-- >From eodell@dux4.tcd.ie Wed Jan 13 14:16:37 1999 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 100R65-0002Z4-00 for restitution@maillist.ox.ac.uk; Wed, 13 Jan 1999 14:16:37 +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 OAA05929 for ; Wed, 13 Jan 1999 14:15:23 GMT Date: Wed, 13 Jan 1999 14:15:23 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Re: RDG: RESTITUTION - TENANTS RIGHTS Hello All Happy New Year from Dublin Jerry Margolius wrote: >I am trying to obtain information regarding the valuing of tenants rights >in >respect of losses suffered as a result of losing their rights (usually > >occupational) held in respect of immovable property. It might be that my brain has not yet kicked into gear this year, but I am not entirely sure that I know what the request means. Termination of tenancy may occur by the completion of the term, or otherwise. If it occurs by the completion of the term, I find it difficult to see what "losses" the tenant might have. In certain circumstances, statute gives many tenants the right to a further term, and, again, when that is complete, I still find it difficult to see what "losses" the tenant might have. If, during the course of the term, the tenant has made improvements, there may be a statutory right to compensation, usually in the form of a reduction of the rent; or perhaps such improvements might go to the right to a further statutory tenancy (depending on the legislation in the relevant jurisdiction). However, claims based on proprietary estoppel and/or restitution routinely fail to generate any further remedy for the tenant [see eg the Irish case of _O'Callaghan v Ballincollig Holdings_ (High Court, unreported, 31 March 1993, Blayney J) [1993] RLR =A7 166 reproduced below; and discussed in a little detail in (1993) 15 DULJ (ns) 27, 38-40]. If termination of tenancy occurs otherwise than by the completion of the term, as by the serving by the landlord of a notice to quit upon the tenant, the lease and statute regulate what rights the tenant has. If the landlord is terminating for a cause such as the breach by the tenant of a condition of the lease (eg non-payment of rent), again, I still find it difficult to see what "losses" the tenant might have. Further, if the lease provides for the landlord's termination in other circumstances, if the landlord chooses to exercise this right, though the tenant has lost the right to occupation, there is still no loss since the bargained for lease was for the right to occupy until the landlord served the notice to quit. =46or all these reasons, I am not sure that I fully understand the space in which the query can operate. Can someone elighten me ? Thanks Eoin. ____________________________________________________________________________= _ _O'Callaghan v Ballincollig Holdings_ (High Court, unreported, 31 March 1993, Blayney J) The plaintiffs were tenants of the defendants. When the premises were damaged by fire in 1981 and 1983, the plaintiffs repaired the premises, spending =A3 27,000 and =A3 16,000 respectively. In a claim for a lien over = the property in the amount of =A3 43,000, it was Held by Blayney J that neither "proprietary estoppel" nor "unjust enrichment" provided a basis for the lien. 1. The relationship of landlord and tenant existed at all times between the parties. The plaintiff had exclusive possession, and could have carried out any repairs they liked. The defendants had no right to stop them. It was thus not a case of the defendants standing idly by. "For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it." (Ramsden v Dyson (1886) LR 1 HL 129, 141 per Lord Cranworth LC approved). 2. On the "unjust enrichment" claim, counsel for the plaintiff cited Rogers v Louth Co Co [1981] ILRM 144 and O'Connell v Listowel UDC (1957) Ir Jur Rep 43. The former concerned restitution of money paid under a mistake of law to a local authority, the latter concerned a quantum meruit for services rendered under a void contract (per O'Briain J, approving and following Craven Ellis v Canons [1936] 2 KB 403). Neither supported the plaintiffs' claim. ____________________________________________________________________________= _ EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353- 1) or (01) 608 1178 Dublin 2 fax (+ 353- 1) or (01) 677 0449 Ireland mobile/cellular (+ 353-86) or (086) 286 0739 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) >From jerrym@mweb.co.za Mon Jan 18 11:39:27 1999 Received: from quantum.mweb.co.za ([196.2.16.241]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 102D1g-0000Jy-00 for restitution@maillist.ox.ac.uk; Mon, 18 Jan 1999 11:39:24 +0000 Received: from jerry (net-58-194.mweb.co.za [196.2.58.194]) by quantum.mweb.co.za (8.8.7/8.7.3) with SMTP id NAA11296; Mon, 18 Jan 1999 13:39:24 +0200 From: "JERRY MARGOLIUS" To: Cc: Subject: Date: Thu, 14 Jan 1999 10:31:16 +0200 Message-ID: <01be3f98$4069b180$LocalHost@jerry> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_001A_01BE3FA9.03F28180" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.71.1712.3 X-MimeOLE: Produced By Microsoft MimeOLE V4.71.1712.3 This is a multi-part message in MIME format. ------=_NextPart_000_001A_01BE3FA9.03F28180 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Thanks for reverting back to me. The problem as mentioned is not a = simple contractual breach/=20 =20 The tenants rights that were lost came about as a result of apartheid in = South Africa and the Governments Policy of segregation of seperate = residential and business areas set aside for the various communities.. As you are no doubt aware, and without me being too political, the = previous Government introduced GROUP AREA LEGISLATION in 1950 which = effectively controlled the occupation of land. Areas throughout our = country were set aside for specific race groups to live. This 1950 the Group Areas Act when passed, addressed the provisions on = how to control ownership and occupation of land. However, although it = did adequately address the aspect as to how people were to be removed, = the Act simply provided the title of "disqualified persons" and = "disqualified company" for those who resided in demarcated areas. = Disqualified persons were able to retain ownership of their property in = their lifetime but their heirs would be required to dispose of the = inherited property to a member of the applicable race group. Properties = owned by "disqualified companies" were required to dispose of the = property within ten years.=20 The Group Areas Development Act of 1955 was subsequently passed. This = Act dealt with the disposing and acquiring of "disqualified" properties = now termed "affected property". The Act could apply to any group but its = application was not mandatory. However, once applicable all affected = property would at first have to be offered to the Group Areas = Development Board. Only when the Board waived its rights could a sale = take place. Due to the implementation of this racial legislation, people were = dispossessed of their properties and their rights. Forced removal took = place and subsequently new buildings were erected in the affected areas. = The new ANC Government then passed a Land Restitution Act in 1994 to = enable those people who had lost their rights in property to receive = restitution either in the form of returning the property to them or = financial compensation etc. =20 I have dealt with the situation pertaining to ownership of the land but = I am now seeking information on dealing with the Tenants Rights and how = to compensate them. Ideally, international restitution court cases would = be help tremendously in enabling us to set precedents in our courts. =20 If you require further information please advise. =20 Regards =20 JERRY =20 ------=_NextPart_000_001A_01BE3FA9.03F28180 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Thanks for reverting back to = me. The=20 problem as mentioned is not a simple contractual = breach/ 
 
