======================================================================= == Date: Fri, 3 Nov 2006 16:38:13 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Restatement (Third) of Restitution Comments: To: obligations@uwo.ca MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_1ajwLPi+chd0WxEtBXZW4A)" This is a multi-part message in MIME format. --Boundary_(ID_1ajwLPi+chd0WxEtBXZW4A) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline Soem colleagues might find this interesting=3A = Chaim Saiman=2C =22The Reemergence of Restitution=3A Theory and Practice= in the Restatement (Third) of Restitution=22 (October 1=2C 2006)=2E Vil= lanova University School of Law Working Paper Series=2E Working Paper 60= =2E http=3A//law=2Ebepress=2Ecom/villanovalwps/papers/art60 ABSTRACT=3A The ALI=27s Restatement (Third) of Restitution provides one of the most = interesting expressions of contemporary legal conceptualism=2E This pape= r explores the theory and practice of post-realist conceptualism through= a review and critique of the Restatement=2E At the theoretical level=2C= the paper develops a typology of different forms of conceptualism=2C an= d shows that the Restatement has more in common with the high formalism = of the nineteenth century than with contemporary modes of private law di= scourse=2E At the level of substantive doctrine=2C the paper explains wh= y labels in fact make a difference=2C and assesses which recoveries are = more (and less) likely under the Restatement=27s scheme=2E The final sec= tion returns to consider why the Restatement reprises the jurisprudence = of classical formalism=2E I suggest that the mythos of legal conceptuali= sm is necessary for introducing a new field that claims to reflect found= ational principles of the common law=27s system of private ordering=2E F= urther this mode of discourse helps overcome the dissonance of creating = a new field of law in a work that purports to restate existing doctrine=2E= -- = Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x=2E 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, . --Boundary_(ID_1ajwLPi+chd0WxEtBXZW4A) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3ESoem colleagues might find this interesting=3A =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EChaim Saiman=2C =22The Reemergence of Restitution=3A Theory and= Practice in the Restatement (Third) of Restitution=22 (October 1=2C 200= 6)=2E Villanova University School of Law Working Paper Series=2E Working= Paper 60=2E=3CBR=3E=3CA href=3D=22http=3A//law=2Ebepress=2Ecom/villanov= alwps/papers/art60=22 target=3Dl=3E=3CFONT color=3D=233a2eb5=3Ehttp=3A//= law=2Ebepress=2Ecom/villanovalwps/papers/art60=3C/FONT=3E=3C/A=3E=3CBR= 3E= =3CBR=3EABSTRACT=3A=3CBR=3EThe ALI=27s Restatement (Third) of Restitutio= n provides one of the most interesting expressions of contemporary legal= conceptualism=2E This paper explores the theory and practice of post- re= alist conceptualism through a review and critique of the Restatement=2E = At the theoretical level=2C the paper develops a typology of different f= orms of conceptualism=2C and shows that the Restatement has more in comm= on with the high formalism of the nineteenth century than with contempor= ary modes of private law discourse=2E At the level of substantive doctri= ne=2C the paper explains why labels in fact make a difference=2C and ass= esses which recoveries are more (and less) likely under the Restatement=27= s scheme=2E The final section returns to consider why the Restatement re= prises the jurisprudence of classical formalism=2E I suggest that the my= thos of legal conceptualism is necessary for introducing a new field tha= t claims to reflect foundational principles of the common law=27s system= of private ordering=2E Further this mode of discourse helps overcome th= e dissonance of creating a new field of law in a work that purports to r= estate existing doctrine=2E=3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =3Cbr=3EJanuary Term Director =3Cbr=3EAssociate Professor of Law =3Cbr=3EFaculty of Law =3Cbr=3EUniversity of Western Ontario =3Cbr=3EN6A 3K7 =3Cbr=3E(519) 661-2111 x=2E 88435=3C/BR=3E=3C/BR=3E ____________________________________________________________________ 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, . --Boundary_(ID_1ajwLPi+chd0WxEtBXZW4A)-- ======================================================================= == Date: Thu, 9 Nov 2006 19:07:32 -0000 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: Abou-Rahmah v Abacha MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear All, Members may be interested to note the Court of Appeal's decision yesterday in Abou-Rahmah & Others v Abacha & Others [2006] EWCA Civ 1492.=20 The case concerned fraud, and there were two claims before the Court of Appeal. Firstly, a claim in knowing or dishonest assistance, where the Court considers the Privy Council's decision in Barlow Clowes International Ltd (in Liquidation) v Eurotrust International Ltd [2005] UKPC 37.=20 Secondly, a claim for money had and received (or unjust enrichment, if we will), and the Court, following on from Niru Battery Manufacturing Co v Milestone Trading Ltd [2004] 1 All ER (Comm) 193, explores the limits of the good faith element in the defence of change of position. The Court of Appeal was hindered by the fact that the Bank was wound up earlier this year and the liquidator did not appoint representation for the Bank in the Appeal. Therefore, no submissions were made on behalf of the respondent Bank. Nevertheless, the case makes interesting reading. 1) The appeal on the first issue was dismissed. The element of "knowledge" continues to cause difficulty after Barlow Clowes: it may be satisfied by suspicion and despite ignorance of the trust (see per Lord Hoffmann at para 28 in Barlow - "Someone can know, and can certainly suspect, that he is assisting in a misappropriation of money without knowing that the money is held on trust or what a trust means"). Rix LJ and Pill LJ doubt whether it is necessary for the appeal to determine the impact of Barlow Clowes on Twinsectra, but Arden LJ endorses the Barlow Clowes interpretation of Twinsectra (at para 68): "It would appear ...that the Privy Council was also intending to clarify English law since that is the only logical implication from the methodology of interpretation of an English authority. That interpretation could hardly have been an interpretation which only applied in the Isle of Man but not in England and Wales." Rix LJ observes the judge's confusion over the separation of knowledge and dishonesty (at para 24). He accepts the force of counsel for the appellants' submissions regarding the bank's knowledge: "37.... It is one thing to be negligent in failing to spot a possible money launderer, providing the negligence does not extend to shutting one's eyes to the truth. It is another thing, however, to have good grounds for suspecting money laundering and then to proceed as though one did not. Money laundering is a serious crime, for the very reason that ex hypothesi its subject matter is the proceeds of crime. It is true that such proceeds are not necessarily those of a breach of trust - they could be the proceeds of drug dealing. But I am doubtful that that possibility provides any protection where there is a breach of trust. It is also true that the growing concern now experienced about money laundering and the international precautions now taken against it must be viewed in the context of public policy rather than on the level of an equitable tort designed to provide remedies in the civil law against knowing assistance in breach of trust. Nevertheless, I do not see why a bank which has, through its managers, a clear suspicion that a prospective client indulges in money laundering, can be said to lack that knowledge which is the first element in the tort." We may note the ready acceptance of the "equitable tort" language and the reference to public policy (this reappears in Rix LJ's opinion on the second issue). The general tenor of the approach follows that of Millett J in Agip v Jackson. Arden LJ considered that "The question is whether a bank, with inter alia the general suspicions which the bank had on the judge's findings, would be treated as having acted honestly according to normally accepted standards. The judge reached the conclusion that these general suspicions did not make the bank dishonest. In my judgment, the judge was right on this issue of dishonesty, on the findings he made." (at 72) 2) The appeal was also dismissed on the second issue. Arden and Pill LJJ agreed with each other, though, if pressed, Rix LJ would have dissented and allowed the appeal. Arden LJ held that bank had established the defence of change of position in paying out in response to its clients' instructions: "82. To treat the defence of change position as unavailable in this situation is as I see it an insufficiently nuanced approach. Of course, once the bank had formed a suspicion about its customer, it had to be aware of that suspicion in all its dealings with the customer. But the bank had done all that it had to do to remove that suspicion by complying with the requirements of Nigerian law on money laundering and by being satisfied that it had no other residual doubts about the two payments. The imposition of liability in this case would serve to motivate banks not to act for customers in areas of business which gave rise to a general suspicion of money-laundering even where there was no information or suspicion that the customer was so involved. It seems to me that that is a road down which the court should not go, at any rate without fuller submissions than we have had. It would be different if as in the Niru Battery case there were further enquiries or steps which the bank should have made or taken, but that is not the appellants' case. In all the circumstances, I do not consider that the bank can be criticised for making the two payments, and accordingly in my judgment it is entitled to the defence of change of position." Rix LJ translates his criticisms of the bank's behaviour when considering change of position, adopting the "commercially unacceptable conduct" approach (an approach endorsed by Pill LJ, although he reaches the opposite conclusion): "52. The bank's conduct here was not commercially acceptable conduct. It is not commercially acceptable for banks who suspect "in a general way" would-be customers of being involved in money laundering to open up accounts for them. There is no panacea in a standard, statutory, weekly report of all transactions of a stipulated size. The failure to make such a return would have been in itself unlawful and strong evidence of something very seriously amiss. The making of such a return does not make the opening of the account acceptable."