-- >From eodell@dux4.tcd.ie Thu Jul 02 13:51:53 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0yrjmD-0006Qb-00; Thu, 2 Jul 1998 13:51:53 +0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id OAA28248 for ; Thu, 2 Jul 1998 14:51:48 +0100 (BST) Date: Thu, 2 Jul 1998 14:51:48 +0100 (BST) Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O'Dell) Subject: Kleinwort Benson ? Hello all Dazed and confused of Dublin writes: A colleague thinks he heard that the speeches in Kleinwort Benson v Birmingham CC will be next Thursday. Is he right, or is this just a rumour, or have they already happened and I have simply managed to miss them, or are they already scheduled for some other date, or is the rest simply still silence ? >From lionel.smith@Law.oxford.ac.uk Fri Jul 03 10:23:00 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0ys2zc-00083Z-00; Fri, 3 Jul 1998 10:23:00 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Fri, 3 Jul 1998 11:22:54 +0100 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.1/8.8.3) with ESMTP id LAA13795; Fri, 3 Jul 1998 11:22:49 +0100 (BST) X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 3 Jul 1998 11:22:37 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Kleinwort Benson ? Cc: neil.steen@Lincoln.oxford.ac.uk, sara.antoniotti@Lincoln.oxford.ac.uk, john.coughlan@Lincoln.oxford.ac.uk, shay.lydon@Lincoln.oxford.ac.uk, christopher.simard@st-johns.oxford.ac.uk, shaheed.fatima@st-johns.oxford.ac.uk, cheeho.tham@st-edmund-hall.oxford.ac.uk, derval.walsh@st-edmund-hall.oxford.ac.uk, stephen.parmenter@st-edmund-hall.oxford.ac.uk, colin.west@St-Annes.oxford.ac.uk, iain.pester@Merton.oxford.ac.uk, charles.shaw@corpus-christi.oxford.ac.uk, gail.hubble@university-college.oxford.ac.uk Eoin O'Dell wrote: >A colleague thinks he heard that the speeches in Kleinwort Benson v >Birmingham CC will be next Thursday. Is he right, or is this just a rumour, >or have they already happened and I have simply managed to miss them, or >are they already scheduled for some other date, or is the rest simply still >silence ? Particularly for the benefit of those members of the RDG who are writing their BCL exam in restitution on Monday morning, I would say that I have spoken today (3 July) to the Judicial Office at the House of Lords and have been advised that the speeches have not been released and will NOT be released next week either. The HL web site at claims to put judgments on line within two hours of release. All of the cases released since this service began (Nov 96) are listed in alphabetical order, which makes it difficult (and increasingly difficult as time goes on) to see what has been newly added, especially if you are not looking for a particular case whose name you know. I today suggested to the webmaster that a reorganization might be appropriate (perhaps grouping cases by month and/or year of release, but especially having a "new judgments" section) and I suspect that if others made the same point, then some improvement would be more likely to be made. Lionel >From lionel.smith@Law.oxford.ac.uk Mon Jul 06 10:08:15 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0yt8Bz-0006Wf-00; Mon, 6 Jul 1998 10:08:15 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 6 Jul 1998 11:08:10 +0100 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.1/8.8.3) with ESMTP id LAA07554 for ; Mon, 6 Jul 1998 11:08:07 +0100 (BST) X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 6 Jul 1998 11:07:55 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: July LQR Lots to see in the July LQR: Articles: Sir Peter Millett, 'Restitution and Constructive Trusts' David Capper, 'Undue Influence and Unconscionability' Notes: P Watts, 'Subrogation - A Step Too Far?' (BFC v Parc (Battersea) Ltd [1992] 2 WLR 475 (HL)) RB Grantham and CEF Rickett, 'Liability for Interfering in a Breach of Trust' (Brown v Bennett, Rattee J The Times 3 January 1998) M Chen-Wishart, 'Restitutionary Damages for Breach of Contract' (A-G v Blake [1998] 1 All ER 833 (CA)) G Virgo, 'Jurisdiction over Unjust Enrichment Claims' (Kleinwort Benson v. Glasgow [1997] 3 WLR 923 (HL)) L Smith, 'W(h)ither Knowing Receipt?' (Gold v Rosenberg; Citadel General Assurance v Lloyds Bank Canada (1997) 152 DLR (4th) 385, 411 (SCC)) Reviews: FD Rose ed., Consensus ad Idem: Essays in Honour of Guenter Treitel (reviewed by Lord Cooke) Markesinis, Lorenz & Dannemann, The German Law of Obligations, vols I & II (reviewed by Schiemann LJ) Lionel >From swh10@cus.cam.ac.uk Tue Jul 07 11:44:07 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0ytWAJ-0000ms-00; Tue, 7 Jul 1998 11:44:07 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 1.950 #1) for restitution@maillist.ox.ac.uk id 0ytWAG-0005iV-00; Tue, 7 Jul 1998 12:44:04 +0100 Message-Id: <3.0.1.32.19980707124401.0081cb50@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Tue, 07 Jul 1998 12:44:01 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: restitution links Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I have made a few restitution links available at : http://www.law.cam.ac.uk/restitution/restitution.htm All comments, criticisms and suggestions are very welcome. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From sfd@holyrood.ed.ac.uk Thu Jul 09 17:21:58 1998 Received: from (holyrood.ed.ac.uk) [129.215.166.17] (sfd) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0yuKOL-0004xG-00; Thu, 9 Jul 1998 17:21:57 +0000 Received: from localhost (sfd@localhost) by holyrood.ed.ac.uk (8.8.7/8.8.7) with SMTP id SAA24479 for ; Thu, 9 Jul 1998 18:21:54 +0100 (BST) Date: Thu, 9 Jul 1998 18:21:54 +0100 (BST) From: Scott Dickson Reply-To: Scott Dickson To: restitution@maillist.ox.ac.uk Subject: Dollar Land v CIN Properties Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Although the HL opinions in Kleinwort Benson v Birmingham City Council et alii are not yet visible on the horizon, members of the RDG might be interested to note that the opinions in a Scottish restitution appeal will be issued next Thursday (16 July) at 2 pm. The appeal in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (previously reported at 1996 SC 331) was heard by Lords Browne-Wilkinson (in the chair), Jauncey of Tullichettle, Nolan, Hoffmann and Hope of Craighead. The opinions will be available on the HL web site as usual. Scott Dickson Intrant of the Faculty of Advocates Edinburgh Home: (01698) 375506 Work: (0141) 248 2484 Mobile, Messages and SMS: (0966) 163429 >From ur1piper@singnet.com.sg Sun Jul 12 10:48:20 1998 Received: from (iron.singnet.com.sg) [165.21.7.29] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0yvJg3-00014C-00; Sun, 12 Jul 1998 10:48:20 +0000 Received: from 7677188z (qtas0119.singnet.com.sg [165.21.56.29]) by iron.singnet.com.sg (8.8.7/8.8.7) with ESMTP id SAA14615 for ; Sun, 12 Jul 1998 18:48:15 +0800 (SGT) Message-Id: <199807121048.SAA14615@iron.singnet.com.sg> From: "The Piper" To: Subject: subscribe ur1piper@singnet.com.sg Date: Sun, 12 Jul 1998 13:35:37 +0800 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit >From gerhard.dannemann@Law.oxford.ac.uk Mon Jul 13 16:18:31 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0yvlJ9-0002kW-00; Mon, 13 Jul 1998 16:18:31 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 13 Jul 1998 17:18:28 +0100 Received: from law.ox.ac.uk (dhcp9.english.ox.ac.uk [163.1.114.209]) by ermine.ox.ac.uk (1.1/8.8.3) with ESMTP id RAA24288 for ; Mon, 13 Jul 1998 17:18:27 +0100 (BST) Message-ID: <35AA32B8.5C400E6A@law.ox.ac.uk> Date: Mon, 13 Jul 1998 17:15:52 +0100 From: Gerhard Dannemann X-Mailer: Mozilla 4.03 [en] (Win95; I) MIME-Version: 1.0 To: Restitution Maillist Subject: German Law of Restitution Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit For those interested in comparative law, and, more particularly, German law of restitution, here are a few links from the German Law Archive, a website which specialises in judgments, statutes, literature and bibliographies on German law in English language. Everything on this website is in English (or in both English and German), can be read directly on the screen and is accessible through a search mechanism. German Law Archive http://units.ox.ac.uk/departments/eurocomplaw/gla Excerpts from the German Civil Code relating to restitution in the wider sense: http://units.ox.ac.uk/departments/eurocomplaw/gla/statutes/BGBrest.htm Five leading cases on the German law of restitution: http://units.ox.ac.uk/departments/eurocomplaw/gla/judgments/bgh/BGH.htm This includes the following decisions by the Bundesgerichtshof, Germany's highest court in civil matters: Judgment of 11 January 1971, concerning restitution for wrongs and performance-based restitution (young bulls case) Judgment of 7 January 1971, concerning unjustified enrichment (minor flight case) Judgment of 19 January 1984, concerning unjustified enrichment in three party situations (bank transfer case) Judgment of 31 January 1990, concerning a contractor's claim for a quantum meruit in an illicit labour job Judgment of 24 February 1994, concerning guarantees given by inexperienced persons for the benefit of their relatives This is the address of the search mechanism