Date: Wed, 8 Nov 1995 11:11:05 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@gpu.srv.ualberta.ca (Lionel Smith) Subject: Re: restitution German Restitution Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Ary Frenkiel writes: >I am working in a relatively new field in restitution, namely the >restitution of properties (immovable) seized by the Nazi regime from >1933-1945 in Germany. As you all may be aware,the FRG,after the fall of the >Wall,started a programme of such restitution to people who qualify. >My question to you is, where can I acccess documents on the web relating to >such legislation. The search engines I use for the Web are: Lycos (http://www.lycos.com/), Webcrawler (http://webcrawler.com/), and Infoseek (http://www2.infoseek.com). Sites which may be of assistance to you include: http://langlab.uta.edu/germ/gic/gic_search.html (a search engine for material, in English and German, at the German Information Centre) http://fub46.zedat.fu-berlin.de:8080/~stummel/Jura.html (this is supposed to provide access to a search engine for German legal issues in German) http://seamless.com/bzt/index.html (this is the home page for Bender Zahn Tigges, which claims to be the first German law firm on the Web. Their info indicates that they do work relating to "property restitution." Maybe someone there can help you out). If you are interested in comparative work with the situation in South Africa (where land confiscated under the apartheid regime is subject to restitution), you might look at the following: http://www.os2.iaccess.za/jutastat/constit/chap8.htm (chapter 8 of the new constitution which includes the restitution provisions in ss 121-123) http://www.polity.org.za/gnuindex.html (an index of material for the current government, including documents on restitution) http://www.polity.org.za/lists/govnotices.html (includes a notice about the application of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994)). Hope this helps. Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Wed, 15 Nov 1995 16:51:53 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@gpu.srv.ualberta.ca (Lionel Smith) Subject: restitution Subrogation Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca I have a question about subrogation and I would be grateful for anyone's thoughts. The question is about the ability of a guarantor of a secured debt to have the benefit of the creditor's securities, once the guarantor pays the creditor. This ability is secure in all civilian systems (eg Civil Code of Quebec art. 1656(3); BGB s. 774). It was made part of the law of England by the Mercantile Law Amendment Act 1856, s. 5, after common law decisions suggested it was not. Most common law jurisdictions have cognate legislation. To me, this seems to make perfect sense. The reason for my question is that the weight of commentary suggests the contrary. Burrows questions it (at 83), and Charles Mitchell in _The Law of Subrogation_ says that it is "unjustifiable" (at 59). Goff & Jones doubt whether the rule should apply to securities of which the surety was unaware, or those taken after the guarantee was executed (at 604). The reason for questioning the surety's ability to take over security rights is (i) there is no genuine intention built into the agreement between surety and creditor, that the surety will have the benefit of any securities (Burrows); and (ii) the surety cannot claim to have an undestroyed proprietary base, nor can he claim that he never took the risk of the debtor's insolvency (Mitchell). Therefore it is said there is no justification for the surety's acquiring the securities. It seems to me that these arguments miss the point. The point is that the surety is guaranteeing a particular risk. He is guaranteeing to the creditor that the debt will be paid. He is not guaranteeing any other risk or any larger risk. If the creditor has real security for the debt, then the creditor's risk is reduced. So then should be the surety's. The only way to ensure that the surety's risk is no greater than the risk taken by the creditor is to provide that the surety shall have the benefit of any security, once he has paid the creditor. This reasoning extends even to securities taken after the guarantee is signed. The reason is that the surety's risk must be exactly the risk of non-payment by the debtor to the creditor, in an ambulatory sense. After all, if the risk of default by the debtor goes up (eg because of a business failure), then so goes up the risk which the surety is insuring. Thus if the risk of default goes down (where the debtor gives a new security), so should go down the risk which the surety is insuring. It also extends to securities of which the surety is unaware. It is inherent in the guarantee that it covers the exact risk to which the creditor is exposed, whatever that may be. I suppose another way to look at is analagous to marshalling. The creditor could, if he wished, realize on the security (extinguishing it) and then go after the surety for any deficiency. If he chooses to go after the surety first, why