=20 He goes on to observe, honestly if perhaps obviously: "57. Finally, looking at the matter in the round, I have asked myself whether the defence of change of position should succeed because, as it may well be said, there has been no unjust enrichment or no enrichment, unjust or otherwise, on the part of the bank. This is to stress unjust enrichment as the critical factor in making good the restitutionary claim. However, the argument at trial and the judge's judgment, reflecting the way English law has developed, have proceeded in a different way, namely on the basis that a payment made under a mistake of fact (or law) provides a cause of action in restitution subject to a defence of change of position. However, I recognise and am concerned by, the absence of any exploration of the fundamental underpinnings of the doctrine of restitution in such a case, especially as there is controversy about them, and it may be said that the law is in flux or at any rate subject to a process of analytical change." To make some observations, this case shows that Prof Burrows' concerns following Niru ("Clouding the Issues on Change of Position" [2004] CLJ 276) have been borne out: the analogy drawn by the Court of Appeal in Niru between the unconscionability test for knowing receipt and the good faith requirement for change of position appears to be becoming orthodoxy. The judgments of both Pill and Arden LJJ are permeated with the idea of leaving change of position to be decided on each case's particular facts, perpetuating the Niru broad test which is tantamount to a general discretion. Further, the disagreement between Rix LJ and Arden LJ over the appropriateness of considering public policy and the need to encourage banks to take an active role in preventing money laundering illustrates the difficulty with the width of discretion allowed by the Niru test. A second tentative suggestion is that if we view the defence of bona fide change of position as being available where the defendant disenriched himself on the basis of a mistake as to his entitlement to the enrichment, then the essence of the defence may become clearer. That is to say, change of position operates to set up the defendant's mistake as to his entitlement (upon which he has acted) against the claimant's own mistake about his liability to pay (or other unjust factor), and extinguishes the defendant's liability in unjust enrichment. Dextra Bank, for example, is certainly explicable on that approach. If the circumstances are not such as would evidence an entitlement mistake (that is, if the defendant knew or suspected that he was not entitled), then the defence is not made out, and indeed would not have been made out in Abou-Rahmah. Such an analysis might just lead to a more consistent approach than the broad unconscionability test currently favoured by the Court of Appeal. Best wishes, James Lee -- James Lee Teaching Fellow School of Law The University of Reading Foxhill House, rm. 2.09 Whiteknights Road, Earley Reading RG6 7BA United Kingdom Phone: +44 (0) 118 3785643 Fax: +44 (0) 118 3784543 Email: J.S.Lee@reading.ac.uk Web: www.reading.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, . ======================================================================= == Date: Wed, 15 Nov 2006 17:36:34 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: U2 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Hi all, I think I remember that Peter Birks liked to point out that it was one of= the oddities of the common law's protection of personal property that it has = no simple direct action by which to order personal property of one person in= the hands of another to be returned - it has no simple vindicatio, an action = in which a claimant can vindicate his or her rights to personal property in = the hands of another. I hope that I am right in this (both in that Peter Birk= s used to say it, and that it's true, because I've relied on this in print, and = in this paragraph, and it would be embarassing - to say the least - to be wrong!)= . Of course, there are all sorts of ways in which an order for return might be= made: under a (statutory) discretion as a remedy for a tort of trespass to good= s; under a trust discovered on the facts, and so on. But if this is so, then= I am set to wonder, if none of these alternative routes is available (for what= ever reasons), and a claimant does have title to personal property in the hand= s of a defendant, is the claimant stymied in his or her attempts to recover the property and remitted to personal claims (such as in tort or restitution) instead? These musings - and,in particular the basic query at the end of that para= graph - were prompted today by reports that U2 had recovered personal items from = a stylist. She had helped to create their image, including one of Bono's ic= onic hat styles, and had retained some of the relevant props, including the ha= t. When she later sought to auction the items (at Christies, rather than on = eBay), the group sought their rerturn. In an action in the Circuit Court earlier= in the year, the group successfully sought the return of the property. The case = turned on whether they had in effect allowed her to retain them, and the court f= ound as a fact that they did not; and then - it seems from the media reports - simply ordered their return. Today, on appeal, the High Court has sustain= ed that finding. There are no electronic reports of either judgment yet (and probably won't be of the Circuit Court decision, but there probably will = be of the High Court decision in due course), but for some media coverage, see,= for example: (High Court, today) (Circuit Court, last July) From the media reports, at least, it was intuitively obvious to both cour= ts that if she did not have title to the items, she must return them; yet if my m= emory of Peter Birks' point is right, though intuitively obvious, the courts we= re wrong in that belief. Can anyone shed light on this for me? Thanks Eoin. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D Dr Eoin O'Dell ph: +353-1-896 1178 Fellow & Senior Lecturer fax: +353-1-677 0449 School of Law mobile: +353-87- 2021120 Trinity College email: eoin.odell@tcd.ie Dublin 2 blog: http://www.cearta.ie Ireland web: http://www.eoinodell.com ----------------------------------------------------------------------- - All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D ____________________________________________________________________ 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, . ======================================================================= == Date: Wed, 15 Nov 2006 13:35:58 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: U2 Comments: To: Eoin O'Dell In-Reply-To: <1163612194.455b5022bbe15@mymail.tcd.ie> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit I have always thought that there are two related questions here that are frequently conflated. One is about the kinds of claims that are justiciable, and the other is as to the kind of orders that courts can or will make. So if we ask whether the common law has "a simple direct action by which to order personal property of one person in the hands of another to be returned", I think we actually have two questions: (1) is there a justiciable claim (cause of action) of the *form*, "that thing is mine" (as opposed eg to "you did me a wrong by taking my thing at some past time") (2) can courts order specific restitution of particular things? Peter, as a Romanist, was talking about Q1 when he said the common law did not have such a claim for moveable personal property (though it always has had for freehold estates in land, and for a long time for leaseholds). The answer to Q2 is and has been 'yes', even for courts of common law, even as regards moveable personal property, since 1854 (and since forever for freehold land, and for a long time for leaseholds). Conversely, in Roman law, even though the answer to Q1 was yes, because there was a rei vindicatio, the answer to Q2 was basically no (as in the common law before 1854, and since then if the court's discretion under the 1854 statutory reform is so exercised): the *defendant* got the choice as to whether to return the thing or to pay compensation (although this could be rigged by setting the compensation artificially high). So if we set aside the question about what orders can be made, it comes down to Q1 which relates solely to form, the form of the claim that can be made and which the court will be obliged to evaluate and resolve. (This is also shown by the fact that Peter also thought that if there was an exception to the unavailability of a rei vindicatio for personal property, it arose in interpleader: if the police put the property into court, claiming no right, the court has to decide who among other claimants has the best right; as in rei vindicatio, it is not about whether anyone has done anything wrong. Interpleader is not a claim, it is a way that litigation gets started without anyone having sued in conversion etc. This shows that the question in Q1 is not as to rights that people have, but as to the ways in which those rights can be put to the court for adjudication.) That in itself is enough to make sense of the U2 case. That is, if you take my cap, I might sue you in conversion, which is not a claim that satisfies Q1, and if I succeed, the court might order the return of the cap (possibly with a money award for loss of use). Such an order can be made whatever the answer to Q1 might be. With some diffidence I have expressed the view that the answer to Q1 is not quite as clear as Peter thought. Detinue was in its origin clearly a claim that satisfied Q1. It foundered because defendants could wage their law. When it was resuscitated following that abolition of wager, it took on characteristics of an allegation of wrongdoing, but kept the rei vindicatio character as well; see General & Finance Facilities Ltd. v Cooks Cars (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an obscure way by the 1977 legislation but that does not affect the rest of us (and even the meaning in England is not clear: Sir John Baker said that, not me). There are other possibilities to satisfy Q1. An English court can make a declaration of a purely legal right. Seeking a declaration that a cap is legally mine is, effectively, requiring the court to make the same decision as it would be required to make if I had a rei vindicatio available to me. It seems to me that money had and received performs exactly the same procedural function in some of its manifestations, but that is controversial. My own attempts to make sense of this question, in more detail, are in 79 Texas L. Rev. 2115, 2125-6. 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, . ======================================================================= == Date: Wed, 15 Nov 2006 19:46:20 -0000 Reply-To: A.M.Tettenborn@EXETER.