Date: Fri, 3 Nov 2000 07:10:01 -0500 Reply-To: Rachel Foo Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Rachel Foo Subject: Free Acceptance Should Free Acceptance be recognised as a ground of restitution? ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 3 Nov 2000 15:47:31 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: RDG: Constructive trust (Ellingsen v Hallmark) MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="----=_NextPart_000_0030_01C045AD.608BB040" This is a multi-part message in MIME format. ------=_NextPart_000_0030_01C045AD.608BB040 Content-Type: multipart/alternative; boundary="----=_NextPart_001_0031_01C045AD.608BB040" ------=_NextPart_001_0031_01C045AD.608BB040 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable =B6 I apologize for increasing the length of this communication by = appending Lionel=92s message dated 06 October 2000 14:37. However, after = the four weeks taken to compose my answer, I fear lest the appendix be = necessary to enable recall of the context. An intervening onset of many = diverse distractions may well not have been unique to me. I apologize = also to any who, in the answer, find that I draw the discussion too far = from restitution. I plead that my range is but an aspect of the = seamlessness, which Maitland remarked (if I remember rightly) in the web = of history and which, as an attribute of philosophy itself, is shared by = the law. Legal maxims, especially, have a broad sweep. =B6 In contrast, there was no need for Lionel to apologize. Admittedly I = am relieved by his retraction, but because the charge was puzzling, not = because it was offensive. Much less worrying, but nonetheless a puzzle, = is his advancing his renewed residence in Canada as justification for = the use of "z", rather than "s" in "rationalizing". Does Oxford no = longer follow its own English dictionary? Still, let no one doubt my = sincere and great gratitude for his demonstration of the lack of clarity = in the draft, which I submitted to him. This I have attempted to correct = in the attachment. Of course, let no one doubt, either, that his = demonstration and my attempt, whether jointly or severally, detract = nothing from our cheerful agreement to differ. =B6 Because of the length of my answer I have made it an attachment. I = have done so in two forms: "Rich Text" and "Word". -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 06 October 2000 14:37 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) =B6 I retract my comment about speaking in riddles, and I apologize to = Gordon if it was offensive. But I still think it is better to say what = is the rule and why it makes sense than to interpose maxims and = unnecessary concepts like ratification. =B6 I said that my understanding of Gordon=92s original comment was that = you could recover the profits of a wrong against a wrongdoer who knew he = was acting wrongfully, but not against one who claimed to be entitled to = take whatever it was that he took. That distinction, if it is to be = justified, needs to be justified on its own terms and not by reference = to maxims. I personally do not think it could be justified, and this = becomes clearer when the language of ratification and assumpsit is = stripped away. =B6 Here is another example of what I mean: Gordon said: "Mesne profits = are a form of damages =96 Elliott v. Boynton [1924] 1 Ch. 236 at 250 per = Warrington, L.J. Yet they are not limited to the demonstrable damage (if = any) suffered by the plaintiff, who may recover under this head the full = potential value of the land to the defendant trespasser for the period = of the defendant=92s wrongful occupation =96 Inverugie Investments v. = Hackett [1995] 1 W.L.R. 713 P.C. In my respectful submission, this is = not restitution based on a general theory of unjust enrichment. The = trespasser has wrongfully deprived the plaintiff of the land and so is = caught by the maxim, =91In odium spoliatoris omnia praesumuntur=92, = which is, being interpreted, =91Everything is presumed to the prejudice = of a plunderer.=92 Accordingly it is presumed that the full potential = value of the land to the trespasser would have been available to the = plaintiff." =B6 I agree that this is not restitution based on a general theory of = unjust enrichment. I think it is a disgorgement response which is = available as an alternative to the usual compensatory response, in the = case of trespass to land. Is there a difference between that and what = Gordon says? Yes. What if the defendant was able to prove, as an = affirmative fact, that the plaintiff suffered no loss (even though the = defendant profited)? You might say, in that case, that there would be no = claim to the profit. But let=92s assume that you want to allow the claim = in such a case, because I think Gordon and I agree on that. On my = reasoning you say: because the claim is measured by the defendant=92s = gain, and does not purport to be a damages claim for compensation, it is = irrelevant that the plaintiff suffered no loss. But if you want to allow = the claim on Gordon=92s reasoning, I think you have to say that = Gordon=92s maxim/presumption is an irrebuttable presumption. But Wigmore = showed, a long time ago, that an irrebuttable presumption is not a = presumption at all, it is a rule of substantive law. In other words, if = you say that it is presumed irrebuttably as a matter of law that the = plaintiff suffered a loss which is equal to the defendant=92s gain, then = what you are really saying is that it is *completely irrelevant* whether = the plaintiff suffered a loss. But then look what you are doing. You = allow the claim on the reasoning that it is compensation for damages; = but it is measured by the defendant=92s gain, because you have a rule = that the plaintiff=92s compensation is deemed to be the defendant=92s = gain. That is what I mean when I speak of riddles: without trying to = give offence, I am only saying that it is an unnecessarily mysterious = way of rationalizing (I am back in Canada so I can spell with z=92s = again) the liability. If you do not just admit that the claim is = measured by the defendant=92s gain, you have to use a fictional deemed = loss to build a kind of semantic bridge from compensation for loss to = disgorgement of gain. =B6 Gordon continued: "This is the maxim, which I was taught to be the = warrant for Vice-Chancellor Wood=92s =91second principle=92, stated in = Frith v. Cartland (1865) 2 H. & M. 417at 420: =91... if a man mixes = trust funds with his own, the whole will be treated as the trust = property, except so far as he may be able to distinguish what is his = own=92." =B6 This context is dear to my heart, and I agree that the rule stated = in Frith v. Cartland is based on subordinating the interests of those = who wrongfully create evidentiary difficulties. But on the same = reasoning I have deployed above, this is also not a presumption properly = so called, because if it is a presumption it is irrebuttable, and then = it is not really a presumption at all. That is why I have argued that = the tracing rules, contrary to the usual understanding, do not involve = presumptions at all. If they did involve presumptions of honesty on the = part of breaching trustees, there would be no way to justify the "lowest = intermediate balance rule", which was affirmed in Frith v. Cartland = itself. That rule only makes sense if we lose the language of = presumptions and say that *while* every possible inference is drawn = against the person who wrongfully created an evidentiary difficulty, = *nonetheless* (because this is not an irrebuttable presumption of law, = just a rule for resolving difficulties of evidence) we cannot draw = inferences which are contrary to the known facts. That is the logical = limit which is imposed when the reasoning is based on evidentiary = considerations, which is why, in the context of profitable trespass, you = need to explain the liability without reference to evidentiary = considerations (such as deemed losses), unless you do not want the = plaintiff to have the defendant=92s gain in the case where the plaintiff = can be shown to have suffered no loss. Lionel ------=_NextPart_001_0031_01C045AD.608BB040 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

¶ I apologize for increasing the = length of=20 this communication by appending Lionel’s message dated 06 October = 2000=20 14:37. However, after the four weeks taken to compose my answer, I fear = lest the=20 appendix be necessary to enable recall of the context. An intervening = onset of=20 many diverse distractions may well not have been unique to me. I = apologize also=20 to any who, in the answer, find that I draw the discussion too far from=20 restitution. I plead that my range is but an aspect of the seamlessness, = which=20 Maitland remarked (if I remember rightly) in the web of history and = which, as an=20 attribute of philosophy itself, is shared by the law. Legal maxims, = especially,=20 have a broad sweep.

¶ In contrast, there was no need = for Lionel=20 to apologize. Admittedly I am relieved by his retraction, but because = the charge=20 was puzzling, not because it was offensive. Much less worrying, but = nonetheless=20 a puzzle, is his advancing his renewed residence in Canada as = justification for=20 the use of "z", rather than "s" in=20 "rationalizing". Does Oxford no longer follow its own English=20 dictionary? Still, let no one doubt my sincere and great gratitude for = his=20 demonstration of the lack of clarity in the draft, which I submitted to = him.=20 This I have attempted to correct in the attachment. Of course, let no = one doubt,=20 either, that his demonstration and my attempt, whether jointly or = severally,=20 detract nothing from our cheerful agreement to differ.

¶ Because of the length of my = answer I have=20 made it an attachment. I have done so in two forms: "Rich = Text" and=20 "Word".

-----Original Message-----
From: Lionel Smith <lionel.smith@mcgill.ca>
= To: restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
Date:=20 06 October 2000 14:37
Subject: Re: RDG: Constructive trust (Ellingsen = v=20 Hallmark)

¶ I retract my comment about speaking in riddles, = and I=20 apologize to Gordon if it was offensive. But I still think it is better = to say=20 what is the rule and why it makes sense than to interpose maxims and = unnecessary=20 concepts like ratification.
¶ I said that my understanding of=20 Gordon’s original comment was that you could recover the profits = of a=20 wrong against a wrongdoer who knew he was acting wrongfully, but not = against one=20 who claimed to be entitled to take whatever it was that he took. That=20 distinction, if it is to be justified, needs to be justified on its own = terms=20 and not by reference to maxims. I personally do not think it could be = justified,=20 and this becomes clearer when the language of ratification and assumpsit = is=20 stripped away.
¶ Here is another example of what I mean: Gordon = said:=20 "Mesne profits are a form of damages – Elliott v.=20 Boynton [1924] 1 Ch. 236 at 250 per Warrington, L.J. Yet they are = not=20 limited to the demonstrable damage (if any) suffered by the plaintiff, = who may=20 recover under this head the full potential value of the land to the = defendant=20 trespasser for the period of the defendant’s wrongful occupation = –=20 Inverugie Investments v. Hackett [1995] 1 W.L.R. 713 P.C. = In my=20 respectful submission, this is not restitution based on a general theory = of=20 unjust enrichment. The trespasser has wrongfully deprived the plaintiff = of the=20 land and so is caught by the maxim, ‘In odium spoliatoris omnia = praesumuntur’, which is, being interpreted, ‘Everything = is=20 presumed to the prejudice of a plunderer.’ Accordingly it is = presumed that=20 the full potential value of the land to the trespasser would have been = available=20 to the plaintiff."
¶ I agree that this is not restitution = based on=20 a general theory of unjust enrichment. I think it is a disgorgement = response=20 which is available as an alternative to the usual compensatory response, = in the=20 case of trespass to land. Is there a difference between that and what = Gordon=20 says? Yes. What if the defendant was able to prove, as an affirmative = fact, that=20 the plaintiff suffered no loss (even though the defendant profited)? You = might=20 say, in that case, that there would be no claim to the profit. But = let’s=20 assume that you want to allow the claim in such a case, because I think = Gordon=20 and I agree on that. On my reasoning you say: because the claim is = measured by=20 the defendant’s gain, and does not purport to be a damages claim = for=20 compensation, it is irrelevant that the plaintiff suffered no loss. But = if you=20 want to allow the claim on Gordon’s reasoning, I think you have to = say=20 that Gordon’s maxim/presumption is an irrebuttable presumption. = But=20 Wigmore showed, a long time ago, that an irrebuttable presumption is not = a=20 presumption at all, it is a rule of substantive law. In other words, if = you say=20 that it is presumed irrebuttably as a matter of law that the plaintiff = suffered=20 a loss which is equal to the defendant’s gain, then what you are = really=20 saying is that it is *completely irrelevant* whether the plaintiff = suffered a=20 loss. But then look what you are doing. You allow the claim on the = reasoning=20 that it is compensation for damages; but it is measured by the = defendant’s=20 gain, because you have a rule that the plaintiff’s compensation is = deemed=20 to be the defendant’s gain. That is what I mean when I speak of = riddles:=20 without trying to give offence, I am only saying that it is an = unnecessarily=20 mysterious way of rationalizing (I am back in Canada so I can spell with = z’s again) the liability. If you do not just admit that the claim = is=20 measured by the defendant’s gain, you have to use a fictional = deemed loss=20 to build a kind of semantic bridge from compensation for loss to = disgorgement of=20 gain.
¶ Gordon continued: "This is the maxim, which I was = taught to=20 be the warrant for Vice-Chancellor Wood’s ‘second = principle’,=20 stated in Frith v. Cartland (1865) 2 H. & M. 417at = 420:=20 ‘... if a man mixes trust funds with his own, the whole will be = treated as=20 the trust property, except so far as he may be able to distinguish what = is his=20 own’."
¶ This context is dear to my heart, and I = agree that=20 the rule stated in Frith v. Cartland is based on = subordinating the=20 interests of those who wrongfully create evidentiary difficulties. But = on the=20 same reasoning I have deployed above, this is also not a presumption = properly so=20 called, because if it is a presumption it is irrebuttable, and then it = is not=20 really a presumption at all. That is why I have argued that the tracing = rules,=20 contrary to the usual understanding, do not involve presumptions at all. = If they=20 did involve presumptions of honesty on the part of breaching trustees, = there=20 would be no way to justify the "lowest intermediate balance = rule",=20 which was affirmed in Frith v. Cartland itself. That rule only makes = sense if we=20 lose the language of presumptions and say that *while* every possible = inference=20 is drawn against the person who wrongfully created an evidentiary = difficulty,=20 *nonetheless* (because this is not an irrebuttable presumption of law, = just a=20 rule for resolving difficulties of evidence) we cannot draw inferences = which are=20 contrary to the known facts. That is the logical limit which is imposed = when the=20 reasoning is based on evidentiary considerations, which is why, in the = context=20 of profitable trespass, you need to explain the liability without = reference to=20 evidentiary considerations (such as deemed losses), unless you do not = want the=20 plaintiff to have the defendant’s gain in the case where the = plaintiff can=20 be shown to have suffered no = loss.

