, Jason (JUS); restitution@maillist.ox.ac.uk

Subject: Re: RDG: The best 3 or 4 contract/UE interface cases





I should , of course, have mentioned, the decision of Robert Goff J in 

British Steel v Cleveland Bridge [1984] 1 All ER 504 (pre-contractual 

liability based on benefits received).



What is the report for this Canadian case? 



Gerard McMeel



On Wed, 12 Jul 2000 12:32:09 -0400 Mitchell McInnes 

<mpmcinne@julian.uwo.ca> wrote:



> Although (or perhaps because) the decision does not expressly discuss

> unjust enrichment, Bowlay Logging v Domtar, which is a staple of

> Canadian casebooks on contracts, provides a very good introduction to

> the intersection. Students can be primed in first year for the

> possibility that unjust enrichment may provide an alternative source of

> relief where a contractual claim fails. 

> 

> Mitchell McInnes

> 

>

____________________________________________________________________________

____ 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>.

> 



----------------------

Gerard McMeel

gerard.mcmeel@bristol.ac.uk





____________________________________________________________________________

____ This message was delivered through the Restitution Discussion Group, an

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>From duncan.sheehan@corpus-christi.oxford.ac.uk Wed Jul 12 20:31:03 2000

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Date: Wed, 12 Jul 2000 20:27:10 +0100 (BST)

From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

cc: "'restitution@maillist.ox.ac.uk'" <restitution@maillist.ox.ac.uk>

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and Unjust

 Enrichm ent".  

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Dear all



I have several comments that may be of some interest, The first is that as

I understand Peter's classification property is a response. That means

that it can be created by in theory any one of the three causative events

consent, wrongs, unjust enrichment, as well as any other ones that exist

that I canbnot off the top of my head remember. I imagine that in English

law title is most obviously generated by consent. I give my sister her

birthday. Property passes because I consent to it doing so. Property

rights may also be generated by wrongs; the wrong of accepting bribes

seemed to generate property rights in the Hong Kong Govt in AG HK v Reid. 

  As for breach of contract I'd put that in wrongs.



Secondly the concept of an unjust factor may admittedly be on the way out

now after Kleinwort Benson v Lincoln City Council, given that I can count

on the fingers of one hand the number of people who agree with me that the

bank was mistaken and deserved relief on that basis. I see no reason why

it ought to go out of the door. Each of the unjust factors protects a

different interest of the claimant. Mistake for instance protects the

interest of the claimant in being able to rest his decision making on a

stable and flaw-free basis. Peter likes to say that the mistaken party's

intention is vitiated; I'm not entirely sure that I like that. Depending

on how you ask the question you might be able to say both that it is and

is not vitiated. If I drive north out of Oxford to reach Abingdon which is

actually to the south and then discover it is to the south is my intention

to drive north vitiated. I think not, certainly not before I find

somewhere to turn round, though my intention to drive to Abingdon buy

going north might be. It certainly does not vitiate my intention to drive. 

  And in a sense it does not matter whether or not the unjust factors have

anything in common other than that they each protect a separate

interest. Wrongs protect different interests, why should unjust factors

not do so as well.Why should we care if the list of unjust factors look a

little heterogenous if we don't care that our list of wrongs looks

heterogeneous as well?  If there is no interest to protect why should

there be restitution?



  Nonetheless I have no objection in principle to a civilian

model where it is the lack of 'juristic reason' or the lack of

'Rechtsgrund' that grounds restitution, though for English law to

embrace such a view would force us to look at gifts in a different

light to we do now for instance. It seems to me at least that the idea of

non-consensual transfers demanding restitution add nothing to the unjust

factors of mistake and ignorance (possibly also failure of

consideration though I have doubts about that). I'd be interested to know

if there is anything covered by the Canadian civilian approach that is not

covered by a traditional English unjust factor.



 As a small side point I am not myself impressed by the term unjustified

enrichment. To me it seems to

suggest that our system is the civilian system, that where an enrichment

is liable to be restored where it is unjustified suggest that there needs

to be justification in the form of a 'juristic reason'. That I think is

why the German Civil Code calls its section on UE ungerechtfertige

Bereicherung rather than ungerechte Bereicherung, though those who know

more German law than me may correct me.



  My problem is that I don't think that that is or ought to be English

law. It is unquestionably true that where there is a contract or other

existing obligation that there is a bar but that does not mean that where

there is no such 'juristic reason' that there ought to be

restitution. Void contracts for instance do not attract relief simply

because they are void. The fact that the contract is void is entirely

neutral as to the result that ought to follow. An example of this must be

the passage of property. Cundy v Lindsay would seem to tell us that where

a contract is void for common mistake property does not pass; yet we know

property can pass under illegal contracts which are void as well. The fact

that it is void tells us nothing. There is no interest that always needs

protecting. We need an extra factor to justify relief. In most

cases that will be mistake, either of fact or law, but not necessarily. If

we were to run down this route we might find ourselves undertaking the

task of defining not where we do obtain relief but where we do not. This

is what German law seems to do where for instance in the civil code's 

article on illegal contracts it in effect pronounces that all illegal

contracts are void except when they're not. This is simply to evade the

bite of the general restitution article, number 812, which bites on all

void contracts. I see no reason for English law to twist round and start

doing things backwards. 





Duncan Sheehan  





















>From crchamb@telusplanet.net Wed Jul 12 20:47:23 2000

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To: Restitution Discussion Group <restitution@maillist.ox.ac.uk>

From: Chambers <crchamb@telusplanet.net>

Subject: contract/UE cases



Fibrosa [1943] AC 32 would be useful for teaching the difference between

contract and unjust enrichment and, for Canadian law students, so would

Deglman [1954] 3 DLR 785 (SCC).



Robert Chambers

University of Alberta

Faculty of Law





>From crchamb@telusplanet.net Wed Jul 12 22:50:05 2000

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Date: Wed, 12 Jul 2000 15:53:37 -0600

To: Restitution Discussion Group <restitution@maillist.ox.ac.uk>

From: Chambers <crchamb@telusplanet.net>

Subject: Questions re "Equity, Conscience, and UE"



Jason Neyers posed several interesting questions which deserve an answer.

Here is a comment on his first question, regarding Prof Birks' taxonomy and

property. That taxonomy is seldom applied to the creation of property

rights, but should be, for at least two reasons. First, it would help us

organise and understand the sources of property rights, which tend to be

organised into two categories: intention and operation of law (events other

than intention). As Duncan Sheehan said earlier today, the vast majority of

property rights are created by intention. However, we still need help

understanding the other events which create property rights. Separating

unjust enrichment and wrongs from the miscellany of other property creating

events would be a step in the right direction.



Secondly, using the same taxonomy for both personal and property rights

would help lawyers working in different disciplines communicate with each

other. Property rights tend to be organised according to the nature of the

rights (eg, estate, mortgage, easement) or the nature of the thing subject

to the right (eg, land, goods, intellectual property). This inhibits

meaningful comparisons with other areas of law since personal rights are

different by nature and do not relate directly to things. It is possible to

find common ground by looking at the creation of personal and property

rights.



Property rights can be created by unjust enrichment (eg, resulting trusts,

rescission, rectification) and wrongdoing (eg, bribery, breach of fiduciary

duty, murder of a joint tenant). However, the majority of property rights

created by events other than consent are created neither by wrongs nor

unjust enrichment, but by "other" events. Taking possession of something

without the owner's consent is one important event in the miscellany (eg,

adverse possession, theft, finding a lost chattel). So too is detrimental

reliance on expectations (eg, proprietary estoppel, secret trusts, trusts

of the family home) and other instances of what Elias calls the

"perfectionary" constructive trust.



An interesting question is whether any perfectionary constructive trusts

should be viewed as instances of property rights created by consent. What

about the constructive trust arising on a specifically enforceable contract

of sale or an equitable mortgage created by a deposit of title deeds and

contract of mortgage?



Robert Chambers

University of Alberta

Faculty of Law





>From joshua.getzler@law.oxford.ac.uk Thu Jul 13 00:34:55 2000

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From: Joshua Getzler <joshua.getzler@law.oxford.ac.uk>

To: Chambers <crchamb@telusplanet.net>

cc: Restitution Discussion Group <restitution@maillist.ox.ac.uk>

Subject: Re: RDG: contract/UE cases

In-Reply-To: <v04011700b5927b57c416@[161.184.180.220]>

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The conversion of quantum meruit from implied-in-fact contract to unjust

enrichment merits attention:

Pavey & Matthews v Paul (High Court of Australia).



This is turning into Golden Oldies on some MOR radio station.



JG











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THE CONTRARIAN



BUY ALERT: European American Resources, Inc.

Symbol (EPAR-OTCBB)

Recent Price - $1.03 52 Week Range - $.53 - $1.68

Estimated Float - 5.9 Million Shares

Outstanding - 16.2 Million Shares



With oil prices having tripled since December 1998, we should now look for

investments that benefit from higher inflation. Traditionally, gold-mining stocks

are outstanding performers during these time periods, as people look to hedge

their portfolios to profit from rising commodity prices. We now present a company

that will not only make money from higher gold prices, but is a legitimate takeover

candidate as well.



European American Resources (EPAR) has been developing gold properties

in Nevada for many years. Their largest holding is located in the prolific Battle

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(HM-NYSE-7 3/8), the oldest trading company on the NYSE (130 years).

Homestake's cheapest gold mine in the world is Ruby Hill - right next to EPAR'S

Prospect Mountain - with production costs of only $94/ounce in 1999. Since 1864,

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that have already started.



Why do we think that EPAR is a takeover candidate? Simply because HM has

bought out 3 of their last 5 joint venture partners in the last three years, at high prices.

More importantly, Nevada is commonly known as the lowest cost place in the world to

mine gold, so even if bullion remains stuck at the $300 level, the EPAR property will

still be very profitable, since estimated costs to mine are under $100/ounce. However,

if gold drops to $150, most competing mines will close, and we'll also benefit.



Our recommendation is to buy EPAR at prices up to $2, with a longer-term target

price of $5-6. Since drilling is expected to start in a few weeks, expect results in the

very near future.



To SUBSCRIBE to future announcements or request ADDTIONAL INFORMATION 

regarding European American Resources, Inc, please click on the appropriate link below 

and hit send.



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DISCLAIMER:



The Contrarian has received a fee of shares of European American Resources, Inc.

common stock for the writing and distribution of this report. The Contrarian and/or

its affiliates currently own shares of EPAR, and may buy or sell shares at any

time after the dissemination of this report. Because the publisher owns this stock,

there may be a conflict of interest in The Contrarian's statements and opinions. The

Contrarian is not a registered investment advisor, broker or dealer. Purchase of this

stock may be considered speculative, and may result in the loss of some or all of

any investment made.



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THE CONTRARIAN

















>From lawthw@nus.edu.sg Thu Jul 13 04:54:29 2000

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From: Tang Hang Wu <lawthw@nus.edu.sg>

To: 'Chambers' <crchamb@telusplanet.net>, Restitution Discussion Group

	 <restitution@maillist.ox.ac.uk>

Subject: RE: Questions re "Equity, Conscience, and UE"

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Taxonomy



On a fundamental level,  I have no objections to an adoption of a loose

taxonomy for the sake of convenience.  However, I do take issue when such a

taxonomy is elevated into a categorical truth (see P Birks "Property and

Unjust Enrichment: Categorical Truths" [1997] NZLRev 623).  I think it's

unhealthy when any dissent from Birks' taxonomical model is automatically

seen as a heresy and a categorical error (see W Swadling "What Is The Law of

Restitution About?  Four Categorical Errors" in WR Cornish (ed.),

Restitution Past Present and Future (Hart Publishing, 1998).  





Further, Birks makes many references to Darwin on the importance of

taxonomy. Birks' classification is essentially derived from Roman Law.

However, the equation between Gaius and Darwin has been challenged by Prof

Geoffrey Samuel in 49 ICLQ 297 "Can Gaius really be compared to Darwin".  I

find Prof Samuel's thesis compelling i.e.  that the crucial difference

between a legal classification and a zoological classification is that the

former is incapable of being verified empirically while the latter is

capable of being verified.  Thus, Birks' assertion that "a sound taxonomy"

is an antidote to precision and clarity is an unproven assertion.  More

importantly, as any legal taxonomy is incapable of being verified

empirically, it would therefore be possible to argue that Birks' taxonomical

structure is subjective in nature. 



With respect, it is my opinion that it is not prudent to import a term such

as taxonomy with a highly specialized meaning from another discipline

without considering the implications as such. The main criticism of adopting

such a taxonomy is (as pointed out by Prof JD Davies) that it promotes

artificiality.  This argument will be developed below vis-a-vis

characterisation of an equitable interest.





Birks' characterisation of an equitable interest



In Birks' world, all equitable interests are inert.  So even if a person can

point to a particular property and say "That thing is mine!" in equity, that

person's equitable interest is inert.  According to Birks', equity's

vindicatio is given teeth by the recognition of a subsidiary obligation to

restore the res.  This subsidiary obligation to restore the res is

categorised among "various other events".



It is my contention that such a manner of characterisation does not give the

notion of an equitable interest enough credit.  Grantham & Rickett in

"Property and Unjust Enrichment: Categorical Truths or Unnecessary

Complexity" [1997] NZLRev 668 have pointed out such a manner of

characterisation renders property impotent. Virgo has also in numerous

articles and in his new book "Principles of the Law of Restitution" taken a

similar position.  To say that equity's vidicatio is inert is to

sub-consciously place the law of obligations ahead over an equitable

proprietary interest.



Further, I would also argue that to have a category known as "others" or

"various other events" as a causative factor is not saying very much.  How

does having a catch all category known as "others" or "various other events"

promote clarity in thinking?



Finally, the recent House of Lords case in Foskett v. McKeown [2000] 2 WLR

1299 poses a serious challenge to Birks' taxonomical structure.  To recap

the facts, a rogue trustee took monies from certain beneficiaries and used

part of the monies to service an insurance policy.  The rogue trustee

committed suicide later and not surprisingly the beneficiaries claimed for a

proportionate share of the proceeds of the policy.  The House in a decision

that split the Law Lords 3-2 ruled that the beneficiaries was so entitled.

However, what was extremely interesting in that case was that 4 of the Law

Lords (Lord Browne-Wilkinson, Lord Millet, Lord Hoffman and Lod Hope of

Craighead) emphatically said that this claim was based on the vindication of

the the purchasers' equitable interest and not a claim based on unjust

enrichment. Thus, it is my contention that this decision proves what

Grantham, Ricketts and Virgo has been arguing all along: that at the very

least a pre-existing equitable interest is a causative factor.  I think

Chambers is absolutely correct when he says that causative events such as

wrongdoing may generate property rights.  Thus, in most cases property

rights is a response as defined by Birks.   However, at the same time it

must be recognised that a pre-existing equitable interest may also act as

causative factor as demonstrated by Foskett v. McKeown.  To consign this

into a category known as "others" does not do a pre-existing equitable

interest justice.  Further, the confusion that reigned in the House in

Foskett v. McKeown on whether this was a claim in unjust enrichment or a

vindication of an equitable interest shows that perhaps it is better to

recognise a pre-existing equitable interest as a causative factor alongside

"consents", "wrongs", "unjust enrichment" and "others"





Tang Hang Wu

National University of Singapore

Faculty of Law

-----Original Message-----

From: Chambers [mailto:crchamb@telusplanet.net]

Sent: Thursday, July 13, 2000 5:54 AM

To: Restitution Discussion Group

Subject: RDG: Questions re "Equity, Conscience, and UE"





Jason Neyers posed several interesting questions which deserve an answer.

Here is a comment on his first question, regarding Prof Birks' taxonomy and

property. That taxonomy is seldom applied to the creation of property

rights, but should be, for at least two reasons. First, it would help us

organise and understand the sources of property rights, which tend to be

organised into two categories: intention and operation of law (events other

than intention). As Duncan Sheehan said earlier today, the vast majority of

property rights are created by intention. However, we still need help

understanding the other events which create property rights. Separating

unjust enrichment and wrongs from the miscellany of other property creating

events would be a step in the right direction.



Secondly, using the same taxonomy for both personal and property rights

would help lawyers working in different disciplines communicate with each

other. Property rights tend to be organised according to the nature of the

rights (eg, estate, mortgage, easement) or the nature of the thing subject

to the right (eg, land, goods, intellectual property). This inhibits

meaningful comparisons with other areas of law since personal rights are

different by nature and do not relate directly to things. It is possible to

find common ground by looking at the creation of personal and property

rights.



Property rights can be created by unjust enrichment (eg, resulting trusts,

rescission, rectification) and wrongdoing (eg, bribery, breach of fiduciary

duty, murder of a joint tenant). However, the majority of property rights

created by events other than consent are created neither by wrongs nor

unjust enrichment, but by "other" events. Taking possession of something

without the owner's consent is one important event in the miscellany (eg,

adverse possession, theft, finding a lost chattel). So too is detrimental

reliance on expectations (eg, proprietary estoppel, secret trusts, trusts

of the family home) and other instances of what Elias calls the

"perfectionary" constructive trust.



An interesting question is whether any perfectionary constructive trusts

should be viewed as instances of property rights created by consent. What

about the constructive trust arising on a specifically enforceable contract

of sale or an equitable mortgage created by a deposit of title deeds and

contract of mortgage?



Robert Chambers

University of Alberta

Faculty of Law



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        "Brendan Buckley" <bbuckley@cloutswa.com>,

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        "Aquastor" <tanks@ca.com.au>, "Andrew Dinnie" <perth@hotlinks.net.au>,

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Subject: Lotto

Date: Thu, 13 Jul 2000 12:43:02 +0800

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>From wmjones@wantree.com.au Thu Jul 13 06:05:10 2000

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        Gaven Cheong <greenboy200@hotmail.com>,

        Jani McCutcheon <jmccutch@ecel.uwa.edu.au>,

        Tim Warman <tim.warman@msj.com.au>,

        Brent Weston <brent.weston.152413@navy.gov.au>,

        Ava Sidhu <amsi@space.net.au>, Jeff Lee <"avedlee"@ecel>,

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        John Gillespie <vietlaw@deakin.edu.au>,

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        Peter Sinden <psinden@ecel.uwa.edu.au>,

        Peter Williams <willi@westconnect.com.au>,

        Phyl Lobel <pgcompu@tpri.com.au>,

        restitution <restitution@maillist.ox.ac.uk>,

        Ronnie Nilant <speyers@q-net.net.au>,

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        Andrew Dinnie <perth@hotlinks.net.au>,

        Wendy Bartuccio <mba@iinet.net.au>,

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        Alain Bernay <bernay@ccis.adisys.com.au>,

        Diane Thomas <diane_thomas@amp.com.au>,

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Subject: Mark Jones 

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My business phone number has been changed.



The new business number is    (08) 9313 3333



My other numbers will not change



            Facsimile                   (08) 9313 2332

            Mobile                       0409 511 611



            After hours                (08) 9313 1318



Regards

Mark Jones



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<font size=+1>My business phone number has been changed.</font>

<p><font color="#000000"><font size=+1>The new business number is&nbsp;&nbsp;&nbsp;

(08) 9313 3333</font></font><font color="#000000"><font size=+1></font></font>

<p><font color="#000000"><font size=+1>My other numbers will not change</font></font><font color="#000000"><font size=+1></font></font>

<p><font color="#000000"><font size=+1>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

Facsimile&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

(08) 9313 2332</font></font>

<br><font color="#000000"><font size=+1>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

Mobile&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

0409 511 611</font></font><font color="#000000"><font size=+1></font></font>

<p><font color="#000000"><font size=+1>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

After hours&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

(08) 9313 1318</font></font><font color="#000000"><font size=+1></font></font>

<p><font color="#000000"><font size=+1>Regards</font></font>

<br><font color="#000000"><font size=+1>Mark Jones</font></font></html>



--------------A1CE2BD2DF545ABF463A51B1--







>From robert.stevens@law.oxford.ac.uk Thu Jul 13 08:41:54 2000

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From: "Robert Stevens" <robert.stevens@law.oxford.ac.uk>

To: "Duncan Sheehan" <duncan.sheehan@corpus-christi.oxford.ac.uk>,

	"Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

Cc: <restitution@maillist.ox.ac.uk>

Subject: RE: RDG: Questions on Prof. Birks' "Equity, Conscience, and UnjustEnrichm ent".  

Date: Thu, 13 Jul 2000 08:31:59 +0100

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"The concept of an unjust factor may admittedly be on the way out

now after Kleinwort Benson v Lincoln City Council, given that I can count

on the fingers of one hand the number of people who agree with me that the

bank was mistaken and deserved relief on that basis."



Well, I can think of three members of the House of Lords. Add you, me and

Professor Finnis and we have more than a fist.



"I am not myself impressed by the term unjustified

enrichment."



It does not matter very much, if at all, but I would prefer unjustified for

the reasons given by Professor Tettenborn. "Unjust" might mean "unfair" or

"unjustified". We are not dealing with the law of "unfair" enrichments.

English law seems to require it to be shown that there is a positive reason

why the defendant's enrichment is unjustified. Before moving to a different

system I would want to be given some examples of where English law leads to

unacceptable results.



"Void contracts for instance do not attract relief simply

because they are void. The fact that the contract is void is entirely

neutral as to the result that ought to follow. An example of this must be

the passage of property....we know

property can pass under illegal contracts which are void."



I agree but I don't think that this can be proven quite so easily. It might

be that the rule is that restitution should always be awarded (or property

should not pass) where a contract is void but that this is subject to

exceptions (e.g. illegality). Professor Treitel, for one, seems to think

that this is correct.

R







>From coenchri@ruf.uni-freiburg.de Thu Jul 13 13:37:30 2000

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Date: Thu, 13 Jul 2000 14:57:56 +0300

From: Christoph Coen <coenchri@uni-freiburg.de>

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Subject: Re:  Questions on Prof. Birks' "Equity, Conscience, and Unjust 

 Enrichment" 

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You may be surprised to learn that the relative merits of unjust factors

v. lack of juristic reason as basis of restitutionary claims in the

common-law world have been the subject of a number of recent

publications by Germans apparently eager to reform English law, in

particular by Reinhard Zimmermann and Sonja Meier. Unfortunately, most

of the discussion (most notably Meier's massive doctoral dissertation

"Irrtum und Zweckverfehlung", Tuebingen 1999) is in German and therefore

likely to be of limited impact on the debate in England, but Meier and

Zimmermann have repeatedly set forth their views in English as well

(most recently in [1999] C.L.J. 567 and (1999) 115 L.Q.R. 556). I would

be interested to hear what people think about their argument, mainly

because I am not entirely convinced by it myself.



If I understand them correctly, Meier and Zimmermann regard English

law's insistence on unjust factors, rather than absence of juristic

reason, as completely wrongheaded and unworkable. As far as I can see,

they give two main reasons for this. Firstly, they claim that English

lawyers are kidding themselves if they think they can do without absence

of juristic reason, for in fact it is implicit in their system as well.

For example, there are a number of English cases which state that money

that was actually owed cannot be recovered, even though paid by mistake.

It is clear that in this situation a recognised unjust factor is present

(i.e. mistake), hence, according to Meier/Zimmermann, if English law

were really serious about unjust factors, you should get your money

back. If you don't, it must mean that English law sneakily looks at

whether there is a legal ground as well, without ever owing up to it.

Secondly, they argue that contrary to English lawyers' belief that

emphasis on unjust factors restricts recovery, it could actually open

the floodgates, if taken seriously. Think of the (obviously thorny) area

of non-liability mistakes. If you intend to give =A3100 to charity and by

mistake pay =A31,000, it is only fair that you should get =A3900 back.

However, it is a different matter if you actually intend to give =A31,000

but discover years later that one of the directors of the charity was a

person you hate and to whom you would never have given any money, or

whatever. English law does not distinguish between these two scenarios,

which are both cases of money paid under a mistake of fact, although it

would need to do so in order to bar unreasonable claims for restitution

by donors who want to go back on their gifts. But again,

Meier/Zimmermann argue, you cannot really distinguish between mistakes

(or other unjust factors) in "forming the intention to give something"

and mistakes in "executing this intention" without considering whether

there is a juristic reason for the payment.



Meier/Zimmermann also offer an explanation as to why English law took

what they consider to be such a devious route. Somewhat surprisingly,

this turns out to be the doctrine of consideration. Meier/Zimmermann

believe that, on account of the consideration requirement, lots of

agreements which would be enforceable contracts elsewhere are

unenforceable under English law, hence cannot be used as a juristic

reason, and therefore English lawyers had to think up another yardstick

by which to gauge claims for recovery. To be frank, this explanation,

apparently inspired by Larner v. LCC, seems a bit wide of the mark, if

only on historical grounds. My impression is that Meier/Zimmermann are

trying to explain one aspect of English law which they do not like by

another they would also like to be changed. I would suspect that it is

simply much more intuitive to say that you get back money paid by

mistake, extorted from you etc., than to say that you get back money

because the legal basis for payment was absent; and it is not surprising

that English law has opted for the more intuitive approach.



On the other hand, while I do not find the Meier/Zimmermann line of

argument convincing, there are a number of misconceptions about the

"absence of legal ground" approach common among English lawyers which,

in my view, should be laid to rest in order to make the discussion more

productive.



The first of these misconceptions is that, under the continental system,

the burden of proof that there was legal ground for a payment is on the

payee. At least for German law, that is not the case. In fact, the

claimant who seeks restitution needs to prove (1) that the defendant is

enriched and (2) absence of a legal ground for the enrichment. Thus, for

example, if an insurance company pays out on a claim and later has

second thoughts, German law requires the insurance company to prove that

it did not have to pay in order to get its money back, rather than

requiring the payee to prove that he or she was entitled to receive the

money in order to keep it. In fact, both systems are virtually

indistinguishable in their operation as far as liability mistakes are

concerned; the only major practical difference is the status of the

person who pays when in doubt, who can recover under German law but not

under English law, at least not in theory (but see Nurdin and Peacock v.

D. B. Ramsden, where a way was found round this problem).



The second misconception is that "Rechtsgrund" necessarily means "debt",

and therefore to adopt a "legal ground" analysis in England would

require an overhaul of the law of gifts. I would argue, contra

Meier/Zimmermann, that you do not really need any sophisticated "legal

ground" analysis in order to explain the fact that you may keep money

paid to you as an actual debt - in my view, that is implicit in the idea

of a debt. In fact, "Rechtsgrund" analysis is used precisely in order to

explain why you may sometimes retain money to which you had no

enforceable claim and sometimes not. So, in order to explain that you

may keep money paid as a valid gift, under an unenforceable contract or

on a debt barred by statute of limitation, German law says that there is

a "Rechtsgrund", while in the case of an invalid gift or a void contract

there is not. Of course, whether this has any greater explanatory force

than the English ragbag of "unjust factors" seems to me open to debate.