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: A.M.Tettenborn@EXETER.AC.UK Subject: [Fwd: Re: [RDG] U2] MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-15 Content-Transfer-Encoding: 8bit I think there may be a different answer to Eoin's point. The Roman vindicatio, like the modern civilian actions for the return of moveables (eg the French revendication and the Scotch action of restitution), was a non-wrong-based means of getting back your thing from someone else who was in possession of it. The plaintiff just said "It's mine: he's got it: make him give it back or at least pay me its value." PB was right to say that English law -- incredibly -- does not have any equivalent to this. What English law does have, however, is the action for conversion (and in other common law countries there is also detinue). This is wrong-based: conversion and detinue are torts, after all. So it's quite true that the common law plaintiff has to show that the defendant committed a wrong in order to get his thing back: if he can't, he fails. But in practice this doesn't matter. This is because of the astonishingly wide scope of detinue and conversion. The defendant converts the plaintiff's chattel -- ie commits a wrong -- if he in any way deals with the chattel inconsistently with the owner's rights, or if, having possession, he refuses to surrender it on demand. So all the plaintiff has to do if he finds that someone else has got his thing is ask for it back. If he doesn't get it, the defendant -- however innocently he may be acting -- becomes a converter. The plaintiff has his tort and thus his ticket to court. The measure of damages is arbitrarily set at the value of the thing: or if it prefers, the court can, as Eoin rightly says, tell the defendant to give it back in specie. So in the U2 case, as soon as the defendant refused to return the baubles she laid herself open to a tort action, and with it to an order to give back what she had. Of course, this is a cack-handed, belt-and-braces approach. And while it does allow the English plaintiff John Smith to recover his thing, as can his equivalents Titius, Hamish McSporran, Jean Dupont and Hans Schmidt, it has other baneful effects. One is the arbitrary measure of damages in conversion: these have to be set automatically at the goods' value, rather than the plaintiff's loss, to make the whole caboodle work. Another is the strict liability of the converter. This has to be, since the plaintiff has to be able to get his car back from a defendant who acquired it, and continues to possess it, innocently and reasonably. But it also means that other converters are liable without proof of fault who very definitely shouldn't be. For example, if my stiolen Rembrandt is auctioned at Christies, Christies have to pay me its value with no questions asked even if they acted entirely innocently and with impeccable diligence throughout (nice work for property insurers). Continental lawyers regard this as barmy, and of course they are absolutely right. A French or German lawyer correctly insists that if I deal with your goods and you want to complain, you (a) only recover your loss, if any, and (b) as in any other tort action have to prove that I was at fault. For once the Continentals do things better. Best wishes to all Andrew ---------------------------- Original Message ------------------------- --- Subject: Re: [RDG] U2 From: "Lionel Smith" Date: Wed, 15 November, 2006 6:35 pm To: ENRICHMENT@LISTS.MCGILL.CA ----------------------------------------------------------------------- --- I have always thought that there are two related questions here that are frequently conflated. One is about the kinds of claims that are justiciable, and the other is as to the kind of orders that courts can or will make. So if we ask whether the common law has "a simple direct action by which to order personal property of one person in the hands of another to be returned", I think we actually have two questions: (1) is there a justiciable claim (cause of action) of the *form*, "that thing is mine" (as opposed eg to "you did me a wrong by taking my thing at some past time") (2) can courts order specific restitution of particular things? Peter, as a Romanist, was talking about Q1 when he said the common law did not have such a claim for moveable personal property (though it always has had for freehold estates in land, and for a long time for leaseholds). The answer to Q2 is and has been 'yes', even for courts of common law, even as regards moveable personal property, since 1854 (and since forever for freehold land, and for a long time for leaseholds). Conversely, in Roman law, even though the answer to Q1 was yes, because there was a rei vindicatio, the answer to Q2 was basically no (as in the common law before 1854, and since then if the court's discretion under the 1854 statutory reform is so exercised): the *defendant* got the choice as to whether to return the thing or to pay compensation (although this could be rigged by setting the compensation artificially high). So if we set aside the question about what orders can be made, it comes down to Q1 which relates solely to form, the form of the claim that can be made and which the court will be obliged to evaluate and resolve. (This is also shown by the fact that Peter also thought that if there was an exception to the unavailability of a rei vindicatio for personal property, it arose in interpleader: if the police put the property into court, claiming no right, the court has to decide who among other claimants has the best right; as in rei vindicatio, it is not about whether anyone has done anything wrong. Interpleader is not a claim, it is a way that litigation gets started without anyone having sued in conversion etc. This shows that the question in Q1 is not as to rights that people have, but as to the ways in which those rights can be put to the court for adjudication.) That in itself is enough to make sense of the U2 case. That is, if you take my cap, I might sue you in conversion, which is not a claim that satisfies Q1, and if I succeed, the court might order the return of the cap (possibly with a money award for loss of use). Such an order can be made whatever the answer to Q1 might be. With some diffidence I have expressed the view that the answer to Q1 is not quite as clear as Peter thought. Detinue was in its origin clearly a claim that satisfied Q1. It foundered because defendants could wage their law. When it was resuscitated following that abolition of wager, it took on characteristics of an allegation of wrongdoing, but kept the rei vindicatio character as well; see General & Finance Facilities Ltd. v Cooks Cars (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an obscure way by the 1977 legislation but that does not affect the rest of us (and even the meaning in England is not clear: Sir John Baker said that, not me). There are other possibilities to satisfy Q1. An English court can make a declaration of a purely legal right. Seeking a declaration that a cap is legally mine is, effectively, requiring the court to make the same decision as it would be required to make if I had a rei vindicatio available to me. It seems to me that money had and received performs exactly the same procedural function in some of its manifestations, but that is controversial. My own attempts to make sense of this question, in more detail, are in 79 Texas L. Rev. 2115, 2125-6. 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, . ____________________________________________________________________ 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, . ======================================================================= == Date: Wed, 15 Nov 2006 20:49:46 +0000 Reply-To: Hector MacQueen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hector MacQueen Subject: Re: [Fwd: Re: [RDG] U2] Comments: To: A.M.Tettenborn@EXETER.AC.UK In-Reply-To: <16272.84.43.45.50.1163619980.squirrel@www.webmail.ex.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable And even the insular Scotch ... Slainte Hector (Eachann) -- Hector L MacQueen Professor of Private Law Director, AHRC Research Centre Intellectual Property and Technology Law Edinburgh Law School University of Edinburgh Edinburgh EH8 9YL UK Tel: (0)131-650-2060; Fax: (0)131-662-6317 Quoting A.M.Tettenborn@EXETER.AC.UK: > I think there may be a different answer to Eoin's point. The Roman > vindicatio, like the modern civilian actions for the return of moveables > (eg the French revendication and the Scotch action of restitution), was a > non-wrong-based means of getting back your thing from someone else who wa= s > in possession of it. The plaintiff just said "It's mine: he's got it: mak= e > him give it back or at least pay me its value." PB was right to say that > English law -- incredibly -- does not have any equivalent to this. > > What English law does have, however, is the action for conversion (and in > other common law countries there is also detinue). This is wrong- based: > conversion and detinue are torts, after all. So it's quite true that the > common law plaintiff has to show that the defendant committed a wrong in > order to get his thing back: if he can't, he fails. But in practice this > doesn't matter. This is because of the astonishingly wide scope of detinu= e > and conversion. The defendant converts the plaintiff's chattel -- ie > commits a wrong -- if he in any way deals with the chattel inconsistently > with the owner's rights, or if, having possession, he refuses to surrende= r > it on demand. So all the plaintiff has to do if he finds that someone els= e > has got his thing is ask for it back. If he doesn't get it, the defendant > -- however innocently he may be acting -- becomes a converter. The > plaintiff has his tort and thus his ticket to court. The measure of > damages is arbitrarily set at the value of the thing: or if it prefers, > the court can, as Eoin rightly says, tell the defendant to give it back i= n > specie. So in the U2 case, as soon as the defendant refused to return the > baubles she laid herself open to a tort action, and with it to an order t= o > give back what she had. > > Of course, this is a cack-handed, belt-and-braces approach. And while it > does allow the English plaintiff John Smith to recover his thing, as can > his equivalents Titius, Hamish McSporran, Jean Dupont and Hans Schmidt, i= t > has other baneful effects. One is the arbitrary measure of damages in > conversion: these have to be set automatically at the goods' value, rathe= r > than the plaintiff's loss, to make the whole caboodle work. Another is th= e > strict liability of the converter. This has to be, since the plaintiff ha= s > to be able to get his car back from a defendant who acquired it, and > continues to possess it, innocently and reasonably. But it also means tha= t > other converters are liable without proof of fault who very definitely > shouldn't be. For example, if my stiolen Rembrandt is auctioned at > Christies, Christies have to pay me its value with no questions asked eve= n > if they acted entirely innocently and with impeccable diligence throughou= t > (nice work for property insurers). Continental lawyers regard this as > barmy, and of course they are absolutely right. A French or German lawyer > correctly insists that if I deal with your goods and you want to complain= , > you (a) only recover your loss, if any, and (b) as in any other tort > action have to prove that I was at fault. For once the Continentals do > things better. > > Best wishes to all > > Andrew > > > > > > > > ---------------------------- Original Message ----------------------- ----= - > Subject: Re: [RDG] U2 > From: "Lionel Smith" > Date: Wed, 15 November, 2006 6:35 pm > To: ENRICHMENT@LISTS.MCGILL.CA > --------------------------------------------------------------------- ----= - > > I have always thought that there are two related questions here that are > frequently conflated. One is about the kinds of claims that are justiciab= le, > and the other is as to the kind of orders that courts can or will make. > > So if we ask whether the common law has "a simple direct action by which = to > order personal property of one person in the hands of another to be > returned", I think we actually have two questions: (1) is there a > justiciable claim (cause of action) of the *form*, "that thing is mine" (= as > opposed eg to "you did me a wrong by taking my thing at some past time") = (2) > can courts order specific restitution of particular things? > > Peter, as a Romanist, was talking about Q1 when he said the common law di= d > not have such a claim for moveable personal property (though it always ha= s > had for freehold estates in land, and for a long time for leaseholds). Th= e > answer to Q2 is and has been 'yes', even for courts of common law, even a= s > regards moveable personal property, since 1854 (and since forever for > freehold land, and for a long time for leaseholds). Conversely, in Roman > law, even though the answer to Q1 was yes, because there was a rei > vindicatio, the answer to Q2 was basically no (as in the common law befor= e > 1854, and since then if the court's discretion under the 1854 statutory > reform is so exercised): the *defendant* got the choice as to whether to > return the thing or to pay compensation (although this could be rigged by > setting the compensation artificially high). > > So if we set aside the question about what orders can be made, it comes d= own > to Q1 which relates solely to form, the form of the claim that can be mad= e > and which the court will be obliged to evaluate and resolve. (This is als= o > shown by the fact that Peter also thought that if there was an exception = to > the unavailability of a rei vindicatio for personal property, it arose in > interpleader: if the police put the property into court, claiming no righ= t, > the court has to decide who among other claimants has the best right; as = in > rei vindicatio, it is not about whether anyone has done anything wrong. > Interpleader is not a claim, it is a way that litigation gets started > without anyone having sued in conversion etc. This shows that the questio= n > in Q1 is not as to rights that people have, but as to the ways in which > those rights can be put to the court for adjudication.) > > That in itself is enough to make sense of the U2 case. That is, if you ta= ke > my cap, I might sue you in conversion, which is not a claim that satisfie= s > Q1, and if I succeed, the court might order the return of the cap (possib= ly > with a money award for loss of use). Such an order can be made whatever t= he > answer to Q1 might be. > > With some diffidence I have expressed the view that the answer to Q1 is n= ot > quite as clear as Peter thought. Detinue was in its origin clearly a clai= m > that satisfied Q1. It foundered because defendants could wage their law. > When it was resuscitated following that abolition of wager, it took on > characteristics of an allegation of wrongdoing, but kept the rei vindicat= io > character as well; see General & Finance Facilities Ltd. v Cooks Cars > (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an > obscure way by the 1977 legislation but that does not affect the rest of = us > (and even the meaning in England is not clear: Sir John Baker said that, = not > me). > > There are other possibilities to satisfy Q1. An English court can make a > declaration of a purely legal right. Seeking a declaration that a cap is > legally mine is, effectively, requiring the court to make the same decisi= on > as it would be required to make if I had a rei vindicatio available to me= . > It seems to me that money had and received performs exactly the same > procedural function in some of its manifestations, but that is > controversial. > > My own attempts to make sense of this question, in more detail, are in 79 > Texas L. Rev. 2115, 2125-6. > > 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, . > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, . ======================================================================= == Date: Wed, 15 Nov 2006 16:25:25 -0500 Reply-To: John Swan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Swan Subject: Re: [Fwd: Re: [RDG] U2] Comments: To: A.M.Tettenborn@EXETER.AC.UK MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C708FC.908CE182" This is a multi-part message in MIME format. ------_=_NextPart_001_01C708FC.908CE182 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable While I agree that the common law looks messy and cumbersome, perhaps it's not quite as bad as Andrew suggests as it does go a considerable distance in the civil law direction with the various statutory protections for bona fide third party purchasers for value in the Sale of Goods Act and the Factors Act. I admit that, at least from a Canadian perspective, the English position looks unnecessarily crude and retrograde after Shogun Finance Ltd. v. Hudson, [2004] 1 A.C. 919; I had always thought that Lewis v. Averay reflected a satisfactory position. The position of the beneficial owner in equity is, of course, another thing altogether. =20 John Swan =20 -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of A.M.Tettenborn@EXETER.AC.UK Sent: November 15, 2006 2:46 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG] [Fwd: Re: [RDG] U2] =20 I think there may be a different answer to Eoin's point. The Roman vindicatio, like the modern civilian actions for the return of moveables (eg the French revendication and the Scotch action of restitution), was a non-wrong-based means of getting back your thing from someone else who was in possession of it. The plaintiff just said "It's mine: he's got it: make him give it back or at least pay me its value." PB was right to say that English law -- incredibly -- does not have any equivalent to this. =20 What English law does have, however, is the action for conversion (and in other common law countries there is also detinue). This is wrong-based: conversion and detinue are torts, after all. So it's quite true that the common law plaintiff has to show that the defendant committed a wrong in order to get his thing back: if he can't, he fails. But in practice this doesn't matter. This is because of the astonishingly wide scope of detinue and conversion. The defendant converts the plaintiff's chattel -- ie commits a wrong -- if he in any way deals with the chattel inconsistently with the owner's rights, or if, having possession, he refuses to surrender it on demand. So all the plaintiff has to do if he finds that someone else has got his thing is ask for it back. If he doesn't get it, the defendant -- however innocently he may be acting -- becomes a converter. The plaintiff has his tort and thus his ticket to court. The measure of damages is arbitrarily set at the value of the thing: or if it prefers, the court can, as Eoin rightly says, tell the defendant to give it back in specie. So in the U2 case, as soon as the defendant refused to return the baubles she laid herself open to a tort action, and with it to an order to give back what she had. =20 Of course, this is a cack-handed, belt-and-braces approach. And while it does allow the English plaintiff John Smith to recover his thing, as can his equivalents Titius, Hamish McSporran, Jean Dupont and Hans Schmidt, it has other baneful effects. One is the arbitrary measure of damages in conversion: these have to be set automatically at the goods' value, rather than the plaintiff's loss, to make the whole caboodle work. Another is the strict liability of the converter. This has to be, since the plaintiff has to be able to get his car back from a defendant who acquired it, and continues to possess it, innocently and reasonably. But it also means that other converters are liable without proof of fault who very definitely shouldn't be. For example, if my stiolen Rembrandt is auctioned at Christies, Christies have to pay me its value with no questions asked even if they acted entirely innocently and with impeccable diligence throughout (nice work for property insurers). Continental lawyers regard this as barmy, and of course they are absolutely right. A French or German lawyer correctly insists that if I deal with your goods and you want to complain, you (a) only recover your loss, if any, and (b) as in any other tort action have to prove that I was at fault. For once the Continentals do things better. =20 Best wishes to all =20 Andrew =20 =20 =20 =20 =20 =20 =20 ---------------------------- Original Message ---------------------------- Subject: Re: [RDG] U2 From: "Lionel Smith" Date: Wed, 15 November, 2006 6:35 pm To: ENRICHMENT@LISTS.MCGILL.CA ----------------------------------------------------------------------- - -- =20 I have always thought that there are two related questions here that are frequently conflated. One is about the kinds of claims that are justiciable, and the other is as to the kind of orders that courts can or will make. =20 So if we ask whether the common law has "a simple direct action by which to order personal property of one person in the hands of another to be returned", I think we actually have two questions: (1) is there a justiciable claim (cause of action) of the *form*, "that thing is mine" (as opposed eg to "you did me a wrong by taking my thing at some past time") (2) can courts order specific restitution of particular things? =20 Peter, as a Romanist, was talking about Q1 when he said the common law did not have such a claim for moveable personal property (though it always has had for freehold estates in land, and for a long time for leaseholds). The answer to Q2 is and has been 'yes', even for courts of common law, even as regards moveable personal property, since 1854 (and since forever for freehold land, and for a long time for leaseholds). Conversely, in Roman law, even though the answer to Q1 was yes, because there was a rei vindicatio, the answer to Q2 was basically no (as in the common law before 1854, and since then if the court's discretion under the 1854 statutory reform is so exercised): the *defendant* got the choice as to whether to return the thing or to pay compensation (although this could be rigged by setting the compensation artificially high). =20 So if we set aside the question about what orders can be made, it comes down to Q1 which relates solely to form, the form of the claim that can be made and which the court will be obliged to evaluate and resolve. (This is also shown by the fact that Peter also thought that if there was an exception to the unavailability of a rei vindicatio for personal property, it arose in interpleader: if the police put the property into court, claiming no right, the court has to decide who among other claimants has the best right; as in rei vindicatio, it is not about whether anyone has done anything wrong. Interpleader is not a claim, it is a way that litigation gets started without anyone having sued in conversion etc. This shows that the question in Q1 is not as to rights that people have, but as to the ways in which those rights can be put to the court for adjudication.) =20 That in itself is enough to make sense of the U2 case. That is, if you take my cap, I might sue you in conversion, which is not a claim that satisfies Q1, and if I succeed, the court might order the return of the cap (possibly with a money award for loss of use). Such an order can be made whatever the answer to Q1 might be. =20 With some diffidence I have expressed the view that the answer to Q1 is not quite as clear as Peter thought. Detinue was in its origin clearly a claim that satisfied Q1. It foundered because defendants could wage their law. When it was resuscitated following that abolition of wager, it took on characteristics of an allegation of wrongdoing, but kept the rei vindicatio character as well; see General & Finance Facilities Ltd. v Cooks Cars (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an obscure way by the 1977 legislation but that does not affect the rest of us (and even the meaning in England is not clear: Sir John Baker said that, not me). =20 There are other possibilities to satisfy Q1. An English court can make a declaration of a purely legal right. Seeking a declaration that a cap is legally mine is, effectively, requiring the court to make the same decision as it would be required to make if I had a rei vindicatio available to me. It seems to me that money had and received performs exactly the same procedural function in some of its manifestations, but that is controversial. =20 My own attempts to make sense of this question, in more detail, are in 79 Texas L. Rev. 2115, 2125-6. =20 Lionel =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, . =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, . ____________________________________________________________________ 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, . ------_=_NextPart_001_01C708FC.908CE182 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