The tenants rights that were lost came about as a = result of=20 apartheid in South Africa and the Governments Policy of segregation of = seperate=20 residential and business areas set aside for the various=20 communities..
As you are no doubt  aware, and without me = being too=20 political, the previous Government introduced GROUP AREA LEGISLATION in = 1950=20 which effectively controlled the occupation of land. Areas throughout = our=20 country were set aside for specific race groups to live.
This 1950 the Group Areas Act = when passed,=20 addressed the provisions on how to control ownership and occupation of = land.=20 However, although it did adequately address the aspect as to how people = were to=20 be removed, the Act simply provided the title of "disqualified=20 persons" and "disqualified company" for those who resided = in=20 demarcated areas. Disqualified persons were able to retain ownership of their = property in=20 their lifetime but their heirs would be required to dispose of the = inherited=20 property to a member of the applicable race group. Properties owned by=20 "disqualified companies" were required to dispose of the = property=20 within ten years.
The Group Areas=20 Development Act of 1955 was subsequently passed. This Act dealt with the = disposing and acquiring of "disqualified" properties now = termed=20 "affected property". The Act could apply to any group = but its=20 application was not mandatory. However, once applicable all affected = property=20 would at first have to be offered to the Group Areas Development Board. = Only=20 when the Board waived its rights could a sale take = place.
Due to the implementation of this racial = legislation, people=20 were dispossessed of their properties and their rights. Forced removal = took=20 place and subsequently new buildings were erected in the affected areas. = The new=20 ANC Government then passed a Land Restitution Act  in 1994 to = enable those=20 people who had lost their rights in property to receive restitution = either in=20 the form of returning the property to them or financial compensation=20 etc.
 
