=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Sun, 2 Nov 2003 07:41:35 -0900 Reply-To: Hal Lander Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hal Lander Subject: Change of Position - a real situation Mime-Version: 1.0 Content-Type: text/plain; format=3Dflowed Here is a current, real, situation involving "Change of Position"; .A car insurance policy, in my wife's name, was paid by Direct Debit. .The policy was cancelled when my wife obtained a better deal. .For some reason the insurance company then erroneously refunded =C2=A386= 0 in premiums plus a further mysterious extra =C2=A3560, making a total of =C2= =A31420. .The refund was paid directly into the joint bank account for which the Insurance company had Direct Debit details. .The insurance company did not notify my wife that it was making a refund. .We did not notice the unexpected payment. .One year later the insurance company notified us of the error. .They are now seeking repayment, from my wife, and are threatening legal action and debt recovery agencies. If our bank balance is low we simply tighten our belts and avoid making unnecessary expenditures. Over the last year we had a false impression of how much money was in our account and so we spent money that we would otherwise simply have avoided spending. The insurance company has been asked for the legal basis on which they ar= e claiming repayment. No doubt they will claim "Unjustified Enrichment". I would agree if they had contacted us immediately, but the delay of a year puts things in a quite different light. Will "Change of Position" act as = a good defence? Any other angles on defence, especially in English or Scottish Law, would= be welcome. The problem has caused distress, annoyance, and inconvenience. O= nce thing that has made us unhappy is that the insurance company was given th= e bank account details solely for the purpose of obtaining Direct Debit payments, not for making deposits into the account. Is there any claim against the insurance company for breaching the trust placed in them when they were given the account details? Also my wife was the insurance company's customer and it is her that they are pursuing, but the account into which they paid the money is a joint one, can this help frustrate th= e insurance company? Regards Hal _________________________________________________________________ Cheer a special someone with a fun Halloween eCard from American Greeting= s! Go to http://www.msn.americangreetings.com/index_msn.pd?source=3Dmsne134 ____________________________________________________________________ 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 6635, email . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Mon, 3 Nov 2003 10:39:42 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: Change of Position - a real situation Comments: To: Hal Lander In-Reply-To: Mime-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D_6696859=3D=3D_.ALT" -- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_6696859= =3D=3D_.ALT Content-Type: text/plain; charset=3D"iso-8859-1"; format=3Dflowed Content-Transfer-Encoding: quoted-printable Dear Hal 1/ The case you want is Phil Collins Ltd v Davis, although personally I=3D= 20 think it plays fast and loose with the burden of proof on D to establish=3D= 20 that he has incurred extraordinary expenditure. http://www.ucc.ie/law/restitution/archive/englcases/collins.htm approved by Robert Walker LJ in Scottish Equitable v Derby at para 33: http://www.ucc.ie/law/restitution/archive/englcases/scotseq2.htm 2/ If the money was paid into your joint account then you are both enrich= ed=3D =3D20 by the mistaken payment and so you are both liable to repay. It is an=3D= 20 interesting question whether a change of position by one of you would ser= ve=3D =3D20 as a defence to a claim against the other, but on your version of events=3D= 20 this question may not arise as you say you spent the money=3D20 together. Further discussion: 'Joint and Several Restitutionary=3D20 Liabilities' [2002] RLR 87. Yours Charles Mitchell At 07:41 02/11/2003 -0900, you wrote: >Here is a current, real, situation involving "Change of Position"; > >.A car insurance policy, in my wife's name, was paid by Direct Debit. >.The policy was cancelled when my wife obtained a better deal. >.For some reason the insurance company then erroneously refunded =3DC2=3D= A3860=3D in >premiums plus a further mysterious extra =3DC2=3DA3560, making a total o= f =3D =3DC2=3DA31420. >.The refund was paid directly into the joint bank account for which the >Insurance company had Direct Debit details. >.The insurance company did not notify my wife that it was making a refun= d. >.We did not notice the unexpected payment. >.One year later the insurance company notified us of the error. >.They are now seeking repayment, from my wife, and are threatening legal >action and debt recovery agencies. > >If our bank balance is low we simply tighten our belts and avoid making >unnecessary expenditures. >Over the last year we had a false impression of how much money was in ou= r >account and so we spent money that we would otherwise simply have avoide= d >spending. > >The insurance company has been asked for the legal basis on which they a= re >claiming repayment. No doubt they will claim "Unjustified Enrichment". I >would agree if they had contacted us immediately, but the delay of a yea= r >puts things in a quite different light. Will "Change of Position" act as= a >good defence? > >Any other angles on defence, especially in English or Scottish Law, woul= d=3D be >welcome. The problem has caused distress, annoyance, and inconvenience.=3D Once >thing that has made us unhappy is that the insurance company was given t= he >bank account details solely for the purpose of obtaining Direct Debit >payments, not for making deposits into the account. Is there any claim >against the insurance company for breaching the trust placed in them whe= n >they were given the account details? Also my wife was the insurance >company's customer and it is her that they are pursuing, but the account >into which they paid the money is a joint one, can this help frustrate t= he >insurance company? > >Regards >Hal > >_________________________________________________________________ >Cheer a special someone with a fun Halloween eCard from American Greetin= gs! >Go to http://www.msn.americangreetings.com/index_msn.pd?source=3D3Dmsne= 134 > >____________________________________________________________________ >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 6635, email >. -- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_6696859= =3D=3D_.ALT Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Hal