While I agree that the common law looks messy and cumbersome, perhaps = it’s not quite as bad as Andrew suggests as it does go a considerable distance in = the civil law direction with the various statutory protections for bona fide = third party purchasers for value in the Sale of Goods Act and the Factors Act.  I = admit that, at least from a Canadian perspective, the English position looks = unnecessarily crude and retrograde after Shogun = Finance Ltd. v. Hudson, [2004] 1 A.C. 919; I had always thought that = Lewis v. Averay reflected a = satisfactory position.  The position of the beneficial owner in equity is, of course, = another thing altogether.

 

John Swan

 

-----Original Message-----
From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of = A.M.Tettenborn@EXETER.AC.UK
Sent: November 15, 2006 2:46 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG] [Fwd: Re: [RDG] U2]

 

I think there may be a different answer to Eoin's point. The = Roman

vindicatio, like the modern civilian actions for the return of moveables

(eg the French revendication and the Scotch action of = restitution), was a

non-wrong-based means of getting back your thing from someone = else who was

in possession of it. The plaintiff just said "It's mine: = he's got it: make

him give it back or at least pay me its value."  PB = was right to say that

English law -- incredibly -- does not have any equivalent to = this.

 

What English law does have, however, is the action for = conversion (and in

other common law countries there is also detinue). This is = wrong-based:

conversion and detinue are torts, after all. So it's quite true = that the

common law plaintiff has to show that the defendant committed a = wrong in

order to get his thing back: if he can't, he fails. But in = practice this

doesn't matter. This is because of the astonishingly wide scope = of detinue

and conversion. The defendant converts the plaintiff's chattel = -- ie

commits a wrong -- if he in any way deals with the chattel inconsistently

with the owner's rights, or if, having possession, he refuses to surrender

it on demand. So all the plaintiff has to do if he finds that = someone else

has got his thing is ask for it back. If he doesn't get it, the defendant

-- however innocently he may be acting -- becomes a converter. = The

plaintiff has his tort and thus his ticket to court. The measure = of

damages is arbitrarily set at the value of the thing: or if it = prefers,

the court can, as Eoin rightly says, tell the defendant to give = it back in

specie. So in the U2 case, as soon as the defendant refused to = return the

baubles she laid herself open to a tort action, and with it to = an order to

give back what she had.

 

Of course, this is a cack-handed, belt-and-braces approach. And = while it

does allow the English plaintiff John Smith to recover his = thing, as can

his equivalents Titius, Hamish McSporran, Jean Dupont and Hans = Schmidt, it

has other baneful effects. One is the arbitrary measure of = damages in

conversion: these have to be set automatically at the goods' = value, rather

than the plaintiff's loss, to make the whole caboodle work. = Another is the

strict liability of the converter. This has to be, since the = plaintiff has

to be able to get his car back from a defendant who acquired it, = and

continues to possess it, innocently and reasonably. But it also = means that

other converters are liable without proof of fault who very = definitely

shouldn't be. For example, if my stiolen Rembrandt is auctioned = at

Christies, Christies have to pay me its value with no questions = asked even

if they acted entirely innocently and with impeccable diligence throughout

(nice work for property insurers). Continental lawyers regard = this as

barmy, and of course they are absolutely right. A French or = German lawyer

correctly insists that if I deal with your goods and you want to complain,

you (a) only recover your loss, if any, and (b) as in any other = tort

action have to prove that I was at fault. For once the = Continentals do

things better.

 

Best wishes to all

 

Andrew

 

 

 

 

 

 

 

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

Subject: Re: [RDG] U2

From:    "Lionel Smith"

Date:    Wed, 15 November, 2006 6:35 = pm

To:      = ENRICHMENT@LISTS.MCGILL.CA

--------------------------------------------------------------- --= ---------

 

I have always thought that there are two related questions here = that are

frequently conflated. One is about the kinds of claims that are justiciable,

and the other is as to the kind of orders that courts can or = will make.

 

So if we ask whether the common law has "a simple direct = action by which to

order personal property of one person in the hands of another to = be

returned", I think we actually have two questions: (1) is = there a

justiciable claim (cause of action) of the *form*, "that = thing is mine" (as

opposed eg to "you did me a wrong by taking my thing at = some past time") (2)

can courts order specific restitution of particular = things?

 

Peter, as a Romanist, was talking about Q1 when he said the = common law did

not have such a claim for moveable personal property (though it = always has

had for freehold estates in land, and for a long time for = leaseholds). The

answer to Q2 is and has been 'yes', even for courts of common = law, even as

regards moveable personal property, since 1854 (and since = forever for

freehold land, and for a long time for leaseholds). Conversely, = in Roman

law, even though the answer to Q1 was yes, because there was a = rei

vindicatio, the answer to Q2 was basically no (as in the common = law before

1854, and since then if the court's discretion under the 1854 = statutory

reform is so exercised): the *defendant* got the choice as to = whether to

return the thing or to pay compensation (although this could be = rigged by

setting the compensation artificially = high).

 

So if we set aside the question about what orders can be made, = it comes down

to Q1 which relates solely to form, the form of the claim that = can be made

and which the court will be obliged to evaluate and resolve. = (This is also

shown by the fact that Peter also thought that if there was an exception to

the unavailability of a rei vindicatio for personal property, it = arose in

interpleader: if the police put the property into court, = claiming no right,

the court has to decide who among other claimants has the best = right; as in

rei vindicatio, it is not about whether anyone has done anything = wrong.

Interpleader is not a claim, it is a way that litigation gets = started

without anyone having sued in conversion etc. This shows that = the question

in Q1 is not as to rights that people have, but as to the ways = in which

those rights can be put to the court for = adjudication.)

 

That in itself is enough to make sense of the U2 case. That is, = if you take

my cap, I might sue you in conversion, which is not a claim that satisfies

Q1, and if I succeed, the court might order the return of the = cap (possibly

with a money award for loss of use). Such an order can be made = whatever the

answer to Q1 might be.

 

With some diffidence I have expressed the view that the answer = to Q1 is not

quite as clear as Peter thought. Detinue was in its origin = clearly a claim

that satisfied Q1. It foundered because defendants could wage = their law.

When it was resuscitated following that abolition of wager, it = took on

characteristics of an allegation of wrongdoing, but kept the rei vindicatio

character as well; see General & Finance Facilities Ltd. v = Cooks Cars

(Romford) Ltd. [1963] 1 WLR 644, 650. The English law was = changed in an

obscure way by the 1977 legislation but that does not affect the = rest of us

(and even the meaning in England is not clear: Sir = John Baker said that, not

me).

 

There are other possibilities to satisfy Q1. An English court = can make a

declaration of a purely legal right. Seeking a declaration that = a cap is

legally mine is, effectively, requiring the court to make the = same decision

as it would be required to make if I had a rei vindicatio = available to me.

It seems to me that money had and received performs exactly the = same

procedural function in some of its manifestations, but that = is

controversial.

 

My own attempts to make sense of this question, in more detail, = are in 79

Texas L. Rev. 2115, 2125-6.

 

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, .

 

_______________________________________________________________ __= ___

 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, = .