Lionel

------=_NextPart_001_0031_01C045AD.608BB040-- ------=_NextPart_000_0030_01C045AD.608BB040 Content-Type: application/msword; name="Lionel Smith - R.D.G. Constructive Trust (Ellingsen v.rtf" Content-Transfer-Encoding: quoted-printable Content-Disposition: attachment; filename="Lionel Smith - R.D.G. Constructive Trust (Ellingsen v.rtf" {\rtf1\ansi\ansicpg1252\uc1 = \deff0\deflang1033\deflangfe1033{\fonttbl{\f0\froman\fcharset0\fprq2{\*\p= anose 02020603050405020304}Times New = Roman;}{\f16\froman\fcharset238\fprq2 Times New Roman = CE;}{\f17\froman\fcharset204\fprq2 Times New Roman Cyr;} {\f19\froman\fcharset161\fprq2 Times New Roman = Greek;}{\f20\froman\fcharset162\fprq2 Times New Roman = Tur;}{\f21\froman\fcharset186\fprq2 Times New Roman = Baltic;}}{\colortbl;\red0\green0\blue0;\red0\green0\blue255;\red0\green25= 5\blue255; \red0\green255\blue0;\red255\green0\blue255;\red255\green0\blue0;\red255\= green255\blue0;\red255\green255\blue255;\red0\green0\blue128;\red0\green1= 28\blue128;\red0\green128\blue0;\red128\green0\blue128;\red128\green0\blu= e0;\red128\green128\blue0; \red128\green128\blue128;\red192\green192\blue192;}{\stylesheet{\widctlpa= r\adjustright \fs20\cgrid \snext0 Normal;}{\*\cs10 \additive Default = Paragraph Font;}{\*\cs15 \additive \ul\cf2 \sbasedon10 = Hyperlink;}{\*\cs16 \additive \i \sbasedon10 Emphasis;}{ \s17\widctlpar\adjustright \fs20\cgrid \sbasedon0 \snext17 footnote = text;}{\*\cs18 \additive \super \sbasedon10 footnote = reference;}}{\info{\title There was no need to apologize}{\author = ggoldberg}{\operator ggoldberg} {\creatim\yr2000\mo11\dy1\hr16\min25}{\revtim\yr2000\mo11\dy3\hr15\min27}= {\printim\yr2000\mo10\dy27\hr15\min8}{\version18}{\edmins71}{\nofpages4}{= \nofwords2603}{\nofchars12944}{\*\company University of = Buckingham}{\nofcharsws0}{\vern113}} \paperw11906\paperh16838\margl1440\margr1440 = \widowctrl\ftnbj\aenddoc\hyphcaps0\formshade\viewkind1\viewscale100\pgbrd= rhead\pgbrdrfoot \fet0\sectd = \linex0\headery1440\footery1440\colsx709\sectdefaultcl = {\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang{\pntxta = .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang{\pntxta = .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang{\pntxta = )}}{\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang{\pntxtb (} {\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang{\pntxtb = (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang{\pntxtb = (}{\pntxta )}}{\*\pnseclvl8\pnlcltr\pnstart1\pnindent720\pnhang{\pntxtb = (}{\pntxta )}}{\*\pnseclvl9 \pnlcrm\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}\pard\plain = \widctlpar\adjustright \fs20\cgrid {\fs24 In the University of = Buckingham, England MK18 1EG, \par on All Souls' Morrow, 49 Eliz. 2 (3.}{\fs28 xi}{\fs24 . 00).=20 \par }\pard \qr\fi720\widctlpar\adjustright {\fs24=20 \par }\pard \widctlpar\adjustright {\fs24 Ladies and Gentlemen, \par }{\fs24\ul\lang2057\cgrid0 Constructive Trust (Ellingsen v. = Hallmark)}{\fs24=20 \par \'b6 This is my answer to Lionel Smith's e-missive dated 06 October = 2000 14:37. \par \'b6 The common law's occasionally allowing a wrongdoer, who = pursuant to a sincere claim of right mistakenly asserts ownership of = property, to fare better than one, who makes no such=20 claim, does not invariably result from the irrelevance of a maxim and = the consequent exclusion of a deemed contract. In criminal law the = absence of such a claim was essential to the definition of larceny = \endash }{\i\fs24 R. }{\fs24 v. }{\i\fs24 Hall}{ \fs24 (1828) 3 C. & P. 409.=20 \par \'b6 So that Lionel 's expression of his "understanding of [my] original comment" may take = account of my message dated 04 October 2000 18:20, it needs expansion = thus: "[Y]ou could recover [either in tort, or in contract by waiver of = the tort] the profits of a wrong against a =20 wrongdoer [in adverse possession] who knew he was acting wrongfully, but = not [in contract] against one who claimed to be entitled to take = whatever it was that he took [for against him you could recover only in = tort]." Following Lionel's agreement that suc h recovery in tort, when in the form of mesne profits, "is not = restitution based on a general theory of unjust enrichment", I need to = ask: are not mesne profits measured according to the defendant's = potential (rather than actual) gain? If yes, surely "disg orgement" is not an appropriate term? If no, please may I have another = explanation of }{\i\fs24 Inverugie Investments}{\fs24 v. }{\i\fs24 = Hackett}{\fs24 [1995] 1 W.L.R. 713? \par \'b6 I believe it to be his desire to have the old learning = "stripped away", which divides Lionel from me. What he sees=20 as "an unnecessarily mysterious way of rationalizing", I respect as "the = artificial reason and judgment of law", to which Lord Coke referred in = }{\i\fs24 Prohibitions del Roy}{\fs24=20 (1607) 12 Rep. 63 at 65. The artificiality is the product of the art = displayed and employed by our predecessors in professing, practising and promoting the common = law (which, for my present purposes, includes equity) and is largely = responsible for its particularity and hence its certainty. Stripping = legal principles to the bare bones of broad d octrines, as do the civil codes, induces the generalization and simplism = against which I protested in the attachment to my message, sent last = Christmas Eve to Jason Neyers as addressee and to the R.D.G. via "Cc". = The price paid by the Civilians is=20 \ldblquote the volume of litigation, the polemics and the wordy = commentaries, which strive to give body to their [Codes\rquote ] = exiguous provisions\rdblquote \endash Millner, \ldblquote Negligence = in Modern Law" (London, 1967) , p. 12. In my submission, this cost is being forced now on us by = judicial and academic adherence to \ldblquote the law of unjust = enrichment\rdblquote . \par \'b6 I value maxims for their contribution to precision in the law. = Their interaction with each other and with other principles determines = how extensively or restrictively the others are to be applied. Thus=20 a trespasser is basically liable only in tort and only to compensate the = person, whom he has wronged, for damage done to the latter's pocket, = dignity, or proper pride \endash }{\i\fs24 Rookes}{\fs24 v. }{\i\fs24 = Barnard}{\fs24=20 [1964] A.C. 1129 at 1221. However, a trespasser, who makes no sincere claim of right, has wrongfully disregarded the injured party's = proprietary interests. Of this wrong he can take no advantage. = Therefore, he cannot deny the presumed contract with his victim, which = (a}{\fs24\lang2057=20 s appears by analogy with Lord Tenterden, C.J.'s words in = }{\i\fs24\lang2057 Stone}{\fs24\lang2057 v. }{\i\fs24\lang2057 = Marsh}{\fs24\lang2057 (1827) 6 B. & C. 551, at 565)}{\fs24=20 arises from the latter's ratification solely of the trespasser's = possession, not of his taking possession. }{\i\fs24 Pace}{\fs24 Lionel = in his message of 04 October 2000 17:50, the judges' use of = "ratification" to "explain lia bilities which do not depend on authority or agreement", does not give = it a meaning to which (in the words of }{\fs24\cf1 Best, C.J., in = }{\cs16\i\fs24\cf1 Duffield}{\fs24\cf1 v. }{\cs16\i\fs24\cf1 = Duffield}{\fs24\cf1 (1829) 3 Bl. ( N.S.) 260, at 331) "the learned in our language not of the profession of = the law, would perhaps not agree". The first meaning of "ratify" in the = O.E.D. (1}{\fs24\cf1\super st}{\fs24\cf1=20 edn) is, "To confirm or make valid (an act, compact, promise, etc.) by = giving consent, approval or formal sanction (esp. to what has been done = or arranged for by another)."}{\fs24 Thus the injured party makes valid = the trespasser's possession }{ \fs24\cf1 by giving formal sanction thereto in the form of the = proceedings}{\fs24 , wherein he waives the tort and claims in debt = against the trespasser for use and occupation of the subject land or for = use and hire of the subject cha ttel. Moreover, if the trespasser be sued in tort and characterized as a = plunderer, he cannot deny that the injury to his victim's pocket extends = to the utmost gain, which he might have made from the latter's property. \par }\pard \qj\widctlpar\adjustright {\fs24 \'b6 As I said in [2000] = R.L.R. at 213-4, the}{\fs24\lang2057=20 ratification involved in waiver of tort is simply a matter of pleading = between the tortfeasor (or those claiming through him) and his victim. = It is, therefore, distinct from the more usual ratification, which = brings the ratifier into contractual rela tions with a third party (}{\i\fs24\lang2057 q.v.}{\fs24\lang2057 = }{\i\fs24\lang2057 Keighley, Maxsted & Co.}{\fs24\lang2057 v. = }{\i\fs24\lang2057 Durant}{\fs24\lang2057=20 [1901] A.C. 240). Though both sorts of ratification are basically = covered by the first meaning of "ratify" given in the O.E.D. = (1}{\fs24\lang2057\super st}{\fs24\lang2057 edn) yet, in the latter, = the law is more stringent than the dictionary. For the law will not allow the third party to sue or be = sued unless, at all material times, he knew that the person, to whose = act the ratifier gives his subsequent consent, was purporting to act as = the ratifier's agent. This requirement is ob viously irrelevant to relations between the ratifier and him, whose act = is ratified. It is partly a failure to take account of this irrelevance = which accounts for Lord Atkin's disdain for the presumed role of = ratification in waiver of tort, expressed in } {\i\fs24\lang2057 United Australia Ltd}{\fs24\lang2057 v. = }{\i\fs24\lang2057 Barclays Bank Ltd}{\fs24\lang2057 [1941] A.C. 1 at = 28-9. The other contributing factor is his Lordship's failure to = appreciate the point, made by Lord Tenterden, C.J., in }{ \i\fs24\lang2057 Stone}{\fs24\lang2057 v. }{\i\fs24\lang2057 = Marsh}{\fs24\lang2057 , that it is not the wrong, but the possession = consequent on the wrong, which is ratified. As I reminded the list last = Xmas Eve: in }{\i\fs24 Donoghue}{\fs24 v. }{ \i\fs24 Stevenson}{\fs24 [1932] A.C. 562, at 580, Lord Atkin not only = warns against the dangers of generalization and simplism, but is = apparently guilty of them himself}{.}{\fs24\lang2057 I respectfully = submit his characterization of the }{ \i\fs24\lang2057 rationes}{\fs24\lang2057 of his ancient predecessors, = with which he was faced in }{\i\fs24\lang2057 United Australia = Ltd}{\fs24\lang2057 v. }{\i\fs24\lang2057 Barclays Bank}{\fs24\lang2057 = , as "ghosts of the past, stand[ing] in the path of justice [and] = clanking their medieval chains, [through which] the [modern] judge is to = pass \'85 undeterred", to be another example of that guilt. In any event, Lord = Atkin's disdain is, I submit, to be contrasted with Viscount Simon, = L.C.'s justification, at 21, of the House's unanimous decision. It was = on the ground that "the alternative view \'85 is based on a misreading of technical rules, now happily swept away" = but which, obviously in the Chancellor's judgment, were neither to be = ignored, nor despised. How can Lord Atkin's disdain be compatible with a = system of law based on precede nt and of which the substance is to be found in the interstices of = procedure? Without the waiver, where would be the plaintiff's acceptance = of the defendant's deemed offer, arising from his incapacity to plead = his tort and thus to take advantage of his ow n wrong? (}{\i\fs24\lang2057 Q.v.}{\fs24\lang2057 Co. Litt. 148b.) = Without the acceptance, where would be the deemed contract? \par }{\fs24 \'b6 }{\i\fs24 Pace}{\fs24 Lionel in his book, "The Law of = Tracing" (Oxford, 1997) pp. 78 & 202, I respectfully submit that the = principle, which he there expounds and which I identify as the maxim, = }{\i\fs24=20 in odium spoliatoris omnia praesumuntur}{\fs24 (}{\i\fs24 = Childrens}{\fs24 v. }{\i\fs24 Saxby}{\fs24 (1683) 1 Vern. 207), is not = confined to cases of destruction or lack of evidence, rendering proof = either difficult or impossible. }{\i\fs24 Wardour}{ \fs24 v. }{\i\fs24 Berisford}{\fs24=20 (1687) 1 Vern. 452 concerned the division between the plaintiff and = defendant of the estate of their wives' deceased father. In it Lord = Chancellor Jeffreys disallowed the whole of the defendant's demand = against the plaintiff for reimbursement to the esta te of what was due from the plaintiff to the deceased "for diet &c., = \'a3 2300". The demand depended on a sealed bundle of papers, which the = deceased had entrusted to the defendant. The demand failed, because the = defendant had "altered" and "displaced" the pape rs, so that "it could not be known what papers might have been taken = out". His Lordship so decided, despite his having "declared himself = satisfied that all the papers were produced". Not only was there no = difficulty or impossibility of proof, but (in my l ike submission) the last sentence demonstrates also the exaggeration = inherent in Lionel's proposition (}{\i\fs24 ibid.}{\fs24 ), "The = principle \'85 does not allow findings contrary to the evidence". \par }\pard \widctlpar\adjustright {\fs24 \'b6 Recognition that the = maxim does allow findings, which are contrary to the ev idence, involves no admission that its application is boundless. To = extend its operation to allow findings, which are logically impossible, = would be to reduce it to absurdity; but nothing requires that extension. = The virtue of excepting from its operation only logical impossibilities, rather than all findings contrary to the = evidence, is that the maxim then encompasses (instead of casting doubt = on) }{\i\fs24 Wardour}{\fs24 v. }{\i\fs24 Berisford}{\fs24=20 . In addition, so moderating the exception still leaves unaffected the = rule, "tracing through a bank account is subject to the lowest = intermediate balance", for which Lionel, }{\i\fs24 op. cit}{\fs24 . = p.265, cites }{\i\fs24 Frith}{\fs24 v. }{\i\fs24=20 Cartland}{\fs24 (1865) 2 H. & M. 417. Nor does this moderation affect = Staughton, J.'s approving (in }{\i\fs24 Indian Oil Corp.}{\fs24 v. = }{\i\fs24 Greenstone Shipping S.A. (Panama)}{\fs24 [1988] Q.B. 345, at = 369, as cited by Lionel, }{\i\fs24 op. cit}{ \fs24 . pp. 80-1) that in }{\i\fs24 Armory}{\fs24 v. }{\i\fs24 = Delamirie}{\fs24 (1722) 1 Str. 505, "the jury were directed 'to award = the plaintiff the value of the finest jewel which the socket would hold, = not the finest jewel that had e ver been known'". Therefore, in my respectful submission, this version = of the limitation on the maxim's operation is more likely to reflect the = law than is Lionel's. \par \'b6 (In }{\i\fs24 Cowper}{\fs24 v. }{\i\fs24 Cowper (Earl)}{\fs24 = (1734) 2 P.Wms 720, at 749, Sir Joseph Jekyll, M.R., said, "\'85 in the = case of }{\i\fs24 Wardour}{\fs24 and }{\i\fs24 Beresford}{\fs24 = [}{\i\fs24 sic}{\fs24=20 ] (not rightly reported, 1 Vern. 452) in the Register's book of = }{\i\fs24 Paschae}{\fs24 1687, }{\i\fs24 page}{\fs24 491, there is = this entry: 'the }{\i\fs24 Lord Chancellor}{\fs24 , on reading and = examining witnesses }{\i\fs24 viva voce}{\fs24=20 , declared that the papers (there called }{\i\fs24 Wynne's}{\fs24 = accounts) were, through the carelessness of the defendant, embezzled, = and therefore confirmed the Master's report, which had not made the = defendant any allowance for diet, }{\i\fs24 &c.}{ \fs24 , by reason of such embezzlement"; here the proofs of the = embezzlement of the papers prove there were such papers [}{\i\fs24 = i.e.}{\fs24=20 , relevant papers suppressed or destroyed]." With great respect to his = Honour, I cannot see that his quotation from the Register's book = necessarily contradicts Vernon's report. The first meaning ascribed by = the O.E.D. (1}{\fs24\super st}{\fs24=20 edn) to "embezzle" is "to make away with (provisions, money, etc.); = }{\i\fs24 esp.}{\fs24=20 to carry off secretly (what belongs to another person) for one's own = use". The first example given of this use of the word is taken from 1469 = and the last from 1750. T here is, therefore, nothing in the use of "embezzle", which excludes the = return of the embezzled papers. I know nothing of Vernon's reputation as = a reporter; but I presume it to be his credit that his reports were = originally published from his manuscripts "by Order of" the High Court of Chancery. Nor is it significant that in = }{\i\fs24 Cowper}{\fs24 v. }{\i\fs24 Cowper (Earl)}{\fs24 Jekyll, = M.R., did not apply or follow }{\i\fs24 Wardour}{\fs24 v. }{\i\fs24 = Berisford}{\fs24 . His Hono ur was concerned with the proven destruction of papers by the person, = through whom the plain tiff claimed. However, the papers were in the destroyer's custody as the = executor of the person whose property they had been and, according to = his Honour at 751-2, it was not proved that the destroyer had exceeded = his authority as such executor. In }{ \i\fs24 Wardour}{\fs24 v. }{\i\fs24 Berisford}{\fs24=20 the unauthorized nature of the defendant's dealings with the papers = entrusted to him was proved, as must be a trustee's unauthorized dealing = with the funds entrusted to him before the application of = Vice-Chancellor Wood's "second principle" stated in }{ \i\fs24 Frith}{\fs24 v. }{\i\fs24 Cartland}{\fs24 .) \par \'b6 In the light of the meaning of "}{\i\fs24 spoliator}{\fs24 ", = it would be strange if the maxim's influence did not extend beyond the = confines on which I understand Lionel to insist. Indeed, albeit perhaps = with a degree of hyperbole, one can d escribe as plunderers: a trespasser to land, whose adverse possession = excludes the person entitled; a bailee of sealed financial records, who = deliberately breaks the seal; a trustee, who mixes trust money with his = own; and a jeweller's apprentice, who kee p s a customer's diamond. Nor is there any logical impossibility in = deeming the loss, suffered by the person tortiously excluded from the = land, to equal the utmost gain, which the trespasser might possibly have = made from his occupation, regardless of whethe r or not the possibility was practical. (Doubtless, in calculating that = gain, one must logically take into account the use to which the land was = being put when the trespasser began, or any change of use made during, = his occupation. Yet the basis of the cal culation should be whichever of the original and later uses had the = greatest potential for gain.) Nor is there any logical impossibility in = deeming papers to be missing from a sealed bundle, though the evidence = indicates otherwise. \par }\pard \qj\sa60\widctlpar\adjustright {\fs24 \'b6 I submit that = none of this contradicts what Nicholls, L.J., in }{\i\fs24 = Stoke-on-Trent Council}{\fs24 v. }{\i\fs24 W. & J. Waas Ltd}{\fs24=20 [1988] 1 W.L.R. 1406, at 1416, called the "user principle", a name = readily adopted by his brethren in the same case and by the Privy = Council in }{\i\fs24 Inverugie Investments}{\fs24 v. }{\i\fs24 = Hackett}{\fs24 . Nicholls, L.J., so named=20 "an established principle concerning the assessment of damages that a = person who has wrongfully used another's property without causing the = latter any pecuniary loss may still be liable to that other for more = than nominal damages". By limiting=20 the principle to "a person who has wrongfully used another's property", = his Lordship excluded from its terms the defendants in }{\i\fs24 The = Mediana}{\fs24=20 [1900] A.C. 113, whose vessel had negligently damaged the plaintiffs' = lightship. The exclusion appears ironic; for Nicholls, L.J., relied on = the Earl of Halsbury, L.C.'s speech in the earlier case. In contrast, = the maxim=20 provides the solution. A defendant, who negligently so damages goods as = to deprive their owner of their use, may be deemed analogous to a = plunderer. In [1900] A.C., at 117, the Lord Chancellor said, "\'85 the broad proposition seems to me to be that by a wrongful act of the = defendants the plaintiffs were deprived of their vessel. When I say = deprived of their vessel, I will not use the phrase 'the use of the ves sel'. What right has a wrongdoer to consider what use you are going to = make of your vessel?" The plaintiffs' claim was: "Loss of the use of the = lightship }{\i\fs24 Comet}{\fs24 , or hire of the services of the = lightship}{\i\fs24 Orion}{\fs24 \'85 74 days at \'a34 4s. \endash \'a3310 6s." }{\i\fs24 Comet}{\fs24 was = the damaged vessel; }{\i\fs24 Orion}{\fs24 the lightship owned = and}{\i\fs24 }{\fs24=20 kept in reserve by the plaintiffs to meet such an emergency as that = caused by the defendants. In effect, the defendants could not overcome = the presumption that the plaintiffs had hired a, rather than used their = o wn, replacement. Thus could old learning save modern judges labour = resembling the reinvention of the wheel and let the consequent = observance of the doctrine of }{\i\fs24 stare decisis}{\fs24 play its = part in restoring certainty to the law.=20 \par }\pard \qj\widctlpar\adjustright {\fs24 Yours sincerely, \par Gordon Goldberg. \par }\pard \qj\sa60\widctlpar\adjustright {\fs24=20 \par To all other the members of the Restitution Discussion Group. \par }} ------=_NextPart_000_0030_01C045AD.608BB040 Content-Type: application/msword; name="Lionel Smith - R.D.G. Constructive Trust (Ellingsen v. Hallmark).doc" Content-Transfer-Encoding: base64 Content-Disposition: attachment; filename="Lionel Smith - R.D.G. Constructive Trust (Ellingsen v. 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//////////////////////////////////////////////////////////////////////////// //////////////////////////////////////////8BAP7/AwoAAP////8GCQIAAAAAAMAAAAAA AABGGAAAAE1pY3Jvc29mdCBXb3JkIERvY3VtZW50AAoAAABNU1dvcmREb2MAEAAAAFdvcm QuRG9j dW1lbnQuOAD0ObJxAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA== ------=_NextPart_000_0030_01C045AD.608BB040-- ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 3 Nov 2000 17:28:37 GMT Reply-To: Eoin O' Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O' Dell Subject: Mesne Profits and Restitution Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Hello all; Gordon Goldberg, in his reply to Lionel, asks >are not mesne profits measured according to the defendant's potential >(rather than actual) gain? If yes, surely "disgorgement" is not an >appropriate term? If no, please may I have another explanation of >Inverugie Investments v. Hackett [1995] 1 W.L.R. 713? This question is one of the many things that I have been trying to write something on, and the current version of a long rambling piece makes the following argument, which I hope (a) provides an answer to Gordon Goldberg, and (b) provokes a response from others which will help me to decide whether I actually agree with that answer: ... where, by the commission of a tort, a defendant has profited and thereby been enriched at the plaintiff's expense, the plaintiff has (at least) three possible claims: (i) in tort, for damages in the compensation measure; (ii) in tort, for damages in the restitution measure; and (iii) in restitution, if a cause of action in restitution is also available on the facts. ... [As to damages in the restitution measure for torts (claim (ii)); there] are many examples of cases in which the courts have awarded damages in the restitution measure for the tort. A particularly strong line of authority is to be found in the context of the tort of trespass to land. As with any other tort, the victim, here the landowner, is entitled to damages from the tortfeasor. Where the trespasser is an overholding tenant, such damages are called mesne profits; as Lloyd LJ put it in Ministry of Defence v Ashman mesne profits are "simply damages for trespass recoverable against a tenant who holds over after the lawful termination of his tenancy". The phrase is, however, often used beyond this specific context, simply to refer to damages for any trespass to land. If the analysis above holds, then, for such trespass, the landowner is entitled to damages in the compensation measure in the ordinary way, and, in the alternative, to damages in the restitution measure (that is, claims (i) and (ii)). And, indeed, the mense profits cases reflect these alternative measures. However, the determination of the plaintiff's loss and the consequent calculation of appropriate compensation is not always easy. For example, in Inverugie Investments v Hackett, ... Lord Lloyd ... [granted] the purely compensatory measure which the plaintiff had sought; in other words, the plaintiff had simply made a claim in tort for damages in the compensation measure (a claim (i) case). It is important to realise that the plaintiff did not make a claim in tort for damages in the restitution measure (a claim (ii) case); as Lord Lloyd put it, he "was not asking for an account of profits, perhaps because the hotel was running at a loss =8A". As to the restitution measure (that is, claim (ii)), beyond damages in the compensation measure, there is a line of authority which awards damages in the restitution measure for such a trespass to land. ... [Whitwham v Westminster Brymbo Coal and Coke Co,; Penarth Dock Engineering v Pounds; Bracewell v Appleby; Swordheath Properties v Tabet; ] ... In Ministry of Defence v Ashman [and its companion case. In Ministry of Defence v Thompson] ... Hoffmann LJ treated the claim for mesne profits as a claim for restitution, even though "in the earlier cases it ha[d] not been expressly stated that a claim for mesne profit for trespass can be a claim for restitution. Nowadays I do not see why we should not call a spade a spade". Having sought mesne profits, he held that the had therefore "elected for a restitutionary remedy" in which all "that matters is the value of benefit which the defendant has received"... Much of what Hoffmann LJ said in this case is questionable. ... First, it does not follow from claiming mense profits that the Ministry of Defence really elected for a restitutionary remedy. As Lloyd LJ pointed out mesne profits are "simply damages for trespass recoverable against a tenant who holds over after the lawful termination of his tenancy" and there is nothing in that to require that the remedy be restitutionary; indeed, the landowner is entitled to damages either in the compensation measureor in the restitution measure. Second, even if by seeking mesne profits the Ministry really had sought a restitutionary remedy, this should have been regarded as a claim in tort for damages in the restitution measure (claim (ii)), rather than, as Hoffmann LJ seems to have treated it, an independent claim in restitution (autonomous unjust enrichment; claim (iii)). Indeed, as Lloyd LJ pointed out, the Ministry never pleaded anything except tort, which ought to have precluded the third option. Neverthless, and quite without warrant, Hoffmann LJ seems to have treated the Ministry's claim as one in autonomous unjust enrichment; certainly, in the later case of Inverugie v Hackett, Lord Lloyd of Berwick (as Lloyd LJ had by then become) characterised Hoffmann LJ's approach in Ashman as "a restitutionary claim as an independent cause of action". ... Whitwham , Penarth , Bracewell, Swordheath, Ashman and Thompson illustrate the availability of damages in the restitution measure for the tort of trespass to land as an alternative to damages in the compensation measure. ... [However] analysis is bedevilled by attempts to characterise mesne profits and similar cases as embodying one principle, whether that principle is a compensatory one