Date: Thu, 1 Feb 1996 13:14:01 GMT To: restitution@majordomo.srv.ualberta.ca From: eodell@tcd.ie (Eoin O' Dell) Subject: restitution Kleinwort Benson Ltd v Glasgow City Council Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Members of the list may be interested to learn that today's London Times contains a Law Report of _Kleinwort Benson Ltd v Glasgow City Council_ (Court of Appeal, unreported, 25 January 1996; Leggatt, Roch, and Millett L.JJ.) under the heading "Convention applies to claim made under void contract". The Times' summary headnote of the case is as follows: "A claim for restitution of money paid under a contract, which was a nullity because of the recipient's want of capacity to enter into it, was a matter "relating to a contract" within the meaning of article 5(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, enacted by the Civil Jurisdiction and Judgments Act 1982. Accordingly, the English court had jurisdiction, pursuant to the special jurisdiction conferred by article 5, to hear the claim of the plaintiff bank against the defendant, domiciled in Scotland, for recovery of money paid under the terms of seven written interest rate swap contracts, such contracts having been held subsequently by the House of Lords to be void: see Hazell v Hammersmith and Fulham London Borough Council (The Times January 25, 1991; [1992] 2 AC 1). The Court of Appeal so held by a majority, Lord Justice Leggatt dissenting, in a reserved judgment allowing the appeal of Kleinwort Benson Ltd against the order of Mr Justice Hirst (The Times March 17, 1992; [1993] QB 429) in favour of Glasgow City Council on its application to set aside the service of the plaintiff's writ on it on the ground that the proper forum for any claim against it was Scotland. Leave was granted to appeal to the House of Lords." The full text of the Times Report is available in the Business section of the Times on the Net (http://www.the-times.co.uk and follow the links). EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland (All opinions are personal; no legal responsibility whatsoever is accepted.) Live Long and Prosper !! Date: Thu, 8 Feb 1996 12:08:44 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution The Bad Writing Contest Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca For the information of members of the Restitution Discussion Group, I am forwarding an announcement which I received today. I should add that I received this message through my membership of LAWPROF, another email discussion group (or "listserv") which addresses anything related to teaching law. LAWPROF has a US tilt but there are many members from other jurisdictions. There are over 1000 members and message traffic is heavy: a dozen messages a day is not unusual, twice that not unknown. If you wish to subscribe to LAWPROF, send an email to this address: listproc@chicagokent.Kentlaw.EDU Leave the "subject" line blank and in the body of the message put subscribe lawprof You do not need to put your email address in the subscription request as the listserver gets it out of the message header. NOTE that (unlike the Restitution Discussion Group) subscription to LAWPROF is moderated, ie a human list supervisor will approve your request. This may take several days. All the best, Lionel Smith >The listserv PHIL-LIT is once again running the Bad Writing Contest. >Please cross-post the following message on related lists for literary >theory, philosophy, etc. --Denis Dutton > > ********************************* > The PHIL-LIT Bad Writing Contest > > The challenge of the PHIL-LIT Bad Writing Contest is to come up >with the ugliest, most stylistically awful single sentence--or string of >up to no more than three sentences--out of a scholarly book or article. >Ordinary journalism, fiction, etc. not allowed, nor is *translation* >from other languages into English. Entries must be non-ironic, from >actual serious academic journals or books--parodies cannot be >admitted in a field where unintentional self-parody is so rampant. >Winning entries will be checked by our research staff before prizes are >awarded. > > Judging will be by the PHIL-LIT list founders David Gershom Myers >and Denis Dutton. The winning entrant will have first choice from >among the following books, second prize will be second choice, and >third will have what remains. The three prize books are: A Pitch