-- >From joshua.getzler@law.oxford.ac.uk Thu Jul 01 00:29:13 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 10zTmz-0003j4-00 for restitution@maillist.ox.ac.uk; Thu, 1 Jul 1999 00:29:13 +0100 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10zTmw-00049n-00; Thu, 1 Jul 1999 00:29:10 +0100 Received: from getzler (helo=localhost) by ermine.ox.ac.uk with local-smtp (Exim 2.12 #1) id 10zTmw-0001l6-00; Thu, 1 Jul 1999 00:29:10 +0100 Date: Thu, 1 Jul 1999 00:29:10 +0100 (BST) From: Joshua Getzler To: Lionel Smith cc: restitution@maillist.ox.ac.uk Subject: CLDG In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Dear Lionel You mentioned that you might like to give a paper in the CLDG next term. I have papers now from Swadling, Whittaker and Getzler; so Smith would make four and complete the term. Let me know if you are interested - it could be anything you are working on. J >From simestap@isdux1.bham.ac.uk Thu Jul 01 10:45:34 1999 Received: from mailer3.bham.ac.uk ([147.188.128.54]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10zdPS-0004jw-00 for restitution@maillist.ox.ac.uk; Thu, 1 Jul 1999 10:45:34 +0100 Received: from bham.ac.uk ([147.188.128.127]) by mailer3.bham.ac.uk with esmtp (Exim 3.02 #16) id 10zdPD-0001Nb-00 for restitution@maillist.ox.ac.uk; Thu, 01 Jul 1999 10:45:19 +0100 Received: from isdugp.bham.ac.uk ([147.188.128.15] helo=isdux1.bham.ac.uk) by bham.ac.uk with esmtp (Exim 2.12 #2) id 10zdPO-0003vA-00 for restitution@maillist.ox.ac.uk; Thu, 1 Jul 1999 10:45:30 +0100 Received: by isdux1.bham.ac.uk (8.8.8/1.1.8.2/14Aug95-0452PM) id KAA0000023437; Thu, 1 Jul 1999 10:45:23 +0100 (BST) Date: Thu, 1 Jul 1999 10:45:23 +0100 (BST) From: AP Simester To: restitution@maillist.ox.ac.uk Subject: shorter article In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Lionel will no doubt be reluctant to boast of his paper on "Constructive Trusts and Constructive Trustees" in the latest issue of the Cambridge LJ, at 294. >From francis.rose@buck.ac.uk Thu Jul 01 14:08:32 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10zgZs-0005ov-00 for restitution@maillist.ox.ac.uk; Thu, 1 Jul 1999 14:08:32 +0100 Received: from LAW_6.buckingham.ac.uk ([194.83.163.186]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id OAA07534 for ; Thu, 1 Jul 1999 14:10:07 +0100 (BST) Message-Id: <199907011310.OAA07534@gateway.buckingham.ac.uk> From: "Francis Rose" To: Subject: Fw: shorter article Date: Thu, 1 Jul 1999 14:17:13 +0100 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 I assume that APS's comment is not meant to sound as ambiguous as it is. FDR ---------- > From: AP Simester > To: restitution@maillist.ox.ac.uk > Subject: RDG: shorter article > Date: 01 July 1999 10:45 > > > > Lionel will no doubt be reluctant to boast of his paper on "Constructive > Trusts and Constructive Trustees" in the latest issue of the Cambridge > LJ, at 294. > > > ____________________________________________________________________________ ____ > 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 > . >From lionel.smith@law.oxford.ac.uk Fri Jul 02 12:05:12 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 110184-0000WK-00 for restitution@maillist.ox.ac.uk; Fri, 2 Jul 1999 12:05:12 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 110180-0004id-00 for restitution@maillist.ox.ac.uk; Fri, 2 Jul 1999 12:05:08 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11017z-0008IL-00 for restitution@maillist.ox.ac.uk; Fri, 2 Jul 1999 12:05:07 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 2 Jul 1999 12:05:17 +0100 To: restitution@maillist.ox.ac.uk From: Lionel Smith Many will have noticed the change to the casebase service from Smith Bernal , which provides free access to English CA judgments. At the beginning of this year they announced that as from 1/1/99, the archive would only be updated at the end of each calendar year. So it has April 1996-December 1998, but the cases from 1999 will not be added until early 2000. Presumably they did this to enhance the value of their paying service which is called casetrack . I have just found out from Peter Birks that academics can register for casetrack for free. If you go to that page, look at the bottom for the "not for profit" link, and you can sign up. It takes