Finally, I would want to warn against the belief that "legal ground" or

"Rechtsgrund" has a clearly defined meaning in continental legal

systems. In reality, there is a heated if somewhat arcane debate on

this, at least in Germany. First of all, "Rechtsgrund" is to some extent

dependent on the idea of "Leistung", which in itself is highly complex

and contentious. In addition, there is an "objective" school which

thinks that "Rechtsgrund" means the actual obligation, gift relationship

or whatever, while according to the "subjective" school it is the

intention to discharge the debt, make the gift etc. and therefore

"absence of legal ground" really means failure of purpose. There are

various sub-schools which argue about whether it is the actual or

"natural" purpose of the payor which counts or whether there are only

three types of purpose which are legally relevant, namely solvendi,

donandi and obligandi causa (i.e., to pay a debt, to make a gift and to

create a debt), and about other things too tedious to relate. So far,

courts have been reluctant to commit themselves to any of these

theories; instead, they tend to stress that each case has to be

considered individually on its merits. Which probably goes to show that,

if you develop restitution theory to too sophisticated a level, you will

only make yourself utterly irrelevant in practice...



Christoph Coen

Freiburg University, Germany





>From duncan.sheehan@corpus-christi.oxford.ac.uk Thu Jul 13 19:16:40 2000

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Date: Thu, 13 Jul 2000 19:12:52 +0100 (BST)

From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: Robert Stevens <robert.stevens@law.oxford.ac.uk>

cc: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>, 

    "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>, 

    restitution@maillist.ox.ac.uk

Subject: RE: RDG: Questions on Prof. Birks' "Equity, Conscience, and

 UnjustEnrichm ent".  

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Dear all,



Well OK there are six of us who think the bank were mistaken, but in my

defence I was thinking of people other than their lordships, which makes

three, which is less than five. 



I myself think that Meier and Zimmermann are right to say that in order to

restrict the types of mistake that ground relief in restitution you must

look to a legal ground analysis. Either saying that only liability

mistakes will count as in Kelly v Solari or by going over to their ideas

of throwing over mistake altogether would be coherent. I would not myself

be overly keen on going back to liability mistakes. If it is true that

giving restitution for a mistake protects our interest in being able to

make decisions on a flaw-free basis then restricting relief to liability

mistakes while stable does not give relief in a whole string of cases

where we might want to give relief and it certainly fails to give us any

inkling of what we are supposed to do with mistaken gifts, since ex

hypothesi they wouldn't be gifts if we thought we were liable to hand the

property over. 



However, and this, I think, is where Meier and Zimmermann, and myself part

company I do not think that it is true to say that because we do not allow

restitution where there is a valid obligation whether we are mistaken or

not implies that English law is indulging in the kind of legal ground

analysis they believe it does or ought to. Where there is a contract or

any other type of obligation, enforceable or unenforceable, there is a bar

because the recipient was entitled to the very thing handed over. It would

be nonsensical to allow a claimant to obtain restitution where the

obligation is enforceable; the defendant promptly enforces it and wastes

court time. Allowing the defendant to keep the property where the

obligation was unenforceable, or even (if you believe in such

things) natural, is merely a small and legitimate extension. The payee

then has to prove that there is an obligation. The type of legal ground

analysis that Meier and Zimmermann would have English law indulge in

would have the payer proving that there was no obligation. There is a

difference. That the presence of X is a defence does not mean that its

absence is a cause of action. Any slippage from one to the other, while it

may well happen after Kleinwort Benson is illegitimate. It may be that

Meier and Zimmermann are on to a winner here and I'm on a loser but I hope

not.



Both of these different methods of running this area of law, voidness =

cause of action + exceptions, or unjust factors = cause of action +

validity as a bar are perfectly rational ways of doing things. Let nobody

be in any doubt that I think that. With that aside I can reply to Robert's

point on void contracts. I don't think it matters for these purposes what

English law actually is, although I believe that the rule is not that void

contracts give relief and that there are then exceptions to that, which is

Treitel's position and I think Meier and Zimmermann's. What matters is

that the fact that the contract is void does not per se necessitate that

we go for the rule that it gives relief subject to exceptions. There is

nothing incoherent in saying that we need an extra factor, be that mistake

or anything else. WHAT WE CHOOSE IS A CHOICE; VOIDNESS DOES NOT LOGICALLY

REQUIRE ANY PARTICULAR CHOICE. That is all I meant when I said that

voidness is entirely neutral. 



Lastly a question for German lawyers. I understood that the reason why

gifts are not caught by section 812 of the BGB was that in German law it

was possible to have contracts of donation, which since contracts

are juristic causes prevent the section's bite. These cannot exist in

English law which is why going over to the legal ground German analysis

entails looking anew at gifts. Christoph Coen seems to make out that we 

do not as English lawyers need to look anew at gifts. I think I am missing

something and I would be grateful for attempts at explaining what.



Duncan Sheehan 











>From Jason.Neyers@jus.gov.on.ca Thu Jul 13 19:33:19 2000

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From: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

To: 'Duncan Sheehan' <duncan.sheehan@corpus-christi.oxford.ac.uk>, 

	restitution@maillist.ox.ac.uk

Subject: RE: RDG: Questions on Prof. Birks' "Equity, Conscience, and Unjus

	tEnrichm ent".  

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Dear Duncan Sheehan,

You wrote:

"Lastly a question for German lawyers. I understood that the reason why

gifts are not caught by section 812 of the BGB was that in German law it was

possible to have contracts of donation, which since contracts are juristic

causes prevent the section's bite. These cannot exist in English law which

is why going over to the legal ground German analysis entails looking anew

at gifts. Christoph Coen seems to make out that we do not as English lawyers

need to look anew at gifts. I think I am missing something and I would be

grateful for attempts at explaining what."

While I am by no means a German lawyer and cannot speak on that issue, I

fail to see the common law problem. Even under a "pure" common law analysis,

isn't a completed gift, much like a will, a juridical act?  It is a legally

effective way of manifesting one's intentions, in this case a transfer of

wealth/property without value in return. If this is true, then there could

be no restitution of an unjust enrichment (i.e. the completed gift) because

there is a juristic reason justifying the transfer of value. But perhaps I

am missing something in your question?





Jason W. Neyers

Law Clerk, Ontario Court Of Appeal

(416) 327-5107

Jason.Neyers@jus.gov.on.ca <mailto:Jason.Neyers@jus.gov.on.ca> 









	-----Original Message-----

	From:	Duncan Sheehan

[SMTP:duncan.sheehan@corpus-christi.oxford.ac.uk]

	Sent:	Thursday, July 13, 2000 2:13 PM

	To:	Robert Stevens

	Cc:	Duncan Sheehan; Neyers, Jason (JUS);

restitution@maillist.ox.ac.uk

	Subject:	RE: RDG: Questions on Prof. Birks' "Equity,

Conscience, and UnjustEnrichm ent".  



	Dear all,



	Well OK there are six of us who think the bank were mistaken, but in

my

	defence I was thinking of people other than their lordships, which

makes

	three, which is less than five. 



	I myself think that Meier and Zimmermann are right to say that in

order to

	restrict the types of mistake that ground relief in restitution you

must

	look to a legal ground analysis. Either saying that only liability

	mistakes will count as in Kelly v Solari or by going over to their

ideas

	of throwing over mistake altogether would be coherent. I would not

myself

	be overly keen on going back to liability mistakes. If it is true

that

	giving restitution for a mistake protects our interest in being able

to

	make decisions on a flaw-free basis then restricting relief to

liability

	mistakes while stable does not give relief in a whole string of

cases

	where we might want to give relief and it certainly fails to give us

any

	inkling of what we are supposed to do with mistaken gifts, since ex

	hypothesi they wouldn't be gifts if we thought we were liable to

hand the

	property over. 



	However, and this, I think, is where Meier and Zimmermann, and

myself part

	company I do not think that it is true to say that because we do not

allow

	restitution where there is a valid obligation whether we are

mistaken or

	not implies that English law is indulging in the kind of legal

ground

	analysis they believe it does or ought to. Where there is a contract

or

	any other type of obligation, enforceable or unenforceable, there is

a bar

	because the recipient was entitled to the very thing handed over. It

would

	be nonsensical to allow a claimant to obtain restitution where the

	obligation is enforceable; the defendant promptly enforces it and

wastes

	court time. Allowing the defendant to keep the property where the

	obligation was unenforceable, or even (if you believe in such

	things) natural, is merely a small and legitimate extension. The

payee

	then has to prove that there is an obligation. The type of legal

ground

	analysis that Meier and Zimmermann would have English law indulge in

	would have the payer proving that there was no obligation. There is

a

	difference. That the presence of X is a defence does not mean that

its

	absence is a cause of action. Any slippage from one to the other,

while it

	may well happen after Kleinwort Benson is illegitimate. It may be

that

	Meier and Zimmermann are on to a winner here and I'm on a loser but

I hope

	not.



	Both of these different methods of running this area of law,

voidness =

	cause of action + exceptions, or unjust factors = cause of action +

	validity as a bar are perfectly rational ways of doing things. Let

nobody

	be in any doubt that I think that. With that aside I can reply to

Robert's

	point on void contracts. I don't think it matters for these purposes

what

	English law actually is, although I believe that the rule is not

that void

	contracts give relief and that there are then exceptions to that,

which is

	Treitel's position and I think Meier and Zimmermann's. What matters

is

	that the fact that the contract is void does not per se necessitate

that

	we go for the rule that it gives relief subject to exceptions. There

is

	nothing incoherent in saying that we need an extra factor, be that

mistake

	or anything else. WHAT WE CHOOSE IS A CHOICE; VOIDNESS DOES NOT

LOGICALLY

	REQUIRE ANY PARTICULAR CHOICE. That is all I meant when I said that

	voidness is entirely neutral. 



	Lastly a question for German lawyers. I understood that the reason

why

	gifts are not caught by section 812 of the BGB was that in German

law it

	was possible to have contracts of donation, which since contracts

	are juristic causes prevent the section's bite. These cannot exist

in

	English law which is why going over to the legal ground German

analysis

	entails looking anew at gifts. Christoph Coen seems to make out that

we 

	do not as English lawyers need to look anew at gifts. I think I am

missing

	something and I would be grateful for attempts at explaining what.



	Duncan Sheehan 



	





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From: Allan AXELROD <axelrod@andromeda.rutgers.edu>

To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

cc: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>,

        "'restitution@maillist.ox.ac.uk'" <restitution@maillist.ox.ac.uk>

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and Unjust

 Enrichm ent".  

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On Wed, 12 Jul 2000, Duncan Sheehan wrote:



> 

 I imagine that in English

> law title is most obviously generated by consent.



original title in slaves was generated by discovery plus

consent---



 it was okay with the other

white folks







>From duncan.sheehan@corpus-christi.oxford.ac.uk Thu Jul 13 23:18:46 2000

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From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

cc: 'Duncan Sheehan' <duncan.sheehan@corpus-christi.oxford.ac.uk>, 

    restitution@maillist.ox.ac.uk

Subject: RE: RDG: Questions on Prof. Birks' "Equity, Conscience, and Unjus

 tEnrichm ent".  

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Actually the problem I have is that I do not know whether your solution,

to say that a gift is simply a completed juridical act showing an

intention to transfer property gratuitously is all a contract of donation

is in German law. If it is then the reason why there is no problem in

German law is the same as the reason why there is no problem in English

law and we have no problem. If not we may still have no problem, but it

will be for a different reason to that in German law. However, we need to

explain, and it may be that your solution is all we need, why we have no

problem and why that is different from German law. That last

question is, I think crucial, if we are claiming to import the civilian

legal ground analysis into English law. If we find it difficult to find a

satisfactory answer maybe that tells us that we shouldn't import the

system, that is causes too many ripples elsewhere in the law.



Duncan Sheehan 











>From coenchri@ruf.uni-freiburg.de Fri Jul 14 10:57:51 2000

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From: Christoph Coen <coenchri@uni-freiburg.de>

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Yes, German law does consider gifts to be contracts of donation. Of

course, just as in English law, there is the problem of whether to

enforce gratuitous promises. German law solves this by the rule in par.

518 BGG according to which contracts of donation are void unless made by

notarial act, but become valid upon transfer of the thing promised.

While a donor is thus not bound to fulfil a gratuitous promise, he or

she technically becomes bound the very moment of fulfilling it; in other

words, a debt arises by the act of paying it, by which of course it is

also extinguished.



This somewhat surprising idea of retrospectively making contracts of

donation binding was introduced in order to counter a problem which

might otherwise arise in the case where someone promises to make a gift

and then actually makes it in the false belief that the promise was

legally binding. Theoretically, it would then be possible to claim

restitution of the gift by arguing that, at the moment of paying, you no

longer intended to make a gift but merely to pay your debts, and that

therefore there was no legal ground for your payment. In order to

prevent any such argument, German law thought up this little sleight of

hand to convert the gift into fulfilment of a contractual obligation.

(As an aside, I wonder whether it would be possible under current

English law to argue that you paid under a mistake of law because you

thought that your gratuitous promise was binding on you.)



Apart from this somewhat academic problem, I am not sure whether

adoption of the "legal ground" analysis would also require English law

to hold that gifts are contracts, because, as I mentioned in my earlier

posting, "legal ground" does not necessarily have to mean "enforceable

contract". Of course, the gift-as-contract analysis solves the

Meier/Zimmermann problem of distinguishing between mistakes in "forming

the intention to give something" and mistakes in "executing this

intention", because whether you can obtain restitution or not depends on

whether there is a contract of donation. To use the example from my

earlier posting again: If you only intend to give =A3100 but pay =A31,000

instead, there is no contract of donation for the extra =A3900, and you

can recover that money because there it was paid without legal ground.

If you intend to give =A31,000 but later discover you don't like the

recipient and would never have given any money to him if you had known

the full story, then whether you can recover your money depends on

whether your mistake is of a serious enough quality to allow you to

avoid the contract of donation. But to be frank I wonder whether this

makes things any easier analytically, or whether it is just a roundabout

way of restating the fact that you cannot recover gifts if you merely

changed your mind, but only if you made a serious mistake.



Christoph Coen

Freiburg University, Germany





>From duncan.sheehan@corpus-christi.oxford.ac.uk Fri Jul 14 13:43:51 2000

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From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: Christoph Coen <coenchri@uni-freiburg.de>

cc: restitution@maillist.ox.ac.uk

Subject: Re: RDG: Re: Questions on Prof. Birks' "Equity, Conscience, and

 Unjust  Enrichment"

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Dear all, 



Thank you to Christoph Coen. That's actually what I thought a contract of

donation would have to be. I think that if we were to argue that we were

mistaken in thinking that we were under an enforceable obligation in

promising to make a gift that that under present English law may well

count as a mistake of law and ground relief. Presumably unless anybody has

any bright ideas if we wished to avoid this in English we would also have

to regard a gift as a contract of donation in English law.



That aside I wonder whether Jason Neyer's solution of saying that a gift

is merely a legally effective means of giving effect to our intention to

transfer property can be sufficient were we as English lawyers to go over

to the German system. My concern is this. We can easily tell when there is

a transfer of property, but if a necessary part of Jason Neyers' view is

that there be an intention to transfer property as well then presumably

if there is any sort of mistake then that intention is vitiated or

rendered ineffective because of the flaw in our decision making processes

(the latter would be my view of the effect of mistake; I'm not sure that

for present purposes it makes any difference which you accept) that

intention no longer exists. If that is so surely we are back to unjust

factors. If true I say hurrah. 



It may be that Meier and Zimmermann would object that the mistake avoids

the gift and it is the voidness for which we get relief, but is it really

simpler to have such a two stage process, rather than simply saying that

the mistake gives us relief?



As a final point if we were to go over to the German system what happens

to Chambers view that when we transfer property under a mistake that

automarically gives rise to a resulting trust? If that is true (and I

grant that lots of people don't think so) is this not one of those

unforeseen ripples that I talked of in my last message. Importing German

law might well muck up a lot of other things. 



Duncan Sheehan 

















>From Jason.Neyers@jus.gov.on.ca Fri Jul 14 15:49:20 2000

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To: 'Duncan Sheehan' <duncan.sheehan@corpus-christi.oxford.ac.uk>, 

	Christoph Coen <coenchri@uni-freiburg.de>

Cc: restitution@maillist.ox.ac.uk

Subject: RE: RDG: Re: Questions on Prof. Birks' "Equity, Conscience, and U

	njust  Enrichment"

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Dear Mr. Sheehan & Coen,



Both of your recent email caused me to think once more about the issues you

raised.  In particular Mr. Sheehan's recent email raises a number of

interesting issues to which I would like to respond quickly.



1)	Once again I would like to reiterate that I do not think it

essential to import the civilian idea of a contract of donation to

understand a gift as a juristic reason/ juridical act. Likewise I would not

argue that one has to import all of the German or Quebec system either (see

answer 3 below). In my understanding of the juristic UE system, both wills

and judgments are juristic reasons as well, but I do not believe they have

to be classified as contracts in order for them to work under this analysis.

If they are not contracts and are easily accommodated under the proposed

system, why, in your opinion, does a gift have to become a contract in order

for the system to function?

	 

2)	You wrote: 



	" We can easily tell when there is a transfer of property, but if a

necessary part of Jason Neyers' view is

		that there be an intention to transfer property as well then

presumably if there is any sort of mistake then that intention is vitiated

or rendered ineffective because of the flaw in our decision making processes

(the latter would be my view of the effect of mistake; I'm not sure that for

present purposes it makes any difference which you accept) that intention no

longer exists. If that is so surely we are back to unjust factors. If true I

say hurrah."



		My response is two-fold. First, it is not every mistake that

we are concerned about and that is why I believe that the mistake/unjust

factor is flawed.  What we are concerned about is whether or not their was a

liberal intention at the time the gift was made. The only mistakes that

count under the UE analysis is a mistake that explains how one managed to

transfer value without this liberal intention. Did the person transfer the

value as a gift? Yes or No. If they intended to transfer the value because

they thought they were required to (i.e. were under a legal obligation to do

so) then there is an UE:  that person did not intend to benefit you (with a

gift) and there is no contract or other obligation justifying retention. 



		Second, under this analysis it is not really important if

you somehow came to the conclusion that you wanted to give a gift through a

misperception of the facts.  In my mind, this does not effect the liberal

intention as every human has their own level of ability when it comes to

processing information and making decisions.  Now you are probably right

that there will be cases were certain mistakes, or illegitimate pressures of

a certain agreed upon threshold, will force us to speak of an juridical act

(gift, contract, wills) as being void, but this law will apply equally to

all juridical acts.   But in any event, this category will not include all

that is meant by your definition of "mistake" (any sort of error of any

kind). Thus, I don't think that one can say that the system of unjust

factors is a simpler and more coherent explanation of this process.    



3)	You wrote: 

	" if we were to go over to the German system what happens to

Chambers view that when we transfer property under a mistake that

automatically gives rise to a resulting trust? If that is true (and I grant

that lots of people don't think so) is this not one of those unforeseen

ripples that I talked of in my last message."



	You have highlighted a very interesting point. It is on this issue

where I feel that the common law has recognized something that is missing

from the Quebec civil law system (I am not sure of Germany so I will remain

silent).  If the juristic reason UE analysis is applied rigorously and

logically I believe that Prof. Chambers is essentially correct. Every UE,

properly understood, automatically leads to some sort of bankruptcy

priority/ proprietary remedy. The argument for this proposition is too long

for inclusion here, but is well explained (as are many of the arguments

above) by David Stevens in "Restitution, Property, And the Cause of Action

in Unjust Enrichment: Getting By with Fewer Things" (1989) 39 Univ. Toronto

Law  Journal 258, (1989) 39 U.T.L.J. 325 &  "'Knowing Assistance' And

'Knowing Receipt' in The Supreme Court of Canada" 14 Banking & Finance Law

Review 407-456.  On this issue, I believe that the logical merging of the

civilian system with our experience creates some ripples, the result of

which is a more coherent understanding of our private law and the

relationship between contract, tort and UE.  This are preferable ripples,

much like the ripples caused by the introduction of UE generally. 







Jason W. Neyers

Law Clerk, Ontario Court Of Appeal

(416) 327-5107

Jason.Neyers@jus.gov.on.ca <mailto:Jason.Neyers@jus.gov.on.ca> 









	-----Original Message-----

	From:	Duncan Sheehan

[SMTP:duncan.sheehan@corpus-christi.oxford.ac.uk]

	Sent:	Friday, July 14, 2000 8:44 AM

	To:	Christoph Coen

	Cc:	restitution@maillist.ox.ac.uk

	Subject:	Re: RDG: Re: Questions on Prof. Birks' "Equity,

Conscience, and Unjust  Enrichment"



	Dear all, 



	Thank you to Christoph Coen. That's actually what I thought a

contract of

	donation would have to be. I think that if we were to argue that we

were

	mistaken in thinking that we were under an enforceable obligation in

	promising to make a gift that that under present English law may

well

	count as a mistake of law and ground relief. Presumably unless

anybody has

	any bright ideas if we wished to avoid this in English we would also

have

	to regard a gift as a contract of donation in English law.



	That aside I wonder whether Jason Neyer's solution of saying that a

gift

	is merely a legally effective means of giving effect to our

intention to

	transfer property can be sufficient were we as English lawyers to go

over

	to the German system. My concern is this. We can easily tell when

there is

	a transfer of property, but if a necessary part of Jason Neyers'

view is

	that there be an intention to transfer property as well then

presumably

	if there is any sort of mistake then that intention is vitiated or

	rendered ineffective because of the flaw in our decision making

processes

	(the latter would be my view of the effect of mistake; I'm not sure

that

	for present purposes it makes any difference which you accept) that

	intention no longer exists. If that is so surely we are back to

unjust

	factors. If true I say hurrah. 



	It may be that Meier and Zimmermann would object that the mistake

avoids

	the gift and it is the voidness for which we get relief, but is it

really

	simpler to have such a two stage process, rather than simply saying

that

	the mistake gives us relief?



	As a final point if we were to go over to the German system what

happens

	to Chambers view that when we transfer property under a mistake that

	automarically gives rise to a resulting trust? If that is true (and

I

	grant that lots of people don't think so) is this not one of those

	unforeseen ripples that I talked of in my last message. Importing

German

	law might well muck up a lot of other things. 



	Duncan Sheehan 















	

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>From gordon.goldberg@buckingham.ac.uk Fri Jul 14 17:10:30 2000

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To: "Allan AXELROD" <axelrod@andromeda.rutgers.edu>

Cc: <restitution@maillist.ox.ac.uk>

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and UnjustEnrichm ent".  

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Was it just the white folks? According to my fading memories both of

"TheThousand and One Nights' Entertainment" and of what I was taught of the

history of the slave trade in the 18th and 19th centuries, it was okay also

with the black peoples and the Arabs. Cf. 15 Enc. Brit. (15th edn, Chicago

1988) 132.3b.



-----Original Message-----

From: Allan AXELROD <axelrod@andromeda.rutgers.edu>

To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

Cc: Neyers, Jason (JUS) <Jason.Neyers@jus.gov.on.ca>;

'restitution@maillist.ox.ac.uk' <restitution@maillist.ox.ac.uk>

Date: 13 July 2000 20:27

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and

UnjustEnrichm ent".





>

>

>

>On Wed, 12 Jul 2000, Duncan Sheehan wrote:

>

>>

> I imagine that in English

>> law title is most obviously generated by consent.

>

>original title in slaves was generated by discovery plus

>consent---

>

> it was okay with the other

>white folks

>

>

>___________________________________________________________________________

_____ 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 duncan.sheehan@corpus-christi.oxford.ac.uk Fri Jul 14 19:35:37 2000

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Date: Fri, 14 Jul 2000 19:28:00 +0100 (BST)

From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: "Neyers, Jason (JUS)" <Jason.Neyers@jus.gov.on.ca>

cc: 'Duncan Sheehan' <duncan.sheehan@corpus-christi.oxford.ac.uk>, 

    Christoph Coen <coenchri@uni-freiburg.de>, restitution@maillist.ox.ac.uk

Subject: RE: RDG: Re: Questions on Prof. Birks' "Equity, Conscience, and U

 njust  Enrichment"

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Dear all,=20



To respond to Jason Neyers' last email:



Firstly wills and judgments are different to gifts, or more precisely they

are different to spontaneous gifts such as my giving my girlfriend her

birthday. That is spontaneous in the sense that (although she may expect

it) I do not promise to give it to her before I actually do. Wills and

judgments are therefore like voluntary instruments of the kind met in

Gibbons v Mitchell and Lady Hood v MacKinnon. The important point about

those is that they create a pre-existing debt (although in the case of a

will that is obviously contingent on the testator's death). That means=20

that the judgment, will,or voluntary instrument must be set aside

before restitution is granted. That is the easy case where we see a two sta=

ge=20

process.



 That is not the case in the class of case that I call spontaneous

gifts. In those cases there are two points. Firstly it is a lot harder

to see why having a two stage test is better than having a one stage

test, where all we need to say is mistake therefore recovery, rather=20

than mistake therefore void, therefore recovery. That is certainly true if

you accept my view that we are actually  concerned with every type of

mistake, and I think true also if we accept Jason Neyers' view that we are

not.

=20

The second point is this. Christoph Coen's last email explained why

contracts of donation were dreamt up. It seems to be because the German

lawyers were worried about the case where the plaintiff says he thought

that he was obliged to make the transfer as a result of a pre-existing

promise. It may be that this is not a problem. Certainly Jason Neyers does

not appear to believe that it is. However, if it is a problem a

German style contract of donation would seem to me, unless anybody out

there has any bright ideas, to be the only way of avoiding it. This is

crucially not a problem where there is already a pre-existing liability as

in the voluntary instruments cases.=20



As for Jason Neyers' own second points my response is relatively

simple. It is this. How can we not be interested in every single

mistake?



 Jason Neyers' concerns seem to revolve around the idea that we ought only

to be interested in mistakes that affect our liberal intention, our

intention to give. As an aside that to me is very like Meier's distinction

between mistakes in forming the intention and executing it. However, what

does it mean?  Is it my intention to give, my intention to give to my

girlfriend as opposed to my sister, my intention to give this particular

present, my intention to ..... I could go on. It seems to me that it is

extremely difficult to isolate one particular intention and say that=20

a mistake that vitiates that intention counts, but not one that

affects a different intention. Mistakes will affect all sorts of

differing and overlapping intentions and if Jason Neyers thinks he

can isolate mistakes that only affect the donative intention I think=20

he will fail.



  Secondly even assuming that he can do this, surely every mistake affects

that intention unless it has no causative force. Christoph Coen uses the

example of giving =A31000 rather than =A3100. I presume that Jason Neyers

would allow recovery here. Christoph Coen then uses the example of the

donor finding out that the head of the charity is an enemy. Would Mr

Neyers allow recovery? My understanding is that he would not. Yet if that

mistake were a sine qua non of the payment it obviously affects the

intention to make it! Andrew Tettenborn's objection to this area is that

it is at present too metaphysical. I think my approach strips out all the

metaphysics Jason Neyers seems to want to keep.



Duncan Sheehan=20











>From mgergen@mail.law.utexas.edu Fri Jul 14 21:36:24 2000

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To: restitution@maillist.ox.ac.uk

From: Mark Gergen <mgergen@mail.law.utexas.edu>

Subject: Birks' concept of "causative events"

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Greetings to all.