I have dealt with the situation pertaining to = ownership of the=20 land but I am now seeking information on dealing with the Tenants Rights = and how=20 to compensate them. Ideally, international restitution court cases would = be help=20 tremendously in enabling us to set precedents in our = courts.
 
If you require further information please = advise.
 
Regards
 
JERRY
 
------=_NextPart_000_001A_01BE3FA9.03F28180-- >From jerrym@mweb.co.za Thu Jan 21 20:10:10 1999 Received: from quantum.mweb.co.za ([196.2.16.241]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 103QKU-0003j3-00 for restitution@maillist.ox.ac.uk; Thu, 21 Jan 1999 20:03:51 +0000 Received: from jerry (net-59-213.mweb.co.za [196.2.59.213]) by quantum.mweb.co.za (8.8.7/8.7.3) with SMTP id WAA27295; Thu, 21 Jan 1999 22:03:28 +0200 From: "JERRY MARGOLIUS" To: "Eoin O' Dell" Cc: Subject: Re: RDG: RESTITUTION - TENANTS RIGHTS Date: Thu, 21 Jan 1999 21:57:39 +0200 Message-ID: <01be4578$4c76d1c0$d53b02c4@jerry> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.71.1712.3 X-MimeOLE: Produced By Microsoft MimeOLE V4.71.1712.3 Content-Transfer-Encoding: quoted-printable X-MIME-Autoconverted: from 8bit to quoted-printable by quantum.mweb.co.za id WAA27295 Dear Eion Thanks for reverting back to me- sorry for the delay in replying I have b= een on leave. The problem as mentioned is not a simple contractual breach. The tenants rights that were lost came about as a result of apartheid in South Africa and the Governments Policy of segregation of seperate residential and business areas set aside for the various communities.. As you are no doubt aware, and without me being too political, the previ= ous Government introduced GROUP AREA LEGISLATION in 1950 which effectively controlled the occupation of land. Areas throughout our country were set aside for specific race groups to live. This 1950 the Group Areas Act when passed, addressed the provisions on ho= w to control ownership and occupation of land. However, although it did adequately address the aspect as to how people were to be removed, the Ac= t simply provided the title of "disqualified persons" and "disqualified company" for those who resided in demarcated areas. Disqualified persons were able to retain ownership of their property in their lifetime but the= ir heirs would be required to dispose of the inherited property to a member = of the applicable race group. Properties owned by "disqualified companies" w= ere required to dispose of the property within ten years. The Group Areas Development Act of 1955 was subsequently passed. This Act dealt with the disposing and acquiring of "disqualified" properties now termed "affected property". The Act could apply to any group but its application was not mandatory. However, once applicable all affected property would at first have to be offered to the Group Areas Development Board. Only when the Board waived its rights could a sale take place. Due to the implementation of this racial legislation, people were dispossessed of their properties and their rights. Forced removal took pl= ace and subsequently new buildings were erected in the affected areas. The ne= w ANC Government then passed a Land Restitution Act in 1994 to enable thos= e people who had lost their rights in property to receive restitution eithe= r in the form of returning the property to them or financial compensation e= tc. I have dealt with the situation pertaining to ownership of the land but I= am now seeking information on dealing with the Tenants Rights and how to compensate them. Ideally, international restitution court cases would be help tremendously in enabling us to set precedents in our courts. If you require further information please advise. Regards JERRY -----Original Message----- From: Eoin O' Dell To: restitution@maillist.ox.ac.uk Date: January 13, 1999 04:53 Subject: Re: RDG: RESTITUTION - TENANTS RIGHTS Hello All Happy New Year from Dublin Jerry Margolius wrote: >I am trying to obtain information regarding the valuing of tenants right= s >in >respect of losses suffered as a result of losing their rights (usual= ly > >occupational) held in respect of immovable property. It might be that my brain has not yet kicked into gear this year, but I a= m not entirely sure that I know what the request means. Termination of tenancy may occur by the completion of the term, or otherwise. If it occurs by the completion of the term, I find it difficul= t to see what "losses" the tenant might have. In certain circumstances, statute gives many tenants the right to a further term, and, again, when that is complete, I still find it difficult to see what "losses" the tena= nt might have. If, during the course of the term, the tenant has made improvements, there may be a statutory right to compensation, usually in the form of a reduction of the rent; or perhaps such improvements might g= o to the right to a further statutory tenancy (depending on the legislation in the relevant jurisdiction). However, claims based on proprietary estoppel and/or restitution routinely fail to generate any further remedy for the tenant [see eg the Irish case of _O'Callaghan v Ballincollig Holdings_ (High Court, unreported, 31 March 1993, Blayney J) [1993] RLR = =A7 166 reproduced below; and discussed in a little detail in (1993) 15 DULJ (ns) 