three days to go through but then you are back to free access. If I am not mistaken (I am still in the 3 day purgatory) you get High Court judgments too. Lionel >From MagicKits@familyfun.com Sun Jul 11 00:32:00 1999 Received: from falcon.inetnebr.com ([199.184.119.1] ident=root) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1136bA-0005wg-00 for RESTITUTION@maillist.ox.ac.uk; Sun, 11 Jul 1999 00:32:00 +0100 Received: from Yahoo.com (lin-dsl2-011.inetnebr.com [209.50.17.11]) by falcon.inetnebr.com (8.8.8/8.8.8) with SMTP id SAA16883 for ; Sat, 10 Jul 1999 18:31:43 -0500 (CDT) From: MagicKits@familyfun.com Message-Id: <199907102331.SAA16883@falcon.inetnebr.com> To: RESTITUTION@maillist.ox.ac.uk Date: Sat, 10 Jul 99 18:25:17 -0500 Subject: Remember When You Were Going To Be A Magician? X-Mailer: CTMailer http://www.magickits.com/kits/ >From pcane@coombs.anu.edu.au Tue Jul 27 00:59:04 1999 Received: from postbox.anu.edu.au ([150.203.76.16]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 118ue6-00070q-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 00:59:02 +0100 Received: from coombs.anu.edu.au (coombs.anu.edu.au [150.203.76.2]) by postbox.anu.edu.au (8.9.1/8.9.1) with ESMTP id JAA25442 for ; Tue, 27 Jul 1999 09:59:29 +1000 (EST) Received: from [150.203.225.130] (lawhead-law.anu.edu.au [150.203.225.130]) by coombs.anu.edu.au (8.9.1/8.9.1) with ESMTP id JAA18776 for ; Tue, 27 Jul 1999 09:54:24 +1000 (EST) Message-Id: Mime-Version: 1.0 Content-Type: text/enriched; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Date: Tue, 27 Jul 1999 10:01:56 +1000 To: restitution@maillist.ox.ac.uk From: Peter Cane Times_New_RomanADVERTISEMEN= T THE AUSTRALIAN NATIONAL UNIVERSITY INSTITUTE OF ADVANCED STUDIES RESEARCH SCHOOL OF SOCIAL SCIENCES Social and Political Theory Group Postdoctoral Fellow/Research Fellow/Fellow/Senior Fellow/Professor (Level A, B, C, D, E) Salary: Postdoctoral Fellow (Level A): $37,422 - $45,159 pa* Research Fellow (Level B): $47,435 - $55,966 pa Fellow (Level C): $57,671 - $66,204 pa Senior Fellow (Level D): $69,047 - $75,872 pa Professor (Level E1): $88,386 pa Professor (Level E2): $93,734 pa Times_New_Roman(*a successful candidate holding a PhD will be appointed at $42,201pa) REF: SS 1.7.4 The Social and Political Theory Group in RSSS has recently been successful in a bid to the Institute of Advanced Studies Performance and Planning Fund. The Group now seeks to make several appointments, building around the existing core senior staff: Geoffrey Brennan, (Economics); Robert Goodin (Political Theory) and Philip Pettit (Social and Political Philosophy). One or more positions is expected to be at levels D or E; and one or more at levels A, B or C. One position may be a standard appointment; all other positions are for a fixed term up to a maximum of five years. The School would be especially interested in applications in the areas of feminist theory; history of social and political thought; legal philosophy; and law and economics. However, exceptional scholars in any area of social and political theory are encouraged to apply. While appointments are expected in a number of the areas mentioned, one will be in analytic social theory, with either economics or philosophy providing the primary disciplinary background. A disposition towards and/or a record in interdisciplinary enquiry will be an advantage. The Research School of Social Sciences encourages applications from women. =20 Enquiries: Professor Philip Pettit, Convenor, Social and Political Theory Group by tel: 61 2 62492632 or 62799608, fax: 61 2 62490599, email: philip.pettit@anu.edu.au Contact: Intending applicants must obtain a copy of the further particulars from the School Secretary, fax: 61 2 6249 0502, email: schoolsec.rsss@anu.edu.au, tel: 61 2 6249 2257. =20 CLOSING DATE: 20 August 1999=20 Professor Peter Cane Head, Law Program Research School of Social Sciences Australian National University Canberra ACT 0200 Tel: +61 2 6249 4162 Australia Fax: +61 2 6249 4933 Law Program Website: http://lawrsss.anu.edu.au/ >From lionel.smith@law.oxford.ac.uk Tue Jul 27 10:28:29 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 1193XB-00087w-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:28:29 