As I understand it, Birks' uses the concept of "causative events" to

describe categories of events that create private obligation, of which he

specifies three basic categories (wrong, consent, and unjust enrichment)

and a miscellany.   Neyers' question of how property fits in this schema, I

think, at bottom raises a question about what we mean by obligation.

Thinking about this question suggests a caveat to a point Birks makes at

the end of "Equity, Conscience, and Unjust Enrichment" that equity ought to

have the same taxonomy as law.



 Birks flips the old common law world view.  He uses the concept of

causative events to establish when P may seek the assistance of a court in

making some demand upon D.   What P may demand is a subsidiary question.

You might say Birks puts right before remedy (I gather he would use the

term rights to include remedies, meaning (loosely) what a court will do for

you upon a causative event.  See Birks, Rights, Wrongs, and Remedies, 20

Oxford Journal of Legal Stud. 1 (2000)). In a body of law organized around

writs, it was more the reverse in the sense that a plaintiff had to bring

his case within a writ that gave a court the power to act.   The image this

brings to my mind is of a world where people do not always or in the first

instance look to the state (or the king's courts) to do justice or to

protect their rights.   Another way to put it is that their rights were not

co-extensive with what the state would enforce.   Property still very much

has this quality, at least in common understanding.  My land is mine

because I can put a fence around it, or can hurt you if you come on it

without permission.  To the extent I look to the state to protect my land

it is to the police, who will drive the intruder off, and not to common law

courts.  



This is not meant as a criticism of Birks' concept or his categories.   His

schema fits our world-view fairly well when its come to classifying private

law, which is Birks' task  (Though it does not work so well in contract.

You might look at 20 Oxford J. Legal. Stud at 27-28.)  The observation

relates to a modest caveat I would add to a point Birks makes at the end of

"Equity, Conscience, and Unjust Enrichment."  His point is that equity

ought to have the same taxonomy as law.  Surely this is right in the main,

but what are we to do with estoppel, or, more precisely, the old axiom that

estoppel acts as a shield but not a sword?  This axiom is easy to ridicule

since estoppel may go to a defense to obligation, but it serves an

indispensible function.  It signals that estoppel works interstitially in

the law.   P must establish a wrong, consent, unjust enrichment, or some

other miscellaneous basis to get a court to impose an obligation upon D,

but conduct short of this may justify a court in holding its hand against D.





>From swh10@cus.cam.ac.uk Sat Jul 15 09:50:54 2000

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Date: Sat, 15 Jul 2000 09:50:55 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: "Unjust enrichment and Contract in European Private Law" -

  conference

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Conference announcement:



Bregstein Congress on Unjust Enrichment and the Law of Contract within the

context of European Private Law



Amersterdam

18-20 October 2000



Registration from Weds 18th 16:00.

First plenary sesssion 10am Thursday 19th

First workshops 12 noon Thursday 19th

Last workshop session ends 16:00 Friday 20th

Last plenary session ends 18:00 Friday 20th, followed by banquet



Plenary sessions include:

Hartkamp, "UE alongside Contracts and Torts"

Ibbetson, "UE in the common law"

Schrage, "UE: a historical and comparative overview from an European

perspective"

Visser, "UE in the mixed legal systems"



Workshop sessions include:

Degeleing, "Victims and carers"

Edelman, "Restitution for wrongdoing"

Filios, "UE in French law"

Giliker, "Farewell freedom of contract: UE in the precontractual period"

Hedley, "UE: Tiger or jackal?"

Jaffey, "UE claims arising on the termination of a valid contract"

Maher, "UE and the problems of jurisdiction, characterisation and

applicable law"

Mitchell, "Contribution and recoupment"

O'Dell, "The nature of quantum meruit"

Rose, ""The right to maritime salvage reward"

Smits, "The inner relationship betwen UE, negotiorum gestio and implied

contract"

Waddams, "UE and the law of contract"

Worthington, "The justifications for catching secondary profits"



For further info contact:



Mrs Pam van't Hof

Phoff@jur.uva.nl

+31 20 525 34 07



or



Mrs Maaike Nagel

+31 20 525 39 29



                                       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 m1rassernot@aol.com Sat Jul 15 21:43:11 2000

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>From lionel.smith@law.oxford.ac.uk Mon Jul 17 10:35:25 2000

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Date: Mon, 17 Jul 2000 10:35:31 +0100

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From: Lionel Smith <lionel.smith@law.oxford.ac.uk>

Subject: juristic reasons and administratrivia

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I was away Wednesday to Saturday, and on my return was pleased to see 

that such a vigorous theoretical debate has been occurring on the 

RDG. In the shameless plug category, Butterworths Canada will, any 

day now if it has not already, publish a special issue of the Supreme 

Court Law Review entitled "Ruled by Law: Essays in Memory of Mr. 

Justice John Sopinka." (vol 12, SCLR (2d); ISBN 0-433-42418-4). One 

article in there is called "The Mystery of Juristic Reason" and it 

looks at whether common law Canada has really embraced a civilian 

orientation in looking for a 'juristic reason' for enrichments. The 

argument in the paper is that it has not done so, but remains 

undecided. The paper then goes on to argue that there are good 

theoretical reasons for retaining the traditional common law 

orientation, of looking for reasons for reversing enrichments. I will 

not bore the group with any more detail, except to pass on the 

observation that the only occurrence of the phrase "juristic reason" 

which I could find before its appearance in Pettkus v Becker in 1980 

was in the speech of Lord Simon in DPP v Majewski [1977] AC 443, 478. 

In the same volume is an article by Stephen Waddams called "Breach of 

Contract and the Concept of Wrongdoing" which examines the status of 

a breach of contract. Professor Waddams concludes that while breach 

of contract is a wrong, it does not therefore follow that it 

generates the same remedial consequences as other wrongs. The other 

articles are also on private law issues.



In the administration category, the recent flurry of discussion 

generated a couple of messages which bounced to me as non-member 

submissions, even though they are from subscribers, because the 

address subscribed was in some way different to the address which the 

posting was designated as "from". Majordomo is very literal about 

these things and it does not know about all of your email aliases 

(which even you may not know about). If ever your email address 

changes (which includes changing the "return" address in your mailer 

settings), no matter how slightly, this problem will arise. My 

general policy will be to approve the message, unsubscribe your 

current address, and subscribe the one your bounced message came 

from. The consequences for members are (a) there will be a delay in 

the appearance of your posting, the length of which depends entirely 

on how quickly I get the bounced message, and therefore is longer if 

I am away; (b) you will get a "welcome to the RDG" message which 

might seem rather mysterious. The only general way to avoid all of 

this is if ever your "from" addresss changes, to effect the 

subscribe/unsubscribe procedure before the problem appears at the 

time of your next posting. If you need help just let me know. In fact 

you will need my help to subscribe or unsubscribe any address other 

than the one you are writing from. Note also the implications if you 

sometimes use a different mail server and address altogether, eg some 

people use a web-based mail program when on the road. Any postings 

from that are likely to be bounced. The only solution I suppose is to 

subscribe both addresses to the RDG, but then you will get double 

helpings of postings. All of this is also by way of explaining that I 

will now try to approve some messages which were bounced during my 

absence, which may appear more or less out of place as they were 

replying to postings which are now a few days old.



And finally: some RDG members will know that my family and I are 

moving to Montreal and that I will be taking up a post at McGill. We 

are only ten days away from moving. My plan is to allow the RDG to 

run here in Oxford during August, when I will have only intermittent 

email access (so NB the earlier comments about delays in approving 

bounced messages). Toward the end of August or early September I will 

be seeking to effect the RDG's second migration, to a server at 

McGill. I am hopeful that the move will be quite seamless and I will 

keep you up to date. The main difference will be, of course, that the 

address for making a posting will be different. There will be one 

twist, which is that at McGill they do not use Majordomo software but 

rather LISTSERV, a different package for the same function. If you 

ever use any of the majordomo commands, then you will have to learn a 

different command set. I will point everybody to online documentation 

about this nearer the time.



Lionel





>From lionel.smith@law.oxford.ac.uk Mon Jul 17 10:37:47 2000

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approved: kempsonhouse

From: Tang Hang Wu <lawthw@nus.edu.sg>

Subject: RE: Questions re "Equity, Conscience, and UE"





Taxonomy



On a fundamental level,  I have no objections to an adoption of a loose

taxonomy for the sake of convenience.  However, I do take issue when such a

taxonomy is elevated into a categorical truth (see P Birks "Property and

Unjust Enrichment: Categorical Truths" [1997] NZLRev 623).  I think it's

unhealthy when any dissent from Birks' taxonomical model is automatically

seen as a heresy and a categorical error (see W Swadling "What Is The Law of

Restitution About?  Four Categorical Errors" in WR Cornish (ed.),

Restitution Past Present and Future (Hart Publishing, 1998).





Further, Birks makes many references to Darwin on the importance of

taxonomy. Birks' classification is essentially derived from Roman Law.

However, the equation between Gaius and Darwin has been challenged by Prof

Geoffrey Samuel in 49 ICLQ 297 "Can Gaius really be compared to Darwin".  I

find Prof Samuel's thesis compelling i.e.  that the crucial difference

between a legal classification and a zoological classification is that the

former is incapable of being verified empirically while the latter is

capable of being verified.  Thus, Birks' assertion that "a sound taxonomy"

is an antidote to precision and clarity is an unproven assertion.  More

importantly, as any legal taxonomy is incapable of being verified

empirically, it would therefore be possible to argue that Birks' taxonomical

structure is subjective in nature.



With respect, it is my opinion that it is not prudent to import a term such

as taxonomy with a highly specialized meaning from another discipline

without considering the implications as such. The main criticism of adopting

such a taxonomy is (as pointed out by Prof JD Davies) that it promotes

artificiality.  This argument will be developed below vis-a-vis

characterisation of an equitable interest.





Birks' characterisation of an equitable interest



In Birks' world, all equitable interests are inert.  So even if a person can

point to a particular property and say "That thing is mine!" in equity, that

person's equitable interest is inert.  According to Birks', equity's

vindicatio is given teeth by the recognition of a subsidiary obligation to

restore the res.  This subsidiary obligation to restore the res is

categorised among "various other events".



It is my contention that such a manner of characterisation does not give the

notion of an equitable interest enough credit.  Grantham & Rickett in

"Property and Unjust Enrichment: Categorical Truths or Unnecessary

Complexity" [1997] NZLRev 668 have pointed out such a manner of

characterisation renders property impotent. Virgo has also in numerous

articles and in his new book "Principles of the Law of Restitution" taken a

similar position.  To say that equity's vidicatio is inert is to

sub-consciously place the law of obligations ahead over an equitable

proprietary interest.



Further, I would also argue that to have a category known as "others" or

"various other events" as a causative factor is not saying very much.  How

does having a catch all category known as "others" or "various other events"

promote clarity in thinking?



Finally, the recent House of Lords case in Foskett v. McKeown [2000] 2 WLR

1299 poses a serious challenge to Birks' taxonomical structure.  To recap

the facts, a rogue trustee took monies from certain beneficiaries and used

part of the monies to service an insurance policy.  The rogue trustee

committed suicide later and not surprisingly the beneficiaries claimed for a

proportionate share of the proceeds of the policy.  The House in a decision

that split the Law Lords 3-2 ruled that the beneficiaries was so entitled.

However, what was extremely interesting in that case was that 4 of the Law

Lords (Lord Browne-Wilkinson, Lord Millet, Lord Hoffman and Lod Hope of

Craighead) emphatically said that this claim was based on the vindication of

the the purchasers' equitable interest and not a claim based on unjust

enrichment. Thus, it is my contention that this decision proves what

Grantham, Ricketts and Virgo has been arguing all along: that at the very

least a pre-existing equitable interest is a causative factor.  I think

Chambers is absolutely correct when he says that causative events such as

wrongdoing may generate property rights.  Thus, in most cases property

rights is a response as defined by Birks.   However, at the same time it

must be recognised that a pre-existing equitable interest may also act as

causative factor as demonstrated by Foskett v. McKeown.  To consign this

into a category known as "others" does not do a pre-existing equitable

interest justice.  Further, the confusion that reigned in the House in

Foskett v. McKeown on whether this was a claim in unjust enrichment or a

vindication of an equitable interest shows that perhaps it is better to

recognise a pre-existing equitable interest as a causative factor alongside

"consents", "wrongs", "unjust enrichment" and "others"





Tang Hang Wu

National University of Singapore

Faculty of Law





>From lionel.smith@law.oxford.ac.uk Mon Jul 17 10:43:23 2000

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From: Lionel Smith <lionel.smith@law.oxford.ac.uk>

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approved: kempsonhouse

From: "Robert Stevens" <robert.stevens@law.oxford.ac.uk>

Subject: Questions on Prof. Birks' "Equity, Conscience, and Unjust 

Enrichment".



"The concept of an unjust factor may admittedly be on the way out

now after Kleinwort Benson v Lincoln City Council, given that I can count

on the fingers of one hand the number of people who agree with me that the

bank was mistaken and deserved relief on that basis."



Well, I can think of three members of the House of Lords. Add you, me and

Professor Finnis and we have more than a fist.



"I am not myself impressed by the term unjustified

enrichment."



It does not matter very much, if at all, but I would prefer unjustified for

the reasons given by Professor Tettenborn. "Unjust" might mean "unfair" or

"unjustified". We are not dealing with the law of "unfair" enrichments.

English law seems to require it to be shown that there is a positive reason

why the defendant's enrichment is unjustified. Before moving to a different

system I would want to be given some examples of where English law leads to

unacceptable results.



"Void contracts for instance do not attract relief simply

because they are void. The fact that the contract is void is entirely

neutral as to the result that ought to follow. An example of this must be

the passage of property....we know

property can pass under illegal contracts which are void."



I agree but I don't think that this can be proven quite so easily. It might

be that the rule is that restitution should always be awarded (or property

should not pass) where a contract is void but that this is subject to

exceptions (e.g. illegality). Professor Treitel, for one, seems to think

that this is correct.

R





>From gordon.goldberg@buckingham.ac.uk Mon Jul 17 11:54:20 2000

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From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>

To: "Tang Hang Wu" <lawthw@nus.edu.sg>

Cc: <restitution@maillist.ox.ac.uk>

Subject: RDG: Questions re "Equity, Conscience, and UE"

Date: Mon, 17 Jul 2000 11:46:54 +0100

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¶    "Thus, in most cases property rights is a response as defined by Birks.

However, at the same time it must be recognised that a pre-existing

equitable interest may also act as causative factor as demonstrated by

Foskett v. McKeown."

¶    I am not acquainted with Prof. Birks' definition; but, on their plain,

meaning I believe your proposition  to have the support of Co. Litt. 345b,

in the statement, "But legally this word (Title) includeth a right also, as

you shall perceive in many places in Littleton: and title is the more

generall word; for every right is a titleTitulus est justa causa possidendi

quod nostrum est".*



________

*Title is the lawful cause of possessing what is ours. In my submission,

this embodies the distinction between "title" and "property", which Chalmers

implicitly drew in the Sale of Goods Act 1893 and which (rather than any of

the reasoning in the House of Lords or the Court of Appeal) is the true

explanation of the decision in National Employers Insurance v. Jones [1990]

1 A.C. 24.

-----Original Message-----

From: Tang Hang Wu <lawthw@nus.edu.sg>

Date: 17 July 2000 10:38

Subject: RDG: RE: Questions re "Equity, Conscience, and UE"





>

>Taxonomy

>

>On a fundamental level,  I have no objections to an adoption of a loose

>taxonomy for the sake of convenience.  However, I do take issue when such a

>taxonomy is elevated into a categorical truth (see P Birks "Property and

>Unjust Enrichment: Categorical Truths" [1997] NZLRev 623).  I think it's

>unhealthy when any dissent from Birks' taxonomical model is automatically

>seen as a heresy and a categorical error (see W Swadling "What Is The Law

of

>Restitution About?  Four Categorical Errors" in WR Cornish (ed.),

>Restitution Past Present and Future (Hart Publishing, 1998).

>

>

>Further, Birks makes many references to Darwin on the importance of

>taxonomy. Birks' classification is essentially derived from Roman Law.

>However, the equation between Gaius and Darwin has been challenged by Prof

>Geoffrey Samuel in 49 ICLQ 297 "Can Gaius really be compared to Darwin".  I

>find Prof Samuel's thesis compelling i.e.  that the crucial difference

>between a legal classification and a zoological classification is that the

>former is incapable of being verified empirically while the latter is

>capable of being verified.  Thus, Birks' assertion that "a sound taxonomy"

>is an antidote to precision and clarity is an unproven assertion.  More

>importantly, as any legal taxonomy is incapable of being verified

>empirically, it would therefore be possible to argue that Birks'

taxonomical

>structure is subjective in nature.

>

>With respect, it is my opinion that it is not prudent to import a term such

>as taxonomy with a highly specialized meaning from another discipline

>without considering the implications as such. The main criticism of

adopting

>such a taxonomy is (as pointed out by Prof JD Davies) that it promotes

>artificiality.  This argument will be developed below vis-a-vis

>characterisation of an equitable interest.

>

>

>Birks' characterisation of an equitable interest

>

>In Birks' world, all equitable interests are inert.  So even if a person

can

>point to a particular property and say "That thing is mine!" in equity,

that

>person's equitable interest is inert.  According to Birks', equity's

>vindicatio is given teeth by the recognition of a subsidiary obligation to

>restore the res.  This subsidiary obligation to restore the res is

>categorised among "various other events".

>

>It is my contention that such a manner of characterisation does not give

the

>notion of an equitable interest enough credit.  Grantham & Rickett in

>"Property and Unjust Enrichment: Categorical Truths or Unnecessary

>Complexity" [1997] NZLRev 668 have pointed out such a manner of

>characterisation renders property impotent. Virgo has also in numerous

>articles and in his new book "Principles of the Law of Restitution" taken a

>similar position.  To say that equity's vidicatio is inert is to

>sub-consciously place the law of obligations ahead over an equitable

>proprietary interest.

>

>Further, I would also argue that to have a category known as "others" or

>"various other events" as a causative factor is not saying very much.  How

>does having a catch all category known as "others" or "various other

events"

>promote clarity in thinking?

>

>Finally, the recent House of Lords case in Foskett v. McKeown [2000] 2 WLR

>1299 poses a serious challenge to Birks' taxonomical structure.  To recap

>the facts, a rogue trustee took monies from certain beneficiaries and used

>part of the monies to service an insurance policy.  The rogue trustee

>committed suicide later and not surprisingly the beneficiaries claimed for

a

>proportionate share of the proceeds of the policy.  The House in a decision

>that split the Law Lords 3-2 ruled that the beneficiaries was so entitled.

>However, what was extremely interesting in that case was that 4 of the Law

>Lords (Lord Browne-Wilkinson, Lord Millet, Lord Hoffman and Lod Hope of

>Craighead) emphatically said that this claim was based on the vindication

of

>the the purchasers' equitable interest and not a claim based on unjust

>enrichment. Thus, it is my contention that this decision proves what

>Grantham, Ricketts and Virgo has been arguing all along: that at the very

>least a pre-existing equitable interest is a causative factor.  I think

>Chambers is absolutely correct when he says that causative events such as

>wrongdoing may generate property rights.  Thus, in most cases property

>rights is a response as defined by Birks.   However, at the same time it

>must be recognised that a pre-existing equitable interest may also act as

>causative factor as demonstrated by Foskett v. McKeown.  To consign this

>into a category known as "others" does not do a pre-existing equitable

>interest justice.  Further, the confusion that reigned in the House in

>Foskett v. McKeown on whether this was a claim in unjust enrichment or a

>vindication of an equitable interest shows that perhaps it is better to

>recognise a pre-existing equitable interest as a causative factor alongside

>"consents", "wrongs", "unjust enrichment" and "others"

>

>

>Tang Hang Wu

>National University of Singapore

>Faculty of Law

>

>___________________________________________________________________________

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>







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To: restitution@maillist.ox.ac.uk

From: eodell@tcd.ie (Eoin O' Dell)

Subject: The cure for multi-causal restitution



Hello all,



The recent vigorous debate on this list has discussed many important

structural and taxonomic matters.  Mentioned in passing has been Prof

Birks' recanting of the perfect quadration of restitution and unjust

enrichment, his conversion to the multi-causal nature of the response of

restitution, and his consequent espousal of unjust enrichment as an

appropriate for the subject.  Let me take up that point by means of quoting

an extract from something I've just written:



______________________________ Begin Extract _______________________________=

__

Just as the courts have rejected the implied contract fiction and begun to

coalesce around a vision of a law of restitution founded upon =8A the

principle against unjust enrichment, academic debate has, almost

inevitably, begun to call it into question. For example, Birks, whose work

was so influential in the developments sketched above, was once of the view

that "Restitution and unjust enrichment identify exactly the same area of

law. The one term quadrates with the other".[fn96] That is, if the cause of

action is the unjust enrichment of the defendant at the expense of the

plaintiff, the remedy is restitution to the plaintiff from the defendant of

the amount of that unjust enrichment. However, he has since recanted of

this quadration. He now[fn 97] believes that restitution in the sense of

giving back can be a response to an obligation arising not only from an

unjust enrichment but also from consent (as where the defendant agreed to

the return), and from a wrong (because restitution for the wrong is a

consequence of the law relating to the wrong itself),[fn 98] so that to

confine the meaning of the word "restitution"[fn 99] to a response to

unjust enrichment is to ignore that the natural meaning of the word

restitution can include the other responses he identifies. For him, the

remedy for this instability is to adopt "unjust enrichment" as a more

appropriate title for the subject than restitution. This, unfortunately,

muddies waters which have only recently begun to run clear. The stability

which Birks requires of the phrase "unjust enrichment" is illusory,

because, though Birks would deny this, the phrase "unjust enrichment" can

be used in the law in manners which are neither pejorative nor as

substantively precise as he would insist; indeed, there is a spectrum[100]

along which lie various visions of unjust enrichment, from the very

technical descriptive principle advocated by Birks and adopted by the

Irish, English and Australian courts, through the slightly more

open-textured prescriptive principle adopted by the Canadian courts, and

the related but less technical understandings of the principle,[fn101]

often expressed in 'equitable' terms,[fn 102] to much looser senses[fn 103]

and ultimately to pejorative dismissals of unfettered palm tree justice or

worse. If the word "restitution" is, as Birks puts it, multi-causal, then

the phrase "unjust enrichment" is equally multi-faceted. In both cases,

there are many possible meanings, and the law seems to have chosen one

meaning in each case; so that the phrase "unjust enrichment" describes a

cause of action for which the word "restitution" describes its remedy.[fn

104] In so doing, it would simply be another example of the law ascribing

to words stable legal definitions which differ in some way either from

their meanings in ordinary speech or from other legally plausible meanings.

Though the natural meaning of restitution might extend beyond unjust

enrichment, and the possible usage of unjust enrichment might in its turn

extend beyond restitution, nevertheless, their overlap indisputably defines

a relatively stable field of the law of obligations. It is not now

necessary to undo what has only recently been done, and done well.





96.  Birks, p 17.



97.  See, eg, Birks "Misnomer" in Cornish, Nolan, O'Sullivan and Virgo

(eds) Restitution. Past, Present and Future (Hart Publishing, Oxford, 1998)

p 1; Birks "The Law of Unjust Enrichment: A Millennial Resolution" [1998]

Singapore JLS  318; Birks "Equity, Conscience and Unjust Enrichment" (1999)

23 Melb ULR 1; Birks "The Law of Restitution at the End of an Epoch" (1999)

28 UWALR 13; see also Swadling "What is the Law of Restitution About: Four

Categorical Errors" in Cornish, Nolan, O'Sullivan and Virgo (eds)

Restitution. Past, Present and Future (Hart Publishing, Oxford, 1998) p

331. However, (inevitably ?), this recantation has proved controversial;

see, eg, Tettenborn "Misnomer - a Response to Professor Birks" in in

Cornish, Nolan, O'Sullivan and Virgo (eds) Restitution. Past, Present and

=46uture (Hart Publishing, Oxford, 1998) p 32; McInnes "Restitution, Unjust

Enrichment, and the Perfect Quadration Thesis" [1999] RLR 118.



98.  In fact, Birks argues that as a matter of taxonomy, the law of

obligations divides into four: those obligatinos which arise from consent,

wrongs, and unjust enrichment, and those which fall into a fourth

miscellany; for him, the doctrines which protect the reliance interest at

common law identified at various points in this comment (see, eg, text with

and in nn 123-126 below) provide an example within this fourth category.

Consistently with his view that restitution can be a response to an

obligation arising not only from an unjust enrichment but also from consent

and from a wrong, he also argues that it can be a response to events in the

miscellany: see, eg, his discussion of Macmillan v Bishopsgate Investment

Trust (No 3) [1996] 1 All ER 585 (CA) in Birks "Property and Unjust

Enrichment: Categorical Truths" [1997] NZLR 623 (on this piece, see also n

108 below).



99.  That is, restitution at private law; alternative legal usages of the

word restitution in family law and criminal law are not in issue here.



100. 	See, generally, Deitrich Restitution. A New Perspective (Federation

Press, Sydney, 1998) pp 10-17; and Virgo pp 6-10, 49-55.



101. See, eg, Friedmann "Valid, Voidable, Qualified and Non-Existing

Obligations: An Alternative Perspective on the Law of Restitution" in

Burrows (ed) Essays on the Law of Restitution (Oxford, 1991) p 247,

distinguishing between technical and related non-techical usages of the

phrase "unjust enrichment".



102. This may be what Lord Clyde had in mind in Banque Financi=E8re de la

Cit=E9 v Parc (Battersea)  [1999] 1 AC 221 (HL) when he said that "the

principle of unjust enrichment =8A is equitable in the sense that it seeks t=

o

secure a fair and just determination of the rights of the parties concerned

in the case" ([1999] 1 AC 221, 237; though it shoud be noted that in the

same case, Lord Steyn and Lord Hoffmann took the more precise technical

approach; see text with and in n 69 above).



103. An excellent example of such a looser usage is provided by Prof

Atiyah. Writing in 1979, when he perceived "little sign =8A of any

wholehearted acceptance by English lawyers of a new branch of the law

entitled the Law of Restitution, and based on unjust enrichment ideas" Prof

Atiyah saw the notion of unjust enrichment as simply "an important

underlying idea =8A operating interstitially in all branches of the law"

(Atiyah The Rise and Fall of Freedom of Contract (Oxford, 1979) p 768);

however, the argument in the text is that decisions in the House of Lords,

as well as the Supreme Court of Canada, the High Court of Australia, and of

course the Irish Supreme Court, demonstrate that this view has been

overtaken by just such an acceptance.



104. Or, perhaps more accurately, the word "restitution" describes that

pattern of its various remedies. For an important discussion of

restitutionary remedies, arguing that a distinct remedial focus, when

placed in constructive partnership with the existing debate about causes of

action arising from unjust enrichment, can be a fertile source of

understanding about the nature and content of restitutionary rights, see

Barker "Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are

Right" [1998] CLJ  301.