in that the cases remedy the plaintiffs' losses, or a restitutionary one in that the cases reverse defendants' unjust enrichments. As a consequence of characterisation of cases as involving only compensation or only restitution, many cases on one are often characterised as cases on the other. For example, in Inverugie, the plaintiff sought damages in the compensation measure, and, in awarding the going rental rate for all 30 apartments for 151/2 years, Lord Lloyd gave him just that: he gave the plaintiff compensation for his losses. And yet it is easy to characterise the remedy as benefit-based. Mitchell ([1995] LMCLQ 343) does so, focussing on the fact that the defendant had the benefit of the use of the property. However, on the facts of Inverugie, this is a "strained" analysis (see Burrows and McKendrick); but on the facts of many other cases, such an analysis would be entirely appropriate. In such cases, there would be an identity between the plaintiff's gain and the defendant's loss. Strand Electric provides an excellent example, in which the loss-based approach of the majority and the benefit-based approach of Denning LJ arrived at the same result and awarded damages based upon the reasonable hire of the goods; it represented both the loss to the hirer plaintiff and the gain to the using defendant. Hence, in a future case, a judge could award damages based simply upon the reasonable hire of the goods, and credibly be cited thereafter as having taken both a compensatory and a restitutionary approach. With less justification, such a judge who expressly awards compensation might be treated subsequently as having awarded restitution, and vice versa. (Lloyd LJ in Ashman so mischaracterises the approach of the Court of Appeal in Swordheath Properties v Tabet and of Lord Denning in Penarth Dock Engineering v Pounds . ..., the best view of these cases is that they are examples of damages in the restitution measure for the respective torts). Furthermore, there are mesne profits cases in which the plaintiff has suffered no loss though the defendant has gained; Penarth Dock may be an example, and Swordheath Properties probably is. And there are mesne profits cases in which the plaintiff has suffered a small loss but the defendant has made a larger gain. Whitwham is an example. In all such cases, the remedy is expressly gain-based. To attempt to mischaracterise it as loss-based is disingenuous at best (see Nicholls LJ in Stoke on Trent CC v W&J Wass; and Lord Lloyd in Inverugie v Hackett); indeed, this ease of characterisation, recharacterisation and, perhaps, mischaracterisation, does not aid clarity of analysis. Hence, though in some cases there might properly be an indentity between the plaintiff's loss and the defendant's gain, it is not a necessary identity, so that in many other cases the plaintiff's loss does not equal the defendant's gain. The appropriate conclusion to draw is that the cases illustrate that whilst in general a plaintiff is entitled to damages in the compensation measure, in an appropriate case, he is also entitled to damages in the restitution measure. The cases embody not one single principle but two alternative measures: the compensation measure and the restitution measure. When a case considers itself as an example of one measure, it should not be presented as an example of the other. To do so leads to the first problem which has bedevilled analysis of the mesne profits cases, which is, to miss that the cases provide examples of two measures (compensation and restitution) and instead to try to fit all of the cases into only one. If you've got this far, thanks for reading this. Best from Dublin Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 3 Nov 2000 14:42:02 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: Mesne Profits and Restitution Comments: To: Eoin O' Dell MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Are not your questions answered by Prof. Weinrib in his article "Restitutionary Damages as Corrective Justice"? In fact, could not one say that there is only principle at play, i.e. corrective justice, in this situation. When you have had a violation of your right then you are entitled to either your loss or, provided the scope of the defendant's duty is wide enough, the defendant's gain. Thus, in a property tort situation where you are entitled to the use, fruits and abuse of the thing owned, you can have disgorgement of any one of these from the defendant. Just a thought. Eoin O' Dell wrote: > > Hello all; > > Gordon Goldberg, in his reply to Lionel, asks > > >are not mesne profits measured according to the defendant's potential > >(rather than actual) gain? If yes, surely "disgorgement" is not an > >appropriate term? If no, please may I have another explanation of > >Inverugie Investments v. Hackett [1995] 1 W.L.R. 713? > > This question is one of the many things that I have been trying to write > something on, and the current version of a long rambling piece makes the > following argument, which I hope (a) provides an answer to Gordon Goldberg, > and (b) provokes a response from others which will help me to decide > whether I actually agree with that answer: > > ... where, by the commission of a tort, a defendant has profited and > thereby been enriched at the plaintiff's expense, the plaintiff has (at > least) three possible claims: > (i) in tort, for damages in the compensation measure; > (ii) in tort, for damages in the restitution measure; and > (iii) in restitution, if a cause of action in restitution is also > available on the facts. > > ... [As to damages in the restitution measure for torts (claim (ii)); > there] are many examples of cases in which the courts have awarded damages > in the restitution measure for the tort. A particularly strong line of > authority is to be found in the context of the tort of trespass to land. As > with any other tort, the victim, here the landowner, is entitled to damages > from the tortfeasor. Where the trespasser is an overholding tenant, such > damages are called mesne profits; as Lloyd LJ put it in Ministry of Defence > v Ashman mesne profits are "simply damages for trespass recoverable > against a tenant who holds over after the lawful termination of his > tenancy". The phrase is, however, often used beyond this specific context, > simply to refer to damages for any trespass to land. If the analysis above > holds, then, for such trespass, the landowner is entitled to damages in the > compensation measure in the ordinary way, and, in the alternative, to > damages in the restitution measure (that is, claims (i) and (ii)). And, > indeed, the mense profits cases reflect these alternative measures. > > However, the determination of the plaintiff's loss and the consequent > calculation of appropriate compensation is not always easy. For example, in > Inverugie Investments v Hackett, ... Lord Lloyd ... [granted] the purely > compensatory measure which the plaintiff had sought; in other words, the > plaintiff had simply made a claim in tort for damages in the compensation > measure (a claim (i) case). It is important to realise that the plaintiff > did not make a claim in tort for damages in the restitution measure (a > claim (ii) case); as Lord Lloyd put it, he "was not asking for an account > of profits, perhaps because the hotel was running at a loss ". > > As to the restitution measure (that is, claim (ii)), beyond damages in the > compensation measure, there is a line of authority which awards damages in > the restitution measure for such a trespass to land. ... [Whitwham v > Westminster Brymbo Coal and Coke Co,; Penarth Dock Engineering v Pounds; > Bracewell v Appleby; Swordheath Properties v Tabet; ] ... In Ministry of > Defence v Ashman [and its companion case. In Ministry of Defence v > Thompson] ... Hoffmann LJ treated the claim for mesne profits as a claim > for restitution, even though "in the earlier cases it ha[d] not been > expressly stated that a claim for mesne profit for trespass can be a claim > for restitution. Nowadays I do not see why we should not call a spade a > spade". Having sought mesne profits, he held that the had therefore > "elected for a restitutionary remedy" in which all "that matters is the > value of benefit which the defendant has received"... > > Much of what Hoffmann LJ said in this case is questionable. ... First, it > does not follow from claiming mense profits that the Ministry of Defence > really elected for a restitutionary remedy. As Lloyd LJ pointed out mesne > profits are "simply damages for trespass recoverable against a tenant who > holds over after the lawful termination of his tenancy" and there is > nothing in that to require that the remedy be restitutionary; indeed, the > landowner is entitled to damages either in the compensation measureor in > the restitution measure. Second, even if by seeking mesne profits the > Ministry really had sought a restitutionary remedy, this should have been > regarded as a claim in tort for damages in the restitution measure (claim > (ii)), rather than, as Hoffmann LJ seems to have treated it, an independent > claim in restitution (autonomous unjust enrichment; claim (iii)). Indeed, > as Lloyd LJ pointed out, the Ministry never pleaded anything except tort, > which ought to have precluded the third option. Neverthless, and quite > without warrant, Hoffmann LJ seems to have treated the Ministry's claim as > one in autonomous unjust enrichment; certainly, in the later case of > Inverugie v Hackett, Lord Lloyd of Berwick (as Lloyd LJ had by then become) > characterised Hoffmann LJ's approach in Ashman as "a restitutionary claim > as an independent cause of action". > > ... Whitwham , Penarth , Bracewell, Swordheath, Ashman and Thompson > illustrate the availability of damages in the restitution measure for the > tort of trespass to land as an alternative to damages in the compensation > measure. ... [However] analysis is bedevilled by attempts to characterise > mesne profits and similar cases as embodying one principle, whether that > principle is a compensatory one in that the cases remedy the plaintiffs' > losses, or a restitutionary one in that the cases reverse defendants' > unjust enrichments. As a consequence of characterisation of cases as > involving only compensation or only restitution, many cases on one are > often characterised as cases on the other. For example, in Inverugie, the > plaintiff sought damages in the compensation measure, and, in awarding the > going rental rate for all 30 apartments for 151/2 years, Lord Lloyd gave > him just that: he gave the plaintiff compensation for his losses. And yet > it is easy to characterise the remedy as benefit-based. Mitchell ([1995] > LMCLQ 343) does so, focussing on the fact that the defendant had the > benefit of the use of the property. However, on the facts of Inverugie, > this is a "strained" analysis (see Burrows and McKendrick); but on the > facts of many other cases, such an analysis would be entirely appropriate. > In such cases, there would be an identity between the plaintiff's gain and > the defendant's loss. Strand Electric provides an excellent example, in > which the loss-based approach of the majority and the benefit-based > approach of Denning LJ arrived at the same result and awarded damages based > upon the reasonable hire of the goods; it represented both the loss to the > hirer plaintiff and the gain to the using defendant. Hence, in a future > case, a judge could award damages based simply upon the reasonable hire of > the goods, and credibly be cited thereafter as having taken both a > compensatory and a restitutionary approach. With less justification, such a > judge who expressly awards compensation might be treated subsequently as > having awarded restitution, and vice versa. (Lloyd LJ in Ashman so > mischaracterises the approach of the Court of Appeal in Swordheath > Properties v Tabet and of Lord Denning in Penarth Dock Engineering v > Pounds . ..., the best view of these cases is that they are examples of > damages in the restitution measure for the respective torts). Furthermore, > there are mesne profits cases in which the plaintiff has suffered no loss > though the defendant has gained; Penarth Dock may be an example, and > Swordheath Properties probably is. And there are mesne profits cases in > which the plaintiff has suffered a small loss but the defendant has made a > larger gain. Whitwham is an example. In all such cases, the remedy is > expressly gain-based. To attempt to mischaracterise it as loss-based is > disingenuous at best (see Nicholls LJ in Stoke on Trent CC v W&J Wass; and > Lord Lloyd in Inverugie v Hackett); indeed, this ease of characterisation, > recharacterisation and, perhaps, mischaracterisation, does not aid clarity > of analysis. > > Hence, though in some cases there might properly be an indentity between > the plaintiff's loss and the defendant's gain, it is not a necessary > identity, so that in many other cases the plaintiff's loss does not equal > the defendant's gain. The appropriate conclusion to draw is that the cases > illustrate that whilst in general a plaintiff is entitled to damages in the > compensation measure, in an appropriate case, he is also entitled to > damages in the restitution measure. The cases embody not one single > principle but two alternative measures: the compensation measure and the > restitution measure. When a case considers itself as an example of one > measure, it should not be presented as an example of the other. To do so > leads to the first problem which has bedevilled analysis of the mesne > profits cases, which is, to miss that the cases provide examples of two > measures (compensation and restitution) and instead to try to fit all of > the cases into only one. > > If you've got this far, thanks for reading this. > > Best from Dublin > > Eoin. > > EOIN O'DELL BCL(NUI) BCL(Oxon) > Editor, Dublin University Law Journal. > 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.) > > ____________________________________________________________________ > 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 enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email > . -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Mon, 6 Nov 2000 17:12:54 +0000 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: Mystery? MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit The mystery why not one of the some 1000 visitors of the Oxford University Comparative Law Forum to date has used its discussion groups may have been partially unravelled today when a disappointed user told me that there was a bug with registration which prevented new users from contributing. This bug has now been fixed, so that all restitution maillist users are not only cordially invited, but will actually be able to discuss the seven articles on restitution published in the Forum at: http://ouclf.iuscomp.org So if you are a previous victim of the bug, this may solve one mystery for you as well. Or it may turn out there never was a mystery in the first place and visitors were just in no mood to discuss. -- Dr. Gerhard Dannemann Erich Brost University Lecturer in German Civil and Commercial Law University of Oxford Tel 01865 2 81613 Fax 81611 http://iuscomp.org ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Mon, 6 Nov 2000 16:07:43 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Fast bucks & free acceptance Comments: To: Andrew Tettenborn MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Andrew Tettenborn wrote: ..... > FG discovered that ET cards allowed calls to > premium rate lines at non-premium rates, bought ET cards galore and dialled > its own premium number nonstop. They then sat back and collected the > rake-off, which was much more thn the calls had cost them to dial. The scam > raked in over œ1m before it was spotted & stopped. the money received by defendant was paid out to defendant in transactions which had no function for defendant other than taking advantage of plaintiff's error [however that be categorized] ==== this case is appropriating mislaid property rather than a sharp bargain with an ignorant person ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 10:22:06 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Fast bucks & free acceptance MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit : > Andrew Tettenborn wrote: > ..... > > > FG discovered that ET cards allowed calls to > > premium rate lines at non-premium rates, bought ET cards galore and dialled > > its own premium number nonstop. They then sat back and collected the > > rake-off, which was much more thn the calls had cost them to dial. The scam > > raked in over œ1m before it was spotted & stopped. > > if A owns a coin-loaded machine with a defective coin-return switch, upon discovery of which B milks the machine, is the matter within the particular expertise of this group or more appropriate for elementary tort analysis and the stern processes of the criminal law?? ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 10:36:20 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Fast bucks & free acceptance In-Reply-To: <3A081E1E.7BFD04AA@email.andromeda.rutgers.edu> MIME-version: 1.0 Content-type: text/plain; charset="iso-8859-1"; format=flowed Content-transfer-encoding: quoted-printable I may be a pedant but in Alex's case the coins are clearly owned, in the=20 technical sense which will support a conviction for theft and which=20 generates a right to immediate possession which will support liability in=20 the tort of conversion. Call me old fashioned (Craig Rotherham, where are=20 you?) but it would seem to me that this ownership concept is not available= =20 to ET. Hence unjust enrichment steps up to the plate (wow I really am back= =20 in North America). Whether it gets a base hit or strikes out is a more=20 difficult question. Lionel At 10:22 AM 11/7/00 -0500, you wrote: >: > > > Andrew Tettenborn wrote: > > ..... > > > > > FG discovered that ET cards allowed calls to > > > premium rate lines at non-premium rates, bought ET cards galore and=20 > dialled > > > its own premium number nonstop. They then sat back and collected the > > > rake-off, which was much more thn the calls had cost them to dial.=20 > The scam > > > raked in over =A31m before it was spotted & stopped. > > > > > >if A owns a coin-loaded machine with a defective coin-return switch, >upon discovery >of which B milks the machine, is the matter within the particular >expertise of this >group or more appropriate for elementary tort analysis and the stern >processes of >the criminal law?? > > ____________________________________________________________________ > 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 enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email > . ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 12:15:42 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Fast bucks & free acceptance Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit AA: responding to lionel's analysis next below: i certainly hope we are all pedants I gather that ET has a contract with BT whereby the latter will honor calls made thru the ET card, billing the latter premium or non-premium rates according to the call a person with a card can draw on the credit thus established for ET, which has made a mistake, having sold the cards at a price which will lose money if the caller calls a premium line. for that loss the uninformed caller is certainly not liable: it has drawn on ET's account [ its credit, its property] to make the sort of phone communication for which the card to everyone's knowledge has been sold [i don't want to discuss the liability of a caller who catches up with her world-wide acquaintance via premium lines gleefully aware of the bargain she is getting through ET's mistake] but the cards are sold to enable holders to access ET's account/property for communications and not adventitious gain the cards make ET's property available on a known condition and taking the property without satisfaction of that condition is tortious the property is not tangible, and I don't know the terminology used in tort for misappropriation of a credit rather than a chattel: but surely tort law has stepped up to the wicket to cover intangibles with some sort of nominate tort, and can hit FT for the six of the best it so clearly deserves??? ========================= LS: I may be a pedant but in Alex's case the coins are clearly owned, in the technical sense which will support a conviction for theft and which generates a right to immediate possession which will support liability in the tort of conversion. Call me old fashioned (Craig Rotherham, where areyou?) but it would seem to me that this ownership concept is not availableto ET. Hence unjust enrichment steps up to the plate (wow I really am back in North America). Whether it gets a base hit or strikes out is a more difficult question. > > Lionel > ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 18:02:23 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Fast bucks & free acceptance In-Reply-To: <3A0838BD.2B28E0@email.andromeda.rutgers.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 12:15 07/11/00 -0500, Allan Axelrod wrote: > I gather that ET has a contract with BT whereby the latter will honor >calls made thru the ET card, billing the latter premium or non-premium rates >according to the call a person with a card can draw on the credit thus >established for ET, which has made a mistake, having sold the cards at a price >which will lose money if the caller calls a premium line. > That's not my understanding of the facts. It looks as if card-holders had simply bought a set amount of credit. The rate at which the credit was used up was determined by ET when the call was made - their mistake was in then charging card-holders at the standard rate, whereas ET were themselves charged a premium rate. >[i don't want to discuss the liability of a caller who catches up with her >world-wide acquaintance via premium lines gleefully aware of the bargain she >is getting through ET's mistake] That seems closer to the actual facts than the hypo you were discussing. > but the cards are sold to enable holders to access ET's >account/property for communications and not adventitious gain An interesting distinction; but a little hard to apply. People make calls for all sorts of reasons, and phone companies live or die according as they can sensibly predict and take advantage of those trends. > the cards make ET's property available on a known condition and taking the >property without satisfaction of that condition is tortious > > the property is not tangible, and I don't know the terminology used in >tort for misappropriation of a credit rather than a chattel: but surely tort >law has stepped up to the wicket to cover intangibles with some sort of >nominate tort, and can hit FT for the six of the best it so clearly >deserves??? > Isn't it interesting that it is said time and again that the defendants deserve everything that the courts throw at them, yet on closer investigation it seems harder and harder to say what they have done wrong? Very like AG v. Blake in that respect. And as the judges said, the closer you look at the facts, the less obvious it becomes that there was any wrongdoing. Do we really have to invent new forms of property holding before we can find liability? Is the alternative -- to hold ET responsible for their own pricing policy -- really so awful? As with so many restitutionary issues, the answer is that the contractual obligations in the case are elaborate and apparently comprehensive. If some implied term can be found under which the defendant's behaviour can be condemned, then so be it. But otherwise, I don't see the problem. 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 15:13:20 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Fast bucks & free acceptance Comments: To: Steve Hedley MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------89DDE631FAFE56139D736939" --------------89DDE631FAFE56139D736939 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit > . Steve Hedley wrote: > > >Isn't it interesting that it is said time and again that the defendants > deserve everything that the courts throw at them, yet on closer > investigation it seems harder and harder to say what they have > done wrong? Very like AG v. Blake in that respect. And as the judges > said, the closer you look at the facts, the less obvious it becomes > that there was any wrongdoing. Do we really have to invent > new forms of property holding before we can find liability? > Is the alternative -- to hold ET responsible for their own pricing > policy -- really so awful? > > As with so many restitutionary issues, the answer is that the contractual > obligations in the case are elaborate and apparently comprehensive. > If some implied term can be found under which the defendant's > behaviour can be condemned, then so be it. But otherwise, I > don't see the problem. AA: there may be differences in our social and legal cultures: we are fortunate to have Lionel to bridge the awesome gaps > In the United States, there would be little douibt of the social > condemnation of FT: its actions, though enabled by carelessness, would be > regarded as for more reprehensible than that carelessness; which would in any > event be sufficiently punished without the depredations of a scamster like FT. > [There is an old American case in which an unsuccessful defense was asserted to > a charge of theft of mislaid property: that the defendant was a member of a > sub-culture which saw nothing wrong in appropriating stuff lying loose. I don't > remember what the sub-culture was---perhaps recent English immigrants?] > In our legal culture, although FT has maybe hit on an innovative FORM of > misbehavior, our bench and bar, finding no word in the dictionary through which > to restore the socially-condemned misappropriations and deter their future > imitation, would make one up. Would they be abashed at FT's indignant claim > that its innocent behavior had been condemned retroactively and lawlessly? It > would rather be suggested that FT, being as it is, is entitled to take > advantage neither of ET's ineptitude nor of inadequate generalization in the > prior legal names for misbehavior. > > Not that there is lacking a sufficient doctrinal and verbal basis in > existing US law for getting at FT. I started by supposing that there might be a > more conventional basis than restitution, and I hope that someone will come up > with a satisfactory tort name. Howeveer, the Hedley MS concludes with the > always useful thought that CONTRACT might resolve a puzzling case: > IN US law, the buyer of the card could be regarded as purchasing > options---offers by ET to provide phone service at stated rates. The phone call > could be the acceptance. In US law, a person who receives an offer which is > clearly grounded on a mistake of fact [rather than of judgment] cannot conclude > a contract by accepting the offer: 'snapping up' is the American legal > pejorative for such a purported acceptance. That FT were aware of the mistake > is evident fom their behavior. > > > > --------------89DDE631FAFE56139D736939 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit
.
Steve Hedley wrote:
 