1/ The case you want is Phil Collins Ltd v Davis, although personally I think it plays fast and loose with the burden of proof on D to establish that he has incurred extraordinary expenditure.

http://www.ucc.ie/law/restitution/archive/englcases= /coll=3D ins.htm

approved by Robert Walker LJ in Scottish Equitable v Derby at para 33:

http://www.ucc.ie/law/restitution/archive/englcases= /scot=3D seq2.htm

2/ If the money was paid into your joint account then you are both enriched by the mistaken payment and so you are both liable to repay.  It is an interesting question whether a change of position by one of you would serve as a defence to a claim against the other, but on your version of events this question may not arise as you say you spent the money together.  Further discussion: 'Joint and Several Restitutionary Liabilities' [2002] RLR 87.

Yours
Charles Mitchell


At 07:41 02/11/2003 -0900, you wrote:
Here is a current, real, si= tuation involving "Change of Position";

.A car insurance policy, in my wife's name, was paid by Direct Debit.
.The policy was cancelled when my wife obtained a better deal.
.For some reason the insurance company then erroneously refunded =3DC2=3D= A3860 in
premiums plus a further mysterious extra =3DC2=3DA3560, making a total of=   =3DC2=3DA31420.
.The refund was paid directly into the joint bank account for which the
Insurance company had Direct Debit details.
.The insurance company did not notify my wife that it was making a refund.
.We did not notice the unexpected payment.
.One year later the insurance company notified us of the error.
.They are now seeking repayment, from my wife, and are threatening legal
action and debt recovery agencies.

If our bank balance is low we simply tighten our belts and avoid making
unnecessary expenditures.
Over the last year we had a false impression of how much money was in our
account and so we spent money that we would otherwise simply have avoided
spending.

The insurance company has been asked for the legal basis on which they are
claiming repayment. No doubt they will claim "Unjustified Enrichment". I
would agree if they had contacted us immediately, but the delay of a year
puts things in a quite different light. Will "Change of Position" act as a
good defence?

Any other angles on defence, especially in English or Scottish Law, would be
welcome. The problem has caused distress, annoyance, and inconvenience. Once
thing that has made us unhappy is that the insurance company was given the
bank account details solely for the purpose of obtaining Direct Debit
payments, not for making deposits into the account. Is there any claim
against the insurance company for breaching the trust placed in them when
they were given the account details? Also my wife was the insurance
company's customer and it is her that they are pursuing, but the account
into which they paid the money is a joint one, can this help frustrate the
insurance company?