of the Archive: http://units.ox.ac.uk/departments/eurocomplaw/gla/misc/search.htm Visits, criticism and comments are welcome. Gerhard Dannemann University of Oxford >From lionel.smith@Law.oxford.ac.uk Mon Jul 20 11:57:18 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0yyEZC-0001ns-00; Mon, 20 Jul 1998 11:57:18 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 20 Jul 1998 12:57:09 +0100 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.1/8.8.3) with ESMTP id MAA14427 for ; Mon, 20 Jul 1998 12:57:06 +0100 (BST) X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 20 Jul 1998 12:56:53 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Dollar Land Greetings all, and welcome to new members. As foreshadowed by Scott Dickson's posting of 9 July, on 16 July the House of Lords released its decision in the Scots case Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd. The case is available on the House's web site at . It is also good to notice that the web site has been rearranged with a "new judgments" section at the top, making it much easier to find new material. Thanks to members who joined my informal campaign to ask the webmaster to make this change; they might wish to thank the webmaster too , for being willing to do the extra work to respond to our suggestions. Lionel >From info@homebusinesscentral.net Mon Jul 27 13:16:37 1998 Received: from (homebusinesscentral.net) [208.29.220.141] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z0n8m-0007kw-00; Mon, 27 Jul 1998 13:16:36 +0000 To: From: Subject: CREDIT CARD PROCESSING X-RBL-Warning: Blackholed - see Message-Id: Date: Mon, 27 Jul 1998 13:16:36 +0000 Dear Friend, How would you like to be able to accept credit cards directly from your website, telephone or fax for your products and services and never need to purchase or lease expensive credit card equipment or pay a monthly fee for online ordering capabilities? **Brand New** Telecharge Credit Card acceptance program allows you to accept VISA or Mastercard any TIME,any WHERE through phone, fax or internet without the need to purchase or lease expensive credit card equipment. 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To be removed from this list please respond with "remove" in the subject line World Tech Inc. 7210 Jordan Ave. Canoga Park Ca. 91303 818-718-9429 info@homebusinesscentral.net >From eodell@dux4.tcd.ie Wed Jul 29 08:55:21 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z1S13-0002IG-00; Wed, 29 Jul 1998 08:55:21 +0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id JAA31276 for ; Wed, 29 Jul 1998 09:55:19 +0100 (BST) Date: Wed, 29 Jul 1998 09:55:19 +0100 (BST) Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Enrichment and ownership A little while ago, Charles Mitchell told us about Portman Building Soc v Hamlyn Taylor Neck (a firm), 22 April 1998, where Millett LJ rejected an action for restitution as 'entirely misconceived', since the society had not been enriched by its receipt of the money. If I understand this correctly, his point is that if the plaintiff still has title to the money, the defendant is not enriched by its receipt. Similarly, if I understood correctly Bill Swadling's LMCLQ piece on Bishopsgate v Macmillan, then he makes a similar point. If that is their point, then I think I disagree. Right now, and tenatively, I think that the relevant criterion of enrichment is that the defendant *has* the money, not that he *owns* it. A defendant who has the money can use it, and thus has the benefit of it. In such a case, the defendant is enriched. It may turn out that the defendant never owned the cash. Let it be that he did not own it at law because the plaintiff did. As I understand correctly the consequence of the absence of a vindicatio at common law, the only means of asserting common law title to money is by means of a personal action such as the action for money had and received. In such a case, the plaintiff's proprietary interest in the money is the foundation of the personal action. On the other hand, to say that if the plaintiff had title, the defendant is not enriched, and therefore no action for restitution (such as the action for money had and received) may lie, is to eviscerate the action. Rather, the position is that the plaintiff's title at law is the basis of the action for money had and received. Now, take the position where the plaintiff owned the money in equity. If there can be a personal action to vindicate the proprietary right at law, why can there not be a similar action in equity ? (Cp Lionel Smith's LQR note on Gold v Rosenberg