should this enure to the benefit of others (unsecured creditors of the debtor)? Finally, this reasoning is supported by the rule that the guarantee is unenforceable (at least to the extent that the surety is harmed) if the surety does not protect the security (cf CCQ art. 2365; BGB s. 776). Recent authority holds that this rule is so fierce that it can operate even in the face of an express term in the guarantee which purported to exclude it (First City Capital Ltd. v. Hall (1993), 99 DLR (4th) 435 (Ont CA)). Similarly, if the creditor materially changes the contract with the debtor (eg giving more time to pay), the surety is discharged (at least to the extent that the surety is harmed). These rules only makes sense on the basis that the surety is guaranteeing a particular risk, and so is excused if the risk is enlarged by the creditor. Any thoughts?? Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Thu, 16 Nov 95 10:48:47 EST From: "Allan Axelrod" X-Minuet-Version: Minuet1.0_Beta_16 X-POPMail-Charset: English To: restitution@majordomo.srv.ualberta.ca Subject: Re: restitution Subrogation Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca >I suppose another way to look at is analagous to marshalling. The creditor >could, if he wished, realize on the security (extinguishing it) and then go >after the surety for any deficiency. If he chooses to go after the surety >first, why should this enure to the benefit of others (unsecured creditors >of the debtor)? > i like that paragraph any professional surety or any surety which has advice of counsel will acquire express rights to any collateral by agreement at the time of the guarantee--that can be done under the US Uniform COmmercial COde, and I expect in other enlightened countries as well--and will obviate the need to discuss subrogation the problem then is shaping a rule for the non-advised and uninformed surety--a shorn lamb indeed the other contenders for the asset as to which the subrogation is sought are the unsecured creditors of the debtor--who have bargained neither for guaranteees nor collateral, and who can be assumed to be non-shorn lambs. your suggestion about marshalling then captures an attractive ground for the subrogation: it is to prevent unjust enrichment-[of course in the absence of subrogation there would develop a bidding war between surety and unsecured creditors in which surety bids that Creditor take the collateral, and the unsecureds that Creditor goes after surety]. > > > Allan Axelrod axelrod@andromeda.rutgers.edu Rutgers Law School 15 Washington St., Newark, NJ 07102 (201) 648-5373 Date: Thu, 16 Nov 1995 11:05:20 +0000 (GMT) From: "A. Tettenborn" To: restitution@majordomo.srv.ualberta.ca Subject: restitution Subrogation Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca A couple of points re whether the surety should necessarily take over securities. (1) Is the "risk" argument really sound? There is no reason why the risk taken by the surety as against the creditor should be co-extensive with the risk as against the principal debtor. (2) A case of some interest in this connection is Re Chipboard Products unrep Irish High Court 20/10/94 (Barr J). The surety took an express unsecured covenant from the principal debtor in case the latter defaulted. It did: the surety then sought subrogation to securituies given by it to the creditor. Despite what seems an entirely convincing argument that the surety by taking an unsecured covenant had waived any right to the securities under the 1856 Act or otherwisae, Barr J held he was entitled to be subrogated to them. This seems perverse. Andrew Tettenborn Pembroke Colege, cambridge E-mail: at10006@cus.cam.ac.uk Date: Mon, 20 Nov 1995 16:36:59 +0000 (GMT) From: "S.C. Evans" To: restitution@majordomo.srv.ualberta.ca Subject: restitution In re Goldcorp Exchange. Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca A couple of tedious questions, I'm afraid, because of a lack of New Zealand legal resources in the library here. First, can anyone tell me if the first instance decision in In re Goldcorp Exchange (Liggett v Kensington) been reported anywhere? It doesn't seem to be in the New Zealand Law Reports (and therefore isn't on LEXIS). But is it in the NZBLC or NZCLC? Secondly, if it hasn't been reported, does anyone have any tips on how to go about getting unreported New Zealand decisions? Thanks for any information. Simon Evans. +----------------------------+ | Simon Evans | | Gonville and Caius College | | Cambridge CB2 1TA | | | | (01223) 506940 | +----------------------------+ From: pg.watts@auckland.ac.nz Date: Tue, 21 Nov 1995 10:04:03 +1200 Subject: Re: restitution In re Goldco To: restitution@majordomo.srv.ualberta.ca (restitution) Organization: Law Faculty, The University of Auckland Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Reply to: RE>restitution In re Goldcorp Exchange. Simon, Thorp J's decision in Goldcorp was never reported anywhere to my knowledge. I have a copy. But then, I'm pretty sure Richard Nolan at St John's has also. If you can't obtain it from Richard, get