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 1193Wr-0007hk-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:28:09 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 1193Wr-0001ZJ-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:28:09 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 27 Jul 1999 10:28:20 +0100 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new stuff In the new (July) LQR: Simon Evans, "Rethinking Tracing and the Law of Restitution" Aedit Abdullah and Tey Tsung Hang, "To Make the Remedy Fit the Wrong" (note on Cadbury Schweppes Inc. v. FBI Foods (1998) 167 DLR (4th) 577 (SCC)) Rory J White, "Restitution and the Doctrine of Ultra Vires" (note on Guinness Mahon Ltd. v. Kensington & Chelsea RLBC [1998] QB 215)) In the new (July) Trust Law International: Steven Elliott, "Fiduciary Liability for Client Mortgage Frauds" Claire Quinn, Review of Goff & Jones 5 ed. >From lionel.smith@law.oxford.ac.uk Tue Jul 27 10:34:48 1999 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1193dI-0008DX-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:34:48 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 1193cz-00074r-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:34:29 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 1193cz-0005JU-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 10:34:29 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 27 Jul 1999 10:34:40 +0100 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Resulting Trust Doctrine Air Jamaica Ltd. v. Charlton [1999] 1 WLR 1399 (PC, Jamaica): pension scheme surplus: at 1412BC per Lord Millett: "Like a constructive trust, a resulting trust arises by operation of law, though unlike a constructive trust it gives effect to intention. But it arises whether or not the transferor intended to retain a beneficial interest - he almost always does not - since it responds to the absence of any intention on his part to pass a beneficial interest to the recipient." Comments anyone? >From A.M.Tettenborn@exeter.ac.uk Tue Jul 27 11:36:00 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1194aW-0008Sn-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 11:36:00 +0100 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (LAA13377); Tue, 27 Jul 1999 11:35:40 +0100 (BST) Message-Id: <3.0.5.32.19990727113539.007c7100@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Tue, 27 Jul 1999 11:35:39 +0100 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: Resulting Trust doctrine Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Lionel is right: there is an incongruity. Presumably "gives effect to intention" means here "is arbitrarily presumed to represent the settlor's intention unless there is something explicit to the contrary." Rather like frustration in contract. Andrew Andrew Tettenborn Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England >From francis.rose@buck.ac.uk Tue Jul 27 11:55:06 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1194t0-00006O-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 11:55:06 +0100 Received: from LAW_6.buckingham.ac.uk ([194.83.163.186]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id LAA11300 for ; Tue, 27 Jul 1999 11:56:49 +0100 (BST) Message-Id: <199907271056.LAA11300@gateway.buckingham.ac.uk> From: "Francis Rose" To: Subject: SPTL Restitution Section Meeting 1999: 13-14 September, Leeds Date: Tue, 27 Jul 1999 12:03:43 +0100 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 SOCIETY OF PUBLIC TEACHERS OF LAW The SPTL's annual conference takes place at Leeds during 13-16 September. Participation is not restricted to SPTL members. Participants may attend all or part of the conference sessions. Full details are available from s.lacey@leeds.ac.uk. Herewith details of the Restitution Section meeting to be held during the conference. A splendid time is guaranteed for all. > > RESTITUTION > > Monday 13 September > > 10.30: Prof. Charles Rickett (Auckland) 'Of constructive trust and insolvency' > David Wright (Adelaide) 'The remedial constructive trust' > Prof Gerard McCormack (Essex) 'Restitution, policy and Insolvency' > > 1.30 Richard Calnan (Norton Rose) > 'Proprietary Claims for Mistaken transfers' > > 3.30 Richard Adkin QC and Nick Segal (Allen & Overy) > 