of >Philosophy, by Stanley Cavell (Harvard), Strolls with Pushkin, by >Andrei Sinyavsky (Yale), and Hyper/Text/Theory, edited by George P. >Landow (Johns Hopkins). > > This is a serious contest, and an offensive one, we hope. We've fine >prizes, so join the fun! Please use the subject heading "Bad writing >entry" and copy the posting directly to Denis Dutton so we can keep >track of the entries: > > d.dutton@fina.canterbury.ac.nz. > > The contest deadline: 1 March 1996. > > ********************** >Anyone may join PHIL-LIT by sending the message > > SUBSCRIBE PHIL-LIT Your Name > > to: LISTSERV@TAMVM1.TAMU.EDU >********************** > > >Dr. Denis Dutton >Senior Lecturer in the Philosophy of Art >Editor, Philosophy and Literature >University of Canterbury >Christchurch, New Zealand >Phone: (03) 366-7001 Fax: (03) 364-2858 Date: Sat, 10 Feb 1996 16:38:32 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Knowing Assistance Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca On 27 Jan I wrote: <> In case anyone is interested, I have found it. It's in A.J. Oakley's 6th ed. of Parker and Mellows on Trusts, p. 251, note 29. Actually Oakley is there dealing with both knowing assistance and knowing receipt. For those who might be interested, here is an updated and expanded list. It does not include anything published before 1985: R.P. Austin, "Constructive Trusts" in P.D. Finn, ed., Essays in Equity (Sydney: The Law Book Company, 1985) D.J. Hayton, "Personal Accountability of Strangers as Constructive Trustees" (1985) 27 Malaya L.R. 313 C. Harpum, "The Stranger as Constructive Trustee" (1986) 102 L.Q.R. 114 R. Sullivan, "Strangers to the Trust" (1986) 8 E. & T.Q. 217 P.L. Loughlan, "Liability for Assistance in a Breach of Fiduciary Duty" (1989) 9 Oxf.J.L.S. 260 P.B.H. Birks, "Misdirected Funds: Restitution from the Recipient" [1989] L.M.C.L.Q. 296 H. Norman, "Knowing Assistance - A Plea for Help" (1992) 12 Legal Studies 332 P.D. Finn, "The Liability of Third Parties for Knowing Receipt or Knowing Assistance" in D.W.M. Waters, ed., Equity, Fiduciaries and Trusts 1993 (Toronto: Carswell, 1993) P.B.H. Birks, "Persistent Problems in Misdirected Money: A Quintet" [1993] LMCLQ 218 C. Harpum, "The Basis of Equitable Liability"; L. Hoffmann, "The Redundancy of Knowing Assistance"; P.B.H. Birks, "Gifts of Other People's Money"; and W. Swadling, "Some Lessons from the Law of Tort", all in in P.B.H. Birks, ed., The Frontiers of Liability, vol. 1 (Oxford: Oxford University Press, 1994) G. Watt, "Accessory Liability for Breach of Trust" (1995) 4 Nottingham L.J. 111 T. Allen, "Fraud, Unconscionability and Knowing Assistance" (1995) 74 Can. Bar Rev. 29 S. Gardner, "Knowing Assistance and Knowing Receipt: Taking Stock" (1996), 112 L.Q.R. 56 I have not checked the Watt article as our library does not have that journal. Enjoy, Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 Date: Sun, 11 Feb 1996 10:51:44 +1000 X-Sender: johnm@ecn.net.au To: restitution@majordomo.srv.ualberta.ca From: johnm@ecn.net.au (John Murphy) Subject: Re: restitution Knowing Assistance Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Further to Lionel Smith's list re Knowing Assistance, I would like to add:- M. Cope, "Constructive Trusts" (Sydney: The Law Book Company, 1992), Part 2 As a former student of Malcolm's I can attest to his scholarly abilities. I know it is off point for this "discussion group?", but, for anyone interested, the concepts of notice as developed in the constructive trusts case law (e.g. the Rubber cases) are useful in other areas such as holding a lawyer to have had sufficient notice of irregularities or falsehood in his instructions as to be guilty of professional misconduct by misleading the Court. Also, Prof. P.D. Finn (now Justice Finn of the Australian Federal Court), cited in Lionel's list, has written extensively on the theory of holding public officials (elected as well as employed) as trustees of the public interest, with all the consequences flowing from a breach of that trust. If anyone is interested, I will find the citations. John P. Murphy (johnm@ecn.net.au) Date: Sun, 11 Feb 1996 15:52:44 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: Re: restitution Knowing Assistance Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca John P. Murphy wrote: >Further to Lionel Smith's list re Knowing Assistance, I would