back to me. Unreported judgments can be obtained from the relevant HC registry for a price. So long as you are not wanting too many of them, in most cases I will have the case, or will be able readily to get it, and I am happy to send them off to you. I don't suppose you have a copy of Vinelott J's unreported judgment in Bishopsgate v Homan (referred to in CA at [1994] 3 WLR 1270)? Even London solicitors have had difficulty in getting it for us. Peter Watts. -------------------------------------- Date: 21/11/95 5:58 AM To: Peter Watts From: restitution A couple of tedious questions, I'm afraid, because of a lack of New Zealand legal resources in the library here. First, can anyone tell me if the first instance decision in In re Goldcorp Exchange (Liggett v Kensington) been reported anywhere? It doesn't seem to be in the New Zealand Law Reports (and therefore isn't on LEXIS). But is it in the NZBLC or NZCLC? Secondly, if it hasn't been reported, does anyone have any tips on how to go about getting unreported New Zealand decisions? Thanks for any information. Simon Evans. +----------------------------+ | Simon Evans | | Gonville and Caius College | | Cambridge CB2 1TA | | | | (01223) 506940 | +----------------------------+ ------ Message Header Follows ------ Received: from quartz.ucs.ualberta.ca (quartz.ucs.ualberta.ca [129.128.76.11]) by mailhost.auckland.ac.nz (8.7.1/8.7.1-ua) with ESMTP id FAA04368; Tue, 21 Nov 1995 05:45:32 +1300 (NZDT) Received: (from majordom@localhost) by quartz.ucs.ualberta.ca (8.7.1/8.7.1) id JAA15699 for restitution-outgoing; Mon, 20 Nov 1995 09:42:00 -0700 Received: from bootes.cus.cam.ac.uk (root@bootes.cus.cam.ac.uk [131.111.8.1]) by quartz.ucs.ualberta.ca (8.7.1/8.7.1) with SMTP id JAA23630 for ; Mon, 20 Nov 1995 09:41:54 -0700 Received: from apus.cus.cam.ac.uk [131.111.8.2] (ident = root) by bootes.cus.cam.ac.uk with smtp (Smail-3.1.29.0 #36) id m0tHZDH-000C16C; Mon, 20 Nov 95 16:36 GMT Received: by apus.cus.cam.ac.uk (Smail-3.1.29.0 #36) id m0tHZDH-00034wC; Mon, 20 Nov 95 16:36 GMT Date: Mon, 20 Nov 1995 16:36:59 +0000 (GMT) From: "S.C. Evans" To: restitution@majordomo.srv.ualberta.ca Subject: restitution In re Goldcorp Exchange. Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-restitution@majordomo.srv.ualberta.ca Precedence: bulk Reply-To: restitution@majordomo.srv.ualberta.ca *************************************************************** Law Faculty, The University of Auckland, New Zealand. Ph:64-9-373-7599 The views expressed in this message may be the individual author's only. http://www.law.auckland.ac.nz/ *************************************************************** Date: Wed, 29 Nov 1995 14:51:31 -0600 X-Sender: kccdan@southwind.net (Unverified) To: restitution@majordomo.srv.ualberta.ca From: kccdan@southwind.net (Dan Roland) Subject: restitution Request for Information Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca I work for an organization called the Koch Crime Commission in Wichita, Kansas, USA, as the Information Specialist. I have been assigned to work with a task force that deals with the economics of crime and is working on a paper proposing changes in the way restitution is collected in this state. My assignment is to run a comparison of other states, countries, provinces, etc. I am looking for legislation, startup and annual operating costs, and other documentation as well as information about who tends to be opposed to such programs and why. I am hoping someone on this list would like to send me or point me towards some helpful information. Thanks! Daniel R. Roland Information Specialist, Koch Crime Commission Wichita, Kansas 1-800-863-5726 Date: Wed, 29 Nov 1995 17:01:27 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Money Laundering Conferences Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Greetings to all. I am writing to advise about two upcoming conferences which might be of interest. Both deal with money laundering and related topics. 1. Oceana Publications Inc. is putting on the Fifth International Conference on Money Laundering, Forfeiture, Offshore Investments, Wealth Law, The Caribbean, Latin America and International Financial Crimes. Kind of a mixed bag. On top of all that, "the theme of the conference is Cybercash, Digital Cash, SmartCards, and Banking on the Internet." It is in Miami, 22-23 February 1996. I went to the Fourth International Conference on etc. in October. I can tell you that these are not "academic" conferences. This has pros and cons. If you are interested in money laundering and asset forfeiture, it is a great opportunity to learn about the realities of these issues. The panelists and registrants are bankers, lawyers, and government law enforcement agents (DEA, IRS, Customs etc). Most panels have a US perspective, although Dr. Barry Rider of Cambridge and the IALS will be there. The down side is that the presentations can be somewhat uneven. Also, the materials you will get (while very interesting and copious ... I still have not read all of mine) are not that closely related to the panels you hear. Do