27, 38-40]. If termination of tenancy occurs otherwise than by the completion of the term, as by the serving by the landlord of a notice to quit upon the tenant, the lease and statute regulate what rights the tenant has. If the landlord is terminating for a cause such as the breach by the tenant of a condition of the lease (eg non-payment of rent), again, I still find it difficult to see what "losses" the tenant might have. Further, if the lea= se provides for the landlord's termination in other circumstances, if the landlord chooses to exercise this right, though the tenant has lost the right to occupation, there is still no loss since the bargained for lease was for the right to occupy until the landlord served the notice to quit. For all these reasons, I am not sure that I fully understand the space in which the query can operate. Can someone elighten me ? Thanks Eoin. _________________________________________________________________________= ___ _ _O'Callaghan v Ballincollig Holdings_ (High Court, unreported, 31 March 1993, Blayney J) The plaintiffs were tenants of the defendants. When the premises were damaged by fire in 1981 and 1983, the plaintiffs repaired the premises, spending =A3 27,000 and =A3 16,000 respectively. In a claim for a lien ov= er the property in the amount of =A3 43,000, it was Held by Blayney J that neither "proprietary estoppel" nor "unjust enrichment" provided a basis for the lien. 1. The relationship of landlord and tenant existed at all times between t= he parties. The plaintiff had exclusive possession, and could have carried o= ut any repairs they liked. The defendants had no right to stop them. It was thus not a case of the defendants standing idly by. "For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it." (Ramsden v Dyson (1886) LR 1 HL 129, 141 per Lord Cranworth LC approved). 2. On the "unjust enrichment" claim, counsel for the plaintiff cited Roge= rs v Louth Co Co [1981] ILRM 144 and O'Connell v Listowel UDC (1957) Ir Ju= r Rep 43. The former concerned restitution of money paid under a mistake of law to a local authority, the latter concerned a quantum meruit for services rendered under a void contract (per O'Briain J, approving and following Craven Ellis v Canons [1936] 2 KB 403). Neither supported the plaintiffs' claim. _________________________________________________________________________= ___ _ EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353- 1) or (01) 608 1178 Dublin 2 fax (+ 353- 1) or (01) 677 0449 Ireland mobile/cellular (+ 353-86) or (086) 286 0739 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepte= d.) _________________________________________________________________________= ___ ____ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unju= st enrichment. To subscribe, send "subscribe restitution" in the body of a message to . To unsubscribe, send "unsubscri= be restitution" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith = of St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email . >From AXELRODA@wpgate.law3.georgetown.edu Fri Jan 22 14:35:00 1999 Received: from wpgate.law3.georgetown.edu ([141.161.16.100]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 103hfm-0006hK-00 for restitution@maillist.ox.ac.uk; Fri, 22 Jan 1999 14:35:00 +0000 Received: from LAWCAMPUS-Message_Server by wpgate.law3.georgetown.edu with Novell_GroupWise; Fri, 22 Jan 1999 09:33:01 -0500 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Fri, 22 Jan 1999 09:32:56 -0500 From: "Alan Axelrod" To: jerrym@mweb.co.za, eodell@tcd.ie Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: RESTITUTION - TENANTS RIGHTS -Reply Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline >>> "JERRY MARGOLIUS" 01/21 2:57 pm >>> The tenants rights that were lost came about as a result of apartheid in South Africa and the Governments Policy of segregation of seperate residential and business areas set aside for the various communities.. The new ANC Government then passed a Land Restitution Act in 1994 to enable those people who had lost their rights in property to receive restitution either in the form of returning the property to them or financial compensation = etc. I have dealt with the situation pertaining to ownership of the land but I = am now seeking information on dealing with the Tenants Rights and how to compensate them. Ideally, international restitution court cases would be help tremendously in enabling us to set precedents in our courts. thee are numerous US cases on valuation of a leasehold when the fee is = taken by eminent domain, to which a lead may be obtained through any of = the standard US encyclopedias [eg Am Jur] under the head 'eminent domain' = =20 >From lionel.smith@law.oxford.ac.uk Fri Jan 22 14:41:42 1999 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 103hmI-0006j7-00 for restitution@maillist.ox.ac.uk; Fri, 22 Jan 1999 14:41:42 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 103hl3-0001tK-00 for restitution@maillist.ox.ac.uk; Fri, 22 Jan 1999 14:40:25 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.10 #2) id 103hl2-00074Q-00 for restitution@maillist.ox.ac.uk; Fri, 22 Jan 1999 14:40:25 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 22 Jan 1999 14:40:31 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion Date: Fri, 22 Jan 1999 09:32:56 -0500 From: "Alan Axelrod" To: jerrym@mweb.co.za, eodell@tcd.ie Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: RESTITUTION - TENANTS RIGHTS -Reply Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline >>> "JERRY MARGOLIUS" 01/21 2:57 pm >>> >The tenants rights that were lost came about as a result of apartheid in >South Africa and the Governments Policy of segregation of seperate >residential and business areas set aside for the various communities.. > > The new ANC Government then passed a Land Restitution Act in 1994 to >enable those >people who had lost their rights in property to receive restitution either >in the form of returning the property to them or financial compensation >etc. > >I have dealt with the situation pertaining to ownership of the land but I >am now seeking information on dealing with the Tenants Rights and how to >compensate them. Ideally, international restitution court cases would be >help tremendously in enabling us to set precedents in our courts. there are numerous US cases on valuation of a leasehold when the fee is taken by eminent domain, to which a lead may be obtained through any of the standard US encyclopedias [eg Am Jur] under the head 'eminent domain' >From lionel.smith@law.oxford.ac.uk Fri Jan 29 13:20:03 1999 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 106Dq7-0007MD-00 for restitution@maillist.ox.ac.uk; Fri, 29 Jan 1999 13:20:03 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 106Doo-0006Nq-00; Fri, 29 Jan 1999 13:18:42 +0000 Received: from max75.public.ox.ac.uk ([192.76.27.75] helo=[192.76.27.26]) by sable.ox.ac.uk with esmtp (Exim 2.11 #1) id 106Dok-0007sM-00; Fri, 29 Jan 1999 13:18:40 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk, david.vaver@law.ox.ac.uk From: Lionel Smith Subject: Confidentiality in SCC Date: Fri, 29 Jan 1999 13:18:40 +0000 Released yesterday is the decision of the Supreme Court of Canada in Cadbury Schweppes Inc. v. FBI Foods Ltd., the great Clamato case (a reference which only Canadians are likely to understand) (and those Canadians living in England may be interested to hear that some branches of Sainsbury's stock this "confection" (per Binnie J)). There is a great deal on the remedies available for breach of confidence. The judgment is on line at . Lionel >From steven.elliott@merton.oxford.ac.uk Sat Jan 30 12:06:28 1999 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 106ZAS-0001c6-00 for restitution@maillist.ox.ac.uk; Sat, 30 Jan 1999 12:06:28 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 106Z97-00062a-00 for restitution@maillist.ox.ac.uk; Sat, 30 Jan 1999 12:05:05 +0000 Received: from jw109.merton.ox.ac.uk ([163.1.168.109] helo=merton.ox.ac.uk) by sable.ox.ac.uk with esmtp (Exim 2.11 #1) id 106Z97-0000aJ-00 for restitution@maillist.ox.ac.uk; Sat, 30 Jan 1999 12:05:05 +0000 Message-ID: <36B2DCEA.4CBDCF0C@merton.ox.ac.uk> Date: Sat, 30 Jan 1999 10:20:26 +0000 From: Steven Elliott X-Mailer: Mozilla 4.06 [en] (Win95; I) MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Confidentiality in SCC References: Content-Type: multipart/alternative; boundary="------------1A6461701DF0770AE42BEA21" --------------1A6461701DF0770AE42BEA21 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I wonder if anyone can help me with the Cadbury Schweppes decision. I am going to trench on the boundaries of this maillist and question the Supreme Court's treatment of the compensation point rather than the restitution point (such as it was). Anyone whose digestion cannot stand a varied diet should hit the delete key now. The way I understand this case is as follows. The plaintiff Cadbury Schweppes (CS) licensed the defendant FBI Foods (FBI) to produce Clamato juice. (Let's not worry about the different parties to this.) In the course of this arrangement it revealed its secret recipe. In 1982 CS terminated the licensing arrangement by giving 12 months notice. By their contract FBI was entitled to compete in the juice market as long as its product did not contain clams. As soon as CS gave notice of termination, FBI turned its attention to developing a competing product. FBI successfully used CS's secret recipe in order to develop a clone that did not contain clams. This product was ready by the time the licence ended in 1983. Using the secret recipe was a breach of confidence. The trial judge held that if FBI had not used the secret recipe to assist in its product development then it could and would have developed a competing product as good in the same time, again before the end of the licence in 1983. FBI launched its product in 1983 and took some of CS's market share. CS sued FBI claiming compensatory damages and not disgorgement. The trial judge held that while there had been a breach of confidence, CS had suffered no loss. If FBI had not used the secret recipe it would nonetheless have been able to produce an equivalent product in the same time and also before the expiry of the licence in 1983, and would have done so. (The trial judge nonetheless awarded 'headstart' damages in the amount it would have cost FBI to hire a consultant to develop this product without the secret recipe, in other words the market value of the secret recipe, some $30, 000. The SCC did not allow this head of damages, rightly in my view as it in fact represented FBI's