like to add:- > >M. Cope, "Constructive Trusts" (Sydney: The Law Book Company, 1992), Part 2 I suppose I was confining myself to essays; but even on that theory, I should certainly have included: A.J. Oakley, "Liability of a Stranger as a Constructive Trustee: Some Recent English and Australian Developments" in M. Cope, ed., Equity - Issues and Trends (Annandale: Federation Press, 1995). >Also, Prof. P.D. Finn (now Justice Finn of the Australian Federal Court), >cited in Lionel's list, has written extensively on the theory of holding >public officials (elected as well as employed) as trustees of the public >interest, with all the consequences flowing from a breach of that trust. P.D. Finn's essay in the above-cited collection is on this very point. M. Cope's contribution is on the *Lister v. Stubbs* / *AGHK v. Reid* point. Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 Date: Wed, 21 Feb 1996 18:44:05 GMT To: restitution@majordomo.srv.ualberta.ca From: eodell@tcd.ie (Eoin O' Dell) Subject: restitution and Unconstitutional Taxing Statutes in the US SCt Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca The Legal Information Institute of Cornell University emails a bulletin of information about decisions of US SCt. The "liibulletin - Feb. 21, 1996" contains information about a case which may be of interest to members of this list. I have extracted some of it; at the end of the message are addresses of where to go for further informaton. It seems to me that is Woolwich, Air Canada (Murphy v. AG [1982] IR 241) territory. The SCt holds a tax unconstitutional, and remands to North Carolina for a hearing on consequential remedies. What are the US remedies here ? Of course, there is Atchison, Topeka and Santa Fe Railway v. O'Connor 223 U.S. 280 (1911) which figured in Woolwich, and has relatively recently been affirmed in Reich v. Collins -- U.S. -- (1994) O'Connor J.). Is there more ? And, can anyone offer a prediction as to what will happen on remand ? Eoin O'Dell. ================================================================ FULTON CORP. v. FAULKNER, SECRETARY OF REVENUE OF NORTH CAROLINA Docket 94-1239 -- Decided February 21, 1996 ================================================================ During the period in question here, North Carolina levied an - intangibles tax on a fraction of the value of corporate stock owned by state residents inversely proportional to the corporation's exposure to the State's income tax. Petitioner Fulton Corporation, a North Carolina company, filed a state- court action against respondent State Secretary of Revenue, seeking a declaratory judgment that this tax violated the Commerce Clause and a refund of the 1990 tax it had paid on stock it owned in out-of-state corporations that did only part or none of their business in the State. The trial court ruled for the Secretary, but the Court of Appeals reversed. In reversing the Court of Appeals, the North Carolina Supreme Court found that the State's scheme imposed a valid compensatory tax under Darnell v. Indiana, 226 U.S. 390. It thus rejected Fulton's contention that Darnell had been overruled by this Court's more recent decisions and found that the intangibles tax imposed less of a burden on interstate commerce than the corporate income tax placed on intrastate commerce. Held: North Carolina's intangibles tax discriminates against interstate commerce in violation of the dormant Commerce Clause. Š Š The state courts should determine in the first instance the proper remedy and whether Fulton has complied with the procedural requirements of the State's tax refund statute. Pp. 21-23. 338 N.C. 472, 450 S.E.2d 728, reversed and remanded. Souter, J., delivered the opinion for a unanimous Court. Rehnquist, C. J., filed a concurring opinion. --------------------------------------------------------------- HOW TO ACCESS OR ORDER EMAIL DELIVERY OF ITEMS REPORTED IN THIS BULLETIN --------------------------------------------------------------- The full text of these decisions is archived at the ftp site ftp.cwru.edu in several formats (filtered ascii, original ascii, and WordPerfect). You can also access the decisions using the LII's gopher server at gopher.law.cornell.edu, or through our World Wide Web server at http://www.law.cornell.edu/. Finally, if you have only email access to the internet, you can retrieve these documents by sending