>Isn't it interesting that it is said time and again that the defendants
deserve everything that the courts throw at them, yet on closer
investigation it seems harder and harder to say what they have
done wrong?   Very like AG v. Blake in that respect.  And as the judges
said, the closer you look at the facts, the less obvious it becomes
that there was any wrongdoing. Do we really have to invent
new forms of property holding before we can find liability?
Is the alternative -- to hold ET responsible for their own pricing
policy -- really so awful?

As with so many restitutionary issues, the answer is that the contractual
obligations in the case are elaborate and apparently comprehensive.
If some implied term can be found under which the defendant's
behaviour can be condemned, then so be it.  But otherwise, I
don't see the problem.

AA:

there may be differences in our social and legal cultures:  we are fortunate to have Lionel to bridge the awesome gaps

     In the United States, there would be little douibt of the social condemnation of FT:  its actions,   though enabled by carelessness, would  be regarded as for more reprehensible than that carelessness; which would in any event be sufficiently punished without the depredations of a scamster like FT. [There is an old American case in which an unsuccessful defense was asserted to a charge of theft of mislaid property:  that the defendant was a member of a sub-culture which saw nothing wrong in appropriating stuff lying loose.  I don't remember what the sub-culture was---perhaps recent English immigrants?]
    In our legal culture, although  FT has maybe hit on an innovative FORM of misbehavior, our bench and bar, finding no word in the dictionary  through which to restore the socially-condemned misappropriations and deter their future imitation, would make one up.  Would they be abashed at FT's indignant claim that its innocent behavior had been condemned retroactively and lawlessly?  It would rather be suggested that FT, being as it is,  is entitled to take advantage neither of ET's ineptitude nor of inadequate generalization in the prior legal names for misbehavior.

    Not  that there is lacking a sufficient doctrinal and verbal basis in existing US law for getting at FT.  I started by supposing that there might be a more conventional basis than restitution, and  I hope that someone will come up with a satisfactory tort name.  Howeveer,  the Hedley MS  concludes with the always useful thought that  CONTRACT might resolve a puzzling  case:
    IN US law,  the buyer of the card could be regarded as purchasing options---offers by ET to provide phone service at stated rates.  The phone call could be the acceptance.  In US law, a person who receives an offer which is clearly grounded on a mistake of fact [rather than of judgment] cannot conclude a contract by accepting the offer:  'snapping up' is the American legal pejorative for such a purported acceptance.   That FT were aware of the mistake is evident fom their behavior.
 
 
 
 

--------------89DDE631FAFE56139D736939-- ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 21:05:46 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Fast bucks and palm trees Fortunately, English Law has not followed Lord Denning's system of palm tree justice. We as lawyers are not ultimate arbiters of what is good and what is bad, what is moral and what is immoral. The sly opportunist who commits perfectly legal acts to make a "fast buck" should not suffer the condemnation of the law, simply because he has taken advantage of another's silliness. The law steps in to protect those who need its protection, through consumer protection legislation and the doctrine of undue influence for example. Outside of this, as the Romans would have it, vigilantibus non dormientibus jura subveniunt: the law does not protect the foolish. When Hoover offered a free transatlantic return flight for every œ100 vacuum cleaner purchased, the vigilant consumers made them suffer financially for their foolishness and no-one would begrudge them this by requiring them to make restitution of their plane tickets. Why should we have any less praise for the cunning of ET, who spotted a foolish pricing procedure and decided to make the most of it? Why is FT so deserving of sympathy for having been so opportunistically duped? Let us not talk about right and wrong. Let us focus on what is legal and what is illegal. Matthew Scully Clifford Chance Limited Liability Partnership The views expressed are exclusively those of the author ************************************************************************************** ****************************** This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 7 Nov 2000 23:08:38 +0000 Reply-To: Andrew Simester Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Simester Subject: Re: Fast bucks and palm trees Comments: To: Matthew.Scully@CLIFFORDCHANCE.COM In-Reply-To: <963C018DAC99D311B7E50090278752D4043A739F@LON-MSG-11> MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII It's a little late in the evening, when the claret begins to compete with the election for one's attention, but restitutionary issues such as this are capable of tearing one away from both. Though Allan's position is lucidly and attractively put, I'm with Matthew and Steve. Allan states: "the cards make ET's property available on a known condition and taking the property without satisfaction of that condition is tortious." This may be true. But if so, what precisely is the unsatisfied condition? Perhaps there is an implied term of some sort, and in this context I note Allan's proviso: "but the cards are sold to enable holders to access ET's account/property for communications and not adventitious gain" This was not, as I understand it, an express condition of the contract of sale. At least under English contract law, neither (it seems to me) does it meet the requirements of an implied condition or term. That being so, where is the (legal) wrong? It is not wrong for D to take advantage of another's bad bargain, especially when D has played no part in setting the terms of that bargain. Indeed, and by way of aside, D's role may, in law-and-economic terms, be efficient: D acts effectively as an arbitrageur. So there may not even be a non-legal wrong. But either way, it seems unattractive for the law to interfere in an arms-length contract of exchange where there is no active misconduct by D in the formulation of the bargain. If an analogy with mistakes may be forgiven (and it is only analogy, introduced for its possible illustrative benefit), D performs its side of the bargain to the letter: P's miscalculation is a unilateral error that goes to the background motive or calculation, not to the terms of the bargain. Back to the election. And to the claret. Not necessarily, of course, in that order. Regards Andrew ps. By the way: Lionel, on your point re ownership of the coins in the coin machine, in the wake of the HL decision in Hinks it is now clear that even the act of acquiring ownership is - in England - the actus reus of theft. Provided it is dishonest, it *is* theft. All second-hand-car salesmen, and anyone taking scrupulous advantage of the caveat emptor rule, should be very worried indeed. Of course, I haven't asked Craig Rotherham what he thinks of it all. But the next time he buys a mispriced port off the Fellows' wine list.... ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Wed, 8 Nov 2000 00:15:49 +0000 Reply-To: Joshua Getzler Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Joshua Getzler Subject: Re: Fast bucks & free acceptance Comments: To: Lionel Smith In-Reply-To: <5.0.0.25.2.20001107103236.00a03190@po-box.mcgill.ca> MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII What is the nature of the contract(s) allowing a premium charge to be levied for each call? I guess the caller is charged under a contract with the telephone company, and a separate contract made between the said company and the addressee of the premium line for the addressee to be paid the caller's excess or premium payment to cover the addressee's business costs in answering calls. It could be implied into the second contract a term that the premium payment should be generated for that specific business purpose, on the basis that the telephone company is acting as a collecting agent for the addressee's business said expenses in answering calls. I mean implied-in-fact contract for the second contract- so don't get too upset you unjust enrichment theorists. Could Continentals invoke abuse of rights doctrines? JSG ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . Date: Wed, 8 Nov 2000 09:45:10 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: Fast bucks & free acceptance Joshua Getzler writes: >Could Continentals invoke abuse of rights doctrines? Not in French Law at any rate. ET did not do what it did with the sole malicious aim of annoying FT. Indeed, there is no evidence of any malice. ET's aim in doing what it did was simply making a profit for itself. This was the utility for it of purchasing the cards and calling its own premium-rate service. Abuse of rights requires an element of malice and an absence of utility for the doer of the act. Matthew Scully Clifford Chance Limited Liability Partnership The views expressed are exclusively those of the author ************************************************************************************** ****************************** This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Wed, 8 Nov 2000 09:20:05 -0600 Reply-To: Mark Gergen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mark Gergen Subject: Fast bucks & free acceptance Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" If I understand the facts correctly, Esprit Telecom v Fashion Gossip at bottom raises the question whether a claim of unjust enrichment will lie for arguably sharp commercial conduct that does come under the heading of any recognized wrong. I will be interested in learning how the English courts come out on this. The prospects for such a claim in America differ from state to state. My own state Texas, conservative in this as in so many other respects, has not recognized a general principle against unjust enrichment. Other states do say that the door is open to novel claims of unjust enrichment. For a strong statement to this effect see Jeff v. Stubbs, 970 P.2d 1234, 1244-46 (Utah 1998). American law is muddled by categorical statements of principle that cannot be correct. For example, it has been said that restitution will lie only where the defendant has committed a wrong or abused a confidence. Davidson v. Davidson, 667 So.2d 616, 620-21 (Miss. 1995). While the court in Davidson reached the right decision on the facts of the case the stated principle would exclude from the law of unjust enrichment any claims predicated upon mistake where the beneficiary of the mistake himself committed no wrong and was not a confidant of the plaintiff. Such statements are symptomatic of the generally woeful state of knowledge in America about even the most basic principles of restitution or unjust enrichment. Ninth District Production Credit Assoc. v. Ed Duggan, Inc., 821 P.2d 788 (Colo. 1991), is a good example of how American courts fumble with novel unjust enrichment claims where D by arguably sharp commercial practices profits at P's expense. Duggan supplied feed to a feedlot to which Assoc supplied credit. Assoc has a security interest in the lot's receivables. The Assoc enabled the lot to continue to operate though it was failing and the lot came to be deeply in arrears to Duggan for feed. When the lot folded Duggan sued Assoc for unjust enrichment. The trial court submitted Duggan's claim to the jury under a muddled general instruction asking at one point if it would be "inequitable" for Assoc to retain the benefit of the feed Duggan supplied without compensating him (other parts of the instruction suggest a theory of implied-in-fact contract). The prospect of novel claims of unjust enrichment being submitted to the jury under a general, negligence-like instruction is, to say the least, scary. The Colorado Supreme Court said it was a mistake to put the issue to the jury because a jury could not understand how the claim related to the law of secured credit. But the Court also rejected Assoc's argument that a claim for unjust enrichment ought never lie against a secured creditor by an unsecured creditor for enhancement of the value of the collateral. While the claim was novel, the Court concluded it would be meritorious if Assoc "initated or encouraged the transaction." I guess this means that the secured creditor can stand by and allow an unsecured creditor to plow money into a losing venture to benefit its collateral but that it cannot take any affirmative steps. This seems to me a difficult line to draw for obvious reasons, but so be it. Of course, the facts of ET v. FG are far afield from those in Duggan. Assuming the law is open to novel claims of unjust enrichment, such claims ought to be analyzed taking careful account of the most proximate bodies of law. In Duggan, that was the law of secured credit. In ET v. FG it is contract law, and, more precisely, the law on unilateral mistake/duty to disclose. I think the plaintiff's claim is weak if we look at this body of law -- as I read the facts the defendant took advantage of a flaw in the plaintiff's pricing structure. What makes the plaintiff's claim appealing is the sheer scale of the defendant's scheme. Analogies could also be drawn to the law of good faith in some American states. I won't speculate further along these lines because I do not have a sure grasp of the facts. It would a kindness if some posted the address of the website where the decision is to be found. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Wed, 8 Nov 2000 17:18:11 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Restitution and Insolvency MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0259_01C049A7.DF053380" This is a multi-part message in MIME format. ------=_NextPart_000_0259_01C049A7.DF053380 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Now available from the Mansfield Press. Details from = sarah.tigwell@informa.com RESTITUTION AND INSOLVENCY ed FD Rose Contents 1. The Pari Passu Principle and Ranking Restitutionary Rights Vanessa Finch and Sarah Worthington 2. Competing Priority Principles Jonathan Hill 3. Unjust Enrichment, Restitution and Insolvency in French Law Mark Armstrong and Alexandrine Cerfontaine 4. Subrogation and Insolvency Sarah Worthington=20 5. Subrogation, Unjust Enrichment and Insolvency: A French View of = Banque Financi=E8re de la Cit=E9 v. Parc (Battersea) Ltd Mark Armstrong and Alexandrine Cerfontaine 6. Tracing and Justice in Bankruptcy Craig Rotherham 7. Retention of Title: The Interface of Contract, Unjust Enrichment and = Insolvency Gerard McMeel 8. Resulting Trusts and Insolvency Andrew Tettenborn 9. Proprietary Claims for Mistaken Payments Richard Calnan 10. Of Constructive Trusts and Insolvency Charles Rickett 11. The Remedial Constructive Trust and Insolvency David Wright 12. Restitution and Insolvent Companies: Honing in on Shareholders Ross Grantham 13. The Recovery of Voidable Preferences: Aspects of Restoration Andrew Keay 14. Restitution, Policy and Insolvency Gerard McCormack List of Contributors Editor Francis Rose Professor of Commercial Law, University of Bristol Essayists Mark Armstrong Lecturer in Law, Lancaster University Richard Calnan Solicitor, Partner, Norton Rose Alexandrine Cerfontaine Lecturer in Law, Centre for Business Law and Practice, University of = Leeds Vanessa Finch Senior Lecturer in Law, London School of Economics and Political Science = Ross Grantham Associate Professor of Commercial Law, University of Auckland Jonathan Hill Professor of Law, University of Bristol Andrew Keay Professor of Law, University of Wolverhampton Gerard McCormack Professor of Law, University of Essex Gerard McMeel Lecturer in Law, University of Bristol Charles Rickett Professor of Commercial Law, University of Auckland Craig Rotherham Fellow of Gonville and Caius College, Cambridge Andrew Tettenborn Bracton Professor of English law, University of Exeter Sarah Worthington Senior Lecturer in Law, London School of Economics and Political Science David Wright Senior Lecturer in Law, University of Adelaide ------=_NextPart_000_0259_01C049A7.DF053380 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

Now available from the = Mansfield=20 Press. Details from sarah.tigwell@informa.com

RESTITUTION AND INSOLVENCY

ed FD Rose

Contents

 

1. The Pari Passu Principle and Ranking = Restitutionary=20 Rights

Vanessa Finch and Sarah Worthington

2. Competing Priority Principles

Jonathan Hill

3. Unjust Enrichment, Restitution and Insolvency = in French=20 Law

Mark Armstrong and Alexandrine Cerfontaine

4. Subrogation and Insolvency

Sarah Worthington

5. Subrogation, Unjust Enrichment and Insolvency: A = French View=20 of Banque Financière de la Cité v. Parc = (Battersea)=20 Ltd

Mark Armstrong and Alexandrine Cerfontaine

6. Tracing and Justice in Bankruptcy

Craig Rotherham

7. Retention of Title: The Interface of Contract, = Unjust=20 Enrichment and Insolvency

Gerard McMeel

8. Resulting Trusts and Insolvency

Andrew Tettenborn

9. Proprietary Claims for Mistaken Payments

Richard Calnan

10. Of Constructive Trusts and Insolvency

Charles Rickett

11. The Remedial Constructive Trust and = Insolvency

David Wright

12. Restitution and Insolvent Companies: Honing = in on=20 Shareholders

Ross Grantham

13. The Recovery of Voidable Preferences: Aspects of=20 Restoration

Andrew Keay

14. Restitution, Policy and Insolvency

Gerard McCormack

 

List of Contributors

 

Editor

Francis Rose

Professor of Commercial Law, University of = Bristol

 