Regards
Hal

_________________________________________________________________
Cheer a special someone with a fun Halloween eCard from American Greetings!
Go to  http://www.msn.americangreetings.com/index_msn.pd?s= ource=3D =3D3Dmsne134

____________________________________________________________________
This message was delivered through the Restitution Discussion=3D20 Group,
an international internet LISTSERV devoted to all aspects of the=3D20 law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email
<lionel.smith@mcgill.ca>.
-- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_6696859= =3D=3D_.ALT-- ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Thu, 13 Nov 2003 10:10:11 -0000 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Quote of the day MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" "... I would myself avoid the reference to a restitutionary remedy, since the pond called restitution is of uncertain limits and surrounded by a variety of anglers using different tackle; and wrong use of the word can have the effect of a brick causing ripples to occur in unexpected directions." Westminster City Council v. Porter [2002] EWHC 1589 (Ch), per Hart J. Steve Hedley Faculty of Law, University College, Cork ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Thu, 13 Nov 2003 11:14:33 +0000 Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: Re: Quote of the day MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: quoted-printable -----Original Message----- From: "Hedley, Steve" To: ENRICHMENT@LISTS.MCGILL.CA Date: Thu, 13 Nov 2003 10:10:11 -0000 Subject: [RDG:] Quote of the day "... I would myself avoid the reference to a restitutionary remedy, since the pond called restitution is of uncertain limits and surrounded by a variety of anglers using different tackle; and wrong use of the word can have the effect of a brick causing ripples to occur in unexpected directions." Westminster City Council v. Porter [2002] EWHC 1589 (Ch), per Hart J. >> LOL! And also probably true. The same word can mean different things to differen= t people in both subtle and and sometimes very large. Kind regards Benedict White ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Thu, 13 Nov 2003 15:23:26 +0100 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: Re: Quote of the day MIME-Version: 1.0 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Thanks to Steve for finding this nice quote. It has a delphic touch. I am looking forward to this making an appearance in future exam papers - "Discuss." What was Hart J trying to tell us? This is the quote in larger context:
"Mr Anderson, on behalf of the claimant, has submitted that the true case of election only arises when a claimant must choose between a compensatory remedy and a restitutionary remedy. So far as the label of the latter is concerned, I would myself avoid the reference to a restitutionary remedy, since the pond called restitution is of uncertain limits and surrounded by a variety of anglers using different tackle; and wrong use of the word can have the effect of a brick causing ripples to occur in unexpected directions. But if, by that phrase, is understood a remedy which, as opposed to compensating the claimant for loss, is one which obliges the defendant to disgorge benefits, then I accept that that provides an example of an alternative remedy which will give rise to the need for a claimant to elect, although it seems to me that it is only one of a number of possible such examples known to the law."
I would see it as an attempt to limit the doctrine of election in unjust enrichment / wrongs contexts on the one hand, and to keep the door open for other applications of a doctrine of election on the other. I am not sure whether the irony in the quote is against those who advocate restitution as a coherent area of law, but cannot agree on its boundaries, or against others who seek to expand this field into incoherence - the reference to anglers and tackle might allude to practitioners who want to make the most out of the restitution bandwagon in the interest of their clients.

Incidentally, this is not a restitution case. Another reason why this reminds me of the famous dictum of Lord Diplock in Orakpo v Manson Investments Ltd [1978] AC 95, at 104:
"My Lords, there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies in particular cases of what might be classified as unjust enrichment in a legal system that is based upon the civil law."
I have always wondered whether Lord Diplock was aware of the irony that this case - which concerned subrogation - would not have been a restitution case in the first place in "a legal system that is based upon the civil law".

Gerhard Dannemann

Hedley, Steve schrieb:
"... I would myself avoid the reference to a 

restitutionary remedy, since

the pond called restitution is of uncertain limits and surrounded by a

variety of anglers using different tackle; and wrong use of the word 

can

have the effect of a brick causing ripples to occur in unexpected

directions."



Westminster City Council v. Porter [2002] EWHC 1589 (Ch), per Hart J.





Steve Hedley

Faculty of Law, University College, Cork



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 This message was delivered through the Restitution Discussion Group,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

 the body of a message to <listserv@lists.mcgill.ca>

. To unsubscribe,

 send "signoff enrichment" to the same address. To make a posting to

 all group members, send to <enrichment@lists.mcgill.ca

>. The list is

 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, 

email

 <lionel.smith@mcgill.ca>

.