______________________________  End Extract  _______________________________=

__





The extract is from O'Dell "Bricks and Stones and the Structure of the Law

of Restitution" (1998) 20 DULJ (ns) 101, 119-121. Though it has a nominal

1998 publication date, it has in fact only recently been published as part

of rescue operation for the DULJ. And now for the shameless plug. In

"Bricks and Stones ..." I consider at inordinate length length the

Bricklayers' Hall case [1996] 1 IR 468; [1996] 2 ILRM 547 (SC); [1996] RLR

=DF 134, and conclude that, in many ways, the case is modern re-run of Moses

v Macferlan (1760) 2 Burr 1005; 97 ER 976. In the forthcoming RLR, I

summarize the article as follows:



The author argues that the judgments of Budd J at first instance and of

Keane J on appeal are of the first importance, not only in Ireland but in

the common law world, for the development of the law of restitution based

upon a principle against unjust enrichment, the genesis of which is often

traced back to the judgment of Lord Mansfield in Moses v Macferlan. And

those judgments have done much to clarify the ambit of res judicata as a

defence to a claim, not only in restitution, but more generally in the law.

Though there were other routes which they could have chosen to take, which

the author discusses [and it is in this discussion that the above extract

appears] and rejects, the judgments in the Bricklayers' Hall case establish

that the signposts on the current route pose four enquiries which are then

applied in the article to the case itself, concluding that the enrichment

was unjust because the overpayment was both a mistaken payment and one in

respect of a consideration which had failed. The author argues that these

conclusions point the way to the development of the action for mistake to

reach mistakes of law, and to the development of the action for failure of

consideration to reach partial failures and non-contractual bases, and that

important theoretial and practical differences justify treating them as

separate causes of action. In the High Court, Budd J considered that change

of position could have provided a defence, and his judgment raises the

prospect, considered by the author, that Irish law recognises a

justice-related rather than a more limited and more principled

enrichment-related version of the defence. In the Supreme Court, the claim

was dismissed for res judicata, but the author argues that cause of action

estoppel, issue estoppel, estoppel by omission, and abuse of process,

properly did not apply on the facts either of the Bricklayers' Hall case or

of Moses v Macferlan, though public policy or the defence of enrichment

pursuant to obligation would seem to justify the dismissal of the

plaintiff=EDs claim in the Bricklayers=ED Hall case. Finally, in the High

Court, Budd J seemed to hold that the defendant would hold the unjust

enrichment on constructive trust for the plaintiff, but the author argues

that unjust enrichment would have given rise simply to a personal

obligation to make restitution, that there must be something more (such as

the Westdeutsche formulation ([1996] AC 669 (HL) 705 per Lord

Browne-Wilkinson)) or something else (such as a resulting trust) to justify

a proprietary obligation to hold the sum on trust, and that it is an open

question whether such an additional matter was properly to be found in the

remedial constructive trust either in principle or on the facts.



If this summary has whetted anyone's appetite, I'll happily send an

offprint in reply to a request, though given my usual degree of efficiency,

this should read that I'll happily *eventually* send an offprint in reply

to a request. In any event, the point of the message is to prompt

discussion of the multi-causal nature of the word "restitution", the

equally multi-faceted nature of the phrase "unjust enrichment", and the

stability to be obtained not by focussing on one or the other, but upon

their overlap.



Best



Eoin.



EOIN O'DELL

Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland

(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m); eodell@tcd.ie

(All opinions are personal. No legal responsibility whatsoever is accepted.)









>From lionel.smith@law.oxford.ac.uk Mon Jul 17 12:43:20 2000

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who restitution





>From gordon.goldberg@buckingham.ac.uk Mon Jul 17 12:49:27 2000

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From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>

To: "Tang Hang Wu" <lawthw@nus.edu.sg>

Cc: <restitution@maillist.ox.ac.uk>

Subject: Fw: Questions re "Equity, Conscience, and UE"

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¶    You wrote, "Thus, in most cases property rights is a response as

defined by Birks. However, at the same time it must be recognised that a

pre-existing equitable interest may also act as causative factor as

demonstrated by Foskett v. McKeown."

¶    I am not acquainted with Prof. Birks' definition; but, on their plain,

meaning I believe your sentences to have the support of this passage in Co.

Litt. at 345b, "'Right' Jus sive rectum(1) (which Littleton often useth)

signifieth properly, and specially in writs and pleadings, when an estate is

turned to a right, as by discontinuance, disseisen, &c ... Title, properly,

(as some say) is, when a man hath a lawfull cause of entry into lands

whereof another is seised, for the which he can have no action, as title of

condition, title of mortmaine, &c. ... But legally this word (Title)

includeth a right also, as you shall perceive in many places in Littleton:

and title is the more generall word; for every right is a title, but every

right is not such a right for which an action lieth; and thereforeTitulus

est justa causa possidendi quod nostrum est(2), and signifieth the means

whereby a man cometh to land , as his title is by fine, feoffment, &c."

¶    I understand Coke to be defining "right" as something to be declared or

enforced by the court (or, indeed, as a right to sue or a cause of action)

on proof of "title", so that until the "title" be challenged by some wrong

doing, actual or fictitious (including collusive, as by fine), so as to give

a claimant locus standi and the court jurisdiction, there would be no

"right" but only "title".

________



1. "Jus" and "rectum" are the two Latin expressions which may be translated

as "right" in the sense in which Coke is using that word.

2. The Latin means, "Title is the lawful cause of possessing what is ours."

In my submission, this embodies the distinction between "title" and

"property", which Chalmers implicitly drew in the Sale of Goods Act 1893 and

which (rather than any of the reasoning in the House of Lords or the Court

of Appeal) is the true explanation of the decision in National Employers

Insurance v. Jones [1990] 1 A.C. 24.







>From coenchri@ruf.uni-freiburg.de Mon Jul 17 14:04:02 2000

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To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>,

        restitution@maillist.ox.ac.uk

Subject: Re: RDG: Re: Questions on Prof. Birks' "Equity, Conscience, and Unjust  

 Enrichment"

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I am grateful to Duncan Sheehan for raising a number of issues which

have been on my mind recently, but which I would not have been able to

express as clearly.



First of all, I agree that, for spontaneous gifts, "is a lot harder to

see why having a two stage test is better than having a one stage test,

where all we need to say is mistake therefore recovery, rather than

mistake therefore void, therefore recovery", and this is certainly one

of the advantages of the "unjust factors" approach over the "absence of

legal ground" approach. I would add that the "unjust factors" approach

may also be simpler in cases where there is pre-existing liability.

Imagine, for example, that you are induced to enter into a contract by

means of a fraudulent misrepresentation. Generally speaking, if you have

not yet performed, you can rescind the contract and thus get out of the

contract; if you have performed, you can rescind the contract and get

back what you have paid. The symmetry is justified by the fact that, as

Virgo says, the personal right of receiving performance under the

(executory) contract is also a benefit which is subject to the

restitutionary remedy of rescission. Under the German approach, two

different remedies would be needed: para. 123 BGB to get out of the

contract and para. 812 to get your money back once the contract is

rescinded. Of course, the symmetry breaks down in the case of mistake

because different criteria apply to whether you can get out of a

contract by reason of a mistake or whether you can recover money paid

under a mistake outside of a contractual relationship (and, not

surprisingly, this is the area on which Meier and Zimmermann concentrate

in their critique of English law). Nevertheless, it may serve to

illustrate why I think the "unjust factors" approach is the more

intuitive one.



I also agree with Duncan Sheehan that there is no metaphysical

distinction between mistakes which affect our intention to give and

those which do not, and in my view this is one of the major flaws in

Meier's argument. Whether to allow recovery or not is a policy question

which depends on many factors. I do not think that you can isolate

distinct classes of mistake as grounding recovery or not; rather it

seems to me that the distinction is made after the fact, after you have

already decided on the question of recovery.



To put the same point more generally, I am skeptical about whether there

is really any one single and simple formula to which the question of

whether recovery will be granted can be reduced, and from it will then

be possible to deduce solutions to all possible case scenarios. Such

"Begriffsjurisprudenz" always seems to be a bit dangerous to me. In the

end, I find it difficult to go beyond the fairly trivial proposition

that whenever you pay anything to someone else, promise anything or

perform any other kind of service, you run the risk that you may not

achive what you intended by it (and, of course, you will generally be

pursuing a whole bundle of intentions). Some of the risk will be borne

by you, but the law will place some of it on the shoulders of the

recipient of whatever it was that you did. In the latter case, English

law will speak of "unjust factors" whereas German law will speak of

"ungerechtfertigte Bereicherung"; but really these are just shorthand

terms for certain ways of allocating these risks. Different legal

systems will agree in the allocation of certain risks (for example, you

will generally be able to obtain relief for fraud under virtually all

legal systems) but disagree elsewhere (for example, under German law you

may rescind gifts if you happen to become impoverished within ten years

of making them or if the recipient shows gross ingratitude, whereas

English law places such risks squarely on the shoulders of the donor).

Concepts such as "unjust factors" and "absence of legal ground" are

important heuristically, as tools to organise the case law and to make

it easy to find reasonable solutions to problems, but neither of them

offers any privileged access to any higher reality, and if the law in

this area is to develop (and perhaps even to achieve a certain degree of

international unification) it would probably be more rewarding to

concentrate on discussion of the underlying risk allocation. Or is this

too wide and too unspecific a concept to serve any useful purpose in

this context?



Christoph Coen

Freiburg University, Germany





>From gordon.goldberg@buckingham.ac.uk Tue Jul 18 15:10:27 2000

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From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>

To: "Allan AXELROD" <axelrod@andromeda.rutgers.edu>

Cc: <restitution@maillist.ox.ac.uk>

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and UnjustEnrichm ent".  

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The reference to Enc.Brit should have been to vol. 1, not 15. I beg your

pardon for the error. Copied hereunder is information which a former

colleague, Owain Blackwell, has given me:-



First, a quotation from an article entitled 'Black Ivory' by

Charlotte and Denis Plimmer.



'To maintain a steady supply of of slaves to the factories, the African

chieftains used every means possible, from all-out war on neighbouring

tribes to the kidnapping of isolated individuals. Francis Moore, a factor

on the Gambia River, recorded how the King of Barsally, one of the 19

chiefs with whom he dealt, would from time to time send to the English fort

for brandy or rum.



To pay for it, he "attacks enemy Towns, seizing the People and selling them

.... In case he is not at War . . . he falls on one of his own Towns ....

He often goes out with some of his Troops by a Town . . . and sets Fire to

three parts of it, placing Guards at the fourth to seize the People that

run out of the Fire, and ties their arms behind them . . . and sells them."



Initially, slaves were generally prisoners of war. But since periods of

peace brought scarcity, rulers began to sell their own convicted felons,

too.



Not surprisingly, felonies multiplied, both in number and kind. One

tribesman was sold for stealing a tobacco pipe. Another, who accidentally

killed a man while shooting at a leopard, was not only himself sold, but so

were his mother, three brothers and three sisters. Royal wives could be

sold if caught in adultery; so it became profitable for monarchs to marry

scores of girls, leave them unhusbanded and count on their natural urges to

turn them into adulteresses. Kings sometimes discovered "treasonous" plots

and roun-ded up enormous numbers of "plotters" -invariable young, strong

and, in slavers' terms, "prime meat."



A good illustration of the existence of the tribal slave trade and the

importance of Somerset v. Stewart can be found in the case of Olaudah

Equiano. I will

not spoil the story, but rather ask you to contact

http://www.pbs.org/wgbh/aia/part1/1p276.html





-----Original Message-----

From: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>

To: Allan AXELROD <axelrod@andromeda.rutgers.edu>

Cc: restitution@maillist.ox.ac.uk <restitution@maillist.ox.ac.uk>

Date: 14 July 2000 17:03

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and

UnjustEnrichm ent".





>Was it just the white folks? According to my fading memories both of

>"TheThousand and One Nights' Entertainment" and of what I was taught of the

>history of the slave trade in the 18th and 19th centuries, it was okay also

>with the black peoples and the Arabs. Cf. 15 Enc. Brit. (15th edn, Chicago

>1988) 132.3b.

>

>-----Original Message-----

>From: Allan AXELROD <axelrod@andromeda.rutgers.edu>

>To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

>Cc: Neyers, Jason (JUS) <Jason.Neyers@jus.gov.on.ca>;

>'restitution@maillist.ox.ac.uk' <restitution@maillist.ox.ac.uk>

>Date: 13 July 2000 20:27

>Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and

>UnjustEnrichm ent".

>

>

>>

>>

>>

>>On Wed, 12 Jul 2000, Duncan Sheehan wrote:

>>

>>>

>> I imagine that in English

>>> law title is most obviously generated by consent.

>>

>>original title in slaves was generated by discovery plus

>>consent---

>>

>> it was okay with the other

>>white folks

>>

>>

>>__________________________________________________________________________

_

>_____ 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 lionel.smith@law.oxford.ac.uk Tue Jul 18 16:13:27 2000

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Date: Tue, 18 Jul 2000 16:13:34 +0100

To: restitution@maillist.ox.ac.uk

From: Lionel Smith <lionel.smith@law.oxford.ac.uk>

Subject: Restitution Law Review

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Getting back to restitution, many RDG members will know that the=20

Mansfield Press, publisher of the Restitution Law Review, is now an=20

imprint (or something like that) of LLP Professional Publishing=20

(formerly, I think, Lloyds of London Press).



=46or 2000 the RLR has been changed to a quarterly format. Part 2 came=20

out in June and has four articles, four notes and a book review. I=20

have not had sight of Part 1. I presume that the annual digests will=20

be in either or both of Part 3 or Part 4.



The table of contents for Part 2:

J Edelman, "Restitutionary Damages and Disgorgement Claims for Breach=20

of Contract"

M Brown, "Suretyship and Marriage: Notice v. Unconscionability"

S Degeling, "Carers' Claims: Unjust Enrichment and Tort (Law Com No 262)"

G Goldberg, "Certain Contemporary Confusions Concerning=20

Consideration, a Common Count and Conversion"

M Bryan, "Where Constitutional Basis for Payment has Failed" (note on=20

Roxborough v Rothmans)

J Edelman, "Assessing Damages for a Breach of Confidence" (note on=20

Cadbury Schweppes v FBI Foods)

K Dharmananda and T Oelsner, "The UN Compensation Commission's=20

Consideration of Damages in the Context of Gain"

N Enonchong, "Restitution Following Illegal Fee-Sharing Agreement=20

with Solicitor" (note on Mohamed v Alaga)

C Rotherham, review of J Dietrich, "Restitution: A New Perspective"



The price has unfortunately also gone up. The rate for individual=20

academics in the UK is =A395, and somewhat higher elsewhere.



Lionel





>From axelrod@andromeda.rutgers.edu Tue Jul 18 17:26:52 2000

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From: Allan Axelrod <axelrod@andromeda.Rutgers.EDU>

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CC: Allan AXELROD <axelrod@andromeda.rutgers.edu>,

        restitution@maillist.ox.ac.uk

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and 

 UnjustEnrichm ent".

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Gordon Goldberg wrote:



> Was it just the white folks? According to my fading memories both of

> "TheThousand and One Nights' Entertainment" and of what I was taught of the

> history of the slave trade in the 18th and 19th centuries, it was okay also

> with the black peoples and the Arabs. Cf. 15 Enc. Brit. (15th edn, Chicago

> 1988) 132.3b.

>



>

> -----Original Message-----

> From: Allan AXELROD <axelrod@andromeda.rutgers.edu>\>



> >original title in slaves was generated by discovery plus

> >consent---

> >

> > it was okay with the other

> >white folks



=================

i don't know that the Arab and black slave-dealers dressed their

forceable

possessions with the language of the common law, as contrasted with the

agriculuralist slave-buyers in british north america for whose demands

the

slaves were captured and transported         their titles to first

generation slaves were acquired by purchase, and to succeeding

generations by the law of increase



  the titles lasted as long as the relevant political community

consented to what has  been called a 'peculiar institution' ---- one

which is revealing on the connections between lawyers' property law and

the social context





>From axelrod@andromeda.rutgers.edu Tue Jul 18 17:45:06 2000

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Date: Tue, 18 Jul 2000 12:43:17 -0400

From: Allan Axelrod <axelrod@andromeda.Rutgers.EDU>

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        restitution@maillist.ox.ac.uk

Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and 

 UnjustEnrichm ent".

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the brittanica article is particularly interesting in showing that  the tribal  enslavers did sometimes follow the forms of law



so,  a sound common law perspective would have recognized  the original title to the slave as having been  acquired under the law of the capturing African polity;

accordingly  the north-american institution of slavery, so far from being  an evil domestic creation  simply reflected a respectful comity



Gordon Goldberg wrote:



> The reference to Enc.Brit should have been to vol. 1, not 15. I beg your

> pardon for the error. Copied hereunder is information which a former

> colleague, Owain Blackwell, has given me:-

>

> First, a quotation from an article entitled 'Black Ivory' by

> Charlotte and Denis Plimmer.

>

> 'To maintain a steady supply of of slaves to the factories, the African

> chieftains used every means possible, from all-out war on neighbouring

> tribes to the kidnapping of isolated individuals. Francis Moore, a factor

> on the Gambia River, recorded how the King of Barsally, one of the 19

> chiefs with whom he dealt, would from time to time send to the English fort

> for brandy or rum.

>

> To pay for it, he "attacks enemy Towns, seizing the People and selling them

> .... In case he is not at War . . . he falls on one of his own Towns ....

> He often goes out with some of his Troops by a Town . . . and sets Fire to

> three parts of it, placing Guards at the fourth to seize the People that

> run out of the Fire, and ties their arms behind them . . . and sells them."

>

> Initially, slaves were generally prisoners of war. But since periods of

> peace brought scarcity, rulers began to sell their own convicted felons,

> too.

>

> Not surprisingly, felonies multiplied, both in number and kind. One

> tribesman was sold for stealing a tobacco pipe. Another, who accidentally

> killed a man while shooting at a leopard, was not only himself sold, but so

> were his mother, three brothers and three sisters. Royal wives could be

> sold if caught in adultery; so it became profitable for monarchs to marry

> scores of girls, leave them unhusbanded and count on their natural urges to

> turn them into adulteresses. Kings sometimes discovered "treasonous" plots

> and roun-ded up enormous numbers of "plotters" -invariable young, strong

> and, in slavers' terms, "prime meat."

>

> A good illustration of the existence of the tribal slave trade and the

> importance of Somerset v. Stewart can be found in the case of Olaudah

> Equiano. I will

> not spoil the story, but rather ask you to contact

> http://www.pbs.org/wgbh/aia/part1/1p276.html

>

> -----Original Message-----

> From: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>

> To: Allan AXELROD <axelrod@andromeda.rutgers.edu>

> Cc: restitution@maillist.ox.ac.uk <restitution@maillist.ox.ac.uk>

> Date: 14 July 2000 17:03

> Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and

> UnjustEnrichm ent".

>

> >Was it just the white folks? According to my fading memories both of

> >"TheThousand and One Nights' Entertainment" and of what I was taught of the

> >history of the slave trade in the 18th and 19th centuries, it was okay also

> >with the black peoples and the Arabs. Cf. 15 Enc. Brit. (15th edn, Chicago

> >1988) 132.3b.

> >

> >-----Original Message-----

> >From: Allan AXELROD <axelrod@andromeda.rutgers.edu>

> >To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

> >Cc: Neyers, Jason (JUS) <Jason.Neyers@jus.gov.on.ca>;

> >'restitution@maillist.ox.ac.uk' <restitution@maillist.ox.ac.uk>

> >Date: 13 July 2000 20:27

> >Subject: Re: RDG: Questions on Prof. Birks' "Equity, Conscience, and

> >UnjustEnrichm ent".

> >

> >

> >>

> >>

> >>

> >>On Wed, 12 Jul 2000, Duncan Sheehan wrote:

> >>

> >>>

> >> I imagine that in English

> >>> law title is most obviously generated by consent.

> >>

> >>original title in slaves was generated by discovery plus

> >>consent---

> >>

> >> it was okay with the other

> >>white folks

> >>

> >>

> >>__________________________________________________________________________

> _

> >_____ 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>.

> >>

> >

> >

> >

> >

> >

>

> ________________________________________________________________________________ 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 fefarrow@mail.smartchat.net.au Fri Jul 21 05:21:03 2000

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I wish to make a number of observations in relation to the debate

initiated by Jason Neyer's posting on 12 July 2000. One is that the

present debate provides unwitting support for Peter Birks' advocacy of

an improved taxonomy of the common law of obligations. The juridical

problems under review are fairly basic yet as we head towards the end of

the first millennium of the common law we still have great difficulty in

classifying, for example, a gift. However, in my view Birks' argument

does not go far enough. His taxonomy model is Linnaen but it is now

acknowledged in the biological sciences that an adequate taxonomy of

biological organisms has to be grounded in the principles of other

related sciences, and that taxonomy as such cannot have, ultimately, a

useful independent existence.



If the logic of those propositions is carried across to legal science it

follows that an adequate taxonomy of the (common) law of obligations

needs to be based upon expressly-stated general principles, with those

principles informing and structuring the classification and

reclassification of the doctrines and rules within the conceptual

structure of the (common) law. An example of something which comes close

to providing such a principle is Neyer's Canadian-civilian notion of

juristic cause. A more useful formulation of the principle which

juristic cause tries to express can be developed through an analysis of

the gift of an unencumbered chattel, and the principle thus developed

can in turn be applied to a number of the issues raised in the present

debate.



A gift occurs when an owner of a chattel delivers the chattel to another

in circumstances where the owner indicates to the other that he may

treat the chattel as his own. In examining that conduct it may be argued

that the owner, by his conduct, manifested an intention to abandon

irrevocably his ownership of the chattel in favour of the other person.

It may be further argued that because the courts recognise and protect

the interest in the chattel thereby acquired by the recipient the courts

recognise and apply, impliedly, the principle that whenever an owner of

an unencumbered chattel manifests by his conduct an irrevocable

intention to abandon his ownership in favour of another that intention

is binding (and enforceable). It may also be suggested that that

principle is an instance of a general principle, namely that : Whenever

a person manifests by his conduct an irrevocable intention to alter his

rights and obligations that intention is legally binding (although it

will not be enforceable in some cases unless proved pursuant to common

law or statutory formal requirements).



How is that principle applied in a case where a donor would not have

given his $1,000 to a particular charity if he had realised that an

enemy of his was on the managing board of the charity? The answer is

that such a donor is in much the same position as the buyer in Smith v

Hughes who had it in mind to buy old oats but agreed to buy oats in

accordance with a sample, in a situation where the oats in the sample

were new oats. He was held to be bound by his manifested intention to

buy new oats. It may be argued that the donor, in the case under review,

manifested by his conduct an irrevocable, unconditional intention to

abandon his ownership of the money in favour of the charity. Conversely,

it may be noted that if he did not want to give money to charities who

have board members unacceptable to him he had to check that out before

he gave his money.  Consideration also needs to be given to the case

where, under duress, A purportedly gives money to B. In such a case a

court could examine the whole of the surrounding circumstances and could

conclude that because of the duress A did not manifest an irrevocable

intention to make a gift to B. Then there is the case where a donor

mistakenly gives $1,000 to a charity instead of the $100 he had in mind

to give.  If it could be established by reference to the surrounding

circumstances that, for example, it was most improbable that a person

such as the donor could have intended to make a gift of $1,000 rather

than $100 it could be concluded that, in the circumstances, the donor

did not by his conduct manifest an irrevocable intention to give $1,000.



In turning to another potential application of the general principle in

question reference is made to a case where a payor mistakenly pays his

gas bill a second time, in circumstances where the payee does not detect

the mistake. Although such a payor may have had an ostensible intention

to discharge an obligation, it can be argued by reference to the

surrounding circumstances that he did not manifest by his conduct an

irrevocable intention to discharge an obligation to the gas company

because, as a matter of fact, he did not have one.  Furthermore, if it

is observed that because parties to an arm's length commercial

transaction do not make substantial gifts to each other, the inference

can be drawn that the payor in such a case could not have intended to

abandon irrevocably, by gift, the money paid to the gas company. It can

therefore be argued that the payee is under an obligation to repay the

money because the payor was not under an obligation to pay, and could

not have intended to make a gift.



This argument can then be developed with a Westdeutsche spin (or,

rather, an anti-Westdeutsche spin). It may be noted that in a case where

an owner of property forms an intention to create an express trust, and

transfers the property to his trustee, and tells the trustee what he has

in mind, such a transferor is under no legal obligation to transfer, nor

does he have any intention to make a gift to the transferee. On the

basis of these propositions it can be argued that what is essential in

the formation of a trust (express or otherwise) is that the transferor

is under no obligation to transfer, and the transferor does not intend

to make a gift to the transferee. It can be further argued that while a

conscious, positive intention to create a trust may be a defining

characteristic of the sub-category "express trust" it is not part of the

definition of the broader category of "the trust".



If the above propositions are correct it follows that because a mistaken

payor has not, by his conduct, manifested an irrevocable intention to

discharge an obligation, or make a gift, then he has inadvertently

created a trust (in support of this argument it is noted that the

defendant company in the Smokeball  case was held, by reference to its

conduct, to have made a contractual offer even though it had no

(subjective) intention to make a contractual offer).  However, if

Swadling's argument is correct that trust is not a resulting trust

because, on his argument, the resulting trust sub-category is defined by

a conscious intention to create a trust. However, because it can be

argued that the mistaken payor creates a trust, to that extent

Swadling's argument is irrelevant and Westdeutsche stands for nothing

more than the irrelevant proposition that a mistaken payor does not

create a resulting trust, leaving open the question as to whether he

creates an inadvertent trust. It may also be noted that Peter Birks'

counter-intuitive argument on this issue was inherently sound, but was

vulnerable because he tried to place his facts into the wrong

sub-category of the trust.



The binding intentions principle also helps us to understand the void

contract issue. If the principle is applied to an illegal gambling

agreement it can be argued that the bettor can not have have manifested

an intention, in his jurisdiction, to acquire a binding legal obligation

to pay, and hence could not have discharged such an obligation by

paying. Nevertheless, it can be inferred from the surrounding

circumstances that the bettor manifested by his conduct an irrevocable

(and lawful)  intention to make a gift to his bookmaker, in a situation

where he held a reasonable expectation that his bookmaker, if he were to

stay in business, would make a reciprocal gift, at odds, should the

bettor's horse come home. However, where a swaps contract is void

because it is ultra vires, such as in Westdeutsche, it can be argued

that the council did not manifest an intention to make a gift because

such an intention would have constituted an attempt to circumvent an

ultra vires contract, and hence the gift would also be ultra vires by

necessary implication. Because the council did not manifest an intention

to give, it follows that the bank, which can be presumed to have acted

prudently, could not have manifested an intention, in the circumstances,

to make a unilateral gift either.