Essayists

Mark Armstrong

Lecturer in Law, Lancaster University

Richard Calnan

Solicitor, Partner, Norton Rose

Alexandrine Cerfontaine

Lecturer in Law, Centre for Business Law and = Practice,=20 University of Leeds

Vanessa Finch

Senior Lecturer in Law, London School of Economics = and=20 Political Science

Ross Grantham

Associate Professor of Commercial Law, University = of=20 Auckland

Jonathan Hill

Professor of Law, University of Bristol

Andrew Keay

Professor of Law, University of = Wolverhampton

Gerard McCormack

Professor of Law, University of Essex

Gerard McMeel

Lecturer in Law, University of Bristol

Charles Rickett

Professor of Commercial Law, University of = Auckland

Craig Rotherham

Fellow of Gonville and Caius College, = Cambridge

Andrew Tettenborn

Bracton Professor of English law, University of=20 Exeter

Sarah Worthington

Senior Lecturer in Law, London School of Economics = and=20 Political Science

David Wright

Senior Lecturer in Law, University of Adelaide

 
------=_NextPart_000_0259_01C049A7.DF053380-- ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Thu, 9 Nov 2000 10:03:22 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Fast bucks & free acceptance In-Reply-To: <3.0.5.32.20001108092005.00950100@mail.law.utexas.edu> MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed At 09:20 AM 11/8/00 -0600, Mark Gergen wrote: >It would a kindness if some posted the address of the website where the >decision is to be found. The web site is called CaseTrack and is the fastest source for English judgments. It is a for-profit service but they give free access to academics. You apply at , and although apparently they are changing the system for free access, you will get an email in a couple of days which will unlock the site. However in my case when I found my way to the Fashion Gossip case, the button which is supposed to download the transcript as a Word file was not working. More accessibly, the case is also on Steve Hedley's site at . Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Thu, 9 Nov 2000 15:34:30 +0000 Reply-To: joshua.getzler@law.oxford.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Dr Joshua Getzler Organization: Faculty of Law and St Hugh's College, University of Oxford Subject: Re: Fast bucks & free acceptance MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Maybe my hunch is supported in US law. See M A Kotler, Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive' (1988) 41 Vanderbilt Law Review 63; K J Vandevelde, 'The Modern Prima Facie Tort Doctrine' (1990-1) 79 Kentucky Law Journal 519. But this is tort/contract doctrine, perhaps outstripping RDG interests. JSG Matthew.Scully@CLIFFORDCHANCE.COM wrote: > Joshua Getzler writes: > > >Could Continentals invoke abuse of rights doctrines? > > Not in French Law at any rate. ET did not do what it did with the sole > malicious aim of annoying FT. Indeed, there is no evidence of any malice. > ET's aim in doing what it did was simply making a profit for itself. This > was the utility for it of purchasing the cards and calling its own > premium-rate service. Abuse of rights requires an element of malice and an > absence of utility for the doer of the act. > > Matthew Scully > Clifford Chance > Limited Liability Partnership > The views expressed are exclusively those of the author > ************************************************************************************** ****************************** > > This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. > > For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. > > ____________________________________________________________________ > 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 enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email > . -- Dr Joshua Getzler Law Fellow St Hugh's College & Law Faculty, University of Oxford ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 10 Nov 2000 12:53:06 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: West Sussex Properties Ltd v Chichester DC: Proprietary claims to recover mistaken payments; disruption to public finances Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" In West Sussex Properties Ltd v Chichester DC, CA, 28/6/00, the appellant won an order for rescission of a lease on the ground of common mistake: both the appellant and the respondent had misconstrued the terms of a rent review clause contained in the lease, and as a result the appellant had overpaid rent to the respondent for a number of years. In the course of argument, counsel for the respondent suggested that the court should, in rescinding the agreement, impose terms so as to exclude the recovery by the appellant of the overpayments of rent, essentially on the ground that the respondent was a local authority whose finances would be disrupted if it now had to pay the money back. Morritt LJ replied to this argument as follows: 'It is not suggested that the defence to the restitutionary claim of change of position by the Council has been established so as to defeat the claim to that extent. Nor is it denied that on rescission of the agreement the amounts overpaid are to be regarded as the property of the Lessee in the hands of the Council. As such they would be recoverable as a matter of right: Foskett v McKeown [2000] 2 WLR 1299, 1304H (Lord B-W). In these circumstances, whilst accepting that the court has jurisdiction to impose terms on the grant of equitable relief, I can see no reason to impose any terms precluding the Lessee from recovering its own property in the hands of the Council.' Sir Christopher Staughton, concurring, also stated that although he was at first attracted by the proposal that the council's finances should not be disrupted: '... on reflection I do not think that such a term would be appropriate in this case. It is, I suppose a common occurrence that a District Council's forecast of its financial affairs for the coming year is falsified to some extent. And as Morritt LJ points out, the overpaid money is to be regarded as, in effect, the Lessee's money.' I take the portion of Lord B-W's speech referred to to be the bit where he says that the court has no discretion to vary 'hard-nosed' equitable property rights - but it strikes me that he was dealing there with a case where the claimants' property rights pre-dated the court's intervention, whereas here the whole question was whether the court would bring property rights into being for the appellant by ordering rescission of the contract - at its discretion. It also strikes me that the court's lack of interest in the disruption of public finance point might have ramifications for Woolwich claims in the future. ________________________________________________________________________ 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 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 10 Nov 2000 13:38:15 GMT Reply-To: Eoin O' Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O' Dell Subject: West Sussex /disruption to public finances Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Hello all Charles Mitchell tells us that in In West Sussex Properties Ltd v Chichester DC, CA, 28/6/00, the CA was hostile to what amounted to a claim of change of position predicated upon disruption of public finances, and commented >It also strikes me that the court's lack of interest in the disruption of >public finance point might have ramifications for Woolwich claims in the >future. In Ireland, it already has. The leading case on change of position is Murphy v AG [1982] IR 241 (SC), where there is some sympathy for the security of the public purse (cp Air Canada) and it was applied in a Woolwich context in O'Rourke v Revenue Commissioners [1996] 2 IR 1 (HC) where there is much less sympathy for the fiscal chaos argument. In Murphy v AG [1982] IR 241 (SC) the Irish Supreme Court held that certain sections of the Income Tax Act, 1967 were unconstitutional, and the plaintiffs sought restitution of the unconstitutionally exacted taxes which they had paid. Henchy J (Griffin and Parke JJ concurring; Kenny J to similar effect) held that the State was therefore unjustly enriched, and the overpaid taxes were therefore prima facie recoverable, as money paid under duress colore officii. However, to this prima facie cause of action, Henchy J (Griffin and Parke JJ concurring; Kenny J did not address this issue) held that the State could rely in part upon the defence of change of position: it is beyond question that the State in its executive capacity received the moneys in question in good faith, in reliance on the presumption that the now condemned sections were favoured with constitutionality. In every tax year from the enactment of the Income Tax Act, 1967, until the institution of these proceedings in March, 1978, the State justifiably altered its position by spending the taxes thus collected and by arranging its fiscal and taxation policies and programmes accordingly. In other words, for so long as there was no objection to the tax, the State's receipt was in good faith or bona fide; and in reliance on that bona fide receipt, the State had changed its position by expending the moneys so received. In respect of those taxpayers who had never objected, the State was therefore secure in its receipt of their taxes; however, once the plaintiffs had objected by instituting proceedings, the State's receipt was no longer bona fide, and, in respect of tax paid by the plaintiffs after the date of that objection, the State could no longer rely on the defence of change of position. Since the plaintiffs in the present case were the only taxpayers who had objected in that way, it was only in respect of their claim that the State could not rely on the defence of change of position; in respect of all other taxpayers, it could. Consequently, Henchy J concluded that, in the circumstances it would be inequitable, unjust and unreal to expect the State to make full restitution =8A there is ample authority for the conclusion that the radical change of circumstances of the kind I have indicated would be sufficient to defeat, at least in part, the taxpayers' claim. In justification for the conclusion that the defence of change of position would be available, Henchy J held that, for a variety of reasons it would be inequitable, if not impractical, to expect restitution. Each tax year involves a different group of taxpayers =8A Restitution could be effected only by means of a special statutory provision, which would involve the imposition of fresh taxation to meet what would become an unquantifiable number of claims with the passage of time. =8A But when, as happened here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally proper to spend the money thus collected, the position had become so altered, the logistics of reparation so weighted and distorted by factors such as inflation and interest, the prima facie right of the taxpayers to be recouped so devalued by the fact that, as members of the community, and more particularly, as married couples, they had benefited from the taxes thus collected, that it would be inequitable, unjust and unreal to expect the State to make full restitution. On one view, these policy factors might be taken simply to justify the application of the enrichment-related version of the defence of change of position discussed above. On another, on an application of the justice-related version of the defence, they might constitute subsequent alterations in the circumstances between the parties which directly bear on the balance of the relative equities between them. This seems to be how they were treated by Keane J sitting as a High Court judge in O'Rourke v Revenue Commissioners, [1996] 2 IR 1 (HC). Having been repaid overpaid tax, the plaintiff (and 90 or so similarly circumstanced social welfare branch managers) sought interest. On the basis of the principle in Woolwich v IRC, Keane J in the High Court held that the plaintiff was entitled to restitution of the overpaid taxes as of right, and to interest on that amount. However, the defendant sought to rely on the judgment of Henchy J in Murphy, which Keane J thought would, "if applicable =8A undoubtedly provide an answer to the plaintiff's claim". However, there was a great contrast between the circumstances in Murphy and the facts before him: in O'Rourke, the court was concerned with eighty to ninety social welfare branch managers and the retrospective fiscal adjustments [we]re of minimal significance in comparison to what was involved in Murphy. The conclusion of the majority in the latter case - that restitution would be 'inequitable, unjust and unreal' - is not necessarily applicable to the circumstances of the present case. =8A the numbers affected [are] so relatively small as to render the distortion to the State's finances minimal and legitmately outweighed by the injustice to the plaintiff of having his money withheld from him To my mind, the West Sussex Properties Ltd v Chichester DC situation seems a lot closer to O'Rourke than to Murphy, and that the CA in West Sussex and Keane J in O'Rourke were perfectly right to hold that there was no impediment to restitution. Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 10 Nov 2000 09:13:50 -0500 Reply-To: Mitchell McInnes Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mitchell McInnes Organization: University of Western Ontario Subject: Re: West Sussex /disruption to public finances Comments: To: Eoin O' Dell MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit With respect to the notion of disruption to public finances, it is worth noting the SCC's 1998 decision in Re Eurig: (1998) 165 DLR (4th) 1. The province of Ontario had enacted legislation that imposed certain probate "fees." On the death of her husband, Mrs Eurig paid the fee under protest after a trial judge upheld the validity of the legislation. The SCC subsequently held, however, that her objection was well founded as the "fee" in fact was an constitutionally prohibited tax. The widow therefore sought restitution of her payment. Major J held that the plaintiff was entitled to restitution, but he also qualified his order so as to avoid disrupting public finances. "An immediate declaration of invalidity would deprive the province of the revenue derived from probate fees, with no opportunity to remedy the legislation or find alternative sources of funding. Probate fees have a lengthy history in Ontario, and the revenue derived therefrom is substantial. For example, the evidence presented to this Court indicated that in 1993 and 1994, probate fees collected in Ontario totaled $51.8 million and $52.6 million, respectively. This revenue is used to defray the costs of court administration in the province. An immediate deprivation of this source of revenue would likely have harmful consequences for the administration of justice in the province. The declaration of invalidity is therefore suspended for a period of six months to enable the province to address the issue." In response, the Ontario government introduced legislation that retroactively enacted the same tax in a constitutionally acceptable form. In a modicum of decency, however, it expressly exempted Mr Eurig's estate from its application. 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 10 Nov 2000 11:15:01 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: West Sussex /disruption to public finances In-Reply-To: <3A0C029E.3D6D519D@julian.uwo.ca> MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed At 09:13 AM 11/10/00 -0500, Mitchell McInnes wrote: >With respect to the notion of disruption to public finances, it is worth >noting the SCC's 1998 decision in Re Eurig: (1998) 165 DLR (4th) 1. As Mitchell himself pointed out to the RDG on 28 October 1998, Eurig is also important as having cast doubt on the "fiscal chaos" theory propounded by 3 of 6 judges in Air Canada, ie the doctrine that there can be no recovery of taxes paid under an ultra vires statute as the effect on public finances would be too awful to contemplate. In Eurig, Major J. said for the court: "46. In Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, La Forest J. for three of the six members of the Court held that there is a general rule against recovery of taxes paid under unconstitutional statutes, with exceptions where the relationship between the state and a particular taxpayer resulting in the collection of the tax is unjust or oppressive in the circumstances. 47. *Even if* this Court were to adopt the rule articulated by La Forest J., it would not prevent recovery by the appellant in this case..." (emphasis added) Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 10 Nov 2000 18:51:33 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: West Sussex: fiscal chaos Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" There's one feature of the West Sussex case that perhaps ought to make it different from the wrongful tax cases and strangle the "fiscal disruption" argument at birth. This case was about the effects of a purely commercial transaction, a lease: the fact that the landlord was a local authority was adventitious. If a public body signs a lease, albeit one voidable for mistake, arguably it should be liable for all the consequences of having done so, including the liability to repay overpaid rent. Put another way, why should a private lessee have fewer rights merely because he happened to take his lease from the local authority rather than the British Land Co? AT Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Personal Fax: 0870-0889339 / +44-870-0889339 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . Date: Fri, 17 Nov 2000 15:38:04 -0500 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Esprit of Restitution Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII I am following up Mark Gergen's posting about the status in these United States of Esprit Telecom v. Fashion Gossip's overarching issue: will a court grant a plaintiff restitution where defendant's "sharp" conduct, not otherwise a "wrong" leads to defendant's enrichment at plaintiff's expense. Taking a crack at this subject is my article Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get in Their Eyes, which is found in 33 Georgia Law Review 847, 1999. States sued tobacco companies to recover their medical payments to aling citizens' for smoking-related illness. A keystone of the settlements for between $200 and $250 billion was Mississippi's $3.3 billion deal, based primarily on restitution. In sorting out whether the states' medical payments to smokers would have supported restitution, the article divides restitution into "broad" and "narrow" worlds. Pages 882-92. Jeff v. Stubbs, which Mark cites, is quoted as a representative "broad restitution" decision on page 888. The tobacco cases, the article concludes, were settled in the dark, without thoughtful consideration of restitution principles. Indeed the article maintains that if the state's restitution theory were presented to a careful appellate court, it would have been rejected. The dialogue between broad and narrow versions of restitution will continue. In aid of that dialogue the article is submitted to the curiosity and candor of a tough audiences - the enrichment list. Doug Rendleman ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 17 Nov 2000 21:12:01 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: Esprit of Restitution Comments: To: RendlemanD@WLU.EDU I am curious about this interpretation. How can a state medical payment to a victim of a smoking related disease unjustly enrich a tobacco company? Is this not a case of compensation where the intervening third party insurer sues for the loss it suffers in paying out the money? Does the restitution element stem from a form of reviving subrogation? I would have thought a restitutionary claim would involve suing the tobacco company for its profits. -----Original Message----- From: Doug Rendleman [mailto:RendlemanD@WLU.EDU] Sent: Friday, November 17, 2000 8:38 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Esprit of Restitution I am following up Mark Gergen's posting about the status in these United States of Esprit Telecom v. Fashion Gossip's overarching issue: will a court grant a plaintiff restitution where defendant's "sharp" conduct, not otherwise a "wrong" leads to defendant's enrichment at plaintiff's expense. Taking a crack at this subject is my article Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get in Their Eyes, which is found in 33 Georgia Law Review 847, 1999. States sued tobacco companies to recover their medical payments to aling citizens' for smoking-related illness. A keystone of the settlements for between $200 and $250 billion was Mississippi's $3.3 billion deal, based primarily on restitution. In sorting out whether the states' medical payments to smokers would have supported restitution, the article divides restitution into "broad" and "narrow" worlds. Pages 882-92. Jeff v. Stubbs, which Mark cites, is quoted as a representative "broad restitution" decision on page 888. The tobacco cases, the article concludes, were settled in the dark, without thoughtful consideration of restitution principles. Indeed the article maintains that if the state's restitution theory were presented to a careful appellate court, it would have been rejected. The dialogue between broad and narrow versions of restitution will continue. In aid of that dialogue the article is submitted to the curiosity and candor of a tough audiences - the enrichment list. Doug Rendleman ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ************************************************************************************** ****************************** This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Sat, 18 Nov 2000 05:55:42 +0800 Reply-To: CHONG_Chin_Chin@SUPCOURT.GOV.SG Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: CHONG_Chin_Chin@SUPCOURT.GOV.SG Subject: Chin Chin CHONG/SUPCOURT/SINGOV is out of the office. MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii I will be out of the office starting 18/11/2000 and will not return until 20/11/2000. I will respond to your message when I return. Have a nice day! ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Sat, 18 Nov 2000 16:04:08 -0500 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Esprit of Restitution, Continued Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Those of you who are interested in the specific subject of restitution in the States' Medicaid tobacco settlements, as it appears many of you are, in addition to the general topic of the "broad" vs. the "narrow" approach to restitution, will profit from Hanoch Dagan and Jim White's article, Governments, Citizens, and Injurious Industries, 75 N.Y.U. L.Rev. 354 (2000), in addition to my previously mentioned piece in the Georgia Law Review. Restitution is more readily granted under Dagan and White's assumption - that the tobacco companies are liable to the smokers in tort for damages -than under mine - that up until press time, at least, the tobacco companies were winning in tort, indeed that tort law's inadequacy was the reason the states sought restitution. Although Dagan and White's article doesn't have the word "restitution" in its title, it is a thorough, erudite, and thoughtful canvas of restitution, particularly subrogation. Both articles are available in the Westlaw database. Thanks Doug Rendleman ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Mon, 20 Nov 2000 09:52:52 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Restitution from tobacco companies Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I haven't yet looked at the articles which Doug Rendleman has quoted, but in reply to Matthew Scully's question as to how a restitution involving subrogation might work in principle, I would suggest the following analysis. First, the States would have to show a substantive reason for recovery. To do this, they would have to demonstrate three things in turn: (i) that they and the tobacco companies were both liable in respect of the same damage to the same third parties - i.e. they would have to show that they were legally compellable to fund medical care for the smokers under the relevant Medcare statutes, and that the tobacco companies were also legally compellable to make good the same damage, in tort; (ii) that the smokers were not entitled to accumulate recoveries - i.e. that they were not entitled to take health benefits and recover tort damages from the tobacco companies; (iii) that as between the states and the tobacco companies it should be the latter rather than the former who should wind up bearing the load of paying for the smokers' loss at the end of the day - to get a court to say this, they would have to get into arguments about the purpose of tort law and the purpose of health care schemes. Secondly, assuming they could show all three of these things, the companies would still have to ask for the right remedy. This would turn on the question whether their provision of health benefits to the smokers were considered to extinguish the smokers' rights in tort against the tobacco companies. If it did extinguish them, so that the smokers could not recover the 'collateral benefit' of the health care from the tobacco companies, then the states would have to go for a direct restitutionary action, arguing that the effect of their providing the health benefits was to discharge the companies from a legal liability which they should properly have borne. If it did not extinguish them, so that the smokers' rights in tort to recover for the cost of the health care subsisted even though this had already been provided by the states, then the states should ask for simple (not reviving) subrogation to the smokers' rights of action. The effect of awarding simple subrogation would be to pre-empt the unjust enrichment either of the smokers or of the tobacco companies at the state's expense which would inevitably follow. The smokers would be unjustly enriched if they were permitted to recover in tort for themselves and so retain the twin benefits they had received from states and tobacco companies (cf point (ii) above); the companies would be unjustly enriched if the smokers forbore from suing them and so effectively released them from liability (cf point (iii) above). I believe that most U.S. states have a 'real party in interest' rule, which requires claimants who bring subrogated actions to appear on the face of the record as the party really interested in the outcome of the litigation. This makes the resolution of problems like this less confusing than it is in England where, in the absence of such a rule, the courts often make quite unwarranted assumptions about the behaviour of insureds and insurance companies. What would really make life easier, though, would be to adopt a rule that every time a claimant provides a third party with a benefit pursuant to a common liability with a defendant, the effect of this is to extinguish the third party's rights against the defendant unless the third party is entitled to accumulate recoveries from both of them. This would remove simple subrogation from the map. ________________________________________________________________________ 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 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Mon, 20 Nov 2000 20:04:25 +0200 Reply-To: Hanoch Dagan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hanoch Dagan Subject: Re: Restitution from tobacco companies In-Reply-To: <3.0.6.32.20001120095252.00795e70@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable I agree with Charles Mitchell that states can prevail only if the tobacco=20 companies, rather than the states, should =AD as a matter tort & health care= =20 policy =AD =93wind up bearing the load of paying for the smokers=92 loss=94= and if=20 the smokers are not entitled to =93retain the twin benefits they had= received=20 from states and tobacco companies." But I am doubtful whether it is indeed imperative that the states show that= =20 they were legally compellable to fund medical care for the smokers.=94 = While=20 this would indeed make their claim an =93easy case=94, states should be able= to=20 prevail even if this is not the case. I have discussed this issue in some detail in =93Governments, Citizens, and= =20 Injurious Industries=94, a piece co-authored with James J. White that was=20 recently published in 75 N.Y.U.L. Rev. 354, 382-405 (2000). As we show=20 there (especially in pp. 391-393, 396-398), the interests of third parties= =20 =AD insured parties in insurance cases, or citizens in the case of=20 governmental interference in preventing or ameliorating injuries caused by= =20 an industry =AD may justifiably liberalize this requirement as long as there= =20 is no fear that the putative subrogee acted in a self-serving manner that=20 may prejudice the interests of the party primarily responsible for the loss. Hanoch Dagan Tel-Aviv University Law School Ramat-Aviv, Tel-Aviv 69978 ISRAEL 972-3-640-7302 daganh@post.tau.ac.il=20 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 21 Nov 2000 12:45:00 +0200 Reply-To: Hanoch Dagan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hanoch Dagan Subject: Re: Restitution from tobacco companies Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed I agree with Charles Mitchell that states can prevail only if the tobacco companies, rather than the states, should -- as a matter tort & health care policy -- "wind up bearing the load of paying for the smokers' loss" and if the smokers are not entitled to "retain the twin benefits they had received from states and tobacco companies." But I am doubtful whether it is indeed imperative that the states show that they were legally compellable to fund medical care for the smokers." While this would indeed make their claim an "easy case", states should be able to prevail even if this is not the case. I have discussed this issue in some detail in "Governments, Citizens, and Injurious Industries", a piece co-authored with James J. White that was recently published in 75 N.Y.U.L. Rev. 354, 382-405 (2000). As we show there (especially in pp. 391-393, 396-398), the interests of third parties -- insured parties in insurance cases, or citizens in the case of governmental interference in preventing or ameliorating injuries caused by an industry -- may justifiably liberalize this requirement as long as there is no fear that the putative subrogee acted in a self-serving manner that may prejudice the interests of the party primarily responsible for the loss. Hanoch Dagan Tel-Aviv University Law School Ramat-Aviv, Tel-Aviv 69978 ISRAEL 972-3-640-7302 daganh@post.tau.ac.il ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 21 Nov 2000 18:09:55 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Mesne Profits and Restitution MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0119_01C053E6.409ABC80" This is a multi-part message in MIME format. ------=_NextPart_000_0119_01C053E6.409ABC80 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable =B6 With great respect to Eoin O' Dell and Jason Neyers, I claim at the = moment to have the advantage. Not only is my solution based firmly in = undoubted authority, but it is more straightforward than Eoin's argument = and more precise than Jason's abstract "corrective justice", which they = respectively outlined and mentioned in their messages of 03 November = 2000. Let me rehearse my propositions:=20 1.. Mesne profits are damages for being deprived of the use of one's = land by a trespasser.=20 2.. Damages are compensatory.=20 3.. The victim of a trespass to land is to be compensated to the = extent either of his proved loss and damage caused by the tort, or of = the trespasser's proved benefit derived from the land (whichever be the = greater); for, if the trespasser had not taken that benefit, his victim = would have had the choice to take it himself or to charge someone else = for the right to do so or to leave the land as it was; and it should not = lie with the trespasser to say how that choice would have been exercised = =96 cf. The Mediana [1900] A.C. 113 at 117 per the Earl of Halsbury, = L.C. 4.. Generally, if the trespasser has occupied the land, his actual = benefit will be measured by the market rent of the land or, if his use = has been less than occupation, by the market price of the right he has = usurped. 5.. When the trespasser is a spoliator, the victim's compensable = loss is deemed at least to equal the trespasser's potential, not just = his actual, benefit from the land (though, of course, the potential = cannot be less than the actual); for in odium spoliatoris omnia = praesumuntur =96 Wardour v. Berisford (1687) 1 Vern. 452. In my respectful submission, all the cases referred to by Eoin, = including those which do not relate to trespass to land, are consistent = with these propositions. A. In Whitwam v. Westminster Brymbo Coal and Coke Coy [1896] 2 Ch. 538, = the defendants had trespassed on the plaintiff's land by tipping spoil = thereon from their colliery. At 543, Rigby L.J. said: "Independently of = the permanent damage done, there has been a user of the plaintiff's land = by the defendants. ... [I]t is a matter of indifference whether the = defendants made a profit or loss out of the transaction. ... the = principle is that a trespasser shall not be allowed to make use of = another person's land without in some way compensating [my emphasis] = that other person for that user. Where the trespass consists in using a = way over the plaintiff's land, a convenient way of assessing damages may = be by an inquiry as to way-leave in the locality which, when there is a = customary rate of charge for way-leave in the locality, may furnish a = convenient measure of damages; but the principle is that in some way or = other, if you can do nothing better then by rule of thumb, the = trespasser must be charged for the use of the land." The plaintiffs = claimed and recovered "the reasonable value of the land to the = defendants for tipping purposes".=20 B. In Strand Electric & Engineering Co. v. Brisford Entertainments = [1952] 2 Q.B. 246 the plaintiffs claimed and recovered in detinue "the = market hiring value" of portable switchboards for the whole period of = their unlawful detention by the defendants. C. In Penarth Dock Engineering Coy v. Pounds [1963] 1 Ll.Rep. 359, the = plaintiffs had suffered no demonstrable loss from the defendant's = keeping his pontoon too long in their dock. The evidence was that to = acquire a similar berth for the pontoon would have cost the defendant = =A337 10s. per week; but the plaintiffs were content with =A332 5s. per = week. The damages were calculated at this rate as representing the = benefit obtained by the defendant. D. In Wrotham Park Estate v. Parkside Homes [1974] 1 W.L.R. 798, the = defendants were respectively the builders and purchasers of houses = constructed in breach of a restrictive covenant. In Bracewell v. Appleby = [1975] Ch. 408, the defendant claimed the right to use a private road, = which provided the only access to a house built by him. In fact, he did = not have that right. In neither case was any wrongdoer a spoliator. Each = plaintiff was aware of the respective building works and failed, without = good cause, to take adequate steps to have the consequent wrongs = restrained until the works were well advanced or even complete. A claim = to have been despoiled by an infringement of one's rights sounds ill in = the mouth of one who has, without resistance, knowingly let the = infringement occur. In both cases, because of the delay in seeking it, = injunctive relief was refused and damages were awarded in lieu. In both = cases, therefore, the works were on completion allowed to stand. = Accordingly, in each case the damages were limited to the plaintiff's = actual loss arising from the failure to obtain the plaintiff's necessary = permission. In Bracewell they amounted to a fair price for the loss of = amenity and increased user of the private road resulting from the = effective grant of a right of way to the defendant's house, but not so = great a sum as would have deterred the defendant from building the = house. In Wrotham the damages were such a sum as the plaintiffs might = reasonably have demanded as a quid pro quo for relaxing the covenant. E. In Swordheath Properties v. Tabet [1979] 1 W.L.R. 285 the landlord = was awarded damages against defendants, who had remained in occupation = of residential premises after the expiration of the lease granted to the = person who had let them enter. The damages were determined by reference = to the ordinary letting value of the premises, despite the landlord's = failure to prove that it could and would have let the premises during = the period of the trespass. F. In Stoke-on-Trent Council v. W. & J. Waas [1988] 1 W.L.R. 1406 the = holding of a market within 62/3 miles of the plaintiff's statutory = market, though an infringement of the plaintiff's monopoly, was held not = to be the equivalent of usurping the plaintiff's property. Hence the = plaintiff could recover only its actual loss. Since none could be = proved, the recovery was restricted to nominal damages.=20 G. Ministry of Defence v. Ashman [1993] 2 E.G.L.R. 102 and Idem v. = Thompson ibid. 107 are cases of occupiers of houses, owned by the = Ministry, remaining in possession after the Ministry had validly = terminated their right to do so. In neither case did the Ministry prove = any loss or damage; and in each, though it had charged less than the = market rent for the respective use and occupation, it claimed that rent = as mesne profits. In both cases it failed. The benefits derived by the = defendant occupants were less than the market rent; for the occupants = were entitled to be rehoused by the local authorities. Because this = entitlement and the evidence, that the Ministry would not have let the = houses on the open market, were the only reasons given for disregarding = the market rent, it is not at first clear that these are not hard cases = tending to make bad law. The market rent represented the benefit = potentially available from the land. As Wardour v. Berisford led one to = expect, this potential benefit was the measure adopted for calculating = the mesne profits in Inverugie Investments v. Hackett [1995] 1 W.L.R. = 713, regardless of whether or not the trespasser derived any actual = benefit, or the Plaintiff sustained any actual loss, from the wrong. On = the other hand, in neither of the Ministry's suits was any defendant a = spoliator. The occupants were overtaken by events. Marital breakdown led = to their husbands (both servicemen) leaving the houses; the occupants = consequently lost their entitlement to remain in possession; and neither = could obtain immediate local government (or afford other adequate) = accommodation. In Ashman, at 104L, Kennedy, L.J., drew a parallel with = "an elderly widow living alone [who] were to hold over possession of a = mansion while attempting to arrange accommodation more suited to her = needs". Furthermore, both suits were instituted seven months after the = husbands' respective departures. To avoid having these delays mistaken = for the Ministry's generosity, on which at least one of the occupants = was induced to rely (q.v. at 106K), the Ministry could at once have = taken proceedings for possession and compromised them on the defendants' = undertaking to pay a market rent. Hence, on the facts, the decisions = were right. H. In Inverugie Investments v. Hackett the defendant trespasser, being a = landlord who had ejected the plaintiff tenant, was a spoliator. Hence = the plaintiff's loss, which the trespasser had to compensate was deemed = to be the full potential income from the use being made of the land even = though, because the hotel on the land was running at a loss, the = realization of that potential was not a practical possibility. Therefore = "disgorgement" is not an apt term in this field; for, as in Inverugie, = the trespasser may have received no ill-gotten gains to give up. =B6 A supplementary point should be made. In my own message of 03 = November 2000 I treated The Mediana as an example of spoliation and of = the application of the relevant maxim. It was not a case of trespass, = but of negligence. Generally, in negligence, the victim can recover = compensation only for the loss and damage he can prove. In The Valeria = [1922] A.C. 242 the House of Lords applied this general rule to a = collision at sea. The Mediana was distinguished on the ground that there = the damaged vessel was one which, "in the ordinary course, would have = earned nothing at all". In The Valeria damages were claimed for injury = to a ship engaged in earning freight. That by itself, with respect, does = not seem to me sufficient. If, purely for one's own pleasure, one owns a = craft, which sustains damage caused by the negligent navigation of = another, the duty to mitigate one's losses would bar the hiring of a = replacement, while one's own is being repaired. One would have to be = content with damages for inconvenience. Mutatis mutandis, the same would = be true of a collision on land. However, in The Mediana, the damaged = light ship was being employed not only without prospect of gain, but in = the public interest. So was the dredge in The Greta Holme [1897] A.C. = 596. There, at 604, Lord Watson seems to have considered both matters = significant. Indeed, in The Valeria, at 244, the appellants' counsel = arguendo raised the public interest alone. On the facts he could do no = more. Clearly, albeit tacitly, the House regarded it as not enough. I = think nothing in this paragraph conflicts with 12(1) Halsbury's Laws = (4th edn reissue) 865. I have laboured the point because, as regards = "non profit-earning" chattels, n.6 distinguishes between "the shipping = and omnibus cases" and "private cars", rather than between chattels used = in the public interest and those devoted to private use. I submit that = the latter distinction is warranted. If, without prospect of gain to = oneself, one has devoted one's chattel to the service of the public and = it is harmed in the course of that service by another's fault, is not = one's sense of injury properly greater than if the harm had occurred in = seeking one's own remuneration or pleasure? ------=_NextPart_000_0119_01C053E6.409ABC80 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