____________________________________________________________________ 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, . ------_=_NextPart_001_01C708FC.908CE182-- ======================================================================= == Date: Thu, 16 Nov 2006 10:37:33 +0000 Reply-To: Andrew Burrows Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Burrows Organization: St Hugh's College Subject: RDG U2 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: 7bit I agree with what Lionel Smith and Andrew Tettenborn have so elegantly said. But one point that has always puzzled me on this - and for which I would be very grateful for views - is the extent to which for wrongful interference with goods the owner needs to show that damages are inadequate. My understanding is that, in order to be granted delivery up (which is the remedy we are talking about) the law does require a dispossessed 'owner' to show that damages are inadequate. And furthermore that the adequacy hurdle is a substantial one, similar to that applying to specific perfromance: see eg Cohen v Roche [1927] 1 KB 169. If this is correct we do still have the astonishing position in England that, if someone steals and keeps my goods, a court will not order them to be returned to me (in a tort action for conversion) unless I can establish that damages are inadequate eg because the goods are unique. I consider this point in the 3rd ed of my Remedies book at pp 578-581. Of course, there would appear to have been no problem for U2 on this because the goods were presumably 'unique'. Andrew Burrows St Hugh's College, Oxford ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, . ======================================================================= == Date: Thu, 16 Nov 2006 10:52:32 -0000 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re: U2 Comments: To: Eoin O'Dell In-Reply-To: <1163612194.455b5022bbe15@mymail.tcd.ie> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear all,=20 It seems to me that this U2 case is just like Moffatt v Kazana, except = that it's not money. Now I've come to think about it seriously it seems to me Moffatt v Kazana never really bore the weight that Peter, and Andy = Burrows, put on it. English law clearly has a tort action - conversion - in these cases, and since conversion is as ferocious as it is, any claimant with = any sense will always rely on it, and that might involve a return of the = cap.=20 As Lionel says that's not the same as a vindicatio. Saying "You have interfered with my right to possess the cap, please pay me damages, = and/or give it back under the Torts (Interference with Goods) Act" is not the = same as "That's mine." Part of this revolves around what we mean by "That's mine" in English = law. Bill Swadling talks about title at this point, and would I think declare that because U2 still have "best" title to the cap the stylist is not enriched therefore no unjust enrichment, but merely conversion. I would prefer to say that she has title, but not as good as the title asserted against her. After all even thieves have title. She is enriched but not unjustly, and Moffatt v Kazana will not bear the weight put on it to = prove the contrary.=20 So we are back to the question whether English law (or even Irish) has a vindicatio or just conversion. Now you could separate the questions in = Q1 and Q2 as Lionel did and say that here we have an order for return as a remedy for conversion. However, if that is a common law remedy I'm not = sure I see any substantive difference between that and saying we have an = action for the direct enforcement of the group's better title (better right to possess). And it seems to me that Moffatt v Kazana is as consistent with = a direct enforcement of title in the tin of money as it is with conversion = and it matters not that different =A310 notes are given back (although I'm = happy to concede to Bill that it is perfectly consistent with the action's = being conversion). That being so, money had and received probably does have = the effect (in some cases) that Lionel ascribes to it.=20 Duncan=20 Dr Duncan Sheehan Senior Lecturer in Law Director of Admissions Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom=20 >-----Original Message----- >From: Enrichment - Restitution & Unjust Enrichment Legal=20 >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Eoin O'Dell >Sent: Wednesday, November 15, 2006 5:37 PM >To: ENRICHMENT@LISTS.MCGILL.CA >Subject: [RDG] U2 > >Hi all, > >I think I remember that Peter Birks liked to point out that it=20 >was one of the >oddities of the common law's protection of personal property=20 >that it has no >simple direct action by which to order personal property of=20 >one person in the >hands of another to be returned - it has no simple vindicatio,=20 >an action in >which a claimant can vindicate his or her rights to personal=20 >property in the >hands of another. I hope that I am right in this (both in that=20 >Peter Birks used >to say it, and that it's true, because I've relied on this in=20 >print, and in this >paragraph, and it would be embarassing - to say the least - to=20 >be wrong!). Of >course, there are all sorts of ways in which an order for=20 >return might be made: >under a (statutory) discretion as a remedy for a tort of=20 >trespass to goods; >under a trust discovered on the facts, and so on. But if this=20 >is so, then I am >set to wonder, if none of these alternative routes is=20 >available (for whatever >reasons), and a claimant does have title to personal property=20 >in the hands of a >defendant, is the claimant stymied in his or her attempts to=20 >recover the >property and remitted to personal claims (such as in tort or=20 >restitution) >instead? > >These musings - and,in particular the basic query at the end=20 >of that paragraph - >were prompted today by reports that U2 had recovered personal=20 >items from a >stylist. She had helped to create their image, including one=20 >of Bono's iconic >hat styles, and had retained some of the relevant props,=20 >including the hat. >When she later sought to auction the items (at Christies,=20 >rather than on eBay), >the group sought their rerturn. In an action in the Circuit=20 >Court earlier in the >year, the group successfully sought the return of the=20 >property. The case turned >on whether they had in effect allowed her to retain them, and=20 >the court found >as a fact that they did not; and then - it seems from the=20 >media reports - >simply ordered their return. Today, on appeal, the High Court=20 >has sustained >that finding. There are no electronic reports of either=20 >judgment yet (and >probably won't be of the Circuit Court decision, but there=20 >probably will be of >the High Court decision in due course), but for some media=20 >coverage, see, for >example: > (High Court, today) > (Circuit Court, last July) > >>From the media reports, at least, it was intuitively obvious=20 >to both courts that >if she did not have title to the items, she must return them;=20 >yet if my memory >of Peter Birks' point is right, though intuitively obvious,=20 >the courts were >wrong in that belief. > >Can anyone shed light on this for me? > >Thanks > >Eoin. > >=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=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D >=3D=3D=3D=3D=3D=3D=3D=3D=3D >Dr Eoin O'Dell ph:=20 >+353-1-896 1178 >Fellow & Senior Lecturer fax:=20 >+353-1-677 0449 >School of Law mobile:=20 >+353-87-2021120 >Trinity College email:=20 >eoin.odell@tcd.ie >Dublin 2 blog:=20 >http://www.cearta.ie >Ireland web:=20 >http://www.eoinodell.com >--------------------------------------------------------------- >--------- >All opinions are personal: no legal responsibility is=20 >accepted for this >email or attachments, which may be confidential or privileged=20 >or subject >to a Freedom of Information request: if you have received this=20 >in error, >let me know and delete it. Please think 'green' before=20 >printing. Thanks. >=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=3 D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D >=3D=3D=3D=3D=3D=3D=3D=3D=3D > >____________________________________________________________________ > 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, . > > ____________________________________________________________________ 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, . ======================================================================= == Date: Thu, 16 Nov 2006 11:51:46 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: [Fwd: [RDG] RDG U2] MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------080905000103030802010900" This is a multi-part message in MIME format. --------------080905000103030802010900 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: 7bit The jurisdiction to order return is clearly discretionary. Whether there's much future in drawing a parallel with SP I'm more doubtful, however. My own suspicion is that the owner faces less of a hurdle. A couple of points come to mind: 1. At times courts seem to look to whether the plaintiff would suffer hardship if he didn't get his thing back, which seems more generous. So Perry got their steel from British Rail in /Howard E Perry/ [1980] 2 All ER 579: whether they'd have got SP to tell BR to carry it or a seller to deliver it looks more doubtful. Again the owner of a batch of Rover cars got specific delivery simply because they weren't making them any more (see /Pendragon plc v Walon Ltd/ [2005] EWHC 1082 (QB)): I doubt if he's have got SP against a seller. Conversely in SM v Bronx [1975] 1 Lloyd's Rep 465 the buyer of a machine tool that took months to make to order didn't get SP: but it seems pretty inconceivable that they wouldn't have got specific restitution if it had been their machine wrongfully in the defendants' hands. 2. In the nature of things specific restitution tends to be less intrusive. We don't like telling a defendant to actually do something or go to prison: but specific restitution merely involves telling the defendant to acquiesce in the plaintiff's taking his thing (note that generally plaintiff bears collection costs and trouble). Perhaps the better parallel is with the injunction, which is easier to get than SP (and, at least in practice, available as of course in many situations, such as breach of restrictive covenants or noncompete clauses). best wishes to all Andrew -------- Original Message -------- Subject: [RDG] RDG U2 Date: Thu, 16 Nov 2006 10:37:33 +0000 From: Andrew Burrows Reply-To: Andrew Burrows Organization: St Hugh's College To: ENRICHMENT@LISTS.MCGILL.CA I agree with what Lionel Smith and Andrew Tettenborn have so elegantly said. But one point that has always puzzled me on this - and for which I would be very grateful for views - is the extent to which for wrongful interference with goods the owner needs to show that damages are inadequate. My understanding is that, in order to be granted delivery up (which is the remedy we are talking about) the law does require a dispossessed 'owner' to show that damages are inadequate. And furthermore that the adequacy hurdle is a substantial one, similar to that applying to specific perfromance: see eg Cohen v Roche [1927] 1 KB 169. If this is correct we do still have the astonishing position in England that, if someone steals and keeps my goods, a court will not order them to be returned to me (in a tort action for conversion) unless I can establish that damages are inadequate eg because the goods are unique. I consider this point in the 3rd ed of my Remedies book at pp 578-581. Of course, there would appear to have been no problem for U2 on this because the goods were presumably 'unique'. Andrew Burrows St Hugh's College, Oxford ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, . -- Andrew Tettenborn MA LLB Bracton Professor of Law University of Exeter, England Tel: 01392-263189 / +44-392-263189 (outside UK) Cellphone: 07870-130528 / +44-7870-130528 (outside UK) Fax: 01392-263196 / +44-392-263196 (outside UK) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England Exeter Law School homepage: http://www.law.ex.ac.uk My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906). ____________________________________________________________________ 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, . --------------080905000103030802010900 Content-Type: text/html; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit The jurisdiction to order return is clearly discretionary. Whether there's much future in drawing a parallel with SP I'm more doubtful, however. My own suspicion is that the owner faces less of a hurdle. A couple of points come to mind:

1. At times courts seem to look to whether the plaintiff would suffer hardship if he didn't get his thing back, which seems more generous. So Perry got their steel from British Rail in Howard E Perry [1980] 2 All ER 579: whether they'd have got SP to tell BR to carry it or a seller to deliver it looks more doubtful. Again the owner of a batch of Rover cars got specific delivery simply because they weren't making them any more (see Pendragon plc v Walon Ltd [2005] EWHC 1082 (QB)): I doubt if he's have got SP against a seller. Conversely in SM v Bronx [1975] 1 Lloyd’s Rep 465 the buyer of a machine tool that took months to make to order didn't get SP: but it seems pretty inconceivable that they wouldn't have got specific restitution if it had been their machine wrongfully in the defendants' hands.