a mail message to liideliver@lii.law.cornell.edu. Put your document requests in the body of the message like: request 94-1239 You can request several decisions at once by putting them on separate lines. Request court decisions using the docket number as it appears with the syllabus. --------------------------------------------------------------- EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland (All opinions are personal; no legal responsibility whatsoever is accepted.) Live Long and Prosper !! Date: Sun, 25 Feb 1996 22:36:23 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: Re: restitution Corrective Justice Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca On 26 Feb, Mitchell McInnes wrote: >It occasionally is said that the law of restitution (at least in the >subtractive enrichment sense) is based upon a notion of corrective justice. >The issue was explored in Barker, "Unjust Enrichment: Containing the Beast" >(1995) 15 OJLS 457. Does anyone know of additional citations or have any >thoughts on the matter? Specifically, I am interested in the issue as it >pertains to the second element of the principle of unjust enrichment ("at the >plaintiff's expense"). This is the first time I have had the pleasure of responding to an email before it was sent. Such is the time difference between Melbourne and Edmonton. You might want to take a look at "Corrective Justice and Wrongful Gain," Chapter 8 in Jules Coleman, *Markets, Morals and the Law* (CUP, 1988). Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 From: Mitchell=McInnes%LawStaff%UNIMELB@muwaye.unimelb.edu.au Date: Mon, 26 Feb 1996 11:04:46 +0000 (MUT) Subject: restitution Corrective Justice To: restitution@majordomo.srv.ualberta.ca X-Priority: 3 (Normal) Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca It occasionally is said that the law of restitution (at least in the subtractive enrichment sense) is based upon a notion of corrective justice. The issue was explored in Barker, "Unjust Enrichment: Containing the Beast" (1995) 15 OJLS 457. Does anyone know of additional citations or have any thoughts on the matter? Specifically, I am interested in the issue as it pertains to the second element of the principle of unjust enrichment ("at the plaintiff's expense"). Mitchell McInnes University of Melbourne From: C.I.Rotherham@sussex.ac.uk (Craig Rotherham) Date: Mon, 26 Feb 1996 13:00:53 GMT Subject: Re: restitution Corrective Justice To: restitution@majordomo.srv.ualberta.ca cc: restitution@majordomo.srv.ualberta.ca Priority: Normal Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca On Mon, 26 Feb 1996 11:04:46 +0000 (MUT) Mitchell=McInnes%LawStaff%UNIMELB@muwaye.unimelb.edu.au wrote: > From: Mitchell=McInnes%LawStaff%UNIMELB@muwaye.unimelb.edu.au> Date: Mon, 26 Feb 1996 11:04:46 +0000 (MUT) > Subject: restitution Corrective Justice > To: restitution@majordomo.srv.ualberta.ca > > It occasionally is said that the law of restitution (at least in the > subtractive enrichment sense) is based upon a notion of corrective justice. > The issue was explored in Barker, "Unjust Enrichment: Containing the Beast" > (1995) 15 OJLS 457. Does anyone know of additional citations or have any > thoughts on the matter? Specifically, I am interested in the issue as it > pertains to the second element of the principle of unjust enrichment ("at the > plaintiff's expense"). > > Mitchell McInnes > University of Melbourne Dear Mitchell, I had a look for Barker's article today but couldn't find it in our library. I'm not sure what sources are cited there but I will offer some thoughts anyway. The classic starting pointing is obviously Aristotle's Ethics. He distinguished corrective (also translated as 'rectificatory' and 'commutative' in various editions) justice from distributive justice and subsequently there has been a tendency to regard the former as the province of the judiciary in formulating the common law while the latter is the province of the legislature. The idea was that corrective justice simply involves returning the parties to the status quo that prevailed before the events in question took place. It is regarded as particularly compelling for this reason. A classic and highly influential discussion of corrective justice and the strength of different claims for relief appears in Fuller and Purdue, "The Reliance Interest in Contract Damages' 46 Yale LJ 