¶ With great respect to Eoin O' Dell and Jason Neyers, I claim = at the=20 moment to have the advantage. Not only is my solution based firmly in = undoubted=20 authority, but it is more straightforward than Eoin's argument and more = precise=20 than Jason's abstract "corrective justice", which they = respectively=20 outlined and mentioned in their messages of 03 November 2000. Let me = rehearse my=20 propositions:

  1. Mesne profits are damages for being deprived of the use of one's = land by=20 a trespasser.
  2. Damages are compensatory.
  3. The victim of a trespass to land is to be compensated to the = extent=20 either of his proved loss and damage caused by the tort, or of the=20 trespasser's proved benefit derived from the land (whichever be the=20 greater); for, if the trespasser had not taken that benefit, his = victim=20 would have had the choice to take it himself or to charge someone = else for=20 the right to do so or to leave the land as it was; and it should not = lie=20 with the trespasser to say how that choice would have been exercised = –=20 cf. The Mediana [1900] A.C. 113 at 117 per the Earl of = Halsbury, L.C.
  4. Generally, if the trespasser has occupied the land, his actual = benefit=20 will be measured by the market rent of the land or, if his use has = been less=20 than occupation, by the market price of the right he has = usurped.
  5. When the trespasser is a spoliator, the victim's = compensable=20 loss is deemed at least to equal the trespasser's potential, not = just his=20 actual, benefit from the land (though, of course, the potential = cannot be=20 less than the actual); for in odium spoliatoris omnia = praesumuntur=20 – Wardour v. Berisford (1687) 1 Vern. = 452.