profits and not CS's loss. As the SCC observed, CS was not in the business of selling its secret recipe. This is a small restitution point in the case - for another see Newbury J's confused judgment in the Court of Appeal.) The SCC took a different view. Binnie J wrote the only judgment. He held that the 12 month period during which FBI might have developed a legitimate competing product should run not from the 1982 notice date, but rather from the 1983 end of licence date. So for 12 months from that 1983 time FBI was actually competing with CS when it should not have been and CS was suffering lost market share because of this. Here is what Binnie J said at paragraph 96: "The appellants argue that the 12-month period ought to begin with the date of the notice of April 15, 1982 and point out that the trial judge said the appellants could have developed a Caesar Cocktail-like tomato juice without using the Clamato manufacturing information "within the 12-month notice period". The fact is, however, that on April 15, 1983, the date when the licence expired, the appellants did not have a formulation for Caesar Cocktail that complied with their legal obligations to the respondents. They had in fact taken no steps to produce a product that complied. I see no reason to "backdate" the fiction of their hypothetical research to the notice period. The appellants did not begin to sell a product in breach of the confidence until April 15, 1983." I have some difficulty with this. My view is that since FBI could and would have developed a competing product before the 1983 end of the licence period, its wrong did not cause CS any loss. Binnie J accepted that the causation test in a case such as this is the conventional counterfactual "but for" test. Is there anything to say in favour of Binnie J's view? Perhaps there is, depending on how we characterize FBI's wrong: If FBI's wrong consists in selling a product developed using confidential information, then it did not breach confidence until sales began in 1983. Absent the wrong, FBI would not have sold these products beginning in 1983, and so what would it have done at that time? It would have turned its mind to developing an alternative product. And so that is when the 12 month period begins to run. I think that is how the SCC saw it. On the other hand, if FBI's wrong consisted in using the confidential information for unauthorized purposes, which would I think include using it in its own product development, the wrong would date from 1982 when FBI started researching its competing product. Absent its wrong, what would FBI have done at that 1982 date? It would have turned its attention to developing a competing product without the use of CS's trade secret. On this theory the 12 month development period runs from 1982 and expires along with the licence period in 1983. This I think is how the trial judge saw it. If this is the right way to frame the problem, then the SCC's approach has some cogency. Detriment, as the court confirmed elsewhere in the judgment, is an essential element of a breach of confidence 'cause of action' (a common law concept, but one that comes naturally once we move into damages relief.) CS did not suffer any detriment until FBI started to sell its competing product. So perhaps the cause of action was not complete until that time, namely in 1983. And perhaps then the causation test ought to be applied as of that date. The question might be tested by asking whether CS would have succeeded in an application brought on April 16, 1982 to enjoin FBI from using the secret recipe to develop a competing product, or whether it would only have been entitled to an injunction against the wrongful sales. This strikes me as too clever by half, but I would be grateful if anyone could tell me why? A final restitution point. I note that Binnie is scrupulous about using Lionel Smith's terminology - 'disgorgement' to identify profit stripping awards. Although the court does not refer to Dr Smith's work, I have it on good information that the relevant articles were argued before the court. Steven Elliott Lionel Smith wrote: > Released yesterday is the decision of the Supreme Court of Canada in > Cadbury Schweppes Inc. v. FBI Foods Ltd., the great Clamato case (a > reference which only Canadians are likely to understand) (and those > Canadians living in England may be interested to hear that some branches of > Sainsbury's stock this "confection" (per Binnie J)). There is a great deal > on the remedies available for breach of confidence. > > The judgment is on line at > . > > 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 restitution" in the body of a > message to . To unsubscribe, send "unsubscribe > restitution" to the same address. To make a posting to all group members, > send to . The list is run by Lionel Smith of > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email > . --------------1A6461701DF0770AE42BEA21 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit I wonder if anyone can help me with the Cadbury Schweppes decision.  I am going to trench on the boundaries of this maillist and question the Supreme Court's treatment of the compensation point rather than the restitution point (such as it was).  Anyone whose digestion cannot stand a varied diet should hit the delete key now.