2. In the nature of things specific restitution tends to be less intrusive. We don't like telling a defendant to actually do something or go to prison: but specific restitution merely involves telling the defendant to acquiesce in the plaintiff's taking his thing (note that generally plaintiff bears collection costs and trouble).

Perhaps the better parallel is with the injunction, which is easier to get than SP (and, at least in practice, available as of course in many situations, such as breach of restrictive covenants or noncompete clauses).


best wishes to all

Andrew


-------- Original Message --------
Subject: [RDG] RDG U2
Date: Thu, 16 Nov 2006 10:37:33 +0000
From: Andrew Burrows
Reply-To: Andrew Burrows
Organization: St Hugh's College
To: ENRICHMENT@LISTS.MCGILL.CA 


I agree with what Lionel Smith and Andrew Tettenborn have so 

elegantly

said. But one point that has always puzzled me on this - and for which 

I

would be very grateful for views - is the extent to which for wrongful

interference with goods the owner needs to show that damages are

inadequate. My understanding is that, in order to be granted delivery 

up

(which is the remedy we are talking about)  the law does require a

dispossessed 'owner' to show that damages are inadequate. And

furthermore that the adequacy hurdle is a substantial one, similar to

that applying to specific perfromance: see eg Cohen v Roche [1927] 1 KB

169. If this is correct we do still have the astonishing position in

England that, if someone steals and keeps my goods, a court will not

order them to be returned to me (in a tort action for conversion) 

unless

I can establish that damages are inadequate eg because the goods are

unique. I consider this point in the 3rd ed of my Remedies book at pp

578-581. Of course, there would appear to have been no problem for U2 

on

this because the goods were presumably 'unique'.

Andrew Burrows

St Hugh's College,

Oxford



____________________________________________________________________

This message was delivered through the Restitution Discussion Group,

an international internet LISTSERV devoted to all aspects of the law

of unjust enrichment. To subscribe, send "subscribe 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, 

.







--

Andrew Tettenborn MA LLB

Bracton Professor of Law

University of Exeter, England





Tel:                  01392-263189    /   +44-392-263189 (outside UK)

Cellphone:       07870-130528   /   +44-7870-130528 (outside UK)

Fax:                 01392-263196    /   +44-392-263196 (outside UK)