The binding intentions principle also has a broad application beyond

restitution cases. For example, it is relevant to the analysis of a case

where a creditor has manifested an irrevocable intention to abandon his

right to recover in circumstances where that intention is not evidenced

by a deed under seal. The Earl of Selborne held in Foakes v Beer that

such a release is not binding because it was not by deed under seal.

Lord Blackburn was minded to dissent in that case, but did not state his

reasons. However, if reference is made to Lord Blackburn's famous

discussion of valid but  unenforceable oral contracts in Maddison v

Alderson, and if reference is also made to the binding intentions

principle, it may be argued that the informally-evidenced intention of a

creditor to release is binding, even though it is not enforceable at

common law because the release was not evidenced by, and hence cannot be

proved by, a deed under seal.



Indeed, it may be argued that the reason why the common law has not

expressly-stated the binding intentions principle, or has not adopted

the civilian concept of juristic purpose, is because, in the absence

(until the mid-nineteenth century) of the oral testimony of the parties

to a civil cause, it was not practicable to prove intentions to alter

rights and obligations in cases where that intention was manifested by

an oral statement, especially if there were no non-party witnesses

(gifts were different because the jury could establish from non-party

witnesses that the subject chattel was in the hands of the alleged donee

in circumstances where the alleged donor had acted as if he had no

objection to the donee treating the chattel as his own).  Because such

orally-stated intentions to alter rights and obligations could not be

proved, and were therefore unenforceable, there would have been little

point in setting up the theoretical proposition that an

informally-evidenced intention to release a debt was, nevertheless,

legally binding.



Strangely, what we have also lost sight of is that equity, in its role

of tempering and mitigating the rigour of the law, was concerned with

situations in which an informally-evidenced legally-binding intention to

alter rights and obligations was unenforceable at common law. The Court

of Chancery could play that role because it had adopted the

Romano-canonical rules of evidence and procedure, and because,

accordingly, the oral testimony of the parties was admissible in that

Court. Furthermore, Chancery was not bound by the common law rule that a

deed provided conclusive proof of the matters stated therein. Because of

those differences, Chancery could mitigate the rigour of the law in a

case where a debt which had been evidenced by a deed, or bond, was

repaid, and the creditor had not executed a deed of acquittance. In such

a case, the creditor could successfully sue at common law because the

debtor could not prove the repayment because of the common law rule

which provided that an unacquitted bond provided conclusive proof of the

subsistence of the subject debt. In Chancery, however, the debtor could

prove that the creditor, by accepting repayment, had manifested a

binding irrevocable intention to abandon his right to recover. Although

the Chancellor would then invoke the proposition that it would be

contrary to conscience for the repaid creditor to sue for recovery at

common law, and would then order the creditor to deliver-up the bond for

cancellation, it may be suggested that the non-legal concept of

conscience used in such a case should be explained in juridical terms.

For example, the Court's order could be explained in terms of an implied

finding that, because of the abandonment, the creditor fell under a duty

to ensure that the documentary evidence of his rights was brought into

conformity with his binding intention to abandon. It should be further

noted that the Chancellor could also enjoin the  creditor from pursuing

his action at common law, and that the common law courts recognised such

an injunction. Which indicates that the common law position in such

cases was based on the maintenance, within the common law, of its

idiosyncratic rules of evidence and procedure, and not on principle.



It may also be noted that, in principle, the general form of relief

provided in the repaid bond cases could also be provided in a case where

there has been an oral release of a debt. A forgiven debtor would be

permitted in equity to attempt to prove that his creditor manifested an

irrevocable legally-binding intention to abandon his right to recover,

and, if the evidence was there, a court exercising an equitable

jurisdiction could find that such an intention was manifested. Such a

court could also find that the creditor was in breach of his duty to

ensure that the formal documentary evidence of his rights was brought

into conformity with that intention. The court could then order the

creditor to execute formal evidence of that intention which the creditor

could then use in his defence at common law (in time, of course, a

senior appellate court would presumably dispense with such formalism and

would thereby  abolish the common law rule).



If such equitable relief was provided in the debt release cases then

both the detriment/benefit rule attached to the doctrine of

consideration, and the doctrine of estoppel, would become redundant. A

promise to provide some token (such as a beaver hat) in return for a

promise not to sue upon a debt was only ever a crude, practical, common

law response to the difficulty of proving, in circumstances where the

oral testimony of the parties was inadmissible, that a creditor had

manifested informally an irrevocable intention to abandon his right to

recover. However, estoppel was never of much use to forgiven debtors,

because generally they did not act in reliance upon the forgiveness (an

exception was Jorden v Money but that is another, intellectually

unfortunate, story). Rather, estoppel was developed for a different

purpose, which can be understood if an examination is made of the first

common law estoppel case Pickard v Sears. The plaintiff was the

mortgagee/owner of farm machinery under an old system chattel mortgage

used to secure a loan. A second unsecured creditor obtained judgment,

and the sheriff who was unaware of the mortgage proposed to sell the

goods to the defendant, who also had no notice of the mortgage. The

mortgagee, who had knowledge of the proposed sale remained silent. After

the sale had taken place he sued the buyer in trover at common law.



It may be argued that in that case the mortgagee made a gift of the

goods to the mortgagor. The goods were in the hands of the mortgagor's

agent, the sheriff, in circumstances where the mortgagee by his conduct

manifested an irrevocable intention that the agent be free to treat the

goods as the mortgagor's, by selling them and by using  the proceeds to

repay a debt owed to another. Although that gift was legally-binding it

was nevertheless unenforceable at common law because the unacquitted

deed of mortgage provided conclusive proof at common law of the

mortgagee's ownership. However, if equitable relief had been sought a

court of equity could have declared, impliedly if not expressly, that

the mortgagee had abandoned his ownership, and that he was in breach of

his consequential duty to acquit the deed. The court could then have

ordered the delivery- up of the deed for cancellation.



By contrast the common law court in Pickard v Sears was bound by the

common law rules of evidence. Hence it could not, for example, order the

delivery-up of the deed. Nevertheless, by estopping the mortgagee the

court held impliedly that the mortgagee was no longer the owner (by

definition a legal right is an interest recognised and protected by the

courts). In may therefore be argued that, in order to disguise that

substantive decision, the doctrine of estoppel employs the fiction that

the mortgagee has remained the owner all the way through, and that he

made a false representation to the buyer that he was not the owner; and

that the buyer relied detrimentally upon that purported false

representation; and that, in order to prevent the detriment which the

buyer would suffer if the mortgagee was allowed to assert his right, the

mortgagee is estopped from the assertion of that right.



What this analysis suggests, amongst other things, is that if a party

wants to argue his case at common law in estoppel he has to be able to

demonstrate reliance, so that the fictional tort-like elements of that

doctrine can be invoked. However, an alternative to estoppel is provided

in equity by the general form of relief provided in the repaid bond

cases. Under that form of relief all that has to be demonstrated is that

the other party manifested an irrevocable intention to alter his rights

and obligations, and that he was subsequently in breach of his duty to

ensure that the formal documentary evidence of his rights and

obligations was brought into conformity with his intention.









Fergus Farrow

Barrister, Melbourne



May I add a PS for Duncan Sheehan, and note that a traveller, although

not a motorist, could travel from Oxford to Abingdon by travelling

north. Of course, it would be a long journey, taking in both poles, but

in principle it could be done.  Perhaps this demonstrates that

Antipodeans have an odd perspective.















--------------BE6E1D25AA46DBF48CC3AB4C

Content-Type: text/html; charset=us-ascii

Content-Transfer-Encoding: 7bit



<HTML>

I wish to make a number of observations in relation to the debate initiated

by Jason Neyer's posting on 12 July 2000. One is that the present debate

provides unwitting support for Peter Birks' advocacy of an improved taxonomy

of the common law of obligations. The juridical problems under review are

fairly basic yet as we head towards the end of the first millennium of

the common law we still have great difficulty in classifying, for example,

a gift. However, in my view Birks' argument does not go far enough. His

taxonomy model is Linnaen but it is now acknowledged in the biological

sciences that an adequate taxonomy of biological organisms has to be grounded

in the principles of other related sciences, and that taxonomy as such

cannot have, ultimately, a useful independent existence.



<P>If the logic of those propositions is carried across to legal science

it follows that an adequate taxonomy of the (common) law of obligations

needs to be based upon expressly-stated general principles, with those

principles informing and structuring the classification and reclassification

of the doctrines and rules within the conceptual structure of the (common)

law. An example of something which comes close to providing such a principle

is Neyer's Canadian-civilian notion of juristic cause. A more useful formulation

of the principle which juristic cause tries to express can be developed

through an analysis of the gift of an unencumbered chattel, and the principle

thus developed can in turn be applied to a number of the issues raised

in the present debate.



<P>A gift occurs when an owner of a chattel delivers the chattel to another

in circumstances where the owner indicates to the other that he may treat

the chattel as his own. In examining that conduct it may be argued that

the owner, by his conduct, manifested an intention to abandon irrevocably

his ownership of the chattel in favour of the other person. It may be further

argued that because the courts recognise and protect the interest in the

chattel thereby acquired by the recipient the courts recognise and apply,

impliedly, the principle that whenever an owner of an unencumbered chattel

manifests by his conduct an irrevocable intention to abandon his ownership

in favour of another that intention is binding (and enforceable). It may

also be suggested that that principle is an instance of a general principle,

namely that : Whenever a person manifests by his conduct an irrevocable

intention to alter his rights and obligations that intention is legally

binding (although it will not be enforceable in some cases unless <I>proved

</I>pursuant<I> </I>to common law or statutory formal requirements).



<P>How is that principle applied in a case where a donor would not have

given his $1,000 to a particular charity if he had realised that an enemy

of his was on the managing board of the charity? The answer is that such

a donor is in much the same position as the buyer in <I>Smith v Hughes

</I>who had it in mind to buy old oats but agreed to buy oats in accordance

with a sample, in a situation where the oats in the sample were new oats.

He was held to be bound by his manifested intention to buy new oats. It

may be argued that the donor, in the case under review, manifested by his

conduct an irrevocable, unconditional intention to abandon his ownership

of the money in favour of the charity. Conversely, it may be noted that

if he did not want to give money to charities who have board members unacceptable

to him he had to check that out before he gave his money.&nbsp; Consideration

also needs to be given to the case where, under duress, A purportedly gives

money to B. In such a case a court could examine the whole of the surrounding

circumstances and could conclude that because of the duress A did not manifest

an irrevocable intention to make a gift to B. Then there is the case where

a donor mistakenly gives $1,000 to a charity instead of the $100 he had

in mind to give.&nbsp; If it could be established by reference to the surrounding

circumstances that, for example, it was most improbable that a person such

as the donor could have intended to make a gift of $1,000 rather than $100

it could be concluded that, in the circumstances, the donor did not by

his conduct manifest an irrevocable intention to give $1,000.



<P>In turning to another potential application of the general principle

in question reference is made to a case where a payor mistakenly pays his

gas bill a second time, in circumstances where the payee does not detect

the mistake. Although such a payor may have had an ostensible intention

to discharge an obligation, it can be argued by reference to the surrounding

circumstances that he did not manifest by his conduct an irrevocable intention

to discharge an obligation to the gas company because, as a matter of fact,

he did not have one.&nbsp; Furthermore, if it is observed that because

parties to an arm's length commercial transaction do not make substantial

gifts to each other, the inference can be drawn that the payor in such

a case could not have intended to abandon irrevocably, by gift, the money

paid to the gas company. It can therefore be argued that the payee is under

an obligation to repay the money because the payor was not under an obligation

to pay, and could not have intended to make a gift.



<P>This argument can then be developed with a <I>Westdeutsche </I>spin

(or, rather, an anti-<I>Westdeutsche </I>spin). It may be noted that in

a case where an owner of property forms an intention to create an express

trust, and transfers the property to his trustee, and tells the trustee

what he has in mind, such a transferor is under no legal obligation to

transfer, nor does he have any intention to make a gift to the transferee.

On the basis of these propositions it can be argued that what is essential

in the formation of <I>a</I> trust (express or otherwise) is that the transferor

is under no obligation to transfer, and the transferor does not intend

to make a gift to the transferee. It can be further argued that while a

conscious, positive intention to create a trust may be a defining characteristic

of the sub-category "express trust" it is not part of the definition of

the broader category of "the trust".



<P>If the above propositions are correct it follows that because a mistaken

payor has not, by his conduct, manifested an irrevocable intention to discharge

an obligation, or make a gift, then he has <I>inadvertently </I>created

<I>a</I> trust (in support of this argument it is noted that the defendant

company in the S<I>mokeball&nbsp; </I>case was held, by reference to its

conduct, to have made a contractual offer even though it had no (subjective)

intention to make a contractual offer).&nbsp; However, if Swadling's argument

is correct that trust is not a <I>resulting</I> trust because, on his argument,

the resulting trust sub-category is defined by a conscious intention to

create a trust. However, because it can be argued that the mistaken payor

creates a trust, to that extent Swadling's argument is irrelevant and <I>Westdeutsche</I>

stands for nothing more than the irrelevant proposition that a mistaken

payor does not create a resulting trust, leaving open the question as to

whether he creates an inadvertent trust. It may also be noted that Peter

Birks' counter-intuitive argument on this issue was inherently sound, but

was vulnerable because he tried to place his facts into the wrong sub-category

of the trust.



<P>The binding intentions principle also helps us to understand the void

contract issue. If the principle is applied to an illegal gambling agreement

it can be argued that the bettor can not have have manifested an intention,

in his jurisdiction, to acquire a binding legal obligation to pay, and

hence could not have discharged such an obligation by paying. Nevertheless,

it can be inferred from the surrounding circumstances that the bettor manifested

by his conduct an irrevocable (and lawful)&nbsp; intention to make a gift

to his bookmaker, in a situation where he held a reasonable expectation

that his bookmaker, if he were to stay in business, would make a reciprocal

gift, at odds, should the bettor's horse come home. However, where a swaps

contract is void because it is <I>ultra vires, </I>such as in <I>Westdeutsche,</I>

it can be argued that<I> </I>the council did not manifest an intention

to make a gift because such an intention would have constituted an attempt

to circumvent an <I>ultra vires</I> contract, and hence the gift would

also be <I>ultra vires</I> by necessary implication. Because the council

did not manifest an intention to give, it follows that the bank, which

can be presumed to have acted prudently, could not have manifested an intention,

in the circumstances, to make a unilateral gift either.



<P>The binding intentions principle also has a broad application beyond

restitution cases. For example, it is relevant to the analysis of a case

where a creditor has manifested an irrevocable intention to abandon his

right to recover in circumstances where that intention is not evidenced

by a deed under seal. The Earl of Selborne held in <I>Foakes v Beer </I>that

such a release is not binding because it was not by deed under seal. Lord

Blackburn was minded to dissent in that case, but did not state his reasons.

However, if reference is made to Lord Blackburn's famous discussion of

valid but&nbsp; unenforceable oral contracts in <I>Maddison v Alderson,

</I>and if reference is also made to the binding intentions principle,

it may be argued that the informally-evidenced intention of a creditor

to release is binding, even though it is not enforceable at common law

because the release was not evidenced by, and hence cannot be proved by,

a deed under seal.



<P>Indeed, it may be argued that the reason why the common law has not

expressly-stated the binding intentions principle, or has not adopted the

civilian concept of juristic purpose, is because, in the absence (until

the mid-nineteenth century) of the oral testimony of the parties to a civil

cause, it was not practicable to prove intentions to alter rights and obligations

in cases where that intention was manifested by an oral statement, especially

if there were no non-party witnesses (gifts were different because the

jury could establish from non-party witnesses that the subject chattel

was in the hands of the alleged donee in circumstances where the alleged

donor had acted as if he had no objection to the donee treating the chattel

as his own).&nbsp; Because such orally-stated intentions to alter rights

and obligations could not be proved, and were therefore unenforceable,

there would have been little point in setting up the theoretical proposition

that an informally-evidenced intention to release a debt was, nevertheless,

legally binding.



<P>Strangely, what we have also lost sight of is that equity, in its role

of tempering and mitigating the rigour of the law, was concerned with situations

in which an informally-evidenced legally-binding intention to alter rights

and obligations was unenforceable at common law. The Court of Chancery

could play that role because it had adopted the Romano-canonical rules

of evidence and procedure, and because, accordingly, the oral testimony

of the parties was admissible in that Court. Furthermore, Chancery was

not bound by the common law rule that a deed provided conclusive proof

of the matters stated therein. Because of those differences, Chancery could

mitigate the rigour of the law in a case where a debt which had been evidenced

by a deed, or bond, was repaid, and the creditor had not executed a deed

of acquittance. In such a case, the creditor could successfully sue at

common law because the debtor could not prove the repayment because of

the common law rule which provided that an unacquitted bond provided conclusive

proof of the subsistence of the subject debt. In Chancery, however, the

debtor could prove that the creditor, by accepting repayment, had manifested

a binding irrevocable intention to abandon his right to recover. Although

the Chancellor would then invoke the proposition that it would be contrary

to conscience for the repaid creditor to sue for recovery at common law,

and would then order the creditor to deliver-up the bond for cancellation,

it may be suggested that the non-legal concept of conscience used in such

a case should be explained in juridical terms. For example, the Court's

order could be explained in terms of an implied finding that, because of

the abandonment, the creditor fell under a duty to ensure that the documentary

evidence of his rights was brought into conformity with his binding intention

to abandon. It should be further noted that the Chancellor could also enjoin

the&nbsp; creditor from pursuing his action at common law, and that the

common law courts recognised such an injunction. Which indicates that the

common law position in such cases was based on the maintenance, within

the common law, of its idiosyncratic rules of evidence and procedure, and

not on principle.



<P>It may also be noted that, in principle, the general form of relief

provided in the repaid bond cases could also be provided in a case where

there has been an oral release of a debt. A forgiven debtor would be permitted

in equity to attempt to prove that his creditor manifested an irrevocable

legally-binding intention to abandon his right to recover, and, if the

evidence was there, a court exercising an equitable jurisdiction could

find that such an intention was manifested. Such a court could also find

that the creditor was in breach of his duty to ensure that the formal documentary

evidence of his rights was brought into conformity with that intention.

The court could then order the creditor to execute formal evidence of that

intention which the creditor could then use in his defence at common law

(in time, of course, a senior appellate court would presumably dispense

with such formalism and would thereby&nbsp; abolish the common law rule).



<P>If such equitable relief was provided in the debt release cases then

both the detriment/benefit rule attached to the doctrine of consideration,

and the doctrine of estoppel, would become redundant. A promise to provide

some token (such as a beaver hat) in return for a promise not to sue upon

a debt was only ever a crude, practical, common law response to the difficulty

of proving, in circumstances where the oral testimony of the parties was

inadmissible, that a creditor had manifested informally an irrevocable

intention to abandon his right to recover. However, estoppel was never

of much use to forgiven debtors, because generally they did not act in

reliance upon the forgiveness (an exception was <I>Jorden v Money </I>but

that is another, intellectually unfortunate, story). Rather, estoppel was

developed for a different purpose, which can be understood if an examination

is made of the first common law estoppel case <I>Pickard v Sears. </I>The

plaintiff was the mortgagee/owner of farm machinery under an old system

chattel mortgage used to secure a loan. A second unsecured creditor obtained

judgment, and the sheriff who was unaware of the mortgage proposed to sell

the goods to the defendant, who also had no notice of the mortgage. The

mortgagee, who had knowledge of the proposed sale remained silent. After

the sale had taken place he sued the buyer in trover at common law.



<P>It may be argued that in that case the mortgagee made a gift of the

goods to the mortgagor. The goods were in the hands of the mortgagor's

agent, the sheriff, in circumstances where the mortgagee by his conduct

manifested an irrevocable intention that the agent be free to treat the

goods as the mortgagor's, by selling them and by using&nbsp; the proceeds

to repay a debt owed to another. Although that gift was legally-binding

it was nevertheless unenforceable at common law because the unacquitted

deed of mortgage provided conclusive proof at common law of the mortgagee's

ownership. However, if equitable relief had been sought a court of equity

could have declared, impliedly if not expressly, that the mortgagee had

abandoned his ownership, and that he was in breach of his consequential

duty to acquit the deed. The court could then have ordered the delivery-

up of the deed for cancellation.



<P>By contrast the common law court in <I>Pickard v Sears </I>was bound

by the common law rules of evidence. Hence it could not, for example, order

the delivery-up of the deed. Nevertheless, by estopping the mortgagee the

court held impliedly that the mortgagee was no longer the owner (by definition

a legal right is an interest recognised and protected by the courts). In

may therefore be argued that, in order to disguise that substantive decision,

the doctrine of estoppel employs the fiction that the mortgagee has remained

the owner all the way through, and that he made a false representation

to the buyer that he was not the owner; and that the buyer relied detrimentally

upon that purported false representation; and that, in order to prevent

the detriment which the buyer would suffer if the mortgagee was allowed

to assert his right, the mortgagee is estopped from the assertion of that

right.



<P>What this analysis suggests, amongst other things, is that if a party

wants to argue his case at common law in estoppel he has to be able to

demonstrate reliance, so that the fictional tort-like elements of that

doctrine can be invoked. However, an alternative to estoppel is provided

in equity by the general form of relief provided in the repaid bond cases.

Under that form of relief all that has to be demonstrated is that the other

party manifested an irrevocable intention to alter his rights and obligations,

and that he was subsequently in breach of his duty to ensure that the formal

documentary evidence of his rights and obligations was brought into conformity

with his intention.

<BR>&nbsp;



<P>&nbsp;



<P>Fergus Farrow

<BR>Barrister, Melbourne



<P>May I add a PS for Duncan Sheehan, and note that a traveller, although

not a motorist, could travel from Oxford to Abingdon by travelling north.

Of course, it would be a long journey, taking in both poles, but in principle

it could be done.&nbsp; Perhaps this demonstrates that Antipodeans have

an odd perspective.

<BR>&nbsp;

<BR>&nbsp;



<P>&nbsp;

<BR>&nbsp;

<BR>&nbsp;</HTML>



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approved: kempsonhouse

From: fergus farrow <fefarrow@mail.smartchat.net.au>

Subject: RDG:Questions on Prof Birks' "Equity, Conscience, and Unjust 

Enrichment".



I wish to make a number of observations in relation to the debate

initiated by Jason Neyer's posting on 12 July 2000. One is that the

present debate provides unwitting support for Peter Birks' advocacy of

an improved taxonomy of the common law of obligations. The juridical

problems under review are fairly basic yet as we head towards the end of

the first millennium of the common law we still have great difficulty in

classifying, for example, a gift. However, in my view Birks' argument

does not go far enough. His taxonomy model is Linnaen but it is now

acknowledged in the biological sciences that an adequate taxonomy of

biological organisms has to be grounded in the principles of other

related sciences, and that taxonomy as such cannot have, ultimately, a

useful independent existence.



If the logic of those propositions is carried across to legal science it

follows that an adequate taxonomy of the (common) law of obligations

needs to be based upon expressly-stated general principles, with those

principles informing and structuring the classification and

reclassification of the doctrines and rules within the conceptual

structure of the (common) law. An example of something which comes close

to providing such a principle is Neyer's Canadian-civilian notion of

juristic cause. A more useful formulation of the principle which

juristic cause tries to express can be developed through an analysis of

the gift of an unencumbered chattel, and the principle thus developed

can in turn be applied to a number of the issues raised in the present

debate.



A gift occurs when an owner of a chattel delivers the chattel to another

in circumstances where the owner indicates to the other that he may

treat the chattel as his own. In examining that conduct it may be argued

that the owner, by his conduct, manifested an intention to abandon

irrevocably his ownership of the chattel in favour of the other person.

It may be further argued that because the courts recognise and protect

the interest in the chattel thereby acquired by the recipient the courts

recognise and apply, impliedly, the principle that whenever an owner of

an unencumbered chattel manifests by his conduct an irrevocable

intention to abandon his ownership in favour of another that intention

is binding (and enforceable). It may also be suggested that that

principle is an instance of a general principle, namely that : Whenever

a person manifests by his conduct an irrevocable intention to alter his

rights and obligations that intention is legally binding (although it

will not be enforceable in some cases unless proved pursuant to common

law or statutory formal requirements).



How is that principle applied in a case where a donor would not have

given his $1,000 to a particular charity if he had realised that an

enemy of his was on the managing board of the charity? The answer is

that such a donor is in much the same position as the buyer in Smith v

Hughes who had it in mind to buy old oats but agreed to buy oats in

accordance with a sample, in a situation where the oats in the sample

were new oats. He was held to be bound by his manifested intention to

buy new oats. It may be argued that the donor, in the case under review,

manifested by his conduct an irrevocable, unconditional intention to

abandon his ownership of the money in favour of the charity. Conversely,

it may be noted that if he did not want to give money to charities who

have board members unacceptable to him he had to check that out before

he gave his money.  Consideration also needs to be given to the case

where, under duress, A purportedly gives money to B. In such a case a

court could examine the whole of the surrounding circumstances and could

conclude that because of the duress A did not manifest an irrevocable

intention to make a gift to B. Then there is the case where a donor

mistakenly gives $1,000 to a charity instead of the $100 he had in mind

to give.  If it could be established by reference to the surrounding

circumstances that, for example, it was most improbable that a person

such as the donor could have intended to make a gift of $1,000 rather

than $100 it could be concluded that, in the circumstances, the donor

did not by his conduct manifest an irrevocable intention to give $1,000.



In turning to another potential application of the general principle in

question reference is made to a case where a payor mistakenly pays his

gas bill a second time, in circumstances where the payee does not detect

the mistake. Although such a payor may have had an ostensible intention

to discharge an obligation, it can be argued by reference to the

surrounding circumstances that he did not manifest by his conduct an

irrevocable intention to discharge an obligation to the gas company

because, as a matter of fact, he did not have one.  Furthermore, if it

is observed that because parties to an arm's length commercial

transaction do not make substantial gifts to each other, the inference

can be drawn that the payor in such a case could not have intended to

abandon irrevocably, by gift, the money paid to the gas company. It can

therefore be argued that the payee is under an obligation to repay the

money because the payor was not under an obligation to pay, and could

not have intended to make a gift.



This argument can then be developed with a Westdeutsche spin (or,

rather, an anti-Westdeutsche spin). It may be noted that in a case where

an owner of property forms an intention to create an express trust, and

transfers the property to his trustee, and tells the trustee what he has

in mind, such a transferor is under no legal obligation to transfer, nor

does he have any intention to make a gift to the transferee. On the

basis of these propositions it can be argued that what is essential in

the formation of a trust (express or otherwise) is that the transferor

is under no obligation to transfer, and the transferor does not intend

to make a gift to the transferee. It can be further argued that while a

conscious, positive intention to create a trust may be a defining

characteristic of the sub-category "express trust" it is not part of the

definition of the broader category of "the trust".