'Subrogation, secured creditors and proprietary remedies' > > > Tuesday 14 September > > 9.00 Assoc Prof. Ross Grantham (Auckland) 'Insovent companies and the law of > restitution) > > 11.00 Prof. Andrew Keay (Wolverhampton), 'Voidable Preferences' >From charles.mitchell@kcl.ac.uk Tue Jul 27 12:25:16 1999 Received: from mail.kcl.ac.uk ([137.73.66.6] ident=root) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1195MB-0000N3-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 12:25:15 +0100 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.3/8.9.3) with SMTP id MAA04170 for ; Tue, 27 Jul 1999 12:14:47 +0100 (BST) Message-Id: <1.5.4.32.19990727111628.00698398@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: Tue, 27 Jul 1999 12:16:28 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Re: RDG: Resulting Trust doctrine If the time has come for systems of law as 'well-developed' as our own to do away with fictitious presumptions as a means of determining whether to award subrogation (per Lord Hoffmann in BFC v Parc), the same must also be true of resulting trusts. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 848 2290 fax: 0171 848 2465 e-mail: charles.mitchell@kcl.ac.uk >From swh10@cus.cam.ac.uk Tue Jul 27 13:38:20 1999 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1196Uu-0000dv-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 13:38:20 +0100 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 3.023 #2) id 1196Ua-0000qo-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 13:38:00 +0100 Message-Id: <3.0.1.32.19990727133758.007bbc30@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, 27 Jul 1999 13:37:58 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Resulting Trust doctrine In-Reply-To: <1.5.4.32.19990727111628.00698398@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" >If the time has come for systems of law as 'well-developed' >as our own to do away with fictitious presumptions as a >means of determining whether to award subrogation >(per Lord Hoffmann in BFC v Parc), the same must also >be true of resulting trusts. Fictions are not so easily avoided. After all, any commercial contract case is likely to involve at least three fictions just for starters : that companies are people, that these "people" have intentions, and that what is written in the contract documents can be taken as good evidence of those "intentions". (If both parties are companies, then of course each fiction must be applied twice, taking us up to 6 fictions per case.) If resulting trust doctrine can get by with just one fiction per case, I think it is doing pretty well. Any proposal to re-state the law without the fiction can be taken on its own merits. Of course, it is a sad thing if the law regularly has to pretend that something is so when it isn't, as where (to use a famous example) an Oxford college has to pretend that the Dean's dog is really a cat, to evade the rule against dogs in college. But it is different where we are talking not about ascertainable facts (such as whether a particular beast is a dog or a cat), but rather about the applicability of the law's own concepts (such as "whether there is a contract") or about practically unascertainable facts (such as what someone's intention was). There, it is not so obvious that fictions are objectionable. Surely the point at which we need to register objection is only when someone has forgotten that the fiction *is* a fiction. 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 C.Barker@soton.ac.uk Tue Jul 27 14:37:46 1999 Received: from beech.sucs.soton.ac.uk ([152.78.129.138]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1197QQ-00014G-00 for restitution@maillist.ox.ac.uk; Tue, 27 Jul 1999 14:37:46 +0100 Received: from cedar.sucs.soton.ac.uk (cedar.sucs.soton.ac.uk [152.78.128.92]) by beech.sucs.soton.ac.uk (8.9.3/8.9.3) with ESMTP id OAA14529; Tue, 27 Jul 1999 14:37:26 +0100 (BST) Received: from kit2.soton.ac.uk ([152.78.144.205]) by cedar.sucs.soton.ac.uk (8.8.8/relay-02) with SMTP id OAA25087; Tue, 27 Jul 1999 14:25:59 +0100 (BST) From: Kit Barker Reply-To: C.Barker@soton.ac.uk To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: RDG: Resulting Trust doctrine In-Reply-To: <3.0.1.32.19990727133758.007bbc30@pop.cus.cam.ac.uk> Message-ID: Date: Tue, 27 Jul 1999 14:24:32 +0100 (GMT Daylight Time) Priority: NORMAL X-Mailer: Simeon for Win32 Version 4.1.1 Build (17) X-Authentication: none MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII A quick contribution, sparked by Steve's reply to Charles: Fictions may harmless if everyone indeed understands them as such; and knows that they stand as shorthand for some set of more complex concerns. But the capacity for deception which they carry is apt to catch the unwary and it is precisely this, surely, which renders their use undesirable. Systems (particularly systems of legal thought) should be as foolproof as possible.(Spot the vested interest in this statement). This means that, in unstable areas, legal reasoning should confront complexity face to face, not, state ideas in analogical shorthand. > >If the time has come for systems of law as 'well-developed' > >as our own to do away with fictitious presumptions as a > >means of determining whether to award subrogation > >(per Lord Hoffmann in BFC v Parc), the same must also > >be true of resulting trusts. (Charles) > > > Fictions are not so easily avoided. After all, any commercial > contract case is likely to involve at least three fictions just > for starters : that companies are people, that these > "people" have intentions, and that what is written in the > contract documents can be taken as good evidence of > those "intentions". (If both parties are companies, then > of course each fiction must be applied twice, taking us up > to 6 fictions per case.) > > If resulting trust doctrine can get by with just one fiction > per case, I think it is doing pretty well. Any proposal to > re-state the law without the fiction can be taken on its > own merits. > > Of course, it is a sad thing if the law regularly has to pretend > that something is so when it isn't, as where (to use a famous > example) an Oxford college has to pretend that the Dean's > dog is really a cat, to evade the rule against dogs in college. > But it is different where we are talking not about > ascertainable facts (such as whether a particular beast is > a dog or a cat), but rather about the applicability of the law's > own concepts (such as "whether there is a contract") or > about practically unascertainable facts (such as what > someone's intention was). There, it is not so obvious > that fictions are objectionable. Surely the point at which we > need to register objection is only when someone has > forgotten that the fiction *is* a fiction. > > > 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 > > =================================================== > > > > ________________________________________________________________________________ > 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 > . ---------------------- Kit Barker Lecturer in Law, Southampton University E-mail: cb2@soton.ac.uk Tel: 01703-593294 Fax: 01703-593024 >From j.mee@ucc.ie Thu Jul 29 12:43:34 1999 Received: from bureau.ucc.ie ([143.239.1.2] ident=SYSTEM) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 119ob0-0005Nv-00 for restitution@maillist.ox.ac.uk; Thu, 29 Jul 1999 12:43:34 +0100 Received: from law5.ucc.ie by BUREAU.UCC.IE (PMDF V5.1-9 #D3864) with SMTP id <01JE4Y55GVO0000D48@BUREAU.UCC.IE> for restitution@maillist.ox.ac.uk; Thu, 29 Jul 1999 12:44:40 GMT Date: Thu, 29 Jul 1999 12:45:41 +0000 From: John Mee Subject: resulting trusts and fiction X-Sender: stlw8008@bureau.ucc.ie To: restitution@maillist.ox.ac.uk Message-id: <3.0.6.16.19990729124541.2a5f6614@bureau.ucc.ie> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (16) Content-type: text/plain; charset=us-ascii In relation to Lionel's request for comment on the following passage: >Air Jamaica Ltd. v. Charlton [1999] 1 WLR 1399 (PC, Jamaica): pension >scheme surplus: at 1412BC per Lord Millett: "Like a constructive trust, a >resulting trust arises by operation of law, though unlike a constructive >trust it gives effect to intention. But it arises whether or not the >transferor intended to retain a beneficial interest - he almost always does >not - since it responds to the absence of any intention on his part to pass >a beneficial interest to the recipient." My view is that Lord Millett's comments, although