not expect to go away having heard papers which will appear in law journals. On the whole, however, I can say that I am very glad to have attended the one in October. Another down side is that this is a for-profit enterprise, and it is expensive. The registration fee is US$995 before 5 January, US$1195 after that. You will be pleased to know that this includes your breakfasts and lunches. I should also say that you may be able to get a substantial academic discount if you ask. I was charged less than half of those amounts, which of course is still a lot. For more information, contact Karen Vangor at Oceana Publications Inc., 75 Main St., Dobbs Ferry, NY 10522; tel 914 693 8100 (or 800 831 0758 in the US only); fax 914 693 0402; email oceana@panix.com. 2. There will be a conference on money laundering, forfeiture and related issues on 2-3 May 1996, put on by the Faculties of Law at the University of Windsor and the University of Detroit Mercy. The schedule is not yet confirmed and more details will follow. I expect that this will be more "academic" and more reasonably priced. Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 Date: Thu, 30 Nov 1995 11:46:44 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Criminal Restitution Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Dan Roland writes: >I have been assigned to work with a task force that deals with the economics >of >crime and is working on a paper proposing changes in the way restitution >is >collected in this state. . . . > I am looking for legislation, startup and annual operating costs, and >other documentation as well as information about who tends to be opposed to >such programs and why. I am hoping someone on this list would like to send >me or point me towards some helpful information. Dan, I think that most of the people on this list are interested in restitution as a remedy in civil litigation, rather than in the criminal sentencing context. A web search under "restitution" (using Lycos, at http://www.lycos.com/) gave me two pages at the same gopher site, which might be of interest to you: gopher://cyfer.esusda.gov:70/00/violence/programs/youth/enforcement/y fmedres.ncj contains this information: "Mediation and Restitution Services (MARS) Contact: Steve Goldsmith Director Mediation and Restitution Services (MARS) One Manchester Boulevard Inglewood, CA 90301 Program Type: Alternative sanction focusing on victim restitution and youth responsibility. Target Population: Juvenile offenders. Various locations in Inglewood, Hawthorne, Lawndale, and Gardena in Los Angeles County, California. Project Startup Date: 1992 Information Source: Provided by the National Criminal Justice Reference Service (NCJRS). Evaluation Information: Evaluations indicate that 100 percent of juveniles and victims were glad they participated in MARS; 97 percent would recommend mediation; 95 percent of victims rated the process as "good or excellent"; 70 percent of the juveniles rated it "good or excellent"; and 30 percent rated it "fair." Since the program's inception, an agreement has been reached in 98 percent of mediations and only 5 percent of youths have been rearrested for the same crime. Annual Budget: $60,000. Sources of Funding: California Community Foundation, County of Los Angeles Delinquency Prevention Program, Pacific Telesis Foundation, Weingart Foundation, Los Angeles Bar Foundation, South Bay Rotary Club, State of California Office of Criminal Justice, United Way, Hollywood Park Racing Charities, Southbay PIC/City of Inglewood Employment Development Department, and the cities of Gardena, Hawthorne, and Lawndale. Program Description: MARS, a program of the Centinela Valley Juvenile Diversion Project (CVJDP), assists injured parties and juvenile offenders in working out an agreement for repayment of the victim's losses caused by the offender. MARS assists the offender in fulfilling the agreement by referral to job and/or community services placement programs and monitors the progress toward completion. MARS operates in conjunction with the school-based mediation program (STARS). About 130 offenders are referred annually to voluntarily participate. Criteria for selections are limited to first- or second-time offenders whose crime lends itself to restitution, such as repayment of property loss or damage, and to those who are interested in meeting with the victim to "set things right." Parents are urged to be active participants by supporting the juvenile and his/her efforts to resolve the matter. Two trained, certified volunteer mediators conduct about 100 confidential meetings annually where both the injured party and the youth tell their stories. The meeting lasts about 1 1/2 hours, including a 20- to 30-minute orientation to explain the procedures prior to the mediation. An agreement, if reached, is written, detailing how losses will be repaid, such as through moneys, work, community service, or other means agreeable to both parties. Responsibility for the success or failure lies with the participants. If participation is declined at any time in the