The way I understand this case is as follows.  The plaintiff Cadbury Schweppes (CS) licensed the defendant FBI Foods (FBI) to produce Clamato juice.  (Let's not worry about the different parties to this.)  In the course of this arrangement it revealed its secret recipe.  In 1982 CS terminated the licensing arrangement by giving 12 months notice.  By their contract FBI was entitled to compete in the juice market as long as its product did not contain clams.  As soon as CS gave notice of termination, FBI turned its attention to developing a competing product.  FBI successfully used CS's secret recipe in order to develop a clone that did not contain clams.  This product was ready by the time the licence ended in 1983.  Using the secret recipe was a breach of confidence.  The trial judge held that if FBI had not used the secret recipe to assist in its product development then it could and would have developed a competing product as good in the same time, again before the end of the licence in 1983.  FBI launched its product in 1983 and took some of CS's market share.  CS sued FBI claiming compensatory damages and not disgorgement.

The trial judge held that while there had been a breach of confidence, CS had suffered no loss.  If FBI had not used the secret recipe it would nonetheless have been able to produce an equivalent product in the same time and also before the expiry of the licence in 1983, and would have done so.

(The trial judge nonetheless awarded 'headstart' damages in the amount it would have cost FBI to hire a consultant to develop this product without the secret recipe, in other words the market value of the secret recipe, some $30, 000.  The SCC did not allow this head of damages, rightly in my view as it in fact represented FBI's profits and not CS's loss.  As the SCC observed, CS was not in the business of selling its secret recipe.  This is a small restitution point in the case - for another see Newbury J's confused judgment in the Court of Appeal.)

The SCC took a different view.  Binnie J wrote the only judgment.  He held that the 12 month period during which FBI might have developed a legitimate competing product should run not from the 1982 notice date, but rather from the 1983 end of licence date.  So for 12 months from that 1983 time FBI was actually competing with CS  when it should not have been and CS was suffering lost market share because of this.  Here is what Binnie J said at paragraph 96:

"The appellants argue that the 12-month period ought to begin with the date of the notice of April 15, 1982 and point out that the trial judge said the appellants could have developed a Caesar Cocktail-like tomato juice without using the Clamato manufacturing information "within the 12-month notice period". The fact is, however, that on April 15, 1983, the date when the licence expired, the appellants did not have a formulation for Caesar Cocktail that complied with their legal obligations to the respondents. They had in fact taken no steps to produce a product that complied. I see no reason to "backdate" the fiction of their hypothetical research to the notice period. The appellants did not begin to sell a product in breach of the confidence until April 15, 1983."