perhaps not very clearly expressed, are not particularly surprising or controversial. At first sight, as other members have argued, there does appear to be an unacceptable element of fiction in his formulation. However, it seems to me that Lord Millett had in mind two different "intentions" in the two sentences of the quote above. In the second sentence, where Lord Millett says that the transferor "almost always does not" intend to retain a beneficial interest, he seems to be referring to what might (loosely) be called the transferor's primary intention. Resulting trusts frequently arise in situations where effect cannot be given to a person's primary intention e.g. where a trust fails for lack of certainty of objects or because it is contrary to public policy (or where a pension fund is discontinued prematurely, as in the Air Jamaica case). One then has to guess at the settlor's intention in the changed circumstances: given that the original intention cannot be put into effect, what would the settlor be likely to intend in the new situation? Would she want to retain the beneficial interest under a resulting trust or would she prefer e.g. the property to pass to the state as bona vacantia. The resulting trust option represents the most plausible guess as to the settlor's intention in the changed circumstances (and a rebuttable presumption is, in my view, not to criticised as arbitrary or fictional if it represents a sensible guess at a likely intention). In my view, it is in this sense that the resulting trust in the Air Jamaica case can be said to be based on the transferor's "intention" (as Lord Millett says in his first sentence above). I see no objectionable resort to fiction here. A quick perusal of the rest of the Air Jaimaca case appears to offer support for the above view. In discussing a clause of the Pension scheme that appeared to indicate that the company could not have intended to retain a share of the property in question, Lord Millett said: "Consequently their Lordships think that clauses of this kind in a pension scheme should generally be construed as forbidding the repayment of contributions under the terms of the scheme, and not as a pre-emptive but misguided attempt to rebut a resulting trust which would arise dehors the scheme. The purpose of such clauses is to preclude any amendment that would allow repayment to the Company. Their Lordships thus construe clause 4 of the Trust Deed as invalidating the 1994 amendments, but not as preventing the Company from retaining a beneficial interest by way of a resulting trust in so much of the surplus as is attributable to its contributions." This passage appears to be directed to showing that the company did not, in fact, have an intention (as to what should happen if the person fund were discontinued) which was inconsistent with the creation of a resulting trust. John Mee >From gordon.goldberg@buckingham.ac.uk Thu Jul 29 18:51:26 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 119uL0-000796-00 for restitution@maillist.ox.ac.uk; Thu, 29 Jul 1999 18:51:26 +0100 Received: from Law999.buckingham.ac.uk ([194.83.163.235]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id SAA07816; Thu, 29 Jul 1999 18:53:05 +0100 (BST) Message-Id: <199907291753.SAA07816@gateway.buckingham.ac.uk> From: "Gordon Goldberg" To: "Lionel Smith" , Subject: Re: Resulting Trust Doctrine Date: Thu, 29 Jul 1999 18:59:58 +0100 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1161 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="----=_NextPart_000_01BED9F4.8D805CC0" Content-Transfer-Encoding: 7bit This is a multi-part message in MIME format. ------=_NextPart_000_01BED9F4.8D805CC0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit I respectfully agree with the words of Lord Millett quoted by Dr Smith. My reasons are set out in the attachment, which is the draft of a footnote in a proposed article. ---------- > From: Lionel Smith > To: restitution@maillist.ox.ac.uk > Subject: RDG: Resulting Trust Doctrine > Date: 27 July 1999 10:34 > > Air Jamaica Ltd. v. Charlton [1999] 1 WLR 1399 (PC, Jamaica): pension > scheme surplus: at 1412BC per Lord Millett: "Like a constructive trust, a > resulting trust arises by operation of law, though unlike a constructive > trust it gives effect to intention. But it arises whether or not the > transferor intended to retain a beneficial interest - he almost always does > not - since it responds to the absence of any intention on his part to pass > a beneficial interest to the recipient." > > Comments anyone? > > > > ____________________________________________________________________________ ____ > 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 > . ------=_NextPart_000_01BED9F4.8D805CC0 Content-Type: application/octet-stream; name="resultin.txt" Content-Transfer-Encoding: 7bit Content-Description: resultin (Text Document) Content-Disposition: attachment; filename="resultin.txt" In Gissing v. Gissing [1971] A.C. 886 at p.905D, Lord Diplock's omission of any reference to constructive trusts in connexion with the parties' "common intention" was surely not accidental, but significant. For the distinction in Jowitt's Dictionary of English Law (2nd edn, London 1977, by Burke) of constructive from implied trusts, by virtue of the latter's "reference to the presumable intention of the parties" and without mentioning resulting trusts, is understandable. Resulting trusts are but a species of implied trusts and as such themselves make "reference to the presumable intention of the parties". In other words and in my respectful submission, the distinction purportedly drawn by Megarry J. in Re Vandervell's Trusts (No.2) [1974] Ch. 269 at p.294 between a "presumed resulting trust" and an "automatic resulting trust", on the basis that the latter "does not depend on any intentions or presumptions, but is the automatic consequence of [the grantor's] failure to dispose of what is vested in him", does not exist. His Lordship's error is exposed by the cases dealing with unlimited gifts of rents or income. On the face of it, such a gift does not dispose of the capital - Hodson v. Ball (1845) 14 Sim. 558 at p.571. Therefore, according to his Lordship: if the gift be made inter vivos, without the intervention of a trust, the capital would remain vested in the donor; or, if the gift be testamentary or otherwise held on trust, the legal personal representative or other trustee would automatically hold the capital on a resulting trust for whoever is entitled to the testator's residuary estate or for the donor himself. However, this ignores the presumption that "if a man seised of lands in fee by his deed granteth to another the profit of those lands, to have and to hold to him and his heires, .... the whole land itselfe doth passe; for what is the land but the profits thereof ... " - Co. Litt. 4b. The same presumption applies to devises - Kerry v. Derrick (1602) Cro. Jac. 104 - and to legacies - Page v. Leapingwell (1812) 18 Ves. 463. The presumption is as to the grantor's intention and so can be rebutted, e.g., in the case of a gift to charity - Re Levy [1960] Ch. 346. In the great majority of cases, a failure by a settlor or a testator to dispose of the whole of his beneficial interest will naturally give rise to a presumption of a resulting trust in favour of himself or his estate. If S conveys Blackacre to T on trust for B for life, T as an honest and reasonable man knows that he is not intended to receive the remainder and, therefore, has presumably agreed to hold it on trust for S. Yet in Megarry J.'s terms, a "presumed resulting trust" occurs only where a disposition is made without consideration, without any indication of a trust for a third party and without any presumption of advancement. Here, too, undoubtedly and as his Lordship apparently implies, the presumption of a resulting trust depends upon the parties' presumed intentions. If A in such circumstances conveys Blackacre to C, C has no reason to believe that he is receiving a gift and so no reason to believe that he is to hold the land beneficially. Accordingly, as an honest and reasonable man, he has presumably agreed to hold it on trust for A. On the other hand, if C be A's son, A's conveyance is ambiguous; for fathers often advance their children. Accordingly, because verba chartarum fortius accipiuntur contra proferentem (Co. Litt. 36a), C as an honest and reasonable man is entitled to presume that A has made him a gift. ------=_NextPart_000_01BED9F4.8D805CC0--