Snailmail:   School of Law,

                   University of Exeter,

                   Amory Building,

                   Rennes Drive,

                   Exeter EX4 4RJ

                   England



Exeter Law School homepage: http://www.law.ex.ac.uk

My homepage: http://www.law.ex

.ac.uk/staff/tettenborn.shtml











LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 

1906).
____________________________________________________________________ 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, . --------------080905000103030802010900-- ======================================================================= == Date: Thu, 16 Nov 2006 12:53:34 -0000 Reply-To: John Blackie Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Blackie Subject: Re: [Fwd: Re: [RDG] U2] Comments: To: Hector MacQueen Comments: cc: Niall Whitty , Gordon Cameron In-Reply-To: A<20061115204946.aqttfg8e9c84s8oo@www.staffmail.ed.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Eachan (Hector), and everyone. =20 For the record Scotland and South Africa still preserve the action (originally developed by canonists), the actio spolii, which enables a possessor (not just an owner, and not just a bona fide possessor either) to get the thing back. It is designed as a speedy remedy applying the maxim "spoliatus ante omnia restituendus". In South Africa it is solely for that as the Mandament van Spolie. In Scotland, where it is called spuilzie (pronounced spooly!) it also includes an enrichment remedy in that the deprived possessor is entitled to a sum which is the maximum that could have been earned from the asset in the period during which the other party had possession (known as "violent profits") (There is some doubt as to exactly on what basis this is calculated). Earlier spulzie cases in Scotland are typically ones where there was some forcible taking, but a more modern view (See Reid, Property) is that deprivation without consent of the former possessor is enough. In Scotland, furthermore, it applies not only to situations of deprivation of possession of moveables, but also is applicable to land. (There is an artificial rule with certain urban property that the party is entitled to twice the normal rent). The availability of this attractive action may be the reason why "vindication" was not often discussed in earlier cases, or writing, since there were until the early nineteenth century, loads of spuilzie actions. There are relatively few modern cases, but it is, I understand, sometimes used by lawyers in terrorem. John Professor John W G Blackie Professor of Law University of Strathclyde john.blackie@strath.ac.uk Direct tel: +44 (0)131 202 6481 The Law School, University of Strathclyde, Level 3, Lord Hope Building, 141 St James Road, Glasgow G4 0LT -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Hector MacQueen Sent: 15 November 2006 20:50 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] [Fwd: Re: [RDG] U2] And even the insular Scotch ... Slainte Hector (Eachann) --=20 Hector L MacQueen Professor of Private Law Director, AHRC Research Centre Intellectual Property and Technology Law Edinburgh Law School University of Edinburgh Edinburgh EH8 9YL UK Tel: (0)131-650-2060; Fax: (0)131-662-6317 Quoting A.M.Tettenborn@EXETER.AC.UK: > I think there may be a different answer to Eoin's point. The Roman > vindicatio, like the modern civilian actions for the return of moveables > (eg the French revendication and the Scotch action of restitution), was a > non-wrong-based means of getting back your thing from someone else who was > in possession of it. The plaintiff just said "It's mine: he's got it: make > him give it back or at least pay me its value." PB was right to say that > English law -- incredibly -- does not have any equivalent to this. > > What English law does have, however, is the action for conversion (and in > other common law countries there is also detinue). This is wrong-based: > conversion and detinue are torts, after all. So it's quite true that the > common law plaintiff has to show that the defendant committed a wrong in > order to get his thing back: if he can't, he fails. But in practice this > doesn't matter. This is because of the astonishingly wide scope of detinue > and conversion. The defendant converts the plaintiff's chattel -- ie > commits a wrong -- if he in any way deals with the chattel inconsistently > with the owner's rights, or if, having possession, he refuses to surrender > it on demand. So all the plaintiff has to do if he finds that someone else > has got his thing is ask for it back. If he doesn't get it, the defendant > -- however innocently he may be acting -- becomes a converter. The > plaintiff has his tort and thus his ticket to court. The measure of > damages is arbitrarily set at the value of the thing: or if it prefers, > the court can, as Eoin rightly says, tell the defendant to give it back in > specie. So in the U2 case, as soon as the defendant refused to return the > baubles she laid herself open to a tort action, and with it to an order to > give back what she had. > > Of course, this is a cack-handed, belt-and-braces approach. And while it > does allow the English plaintiff John Smith to recover his thing, as can > his equivalents Titius, Hamish McSporran, Jean Dupont and Hans Schmidt, it > has other baneful effects. One is the arbitrary measure of damages in > conversion: these have to be set automatically at the goods' value, rather > than the plaintiff's loss, to make the whole caboodle work. Another is the > strict liability of the converter. This has to be, since the plaintiff has > to be able to get his car back from a defendant who acquired it, and > continues to possess it, innocently and reasonably. But it also means that > other converters are liable without proof of fault who very definitely > shouldn't be. For example, if my stiolen Rembrandt is auctioned at > Christies, Christies have to pay me its value with no questions asked even > if they acted entirely innocently and with impeccable diligence throughout > (nice work for property insurers). Continental lawyers regard this as > barmy, and of course they are absolutely right. A French or German lawyer > correctly insists that if I deal with your goods and you want to complain, > you (a) only recover your loss, if any, and (b) as in any other tort > action have to prove that I was at fault. For once the Continentals do > things better. > > Best wishes to all > > Andrew > > > > > > > > ---------------------------- Original Message ---------------------------- > Subject: Re: [RDG] U2 > From: "Lionel Smith" > Date: Wed, 15 November, 2006 6:35 pm > To: ENRICHMENT@LISTS.MCGILL.CA > ----------------------------------------------------------------------- - -- > > I have always thought that there are two related questions here that are > frequently conflated. One is about the kinds of claims that are justiciable, > and the other is as to the kind of orders that courts can or will make. > > So if we ask whether the common law has "a simple direct action by which to > order personal property of one person in the hands of another to be > returned", I think we actually have two questions: (1) is there a > justiciable claim (cause of action) of the *form*, "that thing is mine" (as > opposed eg to "you did me a wrong by taking my thing at some past time") (2) > can courts order specific restitution of particular things? > > Peter, as a Romanist, was talking about Q1 when he said the common law did > not have such a claim for moveable personal property (though it always has > had for freehold estates in land, and for a long time for leaseholds). The > answer to Q2 is and has been 'yes', even for courts of common law, even as > regards moveable personal property, since 1854 (and since forever for > freehold land, and for a long time for leaseholds). Conversely, in Roman > law, even though the answer to Q1 was yes, because there was a rei > vindicatio, the answer to Q2 was basically no (as in the common law before > 1854, and since then if the court's discretion under the 1854 statutory > reform is so exercised): the *defendant* got the choice as to whether to > return the thing or to pay compensation (although this could be rigged by > setting the compensation artificially high). > > So if we set aside the question about what orders can be made, it comes down > to Q1 which relates solely to form, the form of the claim that can be made > and which the court will be obliged to evaluate and resolve. (This is also > shown by the fact that Peter also thought that if there was an exception to > the unavailability of a rei vindicatio for personal property, it arose in > interpleader: if the police put the property into court, claiming no right, > the court has to decide who among other claimants has the best right; as in > rei vindicatio, it is not about whether anyone has done anything wrong. > Interpleader is not a claim, it is a way that litigation gets started > without anyone having sued in conversion etc. This shows that the question > in Q1 is not as to rights that people have, but as to the ways in which > those rights can be put to the court for adjudication.) > > That in itself is enough to make sense of the U2 case. That is, if you take > my cap, I might sue you in conversion, which is not a claim that satisfies > Q1, and if I succeed, the court might order the return of the cap (possibly > with a money award for loss of use). Such an order can be made whatever the > answer to Q1 might be. > > With some diffidence I have expressed the view that the answer to Q1 is not > quite as clear as Peter thought. Detinue was in its origin clearly a claim > that satisfied Q1. It foundered because defendants could wage their law. > When it was resuscitated following that abolition of wager, it took on > characteristics of an allegation of wrongdoing, but kept the rei vindicatio > character as well; see General & Finance Facilities Ltd. v Cooks Cars > (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an > obscure way by the 1977 legislation but that does not affect the rest of us > (and even the meaning in England is not clear: Sir John Baker said that, not > me). > > There are other possibilities to satisfy Q1. An English court can make a > declaration of a purely legal right. Seeking a declaration that a cap is > legally mine is, effectively, requiring the court to make the same decision > as it would be required to make if I had a rei vindicatio available to me. > It seems to me that money had and received performs exactly the same > procedural function in some of its manifestations, but that is > controversial. > > My own attempts to make sense of this question, in more detail, are in 79 > Texas L. Rev. 2115, 2125-6. > > 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, . > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, . ____________________________________________________________________ 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, . ======================================================================= == Date: Thu, 16 Nov 2006 16:34:24 -0500 Reply-To: David Hoffman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: David Hoffman Subject: [Fwd: [RDG] RDG U2] MIME-Version: 1.0 Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=ISO-8859-1 Content-Disposition: inline Responding to Andrew B's comment, and supporting Andrew T: I agree that the analogy with an injunction is probably better than SP, because SP is a somewhat unusual remedy, whereas return of goods is very common, especially in defaulting hire purchase cases (so much so that one= can find block lists of 'ROG' in county courts taken at a brisk rate, wit= h dozens in a morning). = In a run of the mill case, a court is unlikely to refuse delivery up if requested, so long as claimant has shown that he retains title, and that the item is capable of being delivered up with no great difficulty, and s= o long as that is what claimant requests, ie damages are not for some reaso= n a preferential remedy (e.g. deterioration of the object). = I suppose from an analytical point of view this may amount to saying that= in a typical case a court will rather assume that the fact that the item = is sought back is itself a good reason for considering that damages are not = an adequate remedy. In particular, the point which is likelyto be a strong o= ne at the county court level is that enforcement is clearly easier when the thing itself can be returned, as opposed to having to pursue a defendant who may or may not have any money (e.g. a company or business in difficulties). Many county court defendants do not have any money, so a remedy in damages, like pursuing costs, is something of a pyrrhic victory= . Regards David Message text written by Andrew Tettenborn > = The jurisdiction to order return is clearly discretionary. Whether = there's much future in drawing a parallel with SP I'm more doubtful, = however. My own suspicion is that the owner faces less of a hurdle. A = couple of points come to mind: 1. At times courts seem to look to whether the plaintiff would suffer = hardship if he didn't get his thing back, which seems more generous. So = Perry got their steel from British Rail in /Howard E Perry/ [1980] 2 All = ER 579: whether they'd have got SP to tell BR to carry it or a seller to = deliver it looks more doubtful. Again the owner of a batch of Rover cars = got specific delivery simply because they weren't making them any more = (see /Pendragon plc v Walon Ltd/ [2005] EWHC 1082 (QB)): I doubt if he's = have got SP against a seller. Conversely in SM v Bronx [1975] 1 Lloyd's = Rep 465 the buyer of a machine tool that took months to make to order = didn't get SP: but it seems pretty inconceivable that they wouldn't have = got specific restitution if it had been their machine wrongfully in the = defendants' hands. 2. In the nature of things specific restitution tends to be less = intrusive. We don't like telling a defendant to actually do something or = go to prison: but specific restitution merely involves telling the = defendant to acquiesce in the plaintiff's taking his thing (note that = generally plaintiff bears collection costs and trouble). Perhaps the better parallel is with the injunction, which is easier to = get than SP (and, at least in practice, available as of course in many = situations, such as breach of restrictive covenants or noncompete clauses= ). best wishes to all Andrew -------- Original Message -------- Subject: [RDG] RDG U2 Date: Thu, 16 Nov 2006 10:37:33 +0000 From: Andrew Burrows Reply-To: Andrew Burrows Organization: St Hugh's College To: ENRICHMENT@LISTS.MCGILL.CA I agree with what Lionel Smith and Andrew Tettenborn have so elegantly = said. But one point that has always puzzled me on this - and for which I = would be very grateful for views - is the extent to which for wrongful = interference with goods the owner needs to show that damages are = inadequate. My understanding is that, in order to be granted delivery up = (which is the remedy we are talking about) the law does require a = dispossessed 'owner' to show that damages are inadequate. And = furthermore that the adequacy hurdle is a substantial one, similar to = that applying to specific perfromance: see eg Cohen v Roche [1927] 1 KB = 169. If this is correct we do still have the astonishing position in = England that, if someone steals and keeps my goods, a court will not = order them to be returned to me (in a tort action for conversion) unless = I can establish that damages are inadequate eg because the goods are = unique. I consider this point in the 3rd ed of my Remedies book at pp = 578-581. Of course, there would appear to have been no problem for U2 on = this because the goods were presumably 'unique'. Andrew Burrows St Hugh's College, Oxford < ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, . ======================================================================= == Date: Thu, 16 Nov 2006 16:45:17 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: RDG U2 Comments: To: Andrew Burrows In-Reply-To: <455C3F6D.9020609@law.ox.ac.uk> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit I agree that it is a strange way to operate, to make the order for delivery dependent upon showing damages are inadequate. But, in line with what Andrew said, one thing about Cohen v Roche is that it is very close to specific performance: the plaintiff was the buyer of the chairs, the defendant was the seller, property had passed but the defendant wouldn't deliver. I think in that particular context it is not surprising that the judge thought of it as attracting the same kind of test as SP. It was not a case of dispossession. Presumably we could argue that it should be easier to get the order for delivery up when the defendant has taken the plaintiff's thing, than when the plaintiff has never had possession and is seeking to enforce a title acquired by sale. But Andy you know better than I do whether other cases will allow that line. For John Blackie: in Quebec we also have the actio spolii for possessors, as distinct from the rei vindicatio, but we have a less poetical name for it than the Scots: "art. 929". Actually it is usually called a possessory action. If the common lawyers are feeling inadequate about their remedies, I note that in Quebec the action is available to one who has been in continuous possession for more than a year. Some authors say moreover that the action is only for immovables. I have never understood the gap this leaves. Can it be that there is no claim by a non-owning possessor, who has had possession for less than a year, if he is dispossessed? Eventually a possessor will acquire ownership by prescription but that takes a while. In France there is a possessory action for immovables that requires a year of possession, but there is also another action, available to any possessor, in respect of violent dispossession. That makes a bit more sense. LDS On 16/11/06 05:37, "Andrew Burrows" wrote: > I agree with what Lionel Smith and Andrew Tettenborn have so elegantly > said. But one point that has always puzzled me on this - and for which I > would be very grateful for views - is the extent to which for wrongful > interference with goods the owner needs to show that damages are > inadequate. My understanding is that, in order to be granted delivery up > (which is the remedy we are talking about) the law does require a > dispossessed 'owner' to show that damages are inadequate. And > furthermore that the adequacy hurdle is a substantial one, similar to > that applying to specific perfromance: see eg Cohen v Roche [1927] 1 KB > 169. If this is correct we do still have the astonishing position in > England that, if someone steals and keeps my goods, a court will not > order them to be returned to me (in a tort action for conversion) unless > I can establish that damages are inadequate eg because the goods are > unique. I consider this point in the 3rd ed of my Remedies book at pp > 578-581. Of course, there would appear to have been no problem for U2 on > this because the goods were presumably 'unique'. > Andrew Burrows > St Hugh's College, > Oxford > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe 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, . > ____________________________________________________________________ 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, . ======================================================================= == Date: Wed, 22 Nov 2006 11:49:11 +0000 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: UE in Comparative Perspective MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: 7bit The Oxford Handbook of Comparative Law, ed. by Mathias Reimann and Reinhard Zimmermann, hast just been published by Oxford University Press. Daniel Visser has contributed ch. 30 on "Unjustified Enrichment in Comparative Perspective", pp. 969-1002. I managed to put my hands on the book only a few minutes ago, but the article certainly looks well worth reading. Gerhard Dannemann ____________________________________________________________________ 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, .