I have some difficulty with this.  My view is that since FBI could and would have developed a competing product before the 1983 end of the licence period, its wrong did not cause CS any loss.  Binnie J accepted that the causation test in a case such as this is the conventional counterfactual "but for" test.

Is there anything to say in favour of Binnie J's view?  Perhaps there is, depending on how we characterize FBI's wrong:

If FBI's wrong consists in selling a product developed using confidential information, then it did not breach confidence until sales began in 1983.  Absent the wrong, FBI would not have sold these products beginning in 1983, and so what would it have done at that time?  It would have turned its mind to developing an alternative product.  And so that is when the 12 month period begins to run.  I think that is how the SCC saw it.

On the other hand, if FBI's wrong consisted in using the confidential information for unauthorized purposes, which would I think include using it in its own product development, the wrong would date from 1982 when FBI started researching its competing product.  Absent its wrong, what would FBI have done at that 1982 date?  It would have turned its attention to developing a competing product without the use of CS's trade secret.  On this theory the 12 month development period runs from 1982 and expires along with the licence period in 1983.  This I think is how the trial judge saw it.

If this is the right way to frame the problem, then the SCC's approach has some cogency.  Detriment, as the court confirmed elsewhere in the judgment, is an essential element of a breach of confidence 'cause of action' (a common law concept, but one that comes naturally once we move into damages relief.)  CS did not suffer any detriment until FBI started to sell its competing product.  So perhaps the cause of action was not complete until that time, namely in 1983.  And perhaps then the causation test ought to be applied as of that date.  The question might be tested by asking whether CS would have succeeded in an application brought on April 16, 1982 to enjoin FBI from using the secret recipe to develop a competing product, or whether it would only have been entitled to an injunction against the wrongful sales.

This strikes me as too clever by half, but I would be grateful if anyone could tell me why?

A final restitution point.  I note that Binnie is scrupulous about using Lionel Smith's terminology - 'disgorgement' to identify profit stripping awards.  Although the court does not refer to Dr Smith's work, I have it on good information that the relevant articles were argued before the court.

Steven Elliott
 
 

Lionel Smith wrote:

Released yesterday is the decision of the Supreme Court of Canada in
Cadbury Schweppes Inc. v. FBI Foods Ltd., the great Clamato case (a
reference which only Canadians are likely to understand) (and those
Canadians living in England may be interested to hear that some branches of
Sainsbury's stock this "confection" (per Binnie J)). There is a great deal
on the remedies available for breach of confidence.

The judgment is on line at
<http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/fbi.en.html>.

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 restitution" in the body of a
message to <majordomo@maillist.ox.ac.uk>. To unsubscribe, send "unsubscribe
restitution" to the same address. To make a posting to all group members,
send to <restitution@maillist.ox.ac.uk>. The list is run by Lionel Smith of
St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email
<lionel.smith@law.ox.ac.uk>.

--------------1A6461701DF0770AE42BEA21-- >From mpmcinne@julian.uwo.ca Sun Jan 31 15:37:33 1999 Received: from romeo.its.uwo.ca ([129.100.2.60]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 106ywH-0003rR-00 for restitution@maillist.ox.ac.uk; Sun, 31 Jan 1999 15:37:33 +0000 Received: from julian.uwo.ca by romeo.its.uwo.ca with ESMTP id KAA15597; Sun, 31 Jan 1999 10:36:00 -0500 (EST) X-Authentication-Warning: romeo.its.uwo.ca: Host lawmpm.law.uwo.ca [129.100.113.141] claimed to be julian.uwo.ca Message-ID: <36B478A2.B1FD3259@julian.uwo.ca> Date: Sun, 31 Jan 1999 10:37:06 -0500 From: Mitchell McInnes Organization: University of Western Ontario X-Sender: "Mitchell McInnes" (Unverified) X-Mailer: Mozilla 4.04 [en]C-UWODEC97 (Win95; I) MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: Constructive Trusts and the SCC References: <36B2DCEA.4CBDCF0C@merton.ox.ac.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I am urgently seeking an article, case comment or chapter that discusses the SCC's application of Roy Goode's constructive trust thesis in Soulos v Korkontzilas. If you have written or read such a paper, I would be very grateful to receive the citation. Many thanks, Mitchell McInnes