and Citadel v Lloyds). In either case, the plaintiff's title (at law or in equity) does not deny the fact that the defendant has had the use of the money, and thus had that benefit. He may never have owned the money, but that does not change the fact that he has been benefitted and thus enriched by its receipt. Am I totally on the wrong track here ? Thanks, Eoin 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 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) >From lionel.smith@Law.oxford.ac.uk Wed Jul 29 11:28:18 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z1UP3-0002TW-00; Wed, 29 Jul 1998 11:28:17 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Wed, 29 Jul 1998 12:28:11 +0100 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.1/8.8.3) with ESMTP id MAA03101 for ; Wed, 29 Jul 1998 12:28:02 +0100 (BST) X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 29 Jul 1998 12:27:40 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Moving? This is a short administrative request, directed at members of the RDG who are students: if your subscribed address is one which you are about to leave, I would be grateful if you could unsubscribe it. This saves me work later on. Send "unsubscribe restitution" in the body of a message to . Many thanks, Lionel >From lionel.smith@Law.oxford.ac.uk Wed Jul 29 11:33:44 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z1UUK-0002VB-00; Wed, 29 Jul 1998 11:33:44 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Wed, 29 Jul 1998 12:33:37 +0100 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.1/8.8.3) with ESMTP id MAA29163 for ; Wed, 29 Jul 1998 12:33:32 +0100 (BST) X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 29 Jul 1998 12:33:11 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion From: Lionel Smith Subject: Moving? This is a short administrative request, directed at members of the RDG who are students: if your subscribed address is one which you are about to leave, I would be grateful if you could unsubscribe it. This saves me work later on. Send "unsubscribe restitution" in the body of a message to . Many thanks, Lionel >From r.grantham@auckland.ac.nz Wed Jul 29 22:58:04 1998 Received: from (mailhost.auckland.ac.nz) [130.216.1.4] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z1fAZ-0002yH-00; Wed, 29 Jul 1998 22:58:04 +0000 Received: from auckland.ac.nz (r.grantham.clw.auckland.ac.nz [130.216.162.91]) by mailhost.auckland.ac.nz (8.9.1/8.9.1/8.9.1-ua) with ESMTP id KAA11009 for ; Thu, 30 Jul 1998 10:57:56 +1200 (NZST) Message-ID: <35BFA9A8.17AEEF18@auckland.ac.nz> Date: Thu, 30 Jul 1998 11:00:56 +1200 From: Ross Grantham Organization: University of Auckland X-Mailer: Mozilla 4.05 [en] (Win95; I) MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: RE: Enrichment and Ownership Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit The Group may be interested to know that we have written a reasonably lengthly note of Portman Building Society v Hamlyn Taylor Neck. It will appear in the LMCLQ, hopefully the November issue. The case is noteworthy for its rejection of the concept of enrichment as a purely factual issue and the CA's apparent acceptance that in cases where the plaintiff retains title recovery is a response to the plaintiff's rights of ownership not to any unjust enrichment. As to Eoin's reference to a vindicatio in equity, the decision in Brown v Bennett is also notable. The Group is referred to our note in the July issue of the LQR ("Liability for Interfering in a Breach of Trust") Ross Grantham Charles Rickett University of Auckland >From charles.mitchell@kcl.ac.uk Thu Jul 30 16:24:21 1998 Received: from (mail.kcl.ac.uk) [137.73.66.6] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z1vV7-0003q6-00; Thu, 30 Jul 1998 16:24:21 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id RAA05584 for ; Thu, 30 Jul 1998 17:23:19 +0100 (BST) Message-Id: <1.5.4.32.19980730161919.006882b0@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 30 Jul 1998 17:19:19 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell In response to Eoin's recent message re property, unjust enrichment, vindicatio etc., I must say that I'm unhappy about the assumption which I understand him to make, and which is very widely held - see eg Goff & Jones, p 3, Birks [1997] NZLR pp 647-650 - that the action for money had and received is an action which can only be brought by a plaintiff whose claim is grounded in unjust enrichment. Granted, the result sought by a plaintiff bringing an action for money had and received is restitution. But there is