In my respectful submission, all the cases referred to by Eoin, = including=20 those which do not relate to trespass to land, are consistent with these = propositions.

A. In Whitwam v. Westminster Brymbo Coal and Coke = Coy=20 [1896] 2 Ch. 538, the defendants had trespassed on the plaintiff's land = by=20 tipping spoil thereon from their colliery. At 543, Rigby L.J. = said:=20 "Independently of the permanent damage done, there has been a user = of the=20 plaintiff's land by the defendants. ... [I]t is a matter of indifference = whether=20 the defendants made a profit or loss out of the transaction. ... the = principle=20 is that a trespasser shall not be allowed to make use of another = person's land=20 without in some way compensating [my emphasis] that other person = for that=20 user. Where the trespass consists in using a way over the plaintiff's = land, a=20 convenient way of assessing damages may be by an inquiry as to way-leave = in the=20 locality which, when there is a customary rate of charge for way-leave = in the=20 locality, may furnish a convenient measure of damages; but the principle = is that=20 in some way or other, if you can do nothing better then by rule of = thumb, the=20 trespasser must be charged for the use of the land." The plaintiffs = claimed=20 and recovered "the reasonable value of the land to the defendants = for=20 tipping purposes".

B. In Strand Electric & Engineering Co. v. Brisford = Entertainments [1952] 2 Q.B. 246 the plaintiffs claimed and = recovered in=20 detinue "the market hiring value" of portable switchboards for = the=20 whole period of their unlawful detention by the defendants.

C. In Penarth Dock Engineering Coy v. Pounds = [1963] 1=20 Ll.Rep. 359, the plaintiffs had suffered no demonstrable loss from the=20 defendant's keeping his pontoon too long in their dock. The evidence was = that to=20 acquire a similar berth for the pontoon would have cost the defendant = £37=20 10s. per week; but the plaintiffs were content with £32 5s. per = week. The=20 damages were calculated at this rate as representing the benefit = obtained by the=20 defendant.

D. In Wrotham Park Estate v. Parkside Homes = [1974] 1=20 W.L.R. 798, the defendants were respectively the builders and purchasers = of=20 houses constructed in breach of a restrictive covenant. In = Bracewell v.=20 Appleby [1975] Ch. 408, the defendant claimed the right to use = a=20 private road, which provided the only access to a house built by him. In = fact,=20 he did not have that right. In neither case was any wrongdoer a=20 spoliator. Each plaintiff was aware of the respective building = works=20 and failed, without good cause, to take adequate steps to have the = consequent=20 wrongs restrained until the works were well advanced or even complete. A = claim=20 to have been despoiled by an infringement of one's rights sounds ill in = the=20 mouth of one who has, without resistance, knowingly let the infringement = occur.=20 In both cases, because of the delay in seeking it, injunctive relief was = refused=20 and damages were awarded in lieu. In both cases, therefore, the works = were on=20 completion allowed to stand. Accordingly, in each case the damages were = limited=20 to the plaintiff's actual loss arising from the failure to obtain the=20 plaintiff's necessary permission. In Bracewell they amounted to = a fair=20 price for the loss of amenity and increased user of the private road = resulting=20 from the effective grant of a right of way to the defendant's house, but = not so=20 great a sum as would have deterred the defendant from building the = house. In=20 Wrotham the damages were such a sum as the plaintiffs might = reasonably=20 have demanded as a quid pro quo for relaxing the=20 covenant.

E. In Swordheath Properties v. Tabet [1979] 1 = W.L.R. 285=20 the landlord was awarded damages against defendants, who had remained in = occupation of residential premises after the expiration of the lease = granted to=20 the person who had let them enter. The damages were determined by = reference to=20 the ordinary letting value of the premises, despite the landlord's = failure to=20 prove that it could and would have let the premises during the period of = the=20 trespass.

F. In Stoke-on-Trent Council v. W. & J. Waas = [1988] 1=20 W.L.R. 1406 the holding of a market within 62/3 = miles of=20 the plaintiff's statutory market, though an infringement of the = plaintiff's=20 monopoly, was held not to be the equivalent of usurping the plaintiff's=20 property. Hence the plaintiff could recover only its actual loss. Since = none=20 could be proved, the recovery was restricted to nominal damages.

G. Ministry of Defence v. Ashman [1993] 2 E.G.L.R. = 102 and=20 Idem v. Thompson ibid. 107 are cases of occupiers = of=20 houses, owned by the Ministry, remaining in possession after the = Ministry had=20 validly terminated their right to do so. In neither case did the = Ministry prove=20 any loss or damage; and in each, though it had charged less than the = market rent=20 for the respective use and occupation, it claimed that rent as mesne = profits. In=20 both cases it failed. The benefits derived by the defendant occupants = were less=20 than the market rent; for the occupants were entitled to be rehoused by = the=20 local authorities. Because this entitlement and the evidence, that the = Ministry=20 would not have let the houses on the open market, were the only reasons = given=20 for disregarding the market rent, it is not at first clear that these = are not=20 hard cases tending to make bad law. The market rent represented the = benefit=20 potentially available from the land. As Wardour v. = Berisford led=20 one to expect, this potential benefit was the measure adopted for = calculating=20 the mesne profits in Inverugie Investments v. Hackett = [1995] 1=20 W.L.R. 713, regardless of whether or not the trespasser derived any = actual=20 benefit, or the Plaintiff sustained any actual loss, from the wrong. On = the=20 other hand, in neither of the Ministry's suits was any defendant a=20 spoliator. The occupants were overtaken by events. Marital = breakdown led=20 to their husbands (both servicemen) leaving the houses; the occupants=20 consequently lost their entitlement to remain in possession; and neither = could=20 obtain immediate local government (or afford other adequate) = accommodation. In=20 Ashman, at 104L, Kennedy, L.J., drew a parallel with "an = elderly=20 widow living alone [who] were to hold over possession of a mansion while = attempting to arrange accommodation more suited to her needs". = Furthermore,=20 both suits were instituted seven months after the husbands' respective=20 departures. To avoid having these delays mistaken for the Ministry's = generosity,=20 on which at least one of the occupants was induced to rely (q.v. = at=20 106K), the Ministry could at once have taken proceedings for possession = and=20 compromised them on the defendants' undertaking to pay a market rent. = Hence, on=20 the facts, the decisions were right.

H. In Inverugie Investments v. Hackett the = defendant=20 trespasser, being a landlord who had ejected the plaintiff tenant, was a = spoliator. Hence the plaintiff's loss, which the = trespasser had=20 to compensate was deemed to be the full potential income from the use = being made=20 of the land even though, because the hotel on the land was running at a = loss,=20 the realization of that potential was not a practical possibility. = Therefore=20 "disgorgement" is not an apt term in this field; for, as in=20 Inverugie, the trespasser may have received no ill-gotten = gains to=20 give up.

¶ A supplementary point should be made. In my own message of 03 = November=20 2000 I treated The Mediana as an example of spoliation and of the = application of the relevant maxim. It was not a case of trespass, but of = negligence. Generally, in negligence, the victim can recover = compensation only=20 for the loss and damage he can prove. In The Valeria [1922] A.C. = 242 the=20 House of Lords applied this general rule to a collision at sea. The=20 Mediana was distinguished on the ground that there the damaged = vessel was=20 one which, "in the ordinary course, would have earned nothing at = all".=20 In The Valeria damages were claimed for injury to a ship engaged = in=20 earning freight. That by itself, with respect, does not seem to me = sufficient.=20 If, purely for one's own pleasure, one owns a craft, which sustains = damage=20 caused by the negligent navigation of another, the duty to mitigate = one's losses=20 would bar the hiring of a replacement, while one's own is being = repaired. One=20 would have to be content with damages for inconvenience. Mutatis=20 mutandis, the same would be true of a collision on land. However, in = The=20 Mediana, the damaged light ship was being employed not only without = prospect=20 of gain, but in the public interest. So was the dredge in The Greta = Holme=20 [1897] A.C. 596. There, at 604, Lord Watson seems to have considered = both=20 matters significant. Indeed, in The Valeria, at 244, the = appellants'=20 counsel arguendo raised the public interest alone. On the facts = he could=20 do no more. Clearly, albeit tacitly, the House regarded it as not = enough. I=20 think nothing in this paragraph conflicts with 12(1) Halsbury's = Laws=20 (4th edn reissue) 865. I have laboured the point because, as = regards=20 "non profit-earning" chattels, n.6 distinguishes between = "the=20 shipping and omnibus cases" and "private cars", rather = than=20 between chattels used in the public interest and those devoted to = private use. I=20 submit that the latter distinction is warranted. If, without prospect of = gain to=20 oneself, one has devoted one's chattel to the service of the public and = it is=20 harmed in the course of that service by another's fault, is not one's = sense of=20 injury properly greater than if the harm had occurred in seeking one's = own=20 remuneration or pleasure?

------=_NextPart_000_0119_01C053E6.409ABC80-- ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . Date: Wed, 22 Nov 2000 17:03:09 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Mistaken Bank Loses MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Crantrave Ltd. v. Lloyds Bank plc [2000] 4 All ER 473 looks like a ringing endorsement of the rule that you can't pay someone else's debt without his consent. The plaintiff was judgment debtor to a third party, & the third party served a garnishee order nisi on the defendant, the plaintiff's banker. The defendant paid money to the solicitors for the third party, but the garnishee order was never made absolute. Now the plaintiff was in liquidation and the liquidator sued the bank. Summary judgment for the liquidator affirmed by the CA. Of course in a liquidation you could hardly say that it was a matter of indifference to the plaintiff whether it had so much money in the bank or instead the same money was used to pay a creditor. Effectively it generates a preference. No simple subrogation allowed, which I don't think is a big surprise - however the case is classified under the key word "Subrogation." Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Thu, 23 Nov 2000 13:18:25 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: PPSA/Art 9 Tracing MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed We had a discussion in March 2000 about tracing under the PPSA. Those following that subject might be interested to know that the revised Article 9 has dropped the provisions about the tracing of proceeds which earlier appeared in 9-306(4) (partly because no one knew what they meant). Revised 9-315 says "(b) Proceeds that are commingled with other property are identifiable proceeds: (1) if the proceeds are goods, to the extent provided by Section 9-336 [which deals with physical mixtures]; and (2) if the proceeds are not goods, to the extent that the secured party identifies the proceeds by a method of tracing, including application of equitable principles, that is permitted under law other than this article with respect to commingled property of the type involved." There is also a recent PPSA tracing case from the Ont CA, TD Bank v Co-Pac Ltd (1999) 178 DLR (4th) 149, leave to appeal to SCC refused 22 June 2000. The Canadian trend is also to use the ordinary rules for tracing the proceeds of collateral. Indeed in Ontario they are still not sure whether you need a fiduciary relationship ... Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Thu, 23 Nov 2000 15:18:16 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Another class action MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed There is another big class action recently decided in Ontario, Authorson v. Canada (11 Oct 2000), Superior Court. This action was brought by veterans who were or became unable to manage their own affairs. They alleged that for many years the agencies of the federal Crown have systematically mismanaged the veterans' pension & benefits assets, in particular by not investing the funds or even paying interest. The Crown argued that any "trust" of the administered funds was political (trust "in the higher sense", in an expression I have never really understood). Held, there was a real trust, or at least a fiduciary obligation requiring investment or interest. The main defence was is a statutory provision which says no claim lies in respect of periods before 1990; this was passed in contemplation (fear) of the very claim now brought. This provision was held to be consistent with the Charter of Rights. However it was rendered inoperative by the Bill of Rights of 1960 (which is something of a surprise since this Bill has not done much over the years). The Crown is appealing. Meanwhile the quantification of the claim is proceeding. Some of the plaintiffs are or were veterans of WWI. According to today's Globe and Mail, the plaintiffs' expert says that the value of the claim is $3.6 billion if the money had been invested in equities, $1.6 billion if invested in a conservative portfolio. I leave it to somebody else to tell me whether this is a restitution case. Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 24 Nov 2000 08:52:29 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Two postscripts to Lionel's last two postings (one apiece). 1/ There is a new English case on mixing in which Moore-Bick J considers the rules of English law relating to the passing of property in goods which are blended or commingled in a mixed bulk at some length: Glencore International AG v Metro Trading Inc, QBD (Comm Ct), 12 October 2000. He also investigates various conflict of laws issues, holding among other things that: (a) as between the immediate parties to a contract under which goods are delivered by one party to the other, the passing of property is governed by the law of the place where the property is situated (the lex situs) rather than the intention of the parties as expressed in the contract (the proper law); and (b) it remains an open issue whether the English courts should apply the doctrine of renvoi so as to apply the conflicts rules of the lex situs as well as its domestic rules of law, when considering rights to property in movables. 2/ The English Public Trustee Office was hauled over the coals not so long ago by the Select Committee for Public Accounts for the dire investment return they were getting on the (substantial) sums which they hold on behalf of assorted legally incapable persons. However, my guess is that any class action against them (assuming that such a thing were possible under the English procedural rules - I'm not up on this, so perhaps someone else might care to comment?) would find it tough to get past Nestle v Natwest Bank, which as far as I can see let's trustees do amazingly little for their beneficiaries - although a more recent NZ case, Re Mulligan, is tougher. ________________________________________________________________________ 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 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 28 Nov 2000 17:10:12 GMT Reply-To: Eoin O' Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O' Dell Subject: Leading Cases Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" In the shameless plug department, the following book has just been published Eoin O'Dell (ed.) LEADING CASES OF THE TWENTIETH CENTURY (Round Hall Sweet & Maxwell, Dublin, 2000). You may remember the call for papers for the conference on the theme in April of last year. To justify this message: the 27 contributions include the following articles by - or of interest to - members of this list: "The Case That Fell To Earth. Sinclair v. Brougham (1914)" Eoin O'Dell "M'Alister (or Donoghue) (Pauper) v. Stevenson (1932)" Steve Hedley "An Everyday Story Of Country Folk (Not!). Grealish v. Murphy (1946)" Robert Clark [on Ireland's leading unconscionability case] "Dusting Down Equity's Armour. High Trees (1947) In Perspective" Oonagh Breen "The Mareva Injunction From Birth To Adulthood. Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. (1975)" David Capper I'll spare you the advertising blurb which - I kid you not - recommends it as the ideal Christmas gift for the lawyer in your life, and will pass straight on to the publisher details: ISBN 1-85800-208-7 Round Hall Sweet & Maxwell, 43 Fitzwilliam Place, Dublin 2, Ireland ph 00 353 1 662 5301; fax 00 353 1 662 5302; email info@roundhall.ie Best regards from Dublin Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 28 Nov 2000 15:50:20 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: New book: restitution & private international law MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Just out from Hart Publishing is George Panagopoulos' book, "Restitution in Private International Law", ISBN 1-84113-142-3, . Warm congratulations to George on this excellent contribution. Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email .