If the above propositions are correct it follows that because a mistaken

payor has not, by his conduct, manifested an irrevocable intention to

discharge an obligation, or make a gift, then he has inadvertently

created a trust (in support of this argument it is noted that the

defendant company in the Smokeball  case was held, by reference to its

conduct, to have made a contractual offer even though it had no

(subjective) intention to make a contractual offer).  However, if

Swadling's argument is correct that trust is not a resulting trust

because, on his argument, the resulting trust sub-category is defined by

a conscious intention to create a trust. However, because it can be

argued that the mistaken payor creates a trust, to that extent

Swadling's argument is irrelevant and Westdeutsche stands for nothing

more than the irrelevant proposition that a mistaken payor does not

create a resulting trust, leaving open the question as to whether he

creates an inadvertent trust. It may also be noted that Peter Birks'

counter-intuitive argument on this issue was inherently sound, but was

vulnerable because he tried to place his facts into the wrong

sub-category of the trust.



The binding intentions principle also helps us to understand the void

contract issue. If the principle is applied to an illegal gambling

agreement it can be argued that the bettor can not have have manifested

an intention, in his jurisdiction, to acquire a binding legal obligation

to pay, and hence could not have discharged such an obligation by

paying. Nevertheless, it can be inferred from the surrounding

circumstances that the bettor manifested by his conduct an irrevocable

(and lawful)  intention to make a gift to his bookmaker, in a situation

where he held a reasonable expectation that his bookmaker, if he were to

stay in business, would make a reciprocal gift, at odds, should the

bettor's horse come home. However, where a swaps contract is void

because it is ultra vires, such as in Westdeutsche, it can be argued

that the council did not manifest an intention to make a gift because

such an intention would have constituted an attempt to circumvent an

ultra vires contract, and hence the gift would also be ultra vires by

necessary implication. Because the council did not manifest an intention

to give, it follows that the bank, which can be presumed to have acted

prudently, could not have manifested an intention, in the circumstances,

to make a unilateral gift either.



The binding intentions principle also has a broad application beyond

restitution cases. For example, it is relevant to the analysis of a case

where a creditor has manifested an irrevocable intention to abandon his

right to recover in circumstances where that intention is not evidenced

by a deed under seal. The Earl of Selborne held in Foakes v Beer that

such a release is not binding because it was not by deed under seal.

Lord Blackburn was minded to dissent in that case, but did not state his

reasons. However, if reference is made to Lord Blackburn's famous

discussion of valid but  unenforceable oral contracts in Maddison v

Alderson, and if reference is also made to the binding intentions

principle, it may be argued that the informally-evidenced intention of a

creditor to release is binding, even though it is not enforceable at

common law because the release was not evidenced by, and hence cannot be

proved by, a deed under seal.



Indeed, it may be argued that the reason why the common law has not

expressly-stated the binding intentions principle, or has not adopted

the civilian concept of juristic purpose, is because, in the absence

(until the mid-nineteenth century) of the oral testimony of the parties

to a civil cause, it was not practicable to prove intentions to alter

rights and obligations in cases where that intention was manifested by

an oral statement, especially if there were no non-party witnesses

(gifts were different because the jury could establish from non-party

witnesses that the subject chattel was in the hands of the alleged donee

in circumstances where the alleged donor had acted as if he had no

objection to the donee treating the chattel as his own).  Because such

orally-stated intentions to alter rights and obligations could not be

proved, and were therefore unenforceable, there would have been little

point in setting up the theoretical proposition that an

informally-evidenced intention to release a debt was, nevertheless,

legally binding.



Strangely, what we have also lost sight of is that equity, in its role

of tempering and mitigating the rigour of the law, was concerned with

situations in which an informally-evidenced legally-binding intention to

alter rights and obligations was unenforceable at common law. The Court

of Chancery could play that role because it had adopted the

Romano-canonical rules of evidence and procedure, and because,

accordingly, the oral testimony of the parties was admissible in that

Court. Furthermore, Chancery was not bound by the common law rule that a

deed provided conclusive proof of the matters stated therein. Because of

those differences, Chancery could mitigate the rigour of the law in a

case where a debt which had been evidenced by a deed, or bond, was

repaid, and the creditor had not executed a deed of acquittance. In such

a case, the creditor could successfully sue at common law because the

debtor could not prove the repayment because of the common law rule

which provided that an unacquitted bond provided conclusive proof of the

subsistence of the subject debt. In Chancery, however, the debtor could

prove that the creditor, by accepting repayment, had manifested a

binding irrevocable intention to abandon his right to recover. Although

the Chancellor would then invoke the proposition that it would be

contrary to conscience for the repaid creditor to sue for recovery at

common law, and would then order the creditor to deliver-up the bond for

cancellation, it may be suggested that the non-legal concept of

conscience used in such a case should be explained in juridical terms.

For example, the Court's order could be explained in terms of an implied

finding that, because of the abandonment, the creditor fell under a duty

to ensure that the documentary evidence of his rights was brought into

conformity with his binding intention to abandon. It should be further

noted that the Chancellor could also enjoin the  creditor from pursuing

his action at common law, and that the common law courts recognised such

an injunction. Which indicates that the common law position in such

cases was based on the maintenance, within the common law, of its

idiosyncratic rules of evidence and procedure, and not on principle.



It may also be noted that, in principle, the general form of relief

provided in the repaid bond cases could also be provided in a case where

there has been an oral release of a debt. A forgiven debtor would be

permitted in equity to attempt to prove that his creditor manifested an

irrevocable legally-binding intention to abandon his right to recover,

and, if the evidence was there, a court exercising an equitable

jurisdiction could find that such an intention was manifested. Such a

court could also find that the creditor was in breach of his duty to

ensure that the formal documentary evidence of his rights was brought

into conformity with that intention. The court could then order the

creditor to execute formal evidence of that intention which the creditor

could then use in his defence at common law (in time, of course, a

senior appellate court would presumably dispense with such formalism and

would thereby  abolish the common law rule).



If such equitable relief was provided in the debt release cases then

both the detriment/benefit rule attached to the doctrine of

consideration, and the doctrine of estoppel, would become redundant. A

promise to provide some token (such as a beaver hat) in return for a

promise not to sue upon a debt was only ever a crude, practical, common

law response to the difficulty of proving, in circumstances where the

oral testimony of the parties was inadmissible, that a creditor had

manifested informally an irrevocable intention to abandon his right to

recover. However, estoppel was never of much use to forgiven debtors,

because generally they did not act in reliance upon the forgiveness (an

exception was Jorden v Money but that is another, intellectually

unfortunate, story). Rather, estoppel was developed for a different

purpose, which can be understood if an examination is made of the first

common law estoppel case Pickard v Sears. The plaintiff was the

mortgagee/owner of farm machinery under an old system chattel mortgage

used to secure a loan. A second unsecured creditor obtained judgment,

and the sheriff who was unaware of the mortgage proposed to sell the

goods to the defendant, who also had no notice of the mortgage. The

mortgagee, who had knowledge of the proposed sale remained silent. After

the sale had taken place he sued the buyer in trover at common law.



It may be argued that in that case the mortgagee made a gift of the

goods to the mortgagor. The goods were in the hands of the mortgagor's

agent, the sheriff, in circumstances where the mortgagee by his conduct

manifested an irrevocable intention that the agent be free to treat the

goods as the mortgagor's, by selling them and by using  the proceeds to

repay a debt owed to another. Although that gift was legally-binding it

was nevertheless unenforceable at common law because the unacquitted

deed of mortgage provided conclusive proof at common law of the

mortgagee's ownership. However, if equitable relief had been sought a

court of equity could have declared, impliedly if not expressly, that

the mortgagee had abandoned his ownership, and that he was in breach of

his consequential duty to acquit the deed. The court could then have

ordered the delivery- up of the deed for cancellation.



By contrast the common law court in Pickard v Sears was bound by the

common law rules of evidence. Hence it could not, for example, order the

delivery-up of the deed. Nevertheless, by estopping the mortgagee the

court held impliedly that the mortgagee was no longer the owner (by

definition a legal right is an interest recognised and protected by the

courts). In may therefore be argued that, in order to disguise that

substantive decision, the doctrine of estoppel employs the fiction that

the mortgagee has remained the owner all the way through, and that he

made a false representation to the buyer that he was not the owner; and

that the buyer relied detrimentally upon that purported false

representation; and that, in order to prevent the detriment which the

buyer would suffer if the mortgagee was allowed to assert his right, the

mortgagee is estopped from the assertion of that right.



What this analysis suggests, amongst other things, is that if a party

wants to argue his case at common law in estoppel he has to be able to

demonstrate reliance, so that the fictional tort-like elements of that

doctrine can be invoked. However, an alternative to estoppel is provided

in equity by the general form of relief provided in the repaid bond

cases. Under that form of relief all that has to be demonstrated is that

the other party manifested an irrevocable intention to alter his rights

and obligations, and that he was subsequently in breach of his duty to

ensure that the formal documentary evidence of his rights and

obligations was brought into conformity with his intention.









Fergus Farrow

Barrister, Melbourne



May I add a PS for Duncan Sheehan, and note that a traveller, although

not a motorist, could travel from Oxford to Abingdon by travelling

north. Of course, it would be a long journey, taking in both poles, but

in principle it could be done.  Perhaps this demonstrates that

Antipodeans have an odd perspective.





>From lionel.smith@law.oxford.ac.uk Fri Jul 21 16:16:42 2000

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From: Lionel Smith <lionel.smith@law.oxford.ac.uk>

Subject: Mistakes

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At 11:52 +0100 21/7/00, fergus farrow wrote:

>How is that principle applied in a case where a donor would not have

>given his $1,000 to a particular charity if he had realised that an

>enemy of his was on the managing board of the charity? ...

>It may be argued that the donor, in the case under review,

>manifested by his conduct an irrevocable, unconditional intention to

>abandon his ownership of the money in favour of the charity. Conversely,

>it may be noted that if he did not want to give money to charities who

>have board members unacceptable to him he had to check that out before

>he gave his money. ...

>In turning to another potential application of the general principle in

>question reference is made to a case where a payor mistakenly pays his

>gas bill a second time, in circumstances where the payee does not detect

>the mistake. Although such a payor may have had an ostensible intention

>to discharge an obligation, it can be argued by reference to the

>surrounding circumstances that he did not manifest by his conduct an

>irrevocable intention to discharge an obligation to the gas company

>because, as a matter of fact, he did not have one.



Anything can be argued :-), but what is it in the surrounding 

circumstances that allows us to say that the first mistake does not 

allow recovery but the second one does? I would suggest, nothing. 

That is a conclusion of law, and my view is that any rule imposing on 

payors the risk of some mistakes (eg who is on the board) but not 

others (eg whether a debt was due) must be justified as a rule of law 

which distinguishes between different kinds of mistakes. If you try 

to do it with a single legal principle, the differing results said to 

be based on factual differences, you are left unable to explain why a 

person is bound to inquire into a board of directors but not into the 

state of his account with the public utility.



Lionel







>From lionel.smith@st-hughs.oxford.ac.uk Sat Jul 22 22:46:11 2000

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approved: kempsonhouse

From: fergus farrow <fefarrow@mail.smartchat.net.au>

Subject: RDG:Questions on Prof Birks' "Equity, Conscience, and Unjust 

Enrichment".



I wish to make a number of observations in relation to the debate

initiated by Jason Neyer's posting on 12 July 2000. One is that the

present debate provides unwitting support for Peter Birks' advocacy of

an improved taxonomy of the common law of obligations. The juridical

problems under review are fairly basic yet as we head towards the end of

the first millennium of the common law we still have great difficulty in

classifying, for example, a gift. However, in my view Birks' argument

does not go far enough. His taxonomy model is Linnaen but it is now

acknowledged in the biological sciences that an adequate taxonomy of

biological organisms has to be grounded in the principles of other

related sciences, and that taxonomy as such cannot have, ultimately, a

useful independent existence.



If the logic of those propositions is carried across to legal science it

follows that an adequate taxonomy of the (common) law of obligations

needs to be based upon expressly-stated general principles, with those

principles informing and structuring the classification and

reclassification of the doctrines and rules within the conceptual

structure of the (common) law. An example of something which comes close

to providing such a principle is Neyer's Canadian-civilian notion of

juristic cause. A more useful formulation of the principle which

juristic cause tries to express can be developed through an analysis of

the gift of an unencumbered chattel, and the principle thus developed

can in turn be applied to a number of the issues raised in the present

debate.



A gift occurs when an owner of a chattel delivers the chattel to another

in circumstances where the owner indicates to the other that he may

treat the chattel as his own. In examining that conduct it may be argued

that the owner, by his conduct, manifested an intention to abandon

irrevocably his ownership of the chattel in favour of the other person.

It may be further argued that because the courts recognise and protect

the interest in the chattel thereby acquired by the recipient the courts

recognise and apply, impliedly, the principle that whenever an owner of

an unencumbered chattel manifests by his conduct an irrevocable

intention to abandon his ownership in favour of another that intention

is binding (and enforceable). It may also be suggested that that

principle is an instance of a general principle, namely that : Whenever

a person manifests by his conduct an irrevocable intention to alter his

rights and obligations that intention is legally binding (although it

will not be enforceable in some cases unless proved pursuant to common

law or statutory formal requirements).



How is that principle applied in a case where a donor would not have

given his $1,000 to a particular charity if he had realised that an

enemy of his was on the managing board of the charity? The answer is

that such a donor is in much the same position as the buyer in Smith v

Hughes who had it in mind to buy old oats but agreed to buy oats in

accordance with a sample, in a situation where the oats in the sample

were new oats. He was held to be bound by his manifested intention to

buy new oats. It may be argued that the donor, in the case under review,

manifested by his conduct an irrevocable, unconditional intention to

abandon his ownership of the money in favour of the charity. Conversely,

it may be noted that if he did not want to give money to charities who

have board members unacceptable to him he had to check that out before

he gave his money.  Consideration also needs to be given to the case

where, under duress, A purportedly gives money to B. In such a case a

court could examine the whole of the surrounding circumstances and could

conclude that because of the duress A did not manifest an irrevocable

intention to make a gift to B. Then there is the case where a donor

mistakenly gives $1,000 to a charity instead of the $100 he had in mind

to give.  If it could be established by reference to the surrounding

circumstances that, for example, it was most improbable that a person

such as the donor could have intended to make a gift of $1,000 rather

than $100 it could be concluded that, in the circumstances, the donor

did not by his conduct manifest an irrevocable intention to give $1,000.



In turning to another potential application of the general principle in

question reference is made to a case where a payor mistakenly pays his

gas bill a second time, in circumstances where the payee does not detect

the mistake. Although such a payor may have had an ostensible intention

to discharge an obligation, it can be argued by reference to the

surrounding circumstances that he did not manifest by his conduct an

irrevocable intention to discharge an obligation to the gas company

because, as a matter of fact, he did not have one.  Furthermore, if it

is observed that because parties to an arm's length commercial

transaction do not make substantial gifts to each other, the inference

can be drawn that the payor in such a case could not have intended to

abandon irrevocably, by gift, the money paid to the gas company. It can

therefore be argued that the payee is under an obligation to repay the

money because the payor was not under an obligation to pay, and could

not have intended to make a gift.



This argument can then be developed with a Westdeutsche spin (or,

rather, an anti-Westdeutsche spin). It may be noted that in a case where

an owner of property forms an intention to create an express trust, and

transfers the property to his trustee, and tells the trustee what he has

in mind, such a transferor is under no legal obligation to transfer, nor

does he have any intention to make a gift to the transferee. On the

basis of these propositions it can be argued that what is essential in

the formation of a trust (express or otherwise) is that the transferor

is under no obligation to transfer, and the transferor does not intend

to make a gift to the transferee. It can be further argued that while a

conscious, positive intention to create a trust may be a defining

characteristic of the sub-category "express trust" it is not part of the

definition of the broader category of "the trust".



If the above propositions are correct it follows that because a mistaken

payor has not, by his conduct, manifested an irrevocable intention to

discharge an obligation, or make a gift, then he has inadvertently

created a trust (in support of this argument it is noted that the

defendant company in the Smokeball  case was held, by reference to its

conduct, to have made a contractual offer even though it had no

(subjective) intention to make a contractual offer).  However, if

Swadling's argument is correct that trust is not a resulting trust

because, on his argument, the resulting trust sub-category is defined by

a conscious intention to create a trust. However, because it can be

argued that the mistaken payor creates a trust, to that extent

Swadling's argument is irrelevant and Westdeutsche stands for nothing

more than the irrelevant proposition that a mistaken payor does not

create a resulting trust, leaving open the question as to whether he

creates an inadvertent trust. It may also be noted that Peter Birks'

counter-intuitive argument on this issue was inherently sound, but was

vulnerable because he tried to place his facts into the wrong

sub-category of the trust.



The binding intentions principle also helps us to understand the void

contract issue. If the principle is applied to an illegal gambling

agreement it can be argued that the bettor can not have have manifested

an intention, in his jurisdiction, to acquire a binding legal obligation

to pay, and hence could not have discharged such an obligation by

paying. Nevertheless, it can be inferred from the surrounding

circumstances that the bettor manifested by his conduct an irrevocable

(and lawful)  intention to make a gift to his bookmaker, in a situation

where he held a reasonable expectation that his bookmaker, if he were to

stay in business, would make a reciprocal gift, at odds, should the

bettor's horse come home. However, where a swaps contract is void

because it is ultra vires, such as in Westdeutsche, it can be argued

that the council did not manifest an intention to make a gift because

such an intention would have constituted an attempt to circumvent an

ultra vires contract, and hence the gift would also be ultra vires by

necessary implication. Because the council did not manifest an intention

to give, it follows that the bank, which can be presumed to have acted

prudently, could not have manifested an intention, in the circumstances,

to make a unilateral gift either.



The binding intentions principle also has a broad application beyond

restitution cases. For example, it is relevant to the analysis of a case

where a creditor has manifested an irrevocable intention to abandon his

right to recover in circumstances where that intention is not evidenced

by a deed under seal. The Earl of Selborne held in Foakes v Beer that

such a release is not binding because it was not by deed under seal.

Lord Blackburn was minded to dissent in that case, but did not state his

reasons. However, if reference is made to Lord Blackburn's famous

discussion of valid but  unenforceable oral contracts in Maddison v

Alderson, and if reference is also made to the binding intentions

principle, it may be argued that the informally-evidenced intention of a

creditor to release is binding, even though it is not enforceable at

common law because the release was not evidenced by, and hence cannot be

proved by, a deed under seal.



Indeed, it may be argued that the reason why the common law has not

expressly-stated the binding intentions principle, or has not adopted

the civilian concept of juristic purpose, is because, in the absence

(until the mid-nineteenth century) of the oral testimony of the parties

to a civil cause, it was not practicable to prove intentions to alter

rights and obligations in cases where that intention was manifested by

an oral statement, especially if there were no non-party witnesses

(gifts were different because the jury could establish from non-party

witnesses that the subject chattel was in the hands of the alleged donee

in circumstances where the alleged donor had acted as if he had no

objection to the donee treating the chattel as his own).  Because such

orally-stated intentions to alter rights and obligations could not be

proved, and were therefore unenforceable, there would have been little

point in setting up the theoretical proposition that an

informally-evidenced intention to release a debt was, nevertheless,

legally binding.



Strangely, what we have also lost sight of is that equity, in its role

of tempering and mitigating the rigour of the law, was concerned with

situations in which an informally-evidenced legally-binding intention to

alter rights and obligations was unenforceable at common law. The Court

of Chancery could play that role because it had adopted the

Romano-canonical rules of evidence and procedure, and because,

accordingly, the oral testimony of the parties was admissible in that

Court. Furthermore, Chancery was not bound by the common law rule that a

deed provided conclusive proof of the matters stated therein. Because of

those differences, Chancery could mitigate the rigour of the law in a

case where a debt which had been evidenced by a deed, or bond, was

repaid, and the creditor had not executed a deed of acquittance. In such

a case, the creditor could successfully sue at common law because the

debtor could not prove the repayment because of the common law rule

which provided that an unacquitted bond provided conclusive proof of the

subsistence of the subject debt. In Chancery, however, the debtor could

prove that the creditor, by accepting repayment, had manifested a

binding irrevocable intention to abandon his right to recover. Although

the Chancellor would then invoke the proposition that it would be

contrary to conscience for the repaid creditor to sue for recovery at

common law, and would then order the creditor to deliver-up the bond for

cancellation, it may be suggested that the non-legal concept of

conscience used in such a case should be explained in juridical terms.

For example, the Court's order could be explained in terms of an implied

finding that, because of the abandonment, the creditor fell under a duty

to ensure that the documentary evidence of his rights was brought into

conformity with his binding intention to abandon. It should be further

noted that the Chancellor could also enjoin the  creditor from pursuing

his action at common law, and that the common law courts recognised such

an injunction. Which indicates that the common law position in such

cases was based on the maintenance, within the common law, of its

idiosyncratic rules of evidence and procedure, and not on principle.



It may also be noted that, in principle, the general form of relief

provided in the repaid bond cases could also be provided in a case where

there has been an oral release of a debt. A forgiven debtor would be

permitted in equity to attempt to prove that his creditor manifested an

irrevocable legally-binding intention to abandon his right to recover,

and, if the evidence was there, a court exercising an equitable

jurisdiction could find that such an intention was manifested. Such a

court could also find that the creditor was in breach of his duty to

ensure that the formal documentary evidence of his rights was brought

into conformity with that intention. The court could then order the

creditor to execute formal evidence of that intention which the creditor

could then use in his defence at common law (in time, of course, a

senior appellate court would presumably dispense with such formalism and

would thereby  abolish the common law rule).



If such equitable relief was provided in the debt release cases then

both the detriment/benefit rule attached to the doctrine of

consideration, and the doctrine of estoppel, would become redundant. A

promise to provide some token (such as a beaver hat) in return for a

promise not to sue upon a debt was only ever a crude, practical, common

law response to the difficulty of proving, in circumstances where the

oral testimony of the parties was inadmissible, that a creditor had

manifested informally an irrevocable intention to abandon his right to

recover. However, estoppel was never of much use to forgiven debtors,

because generally they did not act in reliance upon the forgiveness (an

exception was Jorden v Money but that is another, intellectually

unfortunate, story). Rather, estoppel was developed for a different

purpose, which can be understood if an examination is made of the first

common law estoppel case Pickard v Sears. The plaintiff was the

mortgagee/owner of farm machinery under an old system chattel mortgage

used to secure a loan. A second unsecured creditor obtained judgment,

and the sheriff who was unaware of the mortgage proposed to sell the

goods to the defendant, who also had no notice of the mortgage. The

mortgagee, who had knowledge of the proposed sale remained silent. After

the sale had taken place he sued the buyer in trover at common law.



It may be argued that in that case the mortgagee made a gift of the

goods to the mortgagor. The goods were in the hands of the mortgagor's

agent, the sheriff, in circumstances where the mortgagee by his conduct

manifested an irrevocable intention that the agent be free to treat the

goods as the mortgagor's, by selling them and by using  the proceeds to

repay a debt owed to another. Although that gift was legally-binding it

was nevertheless unenforceable at common law because the unacquitted

deed of mortgage provided conclusive proof at common law of the

mortgagee's ownership. However, if equitable relief had been sought a

court of equity could have declared, impliedly if not expressly, that

the mortgagee had abandoned his ownership, and that he was in breach of

his consequential duty to acquit the deed. The court could then have

ordered the delivery- up of the deed for cancellation.



By contrast the common law court in Pickard v Sears was bound by the

common law rules of evidence. Hence it could not, for example, order the

delivery-up of the deed. Nevertheless, by estopping the mortgagee the

court held impliedly that the mortgagee was no longer the owner (by

definition a legal right is an interest recognised and protected by the

courts). In may therefore be argued that, in order to disguise that

substantive decision, the doctrine of estoppel employs the fiction that

the mortgagee has remained the owner all the way through, and that he

made a false representation to the buyer that he was not the owner; and

that the buyer relied detrimentally upon that purported false

representation; and that, in order to prevent the detriment which the

buyer would suffer if the mortgagee was allowed to assert his right, the

mortgagee is estopped from the assertion of that right.



What this analysis suggests, amongst other things, is that if a party

wants to argue his case at common law in estoppel he has to be able to

demonstrate reliance, so that the fictional tort-like elements of that

doctrine can be invoked. However, an alternative to estoppel is provided

in equity by the general form of relief provided in the repaid bond

cases. Under that form of relief all that has to be demonstrated is that

the other party manifested an irrevocable intention to alter his rights

and obligations, and that he was subsequently in breach of his duty to

ensure that the formal documentary evidence of his rights and

obligations was brought into conformity with his intention.









Fergus Farrow

Barrister, Melbourne



May I add a PS for Duncan Sheehan, and note that a traveller, although

not a motorist, could travel from Oxford to Abingdon by travelling

north. Of course, it would be a long journey, taking in both poles, but

in principle it could be done.  Perhaps this demonstrates that

Antipodeans have an odd perspective.





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>From fefarrow@mail.smartchat.net.au Mon Jul 24 10:44:58 2000

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Date: Mon, 24 Jul 2000 19:35:33 +1000

From: fergus farrow <fefarrow@mail.smartchat.net.au>

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I am replying to the issues raised by Duncan Sheehan on 22 July. My

first point is that it is not part of my argument, as such, that, in

order to protect the expectation interest, the law restricts the type of

mistake that will avoid a contract. By extension, it is not part of my

argument, as such, that the expectation interest requires equal

protection in the non-contractual gift case. Conversely, my argument is

based on the proposition that it is an implied rule or principle of the

common law that whenever a person manifests an irrevocable intention to

alter his rights and obligations – whatever that alteration may be -

that intention is binding (although not necessarily enforceable). It is

also my argument that the decision in the contractual mistake case Smith

v Hughes is consistent with that principle (see my reply of 23 July to

Lionel Smith), and that the decisions in the voluntary gift cases

mentioned by Duncan Sheehan are also consistent with that principle. By

implication, I am not of the view that the test in relation to mistake

is far less strict in the voluntary instruments cases than in a

contractual case. Conversely, my view is, of course, that the test is

the same in both types of case. Moreover, it is my view that the same

test applies in a spontaneous gift case (see my discussion of the case

where the donor would not have made a gift if he had realised that his

enemy was on the board of the donee charity).

In the voluntary instrument case Lady Hood of Avalon, provision was made

for daughter A in exactly the same amount as the provision which had

earlier been made for daughter B. However, it was readily apparent to an

objective observer that when the second provision was made Lady Hood had

forgotten that she and her husband had earlier made a smaller provision

for daughter A; and that the solicitor who drew the subject instrument

was unaware of that earlier provision. It was therefore possible for a

reasonable observer to draw from the facts the inference that Lady Hood

could not have intended to make a greater provision to A than to B, and

that she had therefore manifested by her conduct an irrevocable

intention to make provision for the difference, notwithstanding that she

executed an instrument which made provision for a larger amount. It is

noted that the decision in the Australian case Muschinski v Dodds can

also be explained on the basis that it could be concluded from the facts

that M could not have intended to make a gift to D of the legal interest

in the subject land, notwithstanding that she had placed him on title to

the land. By contrast, in the case where the donor was unaware that his

enemy was on the board of the donee charity, an objective observer could

not have drawn from the surrounding circumstances the inference that the

gift was conditional upon the donor not having this particular enemy of

the donor on the board of the charity, and that the gift was thus

revocable by the donor should he discover that that person was on the

board. It can therefore be concluded that the donor manifested an

irrevocable intention to make an unconditional gift, and that that

intention was binding, and enforceable.