  

--

Prof. Dr. Gerhard Dannemann

Centre for British Studies

Humboldt-Universität

Jägerstr. 10-11

10117 Berlin

Tel. +49 30 2093 5334

Fax  +49 30 2093 5370

____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Sun, 23 Nov 2003 10:28:47 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Change of position on the move again: Commerzbank AG v Price-Jones Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_6200296==_.ALT" --=====================_6200296==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed In Commerzbank AG v Price-Jones the CA holds that in principle D need not have spent any money in order to rely on C of P: changes of position that leave you worse off for non-financial reasons can also be relied upon. On the facts, however, the defence was not available: banker receives mistaken payment from employer; allegedly stays in job rather than seeking employment elsewhere because mistaken payment leads him to believe that he is well-regarded and in line for extra bonuses; this is not enough to constitute C of P says CA. You can find the case at: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1663.html Best wishes Charles Dr Charles Mitchell Reader in Law Director of Postgraduate Taught Programmes School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 --=====================_6200296==_.ALT Content-Type: text/html; charset="us-ascii" In Commerzbank AG v Price-Jones the CA holds that in principle D need not have spent any money in order to rely on C of P: changes of position that leave you worse off for non-financial reasons can also be relied upon.  On the facts, however, the defence was not available: banker receives mistaken payment from employer; allegedly stays in job rather than seeking employment elsewhere because mistaken payment leads him to believe that he is well-regarded and in line for extra bonuses; this is not enough to constitute C of P says CA.

You can find the case at:

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1663.html

Best wishes
Charles


Dr Charles Mitchell
Reader in Law
Director of Postgraduate Taught Programmes
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465 --=====================_6200296==_.ALT-- ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Thu, 27 Nov 2003 00:25:47 +0800 Reply-To: NICHOLAS TAN CHOI CHUAN Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: NICHOLAS TAN CHOI CHUAN Subject: To establish 'Knowing assistance' MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit In the English position, reference must be made to two very imporant cases, Royal Brunei Sdn Bhd v Tan (1995) and in the recently decided case Twinsectra Ltd v Yardley. Lord Millet in the latter case said that presently, there are two approaches in deciding the liability of the third party who assisting in the breach of trust on the part of trustee, i.e. the traditional approach as in the case of Baden in which the actual knowledge of breach is required, and the approach of dishonest assistance by Lord Nicholls in the latter case. It doesn't matter which test judges are going to adopt as long as the degree of knowledge that is lower that in the case of R v Ghosh, in which the state of mind of the defendant is to be examined. This does not apply to civil case and if it were to be applied in civil case, I think the prima facie case of the defendant is hard to be shown. It is though that in many cases, subjective standard is inevitable to be added but with certain restriction imposed own his or her standard. As mentioned by Lord Hutton, it should be the combination of both the objective and subjective standard that needed to be proven in all cases. Subjective standard is to be considered because his or her inteligence, experience will affect his or her judging power. ------------END -------------- ---------------------------------------------------------------- This e-mail has been sent via JARING webmail at http://www.jaring.my ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Wed, 26 Nov 2003 16:49:19 +0000 Reply-To: monica.chowdry@KCL.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: monica chowdry Subject: Taylor v Hamer - "restitution"? MIME-Version: 1.0 Content-Type: Text/Plain; CHARSET="ISO-8859-1" Content-Transfer-Encoding: quoted-printable I have come across a case that might be of interest:=20 Taylor v Hamer 2002 WL 1446261, [2002] EWCA Civ 1130 The case essentially concerns the purchase of a property for =A33.25m. The= purchaser was particularly interested in some flagstones that lay in one o= f the gardens of the property and understood them to be included as part of= the property. A mere 2 years after the purchase he realised that the flag= stones were missing and so brought an action against the purchaser. In the Court of Appeal, he contended that there had been a breach of contra= ct and the court confirmed that this was in fact the case. =20 The interesting issue from a restitution point of view is that Taylor was = claiming "restitution" in that he wanted the flagstones returned and relaye= d on his property (alternatively, he would have settled for damages in the = form of the cost of replacing and relaying the flagstones for =A375 687). The court granted "restitution" in the case. This seems to be strange for = two reasons. =20 First, if this was indeed a restitutionary remedy, which seems doubtful, sh= ould it have been given in the case at all? The case does not seem to warr= ant restitution for breach of contract in any conceivable way post AG v Bla= ke. Taylor contended that the flagstones were irreplaceable and therefore = only their return would be an adequate remedy for him. However, the judges= do not seem convinced of this fact (eg. Para 12). Therefore, it appears t= hat damages in the form of "cost of cure" in contract would have been adequ= ate, so why resort to restitution? Second, even if restitution could have been granted in this case, was the r= emedy granted actually restitution? The order cannot really be seen as res= titution for the breach of contract as there was no gain of which the defen= dant could be stripped - she never "owned" the flagstones. Further, an ord= er to relay the flagstones cannot really be seen as restitutionary in any w= ay. Alternatively, the order could be viewed as one for specific performance. = However this analysis also has difficulties. Although it seems that the re= turn of the flagstones could be viewed as such, if indeed they were irrepla= ceable, I don't think the relaying could as there was no obligation under t= he original contract to "lay" the flagstones. Even if there were such an o= bligation, damages could be said to be adequate in relation to the relay, t= herefore preventing an order for specific performance being granted. =20 It seems to me a totally incoherent use of restitution - anyone else have a= ny thoughts? =20 Regards Monica ---------------------- monica chowdry monica.chowdry@kcl.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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 6635, email . ======================================================================= == Date: Wed, 26 Nov 2003 19:16:56 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: [RDG:] Taylor v Hamer - "restitution"? Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Did any member of the CA say this was a case about unjust enrichment or restitution in that sense at all? As far as I can see they didn't. The word "restitution" was used in the older sense of giving the purchaser what he was entitled to, i.e. (laid) flagstones. As for the remedy, I can't see that it's particularly unorthodox. In tort you've always been able to get not only a prohibitory injunction to stop the other fellow committing a tort before the event, but also a mandatory injunction telling him to put right its effects afterwards. For example, where he wrongfully builds a shed on your land he can be told to take it away. Isn't Taylor (and its predecessor Phillips v Lamdin in 1949) merely the parallel in contract: a mandatory order telling the deft to undo the effect of his breach? Oddly enough, Taylor is probably most interesting as a matter of contract law. I can't see why the CA made such a meal over this, when there looks to be a simple answer even if the contract *didn't* include the flagstones. If I contract with you knowing that you're mistaken over what you've agreed, I can't enforce on my terms but you can enforce on yours: cf the golden oldies of Hartog v Colin & Shields and Roberts v Leics CC. Taylor thought the contract included the flagstones as fixtures. If it didn't, and Hamer knew this and also knew of Taylor's mistake, that should resolve the matter in Taylor's favour. But that's getting off topic & straying towards the Obs Disc Group. Andrew >=3D=3D=3D=3D=3D Original Message From monica.chowdry@KCL.AC.UK =3D=3D=3D=3D=3D I have come across a case that might be of interest: Taylor v Hamer 2002 WL 1446261, [2002] EWCA Civ 1130 The case essentially concerns the purchase of a property for =A33.25m. The purchaser was particularly interested in some flagstones that lay in one of the gardens of the property and understood them to be included as part of the property. A mere 2 years after the purchase he realised that the flagstones were missing and so brought an action against the purchaser. In the Court of Appeal, he contended that there had been a breach of contract and the court confirmed that this was in fact the case. The interesting issue from a restitution point of