no perfect quadration between unjust enrichment and restitution: restitution is not the only possible response to unjust enrichment in the courts' remedial armoury (cf simple subrogation; quia timet orders), and it is a response to other causative events besides unjust enrichment (cf Birks and Virgo at the Jonesfest). This leads me to think that the true explanation of cases like Holiday v Sigal and Lipkin Gorman is not that they belong under the heading of 'unjust enrichment' because the claimants in them brought an action for money had and received, but rather that the action for money had and received can be brought by plaintiffs whose claim lies in 'vindicatio' as well as by plaintiffs whose claim lies in unjust enrichment. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From eodell@dux4.tcd.ie Thu Jul 30 17:00:11 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z1w3n-0003tQ-00; Thu, 30 Jul 1998 17:00:11 +0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id SAA00768 for ; Thu, 30 Jul 1998 18:00:09 +0100 (BST) Date: Thu, 30 Jul 1998 18:00:09 +0100 (BST) Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Money had and received Charles Mitchell is >unhappy about the assumption which [he] understand [me] to make, and which >is >that the action for money had and >received is an action which can only be brought by a plaintiff whose claim >is grounded in unjust enrichment. He argues instead that, for various reasons >the action for >money had and received can be brought by plaintiffs whose claim lies in >'vindicatio' as well as by plaintiffs whose claim lies in unjust enrichment. I agree with Charles that we must be careful when we have actions that are in the main restitutionary not to assume that they are necessarily exclusively restitutionary (though they might be). Thus, in my view, the quantum meruit is not exclusively restitutionary, since the cases in which it is imposed speak the languauge of various issues, eg, of contract, fault, reliance and restitution. If we take these assertions seriously, then we have a contractual quantum meruit, a fault-based quantum meruit, a reliance-based quantum meruit, and a restitutionary quantum meruit. If so, it follows that it is a mistake to assume that the qm is essentially restitutionary (or contractual, fault-based, reliance based, and so on). Similarly, I agree with Charles that we must entertain the possibility that the action for money had and received is likewise multi-facted (or at least bifurcated). And if (what he usefully describes as) the 'vindicatio' cases cannot be accommodated within a coherent framwork of the law of restitution for unjust enrichment, then that action is bifurcated. On the other hand, if those cases can be so accommodated, then the action turns out to be exclusively restitutionary. My (tenative) view is that the 'vindicatio' cases *can* be accommodated within a coherent framwork of the law of restitution for unjust enrichment. That being so, (at present) I regard the action for money had and received as exclusively restitionary. As to why those cases can be regarded as restitution for unjust enrichment, the four enquiries (Birks, passim; Bricklayers Hall case, per Keane J; BFC v Parc per Lord Steyn) can be satisfied. In particular, the unjust factor will usually be one of the consent-related unjust factors. If the plaintiff's consent to the transaction is impaired because it is qualified (failure of basis), vitiated (duress, mistake) or absent (ignorance, incapacity), then there will be an unjust factor; and the defendant is enriched by the *receipt* of the money (which is the point of my first email on the point). If that is so, especially if the defendant is enriched by receipt, then a personal action for restitution of an unjust enrichment will lie against the defendant. Consequently, in reply to Charles, it was not so much that I assumed that the action for money had and received was restitutionary; rather I think the 'vindicatio' cases can be accommodated within a coherent framwork of the law of restitution for unjust enrichment, which leads to the conclusion that the action for money had and received is, in his words >the action for money had and >received is an action which can *only* be brought by a plaintiff whose >claim is grounded in unjust enrichment (emphasis added). But of course that only holds good if my conclusion above that receipt enriches is correct. Which is where I came in: does mere receipt enrich ? Eoin 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 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.)