I should add, briefly, my account of the interest protected by the rule

that a manifested irrevocable intention to alter rights and obligations

– whatever the alteration may be – is binding. Quite clearly, that rule

is based on the avoidance of the dashed expectations which would be

suffered by a person affected by such an intention should the intention

not be binding. Indeed, it is difficult to see how we could have any

difficulty with the argument that the only justification which can be

raised for the protection of the interest of a donee in an

unencumbered-chattel gift case is the prevention of the dashed

expectations which would be suffered by the donee if the donor were free

to revoke the gift. However, we also have, under the common law, the

contradiction inherent in the proposition that if a manifested,

provable, irrevocable intention to abandon a right to recover an amount

owing is not evidenced by a deed under seal that intention is not

enforceable. Because of that anachronistic evidential rule of thumb,

which unfortunately has taken on a doctrinal colouration over the

centuries, we have had great difficulty appreciating that an

informally-evidenced intention to release is binding (and should be

enforceable). Moreover, it should be binding because a release of a debt

is tantamount to the creditor making a gift to the debtor of the amount

owing, thereby enabling the debtor to pay the debt, with the gift and

the repayment being in the nature of an accounting set-off. It may also

be noted that, because of the attachment by the common law to its

indefensible rule on the release of debts, the common law has developed

indefensible alternatives under which a release is effective if there is

a token promise by the debtor, or if the release has been relied upon.

It is further noted, as background, that two of the majority judges in

The Commonwealth v Verwayen held that the Commonwealth’s

(informally-evidenced) manifested irrevocable intention to abandon its

rights to raise its statutory defences was binding, without more; and

that, as a matter of logic, the other two majority judges agreed with

them when (in the absence of evidence of any conventional reliance

detriment) they held that the Commonwealth was estopped because of the

dashed-expectations detriment that the plaintiff would suffer if the

Commonwealth was allowed to depart from its intention.

I shall leave Svenska International for another day because it would

take too long to provide the argument in support of my view that, in

separating out the change of position defence from its origins in the

doctrine of estoppel, we should take the point that the change of

position defence is inherently based on a counterclaim in tort, and that

it was not pleaded as such in the early change of position cases because

at that time the common law rules of procedure did not allow a

counterclaim to be pleaded in the same proceedings as that in which the

claim was heard. I note, however, that if my view on the change of

position defence is correct, then it would have been open to a party

such as Svenska International to have argued that, when engaging in

consequential hedging transactions, it acted reasonably in reliance upon

the (false) statement by the council that the money paid to it under the

(void because ultra vires) contract was paid to it in the discharge of a

legal obligation. As that question of fact was not canvassed at the

trial it is difficult now to reach a conclusion on it.



Fergus Farrow









>From axelrod@andromeda.rutgers.edu Mon Jul 24 16:08:17 2000

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Subject: Re: RDG: Duncan Sheehan - Mistake

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fergus farrow wrote:



> .....we have had great difficulty appreciating that an

> informally-evidenced intention to release is binding (and should be

> enforceable). Moreover, it should be binding because a release of a debt

> is tantamount to the creditor making a gift to the debtor of the amount

> owing, thereby enabling the debtor to pay the debt, with the gift and

> the repayment being in the nature of an accounting set-off.

>



te following indented item is from an earlier ms. from mr farrow:



    ...The binding intentions principle also helps us to understand the void

    contract issue. If the principle is applied to an illegal gambling

    agreement it can be argued that the bettor can not have have

    manifested an intention, in his jurisdiction, to acquire a binding legal

    obligation to pay, and hence could not have discharged such an obligation by

    paying. Nevertheless, it can be inferred from the surrounding

    circumstances that the bettor manifested by his conduct an

    irrevocable (and lawful)  intention to make a gift to his bookmaker, in a

    situation where he held a reasonable expectation that his bookmaker, if he were

    to stay in business, would make a reciprocal gift, at odds, should the

    bettor's horse come home....





back to the taxonomic part of the current discussion, the word 'gift'  does

uncomfortable double duty if applied in legal talk both to name the normal

transaction of  mr. fergus' basic intent definition, and also to

characterize a transction-affirming outcome for questioned exchange relationships,

eg those  involving bookie and better,  or the even more uncongenial

debtor-and-creditor







>From crchamb@telusplanet.net Mon Jul 24 16:25:28 2000

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Date: Mon, 24 Jul 2000 09:18:07 -0600

To: restitution discussion group <restitution@maillist.ox.ac.uk>

From: Chambers <crchamb@telusplanet.net>

Subject: profit from crime



Canada's National Post reported today (Monday, 24 July 2000, page A3) that

the California Supreme Court has been asked to declare that a California

statute, which prevents criminals from profiting from their crimes, is

unconstitutional because it infringes the right to free speech. The

appellant is Barry Keenan, who kidnapped Frank Sinatra Jr in 1961 and sold

the rights to his story to Columbia Pictures last year for $1.5M. The

victim used the statute to prevent Keenan from receiving the money.

According to the article, 42 American states have a similar law and the NY

law was declared unconstitutional in 1991. The law does not prevent the

criminal from giving her or his story away. The issue is whether the

inability to get paid for the story is a deterrent to free speech.



Robert Chambers

University of Alberta

Faculty of Law





>From fefarrow@mail.smartchat.net.au Wed Jul 26 13:20:24 2000

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Reference is made to Christoph Coen’s posting of 13 July and more

specifically to his question as to what people think about the argument

in the Meir and Zimmerman note at 115 LQR 556. As my position as

expressed in recent postings has an implied juristic cause basis I offer

the following comments on the Meir and Zimmerman argument.



What is of particular interest about their argument is that it

demonstrates indirectly the deep differences which exist between the

intellectual culture of the common law, with its roots in the technical

college environment of the inns of court, and the intellectual culture

of the civil law, with its roots going back to the scholasticism of the

early medieval university. The civilian side of that dichotomy is

exemplified by the ease with which Meir and Zimmerman’s argument is

based on a logical analysis of the problem in hand, starting with an

examination of what causes a transfer, legally, of property rights from

A to B, and then proceeding to the logical point that if a transfer is

made in the absence of conduct which causes a transfer of property

rights then the recipient has no basis for the retention of the

transferred property and must therefore submit to a claim in restitution

from the transferor.



As Meir and Zimmerman point out, the common law, by contrast, has

developed in a piecemeal case-by case basis, producing what I would call

practical rules of thumb rather than a set of rules based upon an

exploration of the logical implications of basic principles. More

particularly Meir and Zimmerman expressed a concern that if restitution

is based on [a practical rule of thumb grounded in] mistake, then the

problem arises that, as they state at 563: “If … not every causal

mistake leads to restitution, one has to distinguish between mistakes

that can found an action to recover and those that cannot. This is not

possible without, at some stage of enquiry, reverting to a legal ground

analysis”.



Although I support the broad argument thus advanced by Meir and

Zimmerman I nevertheless consider that they have not developed the

details of their argument as well as they should. In summary, their

position is that if a person has transferred property in the absence of

a legal obligation owed to the transferor, and in the absence of an

intention to make a gift, there is no juristic cause for the transfer,

and hence the transferee is obliged in restitution to the transferor.

The problem with that formulation, however, is that it does not contain

sufficient content to enable us to determine which of two possible - and

contrary - intentions manifested by a transferor is legally causative.

That is a major problem because much of the theoretical difficulty in

restitution arises in respect of such ambiguous intention cases.



I attempted to address that problem in my earlier postings when I sought

to define the process involved in establishing when a party had

manifested by his or her conduct a binding intention to acquire a legal

obligation (we need to establish whether a party held a legal obligation

before we can establish whether, as transferor, he has discharged a

legal obligation) and I also sought to define the process involved in

determining whether a party by his or her conduct had manifested a

binding intention to make a gift.



In my earlier postings I sought to demonstrate what that process entails

by reference to a range of cases, including for example Smith v Hughes,

and I thus suggest that if Meir and Zimmerman had developed their

argument down to that level of detail they would have been able to deal

more effectively with a number of cases mentioned by them. One such case

is Larner v LCC, where the employer council promised to pay employees on

war service the difference between their service pay and their civilian

pay, with the employees being required to inform the employer if their

service pay was increased from time to time so that an adjustment could

be made of the amount paid by the employer. Larner failed to inform of a

change in his pay and was thus overpaid by reference to the employer’s

promise. However, as Meir and Zimmerman point out the promise was

unenforceable, and thus even though there was a mistake, there was not a

liability mistake.



What they (and indeed Denning J) could have then done, but did not, was

to consider the other possible juristic cause of a transfer, and they

thus failed to ask whether, generally, the employer had made a gift of

its payments, and whether, more particularly, the employer had

manifested a binding intention to make a gift of the whole amount paid

to the employee in the instant case. If that approach had been adopted

an objective observer could have concluded that, in the absence of a

legal obligation to pay, the employer nevertheless manifested a binding

intention to make a series of periodic gifts, subject to the

qualification that the quantum of the gift in any particular period was

to be determined by the difference, in that period, between the

employee’s civilian pay and his pay entitlement in the services. On the

basis of that conclusion it could have been further argued that, because

the amount paid to the employee in Larner was greater than the amount of

the intended gift, the employer had a basis for a claim in restitution

for that overpayment. It is noted that the employee also raised a change

of position defence, on the basis that acting in reliance upon the

payment he had spent the money. If, however, the change of position

defence was correctly characterised as resting upon a counterclaim in

tort it would be simple to note that such a payee knew or ought to have

known that there was an overpayment in his case, and that he should have

returned the overpayment and not spent it.



Another case referred to by Meir and Zimmerman is Morgan v Ashcroft,

where a bookmaker’s clerk, in settling an account, paid more than was

indicated by the transactions with the client. The bookmaker failed to

recover the overpayment. However, in my view, the bookmaker could have

argued that, in the circumstances, he had manifested an irrevocable

binding intention to pay to his client a gift calculable by reference to

the arrangement between the parties. He could then have argued that the

amount paid to the client was greater than the amount of his intended

gift, and that accordingly he could not have intended to make a gift of

the difference. He could also have argued that the law dealing with

wagers is silent on the recovery of such mistaken overpayments. On that

basis the bookmaker could have argued that, on the gift issue, the

instant case was in parallel with Lady Hood of Avalon. By contrast, it

can be suggested that Ogilvie v Littleboy is distinguishable from Lady

Hood of Avalon because the donor in Ogilvie v Littleboy had received

extensive legal advice before executing relevant deeds and hence was

unable later to argue that she had manifested by her conduct an

intention to make gifts in terms other than those contained in the

deeds.



Meir and Zimmerman’s discussion of void contracts, in the context of the

swaps cases, was also inconclusive. It could have been more effective if

they had noted that a swaps contract of the sort in question was void

because it was ultra vires the contracting council; and if they had

noted that, by implication, the council could not seek to circumvent the

statutory bar on the making of such a contract by attempting to make a

gift in the terms of the void contract. If they had adopted that

analysis they could have concluded that there was no juristic cause for

the council’s payments. They could also have developed the argument that

any intention by the contracting financial institution would, of

necessity, be in the form of a unilateral gift, leading to the

conclusion that the financial institution could not have intended to

make a gift of its payments either. They could then have concluded that

in the absence of juristic cause on both sides a claim in restitution

could be raised in relation to all of the payments made under the void

because ultra vires contract. Of course, a different conclusion would be

reached if a contracting financial institution had made its payments in

circumstances where it knew that the contract was void, in that an

objective observer could conclude that such a party manifested thereby

an irrevocable binding intention to make a gift of its payments.



I hope that these comments may persuade Christoph to remain faithful to

the rationality of his civilian background.







Fergus Farrow









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From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>

To: "fergus farrow" <fefarrow@mail.smartchat.net.au>,

	<restitution@maillist.ox.ac.uk>

Subject: Duncan Sheehan - Mistake; Gifts

Date: Wed, 26 Jul 2000 15:48:34 +0100

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¶I am happy to defend the the common law 's rule on the release of debts. It

provides rebuttal of the natural presumption that promises of gifts are but

part of idle and unconsidered conversation. It is equity's enforcement,

apart from the Statute of Frauds, of the gratuitous oral declaration of

trust, which worries me. I assume a similar worry is the basis of the Scots'

continuing insistence on greater formalities for gratuitous obligations,

than for others. Whether sealed documents or token promises on the one hand,

or mere writings on the other, constitute sufficient rebuttal is a matter of

taste and should properly and respectively be left to the traditions of the

two jurisdictions.

¶Moreover, since the common law of contracts has proved so satisfactory to

its subjects and attractive to aliens, and since privity and consideration

are of its essence, the interference with either is not only an instance of

the arrogance and folly of our present politicians, but doubtless has been

undertaken at our peril. I attach a copy of my letter on the subject sent in

vain to the House of Commons. I had had no success with one in similar vein

posted earlier to the House of Lords.



-----Original Message-----

From: fergus farrow <fefarrow@mail.smartchat.net.au>

To: restitution@maillist.ox.ac.uk <restitution@maillist.ox.ac.uk>

Date: 24 July 2000 10:47

Subject: RDG: Duncan Sheehan - Mistake





>I am replying to the issues raised by Duncan Sheehan on 22 July. My

>first point is that it is not part of my argument, as such, that, in

>order to protect the expectation interest, the law restricts the type of

>mistake that will avoid a contract. By extension, it is not part of my

>argument, as such, that the expectation interest requires equal

>protection in the non-contractual gift case. Conversely, my argument is

>based on the proposition that it is an implied rule or principle of the

>common law that whenever a person manifests an irrevocable intention to

>alter his rights and obligations – whatever that alteration may be -

>that intention is binding (although not necessarily enforceable). It is

>also my argument that the decision in the contractual mistake case Smith

>v Hughes is consistent with that principle (see my reply of 23 July to

>Lionel Smith), and that the decisions in the voluntary gift cases

>mentioned by Duncan Sheehan are also consistent with that principle. By

>implication, I am not of the view that the test in relation to mistake

>is far less strict in the voluntary instruments cases than in a

>contractual case. Conversely, my view is, of course, that the test is

>the same in both types of case. Moreover, it is my view that the same

>test applies in a spontaneous gift case (see my discussion of the case

>where the donor would not have made a gift if he had realised that his

>enemy was on the board of the donee charity).

>In the voluntary instrument case Lady Hood of Avalon, provision was made

>for daughter A in exactly the same amount as the provision which had

>earlier been made for daughter B. However, it was readily apparent to an

>objective observer that when the second provision was made Lady Hood had

>forgotten that she and her husband had earlier made a smaller provision

>for daughter A; and that the solicitor who drew the subject instrument

>was unaware of that earlier provision. It was therefore possible for a

>reasonable observer to draw from the facts the inference that Lady Hood

>could not have intended to make a greater provision to A than to B, and

>that she had therefore manifested by her conduct an irrevocable

>intention to make provision for the difference, notwithstanding that she

>executed an instrument which made provision for a larger amount. It is

>noted that the decision in the Australian case Muschinski v Dodds can

>also be explained on the basis that it could be concluded from the facts

>that M could not have intended to make a gift to D of the legal interest

>in the subject land, notwithstanding that she had placed him on title to

>the land. By contrast, in the case where the donor was unaware that his

>enemy was on the board of the donee charity, an objective observer could

>not have drawn from the surrounding circumstances the inference that the

>gift was conditional upon the donor not having this particular enemy of

>the donor on the board of the charity, and that the gift was thus

>revocable by the donor should he discover that that person was on the

>board. It can therefore be concluded that the donor manifested an

>irrevocable intention to make an unconditional gift, and that that

>intention was binding, and enforceable.

>I should add, briefly, my account of the interest protected by the rule

>that a manifested irrevocable intention to alter rights and obligations

>– whatever the alteration may be – is binding. Quite clearly, that rule

>is based on the avoidance of the dashed expectations which would be

>suffered by a person affected by such an intention should the intention

>not be binding. Indeed, it is difficult to see how we could have any

>difficulty with the argument that the only justification which can be

>raised for the protection of the interest of a donee in an

>unencumbered-chattel gift case is the prevention of the dashed

>expectations which would be suffered by the donee if the donor were free

>to revoke the gift. However, we also have, under the common law, the

>contradiction inherent in the proposition that if a manifested,

>provable, irrevocable intention to abandon a right to recover an amount

>owing is not evidenced by a deed under seal that intention is not

>enforceable. Because of that anachronistic evidential rule of thumb,

>which unfortunately has taken on a doctrinal colouration over the

>centuries, we have had great difficulty appreciating that an

>informally-evidenced intention to release is binding (and should be

>enforceable). Moreover, it should be binding because a release of a debt

>is tantamount to the creditor making a gift to the debtor of the amount

>owing, thereby enabling the debtor to pay the debt, with the gift and

>the repayment being in the nature of an accounting set-off. It may also

>be noted that, because of the attachment by the common law to its

>indefensible rule on the release of debts, the common law has developed

>indefensible alternatives under which a release is effective if there is

>a token promise by the debtor, or if the release has been relied upon.

>It is further noted, as background, that two of the majority judges in

>The Commonwealth v Verwayen held that the Commonwealth’s

>(informally-evidenced) manifested irrevocable intention to abandon its

>rights to raise its statutory defences was binding, without more; and

>that, as a matter of logic, the other two majority judges agreed with

>them when (in the absence of evidence of any conventional reliance

>detriment) they held that the Commonwealth was estopped because of the

>dashed-expectations detriment that the plaintiff would suffer if the

>Commonwealth was allowed to depart from its intention.

>I shall leave Svenska International for another day because it would

>take too long to provide the argument in support of my view that, in

>separating out the change of position defence from its origins in the

>doctrine of estoppel, we should take the point that the change of

>position defence is inherently based on a counterclaim in tort, and that

>it was not pleaded as such in the early change of position cases because

>at that time the common law rules of procedure did not allow a

>counterclaim to be pleaded in the same proceedings as that in which the

>claim was heard. I note, however, that if my view on the change of

>position defence is correct, then it would have been open to a party

>such as Svenska International to have argued that, when engaging in

>consequential hedging transactions, it acted reasonably in reliance upon

>the (false) statement by the council that the money paid to it under the

>(void because ultra vires) contract was paid to it in the discharge of a

>legal obligation. As that question of fact was not canvassed at the

>trial it is difficult now to reach a conclusion on it.

>

>Fergus Farrow

>

>

>

>___________________________________________________________________________

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>







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>From swh10@cus.cam.ac.uk Thu Jul 27 13:57:09 2000

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Date: Thu, 27 Jul 2000 13:57:05 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: Blake decision now out

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The house of lords have now made a decision in the Blake case.



Blake loses, 4-1.



For full text go to:



http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjud

gmt.htm





For those who don't know the case, it's another one about a retired spy

writing his memoirs.  Blake was a double agent employed by the Brits but

reporting back to Moscow. His memoirs (which are written in a rather leaden

style, more reminiscent of a civil service report or a police confession

than a spy novel) were written to supplement the (no doubt rather meagre)

state pension on which he now subsists in Moscow.  The case is about his

English publishers' attempts to pay him his royalties, and the AG's

attempts to stop them.













                                       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 joe89weare@msn.com Thu Jul 27 22:59:03 2000

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>From swh10@cus.cam.ac.uk Fri Jul 28 11:58:13 2000

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Date: Fri, 28 Jul 2000 11:58:17 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: Blake - Why?

Mime-Version: 1.0

Content-Type: text/plain; charset="us-ascii"



One thing that's puzzling me about Blake - why did the case reach the Lords

at all?



An appeal seemed very unlikely at the court of appeal stage.  Blake had

fallen out with his solicitors, and seemed not to have the inclination or

the money to hire others.  The publishers had been taking on a stake-holder

role throughout - they didn't care who they handed the royalties over to,

they just wanted to know who that was.  The AG had got everything he asked

for, and declined to ask for a restitutionary remedy despite the CA's heavy

hints that he would get it if he asked.  Indeed, Lord Woolf gave the fact

that "there is .. no possibility that this case will reach a higher court"

as his excuse for his speech on the restitutionary aspects of the case

([1998] 1 All ER 844ab).



So what's this appeal all about?  The report says that it was Blake who

appealed.  Now Blake certainly had nothing to lose (and a remote chance of

success) by appealing, but there's absolutely no way that he could pay for

it to be argued.  An attempt to start an appeal could presumably have been

blocked simply on the grounds that it was a waste of money.  But very far

from doing that, the appeal was heard, and counsel were paid for out of

public funds.



So what is going on?   A change of heart by the AG?   Or a different

decision by a new AG?   Or did M, Q, P, Z, or whoever's in charge these

days, have a quiet word in the AG's ear?  Enquiring minds want to know.









                                       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 gerard.mcmeel@bristol.ac.uk Fri Jul 28 12:44:18 2000

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From: Gerard McMeel <gerard.mcmeel@bristol.ac.uk>

Sender: Gerard.McMeel@bristol.ac.uk

Reply-To: gerard.mcmeel@bristol.ac.uk

To: Steve Hedley <swh10@cus.cam.ac.uk>

Cc: restitution@maillist.ox.ac.uk

Subject: Re: RDG: Blake - Why?

In-Reply-To: <3.0.6.32.20000728115817.017b9150@pop.cus.cam.ac.uk>

Message-ID: <SIMEON.10007281352.D@law-brno.bris.ac.uk>

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Blake, whilst a wholly unsympathetic figure, was at the receiving end 

of an indefensible, ad hominen judgment in the Court of Appeal. His 

appeal was supported by a Human Rights organisation and counsel acted 

pro bono (and was deservedly thanked for his efforts). On the state of 

the common law until yesterday Blake was entitled to the money. 

Blake won the public law point which was the only ground for the 

order against him in the CA. The Crown would have lost in the House of 

Lords had they not cross-appealed (largely at the prompting of the law 

lords). The cross-appeal only succeeded because the HL recognised for 

the first time a remedy (or should I say "secondary right"?) of account 

for breach of contract for "exceptional" cases. On the law in the books 

Blake should have won, but then we know that in the real world he was 

never going to get the money. At least the majority took an 

intellectually honest and defensible route to that solution.



This case was worthy of our highest court. I am not sure how to respond 

to Steve's leCarre-esque musings. I an unsure whether security for 

costs of the appeal was available or appropriate in this case. I am 

unaware of any other mode of "blocking" the appeal. In the result our 

public law and private law are in better shape.



Gerard McMeel

University of Bristol





On Fri, 28 Jul 2000 11:58:17 +0100 Steve Hedley <swh10@cus.cam.ac.uk> 

wrote:



> One thing that's puzzling me about Blake - why did the case reach the Lords

> at all?

> 

> An appeal seemed very unlikely at the court of appeal stage.  Blake had

> fallen out with his solicitors, and seemed not to have the inclination or

> the money to hire others.  The publishers had been taking on a stake-holder

> role throughout - they didn't care who they handed the royalties over to,

> they just wanted to know who that was.  The AG had got everything he asked

> for, and declined to ask for a restitutionary remedy despite the CA's heavy

> hints that he would get it if he asked.  Indeed, Lord Woolf gave the fact

> that "there is .. no possibility that this case will reach a higher court"

> as his excuse for his speech on the restitutionary aspects of the case

> ([1998] 1 All ER 844ab).

> 

> So what's this appeal all about?  The report says that it was Blake who

> appealed.  Now Blake certainly had nothing to lose (and a remote chance of

> success) by appealing, but there's absolutely no way that he could pay for

> it to be argued.  An attempt to start an appeal could presumably have been

> blocked simply on the grounds that it was a waste of money.  But very far

> from doing that, the appeal was heard, and counsel were paid for out of

> public funds.

> 

> So what is going on?   A change of heart by the AG?   Or a different

> decision by a new AG?   Or did M, Q, P, Z, or whoever's in charge these

> days, have a quiet word in the AG's ear?  Enquiring minds want to know.

> 

> 

> 

> 

>                                        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

> 

> ===================================================

> 

> 

> 

> ________________________________________________________________________________ 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>.

> 



----------------------

Gerard McMeel

gerard.mcmeel@bristol.ac.uk







>From swh10@cus.cam.ac.uk Fri Jul 28 14:16:23 2000

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Date: Fri, 28 Jul 2000 14:16:28 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: Blake - Why?

In-Reply-To: <SIMEON.10007281352.D@law-brno.bris.ac.uk>

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At 13:01 28/07/00 +0100, Gerard McMeel  wrote:

>Blake, whilst a wholly unsympathetic figure, was at the receiving end 

>of an indefensible, ad hominen judgment in the Court of Appeal. His 

>appeal was supported by a Human Rights organisation and counsel acted 

>pro bono (and was deservedly thanked for his efforts). 



Interesting.   That goes some way to explain the appeal, though it is 

astonishing that said HR organisation could suppose it might win.





>On the state of 

>the common law until yesterday Blake was entitled to the money. 

>Blake won the public law point which was the only ground for the 

>order against him in the CA. The Crown would have lost in the House of 

>Lords had they not cross-appealed (largely at the prompting of the law 

>lords). The cross-appeal only succeeded because the HL recognised for 

>the first time a remedy (or should I say "secondary right"?) of account 

>for breach of contract for "exceptional" cases. On the law in the books 

>Blake should have won, but then we know that in the real world he was 

>never going to get the money. 



An interesting comment on the role of the court.  If the law lords were 

incapable of applying "the law in the books", perhaps they should have 

stood aside for others who would.  Or, or there are no such people,  

perhaps the case should not be reported, if it is truly one in which it is 

hopeless to expect the law to be applied.  



If there is a category of case to which we cannot expect the common 

law to be applied, then it seems rather urgent to divide it off from the 

general run of cases, if only to avoid confusion.  







>At least the majority took an 

>intellectually honest and defensible route to that solution.

>

>This case was worthy of our highest court  ...

>In the result our  public law and private law are in better shape.





Really?  The private law route seems a little shaky.



The lords give us a tour of the existing authorities, then lay down 

(contrary to nearly all of them) that there may be an exception to 

the normal rule against non-compensatory damages, provided 

the circumstances are truly exceptional.   They refuse outright to 

say how to recognise an "exceptional" case when they see one, 

and mention a  variety of criteria only to reject them.   All criticism 

of the implications for commercial law are brushed aside, by 

saying that only really, really exceptional cases are affected.



When they come to explain how this one was truly exceptional, 

the reasons turn out to be:- 



i That Blake is a very very bad man, and



ii That the secret services will operate more smoothly if there is a 

rule depriving memoir-writers of their profits, even where, as here, 

nothing they say is secret.  (This seems to be pure speculation.)



(And if any of you can see more in the opinions than that, then 

please say so, that's what this list is for.)



All of this to penalise actions which did no harm to anyone, and in 

favour of a remedy which the lords admit (in the public law context) 

is "confiscatory" and offends principles "of the highest public 

importance".   What conceptual magic is it, that turns what is 

objectionable confiscation in public law into something perfectly 

permissible in private law?  We are offered no explanation.