view is that Taylor was claiming "restitution" in that he wanted the flagstones returned and relayed on his property (alternatively, he would have settled for damages in the form of the cost of replacing and relaying the flagstones for =A375 687). The court granted "restitution" in the case. This seems to be strange for two reasons. First, if this was indeed a restitutionary remedy, which seems doubtful, should it have been given in the case at all? The case does not seem to warrant restitution for breach of contract in any conceivable way post AG v Blake. Taylor contended that the flagstones were irreplaceable and therefore only their return would be an adequate remedy for him. However, the judges do not seem convinced of this fact (eg. Para 12). Therefore, it appears that damages in the form of "cost of cure" in contract would have been adequate, so why resort to restitution? Second, even if restitution could have been granted in this case, was the remedy granted actually restitution? The order cannot really be seen as restitution for the breach of contract as there was no gain of which the defendant could be stripped - she never "owned" the flagstones. Further, an order to relay the flagstones cannot really be seen as restitutionary in any way. Alternatively, the order could be viewed as one for specific performance. However this analysis also has difficulties. Although it seems that the return of the flagstones could be viewed as such, if indeed they were irreplaceable, I don't think the relaying could as there was no obligation under the original contract to "lay" the flagstones. Even if there were such an obligation, damages could be said to be adequate in relation to the relay, therefore preventing an order for specific performance being granted. It seems to me a totally incoherent use of restitution - anyone else have any thoughts? Regards Monica ---------------------- monica chowdry monica.chowdry@kcl.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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 6635, email . Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ 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 6635, email . ======================================================================= == Date: Wed, 26 Nov 2003 19:39:31 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: RE: ODG: Rees v. Darlington Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit I suspect Lewis Klar is right as to what Lord Scott was getting at: but I agree with Jason it could have been better expressed. Incidentally, on our anti-privity legilation it would often not be the case that the patient could rely on the contract between the physician and the Govt, since s.6(3) specifically excludes third party actions against a worker on the basis of the contract of employment. More interestingly, however, I'm not sure that in the context of botched sterilisation we ought necessarily to treat contractual and tortious duties as the same. Although McFarlane v Tayside has clearly been modified by Rees, one strand of the reasoning in McFarlane clearly carries over into Rees: namely, that in tort actions there were better ways of spending National Health Service funds than subbing up for the feeding, clothing, private schooling, etc., of an unwanted but healthy youth (i.e. Hoffmann's policy argument based on "distributive justice"). Hence the limit, however arbitrary, on recovery agreed in Rees. But does this reasoning apply in contract? Suppose a physician agrees to carry out a sterilisation by private arrangement, for a paying patient. I can't see any argument of policy why he shouldn't be liable for the whole whack if it goes wrong - assuming, of course, he doesn't limit his liability. Whatever the position in tort, where to some extent we all pay, I certainly see no reason of overriding policy for the state to intervene in a private contract to alter the measure of recovery that would otherwise be available on ordinary contractual principles. Andrew >===== Original Message From "Lewis KLAR" ===== Hi Jason: I have not looked at Rees v Darlington, but subject to that proviso, the paragraph quoted seems fairly straight forward. The passage says (to me) that a doctor's duty to his/her patient does not vary depending upon whether the doctor has a direct contract with the patient or is providing the patient with services pursuant to the doctor's contract with a service provider. It is the ordinary duty (whether sounding in tort or contract) to use reasonable care in treating. It is the same duty, notwithstanding its tort or contract underpining. I would agree with the paragraph. I suppose there can be an exceptional contract which reduces or enlarges a doctor's normal tort duty of care, but I cannot imagine that this would occur often. Lewis Klar University of Alberta >>> Jason Neyers 11/26/2003 11:48:06 AM >>> Dear Colleagues, I just had an opportunity to read the House of Lords decision in Rees v. Darlington and I had two questions which I thought that some of you might be able to answer: 1) When the HL is asked to overrule a recent decision, in this case McFarlane v Tayside Health Board [2000] 2 AC 59, why do they not sit en banc so that they would not have to duck the question of correctness over concerns that differently constituted panels might reasonably disagree? 2) Does anyone understand the following passage from Lord Scott of Foscote which I would regard as sloppy reasoning in any of my first year students? Is it based on some implicit reliance on the new UK Privity Act? .. I have mentioned this difference in approach to claims in contract and claims in tort in order to clear it out of the way. For it has, in my opinion, no relevance at all in cases based on professional advice or services given by professionals. There are two reasons for this. First, if a professional, whether a doctor, a lawyer or any other professional, provides professional advice or services to a client on a non-contractual basis, the professional owes to the client a professional duty of care in doing so. In the case, for example, of a doctor working in the National Health Service and advising or treating an NHS patient, the advice or services are provided by the doctor pursuant to his contractual arrangements with the NHS, not pursuant to any contract with the patient. But the intention and purpose of those arrangements is that the doctor's services be made available to NHS patients. That being so, the extent of the duty of care owed to each NHS patient and the extent of the doctor's liability, and his NHS employer's vicarious liability, if the doctor is in breach of that duty, cannot in my opinion be any different from the extent of the duty and of the liability for any breach of duty that would apply in the case of a private patient with whom the doctor had a contractual relationship. The NHS patient is entitled to the benefit of the contractual duty owed by the doctor pursuant to his contract with his NHS employers. (c/f White v Jones [1995] 2 AC 207 .. -- 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 Obligations Discussion Group, an international mailing list devoted to all aspects of the law of obligations. To be added or deleted from the list please send a message to . To make a posting to all group members, send a message to . The list is run by Jason Neyers of the University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email . The list is archived at . Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ 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 6635, email .