52 (1936). Fuller regards cases of restitution by subtraction as presenting a much more powerful claim for relief than ones for compensation in tort and regarded claims for compensation in respect of executory contracts as particularly weak. Restitution by subtraction is really the paradigm case of corrective justice as the idea behind is restoring what was taken and thus restoring the parties status quo. In fact Aristotle tried to fit the rest of the private law into this paradigm by arguing that compensation for wrongs in fact involved restitution as the wrongdoer could be regarded as gaining from his wrong. This seems dubious and this is Coleman's argument in the article Lionel Smith mentioned. In fact the place of tort within corrective justice is more problematic. I think Jeremy Waldron also discusses this in the context of a review of Coleman's 'Markets and Morals' in the Yale Law Journal a few years back. I am not sure what aspect of 'at the expense of the plaintiff' you are interested in but restitution for wrongs is particularly interesting in this context. It is very difficult to justify this form of relief as corrective justice. Thus Birks sees it larely in terms of providing a deterrent - the 'prophylatic' principle. Others see it as having a retributive motive. There is a very interesting discussion of restitution for wrongs and corrective justice in Stevens, "Restitution, Property and the Cause of Action in Unjust Enrichment' (1989) 39 U of TJ 258. The issue is considered in the latest edition of the Restitution Law Review by Jaffey, "Restitutionary Damages and Disgorgement' where he considers the various rationales for relief in this context. Generally the question of the rationale for relief in the context of restitution for wrongs is also central to the question of whether that relief should be personal or proprietary. There is alot of literature on these issues (see eg the references in Jaffey to Birks, Smith and Jackman). A very good discussion of corrective justice and the question of proprietary relief appears in Sherwin, "Constructive Trust in Bankruptcy' [1989] Illinois L Rev 297. Good luck Craig Rotherham Sussex Date: Tue, 27 Feb 1996 10:53:20 -0500 (EST) From: Wendy Gordon Subject: restitution Restitution and Corrective Justice To: Restitution List cc: "W.J. Gordon" Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Two of my articles discuss the issue-- of the two, the one in the Virginia Law Review has the most explicit and extensive discussion of corrective justice, but both address the underlying dynamics of the 'subtractive' issue. The cites are: On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 Virginia Law Review 149-281 (1992). Of Harms and Benefits: Torts, Restitution, and Intellectual Property, 21 Journal of Legal Studies 449-482 (1992). (That's the J of Legal Studies out of the U of Chicago.) Jules Coleman also published a reaction to my use of corrective justice to analyze restitution-- I don't have the exact cite, but Jules's piece follows mine in the same volume of the Virginia L Review. (I think Jules misses my point, but I may be self-interested...) You should also be sure to see the work on corrective justice by Ernest Weinreb which I cite in my Virginia piece-- and keep your eyes out for a new book by Weinreb which I hear will be examining the corrective justice/restitution issue in more depth than he usually has. (Weinreb's former focus was on Torts rather than restitution.) --------------------------------------------------------- Wendy J. Gordon | Professor of Law | Internet: wgordon@bu.edu Boston University Law School | Phone: 617-353-4420 765 Commonwealth Avenue | Fax: 617-353-3077 Boston, MA 02215 | ----------------------------------------------------------------- On Mon, 26 Feb 1996 Mitchell=McInnes%LawStaff%UNIMELB@muwaye.unimelb.edu.au wrote: > It occasionally is said that the law of restitution (at least in the > subtractive enrichment sense) is based upon a notion of corrective justice. > The issue was explored in Barker, "Unjust Enrichment: Containing the Beast" > (1995) 15 OJLS 457. Does anyone know of additional citations or have any > thoughts on the matter? Specifically, I am interested in the issue as it > pertains to the second element of the principle of unjust enrichment ("at the > plaintiff's expense"). > > Mitchell McInnes > University of Melbourne