The lords have the right and the duty to develop the law - but this 

case doesn't look like development, so much as refusal to apply 

the law because they don't care for this particular defendant to win

anything.  Which must inevitably happen in any legal system, but

it's important to recognise it.







>I am not sure how to respond 

>to Steve's leCarre-esque musings. 



Um, no, "Q" and the others were Ian Fleming (the James Bond 

novels), not John le Carre. 



I'm not sure I was looking for a particular response.  But it would be 

odd if the secret services didn't have a view on how the law should 

develop, particularly in the light of upcoming issues such as those 

connected with David Shayler.   





>I an unsure whether security for 

>costs of the appeal was available or appropriate in this case. I am 

>unaware of any other mode of "blocking" the appeal. 



It was indeed the costs aspects I was referring to.









                                       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 pradan@laurel.ocs.mq.edu.au Fri Jul 28 14:27:13 2000

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To: cameron.stewart@mq.edu.au

From: pradan@laurel.ocs.mq.edu.au (Peter Radan)

Subject: Re: RDG: Blake - Why?

Cc: restitution@maillist.ox.ac.uk



Blake, whilst a wholly unsympathetic figure, was at the receiving end 

of an indefensible, ad hominen judgment in the Court of Appeal. His 

appeal was supported by a Human Rights organisation and counsel acted 

pro bono (and was deservedly thanked for his efforts). On the state of 

the common law until yesterday Blake was entitled to the money. 

Blake won the public law point which was the only ground for the 

order against him in the CA. The Crown would have lost in the House of 

Lords had they not cross-appealed (largely at the prompting of the law 

lords). The cross-appeal only succeeded because the HL recognised for 

the first time a remedy (or should I say "secondary right"?) of account 

for breach of contract for "exceptional" cases. On the law in the books 

Blake should have won, but then we know that in the real world he was 

never going to get the money. At least the majority took an 

intellectually honest and defensible route to that solution.



This case was worthy of our highest court. I am not sure how to respond 

to Steve's leCarre-esque musings. I an unsure whether security for 

costs of the appeal was available or appropriate in this case. I am 

unaware of any other mode of "blocking" the appeal. In the result our 

public law and private law are in better shape.



Gerard McMeel

University of Bristol





On Fri, 28 Jul 2000 11:58:17 +0100 Steve Hedley <swh10@cus.cam.ac.uk> 

wrote:



> One thing that's puzzling me about Blake - why did the case reach the Lords

> at all?

> 

> An appeal seemed very unlikely at the court of appeal stage.  Blake had

> fallen out with his solicitors, and seemed not to have the inclination or

> the money to hire others.  The publishers had been taking on a stake-holder

> role throughout - they didn't care who they handed the royalties over to,

> they just wanted to know who that was.  The AG had got everything he asked

> for, and declined to ask for a restitutionary remedy despite the CA's heavy

> hints that he would get it if he asked.  Indeed, Lord Woolf gave the fact

> that "there is .. no possibility that this case will reach a higher court"

> as his excuse for his speech on the restitutionary aspects of the case

> ([1998] 1 All ER 844ab).

> 

> So what's this appeal all about?  The report says that it was Blake who

> appealed.  Now Blake certainly had nothing to lose (and a remote chance of

> success) by appealing, but there's absolutely no way that he could pay for

> it to be argued.  An attempt to start an appeal could presumably have been

> blocked simply on the grounds that it was a waste of money.  But very far

> from doing that, the appeal was heard, and counsel were paid for out of

> public funds.

> 

> So what is going on?   A change of heart by the AG?   Or a different

> decision by a new AG?   Or did M, Q, P, Z, or whoever's in charge these

> days, have a quiet word in the AG's ear?  Enquiring minds want to know.

> 

> 

> 

> 

>                                        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

> 

> ===================================================

> 

> 

> 

>

____________________________________________________________________________

____ This message was delivered through the Restitution Discussion Group, an

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----------------------

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gerard.mcmeel@bristol.ac.uk





____________________________________________________________________________

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Dr Peter Radan

Division of Law

Department of Law & Justice

Macquarie University   NSW   2109

Australia



Tel:    +61 (0)2 9850-7091

Fax:    +61 (0)2 9850-7686

Email:  Peter.Radan@mq.edu.au 







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>From robert.stevens@law.oxford.ac.uk Sat Jul 29 14:59:21 2000

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From: "Robert Stevens" <robert.stevens@law.oxford.ac.uk>

To: "Gerard McMeel" <gerard.mcmeel@bristol.ac.uk>,

	"Steve Hedley" <swh10@cus.cam.ac.uk>

Cc: <restitution@maillist.ox.ac.uk>

Subject: RE: RDG: Blake - Why?

Date: Sat, 29 Jul 2000 14:52:07 +0100

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"At least the majority took an

intellectually honest and defensible route to that solution."



I find this difficult to accept. Whatever one thought of Lord Woolf's dicta

in the Court of Appeal he at least attempted to set down some rules as to

when a claim to the gain made would be permitted. After the decision of the

House of Lords we are given very little with which to predict the outcome of

future cases. All we are told is:



"No fixed rules can be prescribed. The court will have regard to all the

circumstances, including the subject matter of the contract, the purpose of

the contractual provision which has been breached, the circumstances in

which the breach occurred, the consequences of the breach and the

circumstances in which relief is being sought. A useful general guide,

although not exhaustive, is whether the plaintiff had a legitimate interest

in preventing the defendant's profit making activity and,hence, in depriving

him of profit."



Why cannot rules be prescribed? What is meant by each of the tantalisingly

undefined factors? How much weight is to be given to each of them? How do we

spot a legitimate interest when we see one? Are saved expenses recoverable

or only profits?



When the explanation for the result is the need to do "practical justice"

this appears to be code for reaching a result for which rational explanation

cannot be given except that it seems fair. At least the academics can

continue to argue at length about when a claim for the gain made from a

breach of contract ought to be allowed, as the House of Lords have not told

us.



Two other points occur to me. In his discussion of the case of "skimped

performance" Lord Nicholls appears to contemplate allowing a part refund of

the price where the services paid for were inferior to those contracted for.

This appears to me to signal the end of the requirement that a failure of

consideration must be "total". Further it is unclear to me whether Lord

Nicholls considers it to be a pre-requisite of recovery that the contract is

terminated for breach.



The other point is a question of style. Both in Blake and in Alfred McAlpine

v Panatown there is a gratifying willingness to cite academic work. But this

tends to be done by way of vindication: "I am pleased to note that

Professor's X, Y and Z agree with me and I found their articles very

helpful." It would surely be better if substantive arguments for or against

a particular result were engaged with (with attribution) rather than breadth

of reading being defensively shown off.



Robert Stevens













>From duncan.sheehan@corpus-christi.oxford.ac.uk Sun Jul 30 15:20:07 2000

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From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: Robert Stevens <robert.stevens@law.oxford.ac.uk>

cc: Gerard McMeel <gerard.mcmeel@bristol.ac.uk>, 

    Steve Hedley <swh10@cus.cam.ac.uk>, restitution@maillist.ox.ac.uk

Subject: RE: RDG: Blake - Why?

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Dear all, 



I wonder whether we are all being unduly harsh on Lord Nicholls and

the rest of the majority. He doesn't just take us on a tour of the cases

and then lay down a rule that contradicts them. One of the things he does

do is to look at the account of profits cases relating to the breach of

fiduciary duties or confidentiality agreements and then says this is close

enough. Lord Steyn in fact comments that it is analogous to the fiduciary

cases. The majority then seems to believe that there is a gap in the law

that needs filling; AG v Blake falls into it and so Blake loses. I'm not

sure I agree with that, but it is certainly something on which reasonable

people can differ. 



As to Lord Nicholls not telling us in detail when these exceptional

circumstances of his appear, this is not wholly without precedent. Lord

Goff didn't tell us much about change of position in Lipkin

Gorman. Presumably Lord Nicholls just wants it worked out on a case by

case basis as Lord Goff did.

 Having said that I for one would not want this hanging in the air for

long. Lord Hobhouse is right to say that caution needs to be shown because

of ther potentially disruptive effect on commerce. One argument against

too wide a concept of restitutionary damages would be that it provides a

disincentive to efficient breach of contract, that we ought to be free to

take on a more profitable contract elsewhere and pay damages to our

original co-contractor and yet still make a profit and add to the

aggregate wealth of the commnity. The only dictum guarding against this

seems to be where Lord Nicholls comments that a breach enabling a party to

enter into a more profitable contract elsewhere is not by itself

sufficient reason for granting restitutionary damages. I'm not sure that

goes far enough; certainly it leaves the door open for at least some

efficient breaches to be remedied by restitutionary damages.



Duncan Sheehan 







>From gerhard.dannemann@law.oxford.ac.uk Sun Jul 30 15:56:54 2000

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Just to indicate some disagrement with what Duncan Sheehan says about

Blake and efficient breach and disruption of the business world.



The person who breaches the contract profits. But the other party is

only allowed to recover for proven financial losses and not for the

unquantifiable waste of management time (causing delays in other parts

of the business with a possible knock-on effect to third parties) etc

which is caused by having to find a new supplier, or by claiming,

quantifying, proving and ultimately enforcing damages claims. I suspect

that in the vast majority of cases the aggrieved party will decide that

it is a waste of time and further resources to try to enforce the

damages claim they have as the result of an "efficient breach".



I do not see the GDP of a country going up if you allow or encourage

"efficient breach". I think that business gets more disrupted by what

for one party is an efficient and for the other an inefficient breach

than by a House of Lords judgment which might cast a doubt on whether a

party is always entitled to breach a contract and wait whether the other

party is able and willing to claim and prove their financial loss. I

have for some time been wondering whether the doctrine of efficient

breach is really economic analysis or rather a rationalisation of one

peculiar and historically grown characteristic of common law.

-- 



Gerhard Dannemann

University of Oxford



http://iuscomp.org





>From joshua.getzler@law.oxford.ac.uk Sun Jul 30 16:24:53 2000

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Date: Sun, 30 Jul 2000 16:24:37 +0100

From: Dr Joshua Getzler <joshua.getzler@law.oxford.ac.uk>

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 	Gerard McMeel <gerard.mcmeel@bristol.ac.uk>,

 	Steve Hedley <swh10@cus.cam.ac.uk>, restitution@maillist.ox.ac.uk

Subject: Re: RDG: Blake - Why?

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On AG v Blake:



The problem may lie with remedialism (restitutionary damages, account of profits, whatever language one prefers) being used backwards to create what is in effect a new category of contractual relationship. This category lies between fiduciary and confidential relationships on the one hand, and arms-length contracts on the other. Dare we call these 'good faith contracts' and then get to work defining their indicia? The new Blake case makes a start, but maybe a focus on the initial qualities of the relationship rather than the qualities of the breach or the enrichment would be a better place to start. This is hardly

an original thought yet it still seems anathema to most English common lawyers. One can speculate as to  why the more rational and elegant doctrinal route cannot be taken.



Joshua Getzler







>From lsmith8@po-box.mcgill.ca Sun Jul 30 19:46:34 2000

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I agree with Gerhard Dannemann that when one looks closely, there is not that 

much in the concept of efficient breach, and that it is a rationalisation of a 

purely contingent understanding of contract law which owes a great deal to OW 

Holmes and very little to logic or economic analysis. Duncan Sheehan said:



"The only dictum guarding against [efficient breach] seems to be where Lord 

Nicholls comments that a breach enabling a party to enter into a more 

profitable contract elsewhere is not by itself sufficient reason for granting 

restitutionary damages."



But it is also true that Lord Nicholls seemed to think there was something in 

the argument in "Disgorgement of the Profits of Breach of Contract: Property, 

Contract and 'Efficient Breach' ". There the concept of efficient breach is 

criticised as insupportable, even within the world of economic analysis, in 

the absence of detailed empirical evidence as to transaction costs (of the 

kind Gerhard described), evidence which I for one have never seen. And that 

leaves aside the larger question of whether economic analysis is relevant in 

analysing private law. See eg Ernest Weinrib and Ronald Dworkin passim.



Lionel







>From lsmith8@po-box.mcgill.ca Sun Jul 30 23:53:14 2000

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I agree with Gerhard Dannemann that when one looks closely, there is not that 

much in the concept of efficient breach, and that it is actually a 

rationalisation of a purely contingent understanding of remedies in contract 

law which owes a great deal to OW Holmes and very little to logic or even 

economic analysis. Duncan Sheehan said:



"The only dictum guarding against [efficient breach] seems to be where Lord 

Nicholls comments that a breach enabling a party to enter into a more 

profitable contract elsewhere is not by itself sufficient reason for granting 

restitutionary damages."



But it is also true that Lord Nicholls seemed to think there was something in 

the argument in "Disgorgement of the Profits of Breach of Contract: Property, 

Contract and 'Efficient Breach' ". There the concept of efficient breach is 

criticised as insupportable, even within the world of economic analysis, in 

the absence of detailed empirical evidence as to transaction costs (of the 

kind Gerhard described), evidence which I for one have never seen. And that 

leaves aside the larger question of whether economic analysis is relevant in 

analysing private law. See eg Ernest Weinrib and Ronald Dworkin passim.



Lionel







>From gordon.goldberg@buckingham.ac.uk Mon Jul 31 12:02:22 2000

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From: "Gordon Goldberg" <gordon.goldberg@buckingham.ac.uk>

To: "Lionel Smith" <lsmith8@po-box.mcgill.ca>

Cc: <restitution@maillist.ox.ac.uk>

Subject: Re: "Efficient Breach"

Date: Mon, 31 Jul 2000 11:54:43 +0100

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¶    I respectfully agree with your first paragraph. Indeed, so far as I am

aware, the common law never has and, because of the unreliability of

economic predictions, never should owe anything to economic analysis.

¶    Thus, in my submission, the common law's protection of private property

was not doctrinaire capitalism, but a corollary of the liberty of the

subject. In Pepper v. Hart [1993] A.C. 593, to appreciate as a defence of

that liberty Lord Mackay of Clashfern, L.C.'s traditional resolution (at

614A) of the statutory ambiguity in favour of the taxpayer is warranted by

both authority and history.

¶    In Pryce v. Monmouthshire Canal & Rly Coys (1879) 4 App. Cas. 197 at

202-3, Earl Cairns, L.C., said:

 "My Lords, the cases which have decided that Taxing Acts are to be

construed with strictness, and that no payment is to be exacted from the

subject which is not clearly and unequivocally required by Act of Parliament

to be made, probably meant little more than this, that, inasmuch as there

was not any a priori liability in a subject to pay any particular tax, nor

any antecedent relationship between the tax-payer and the taxing authority,

no reasoning founded upon any supposed relationship of the tax-payer and the

taxing authority could be brought to bear upon the construction of the Act

..."

In the absence of a voluntary relationship taxation must be, in the words of

44(1) Halsbury's Laws (4th edn reissue, London 1995) 1240, "detriment

inflicted through the state's coercive power". Every coercion of the subject

detracts from his liberty; and taxation detracts especially from his

property. A sufficiency of property is itself essential to independence,

without which (as present and former colonies constantly claim) liberty is a

delusion.

¶    Historically (if I recall correctly my undergraduate studies) this is

demonstrated, inter alia, by the ancient Roman mob's willingness to accept

the tyranny of anyone who could guarantee the supply of corn from Egypt.

Conversely in this country (if I remember aright the last chapter of E.P.

Thompson's Whigs and Hunters) the courts' upholding of rights of property

constituted the main protection against imprisonment and hanging of those

actively opposing the enclosures of the 18th century.



-----Original Message-----

From: Lionel Smith <lsmith8@po-box.mcgill.ca>

To: restitution@maillist.ox.ac.uk <restitution@maillist.ox.ac.uk>

Date: 30 July 2000 23:54

Subject: RDG: "Efficient Breach"





>I agree with Gerhard Dannemann that when one looks closely, there is not

that

>much in the concept of efficient breach, and that it is actually a

>rationalisation of a purely contingent understanding of remedies in

contract

>law which owes a great deal to OW Holmes and very little to logic or even

>economic analysis. Duncan Sheehan said:

>

>"The only dictum guarding against [efficient breach] seems to be where Lord

>Nicholls comments that a breach enabling a party to enter into a more

>profitable contract elsewhere is not by itself sufficient reason for

granting

>restitutionary damages."

>

>But it is also true that Lord Nicholls seemed to think there was something

in

>the argument in "Disgorgement of the Profits of Breach of Contract:

Property,

>Contract and 'Efficient Breach' ". There the concept of efficient breach is

>criticised as insupportable, even within the world of economic analysis, in

>the absence of detailed empirical evidence as to transaction costs (of the

>kind Gerhard described), evidence which I for one have never seen. And that

>leaves aside the larger question of whether economic analysis is relevant

in

>analysing private law. See eg Ernest Weinrib and Ronald Dworkin passim.

>

>Lionel

>

>

>___________________________________________________________________________

_____ This message was delivered through the Restitution Discussion Group,

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unjust enrichment. To subscribe, send "subscribe restitution" in the body of

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>







>From william.swadling@brasenose.oxford.ac.uk Mon Jul 31 13:50:49 2000

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To: restitution@maillist.ox.ac.uk

From: William Swadling <william.swadling@brasenose.oxford.ac.uk>

Subject: The "solitary beacon" in Blake

Message-Id: <E13JF1s-0002iU-00@ermine.ox.ac.uk>

Date: Mon, 31 Jul 2000 13:50:48 +0100



Have I missed something?  In Blake, Lord Nicholls placed great store on the

decision of Brightman J in Wrotham Park v Parkside Homes, describing it as

shining as a "solitary beacon, showing that in contract as well as in tort

damages are not always narrowly confined to recoupment of financial loss".

But since the claim in that case was a claim not against the original

covenantor but a successor in title, and was brought not by the original

covenantee but a successor in title, it was clearly anything but a claim for

breach of contract.



Bill Swadling.

___________________________________________________________________________



	William Swadling, MA, LLM,

	Fellow and Tutor in Law,	Tel: +44 1865 277869 (Direct)

	Tutor for Admissions		Tel: +44 1865 277510 (Secretary)

	Brasenose College,		Tel: +44 1865 277830 (Messages)

	OXFORD, OX1 4AJ.		Fax: +44 1865 277520

___________________________________________________________________________







>From swh10@cus.cam.ac.uk Mon Jul 31 14:04:25 2000

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Date: Mon, 31 Jul 2000 14:04:48 +0100

To: restitution@maillist.ox.ac.uk

From: Steve Hedley <swh10@cus.cam.ac.uk>

Subject: The "solitary beacon" in Blake

In-Reply-To: <E13JF1s-0002iU-00@ermine.ox.ac.uk>

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It appears to be Lord Nicholls who missed something.



Further, while it isn't fair to say he missed the point that the case 

doesn't involve a claim for an account of profits, he can't be said 

to have placed very much stress on it.



None of which would matter very much if there were any other case

support for his position.  But he doesn't find any.



Duncan Sheehan writes:



"He doesn't just take us on a tour of the cases and then lay down 

a rule that contradicts them. "



It seems to me, though, that that is precisely what he does do ...







At 13:50 31/07/00 +0100, Bill Swadling wrote:

>Have I missed something?  In Blake, Lord Nicholls placed great store 

>on the decision of Brightman J in Wrotham Park v Parkside Homes, 

>describing it as shining as a "solitary beacon, showing that in contract 

>as well as in tort damages are not always narrowly confined to 

>recoupment of financial loss". But since the claim in that case was a 

>claim not against the original covenantor but a successor in title, and 

>was brought not by the original covenantee but a successor in title, it 

>was clearly anything but a claim for breach of contract.





                                       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 duncan.sheehan@corpus-christi.oxford.ac.uk Mon Jul 31 14:16:17 2000

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Date: Mon, 31 Jul 2000 14:16:17 +0100 (BST)

From: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

To: William Swadling <william.swadling@brasenose.oxford.ac.uk>

cc: restitution@maillist.ox.ac.uk

Subject: Re: RDG: The "solitary beacon" in Blake

In-Reply-To: <E13JF1s-0002iU-00@ermine.ox.ac.uk>

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Maybe I too am missing something here, but in Wrotham Park the breach was

a breach of a restrictive covenant, which is a contract; the fact that is

also a proprietary right allowing successors in title to sue doesn't stop

it being a breach of contract when the successor to the covanantor

breaches the successor to the covenantee's right not have these buildings 

built, or does it? I accept that it looks odd, but unless we are prepared

to say that as between the original covanantee and covanantor it is a

contract and then as soon as a successor in title steps in it stops being

a contract, Lord Nicholls must be right.



I may of course just be flailing around trying to extricate Lord Nicholls 

from patent error and falling into it myself. 



As for Lionel's point about efficient breach and the lack of empirical

evidence we may soon have some empirical evidence from which we can see

which of us is right. 



Duncan Sheehan 







On Mon, 31 Jul 2000, William Swadling wrote:



> Have I missed something?  In Blake, Lord Nicholls placed great store on the

> decision of Brightman J in Wrotham Park v Parkside Homes, describing it as

> shining as a "solitary beacon, showing that in contract as well as in tort

> damages are not always narrowly confined to recoupment of financial loss".

> But since the claim in that case was a claim not against the original

> covenantor but a successor in title, and was brought not by the original

> covenantee but a successor in title, it was clearly anything but a claim for

> breach of contract.

> 

> Bill Swadling.

> ___________________________________________________________________________

> 

> 	William Swadling, MA, LLM,

> 	Fellow and Tutor in Law,	Tel: +44 1865 277869 (Direct)

> 	Tutor for Admissions		Tel: +44 1865 277510 (Secretary)

> 	Brasenose College,		Tel: +44 1865 277830 (Messages)

> 	OXFORD, OX1 4AJ.		Fax: +44 1865 277520

> ___________________________________________________________________________

> 

> 

> ________________________________________________________________________________ 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 joshua.getzler@law.oxford.ac.uk Mon Jul 31 14:59:20 2000

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Date: Mon, 31 Jul 2000 14:58:59 +0100

From: Dr Joshua Getzler <joshua.getzler@law.oxford.ac.uk>

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To: Duncan Sheehan <duncan.sheehan@corpus-christi.oxford.ac.uk>

CC: restitution@maillist.ox.ac.uk

Subject: Blake and empirical testing

References: <Pine.OSF.4.21.0007311358440.23754-100000@sable.ox.ac.uk>

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My sense is that some members of the RDG are a little hostile to 'law and' approaches. So with some trepidation, may I proffer the following references on efficient breach and empirical testing:



Richard Craswell, "Contract Remedies, Renegotiation, and

the Theory of Efficient Breach", Southern California

Law Review, 61 (1988):  629-70.



Stewart Macaulay, "Non-contractual Relations

in Business:  A Preliminary Study", American Sociological

Review, 28 (1963);  55-67



Alan Schwartz, "Relational Contracts in the Courts:

An Analysis of Incomplete Agreements and Judicial Strategies",

Journal of Legal Studies, 21 (1992):  271-318.



All are found in Brian Bix's fine collection on Contract Law in Dartmouth/Ashgate "International

Library of Essays in Law and Legal Theory" (2nd series).



It seems at least plausible that some economic reasoning can help in sorting out the issue of efficient breach. We should also beware of the ideological trap of denying that the law has any economic or other ideological commitments just because lawyers say they do not practice economic reasoning. For example, all of us make appeals to 'commercial certainty' when it suits us; that is an ideologically-loaded economic norm if ever there was one.



     JM Keynes, General Theory (1936) p. 383: 'Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist'.



Joshua Getzler



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<!doctype html public "-//w3c//dtd html 4.0 transitional//en">

<html>

My sense is that some members of the RDG are a little hostile to 'law and'

approaches. So with some trepidation, may I proffer the following references

on efficient breach and empirical testing:

<p>Richard Craswell, "Contract Remedies, Renegotiation, and

<br>the Theory of Efficient Breach", Southern California

<br>Law Review, 61 (1988):&nbsp; 629-70.

<p>Stewart Macaulay, "Non-contractual Relations

<br>in Business:&nbsp; A Preliminary Study", American Sociological

<br>Review, 28 (1963);&nbsp; 55-67

<p>Alan Schwartz, "Relational Contracts in the Courts:

<br>An Analysis of Incomplete Agreements and Judicial Strategies",

<br>Journal of Legal Studies, 21 (1992):&nbsp; 271-318.

<p>All are found in Brian Bix's fine collection on Contract Law in Dartmouth/Ashgate

"International

<br>Library of Essays in Law and Legal Theory" (2nd series).

<p>It seems at least plausible that some economic reasoning can help in

sorting out the issue of efficient breach. We should also beware of the

ideological trap of denying that the law has any economic or other ideological

commitments just because lawyers say they do not practice economic reasoning.

For example, all of us make appeals to 'commercial certainty' when it suits

us; that is an ideologically-loaded economic norm if ever there was one.

<blockquote>JM Keynes, General Theory (1936) p. 383: 'Practical men, who

believe themselves to be quite exempt from any intellectual influences,

are usually the slaves of some defunct economist'.</blockquote>

Joshua Getzler</html>



--------------7015298C99107332D9F66363--







>From william.swadling@brasenose.oxford.ac.uk Mon Jul 31 16:49:27 2000

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To: restitution@maillist.ox.ac.uk

From: William Swadling <william.swadling@brasenose.oxford.ac.uk>

Subject: The "solitary beacon" in Blake

Message-Id: <E13JHok-00058d-00@ermine.ox.ac.uk>

Date: Mon, 31 Jul 2000 16:49:26 +0100



Duncan Sheehan wrote:



        in Wrotham Park the breach was a breach of a restrictive covenant,

which         is a contract; the fact that is also a proprietary right

allowing               successors in title to sue doesn't stop it being a

breach of contract           when the successor to the covanantor breaches

the successor to the              covenantee's right not have these

buildings built, or does it? I accept         that it looks odd, but unless

we are prepared to say that as between the         original covanantee and

covanantor it is a contract and then as soon as         a successor in title

steps in it stops being a contract, Lord Nicholls         must be right.



But with respect, he seems to make a categorical error.  A contract is a

source of rights, both of personal rights and property rights - the making

of a contract is an event which brings rights into being.  No contrast can

therefore be drawn between contractual rights and property rights.  Instead,

the contrast should be between personal rights and property rights.  And the

right which was violated in Wrotham Park was a property right, while that

violated in Blake was a personal right.  The former is therefore not

authority for the latter.



And Lord Steyn did after all tell us that taxonomy was vital.



WJS.

___________________________________________________________________________



	William Swadling, MA, LLM,

	Fellow and Tutor in Law,	Tel: +44 1865 277869 (Direct)

	Tutor for Admissions		Tel: +44 1865 277510 (Secretary)

	Brasenose College,		Tel: +44 1865 277830 (Messages)

	OXFORD, OX1 4AJ.		Fax: +44 1865 277520

___________________________________________________________________________







>From wongfy@pacific.net.sg Mon Jul 31 18:53:00 2000

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