process, or if an agreement is not reached or fulfilled for any reason, the case is returned to the original agency for action." The second is: gopher://cyfer.esusda.gov:70/00/violence/programs/youth/enforcement/y ftuscal.ncj with this information: "Tuscaloosa County Juvenile Court Restitution Program Contact: John Upchurch, Ph.D. Director of Court Services Tuscaloosa County Juvenile Court 6001 12th Avenue East Tuscaloosa, AL 35405 Tel: 205-349-3870 ext. 309 Fax: 205-349-3870 Program Type: Alternative sanctions based on restitution to victims. Target Population: Juvenile offenders, up to age 18. Setting: Various locations in Tuscaloosa, Alabama. Project Startup Date: 1987. Information Source: Provided by the National Criminal Justice Reference Service (NCJRS). Annual Budget: $74,948. Sources of Funding: Alabama Department of Economic and Community Affairs, Law Enforcement Planning Agency Division. Program Description: The Tuscaloosa County Juvenile Court Restitution Program offers an alternative sanction by balancing restitution to victims with offender accountability. The program uses three approaches to restitution: (1) monetary payment, (2) community service work, and (3) paid employment. A fourth component, direct victim service, in which the offender works for the victim, is favored by program administrators but readily accepted by few victims because of their reluctance to get involved with some offenders. Initially restitution was limited to first-time or minor offenders, but admission of serious offenders led to equally promising results. The program does not take offenders who have a violent history, who have severe emotional problems, or who are chronic drug and alcohol abusers. The juvenile and his/her parent must sign a contractual agreement that spells out the nature of the restitution, the number of hours of labor or community service to be performed, and the date of completion as determined by the Tuscaloosa County Restitution Program. Juvenile offenders may find their own work or may accept a job developed for pay by the program's staff. Unpaid community service work fills the requirement when there is no individual victim and no out-of-pocket losses have resulted. Victims participate by being kept informed of the status of their case and participating in determining the amount and type of restitution. Youths too young to have a work permit must perform community service work, and hard-to-place offenders perform community service work in a crew under close supervision of the work supervisor. When an offender works for an employer for pay, he or she pays two-thirds of the money received to the County Clerk, who in turn distributes it to the victim. Creating the program raised issues of liability among court personnel since the restitution undertaking would become part of the court program. Close supervision and admission guidelines have lessened such concerns. A restitution coordinator, job developer, and work supervisor work with the probation department and oversee details related to each case. Allaying community concerns over public safety is accomplished through continual community awareness campaigns that emphasize how offenders' time is occupied and supervised either in paid labor or unpaid community service. The program costs considerably less than probation ($500 versus $750 per case) or commitment to the State Department of Youth Services, which costs upwards of $30,000 for a year of treatment. The program is a collaboration between local attorneys, vocational educators, State employment counselors, parents, business leaders, and university personnel." Maybe you should contact the National Criminal Justice Reference Service, which seems to be the source of all of this. Hope this is of some use to you, Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 Date: Thu, 30 Nov 1995 11:54:02 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Criminal Restitution Again Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Pursuant to the last message, I might also mention: Burns, Peter T. Criminal injuries compensation. 2nd ed. Toronto: Butterworths, 1992. Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 Date: Thu, 30 Nov 1995 13:44:48 -0600 X-Sender: kccdan@southwind.net To: liosmith@maildrop.srv.ualberta.ca From: kccdan@southwind.net (Dan Roland) Subject: Private reply Thank you for the clarification about the restitution list as well as for the information on the two programs. Would you happen to know of anyone doing work in the area of restitution as part of the criminal sentence? The US Senate recently agreed to a US House measure to require restitution for crime victims as part of the sentence for every federal offense so it is a current and growing issue here. I have been busy collecting statutes from the nine states that also require restitution and perusing various books, but I was hoping to get in touch with an expert in the field through the restitution list. Thanks again for your patience. Daniel R. Roland Information Specialist, Koch Crime Commission Wichita, Kansas 1-800-863-5726