Hi Hector

If I may, let me quote my Skeleton Argument:

11. The seminal modern English discussion of this limiting factor is
Professor Peter Birks, Unjust Enrichment (2nd edn, 2005), pp 158-60
under the heading "By-benefits", which is the immediate source of the
"flat heating" example (example 21) in the Restatement. The late
Professor Birks set out the flat example and continued (at p. 158):
"Similarly, if you have a flat which overlooks the Oval you will be able
to watch test matches without paying.
In cases of this kind one person is enriched at another's expense and
the other is powerless to prevent it. But this is not an unjust
enrichment. There is no right to restitution."
Whilst commentators have doubted the suggested explanation (gift) the
principle and illustrating examples are compelling. Birks also noted
that the legal compulsion cases constituted an exception (pp. 159-60).
12. For his proposition quoted above, Birks cited the Scottish case
of Edinburgh Tramways Co v Courtenay 1909 SC 99, 105, from which it can
de discerned that Lord President Dunedin was the ultimate source of the
"flat heating" example. The Lord President said (at p.105):
"One man heats his house, and his neighbour gets a great deal of
benefit. It is absurd to suppose that the person who has heated his
house can go to his neighbour and say, - 'Give me so much for my coal
bill, because you have been warmed by what I have done, and I did not
intend to give you a present of it.'"
(See further on the modern Scots law: Shilliday v Smith 1998 SC 725, at
730-31 (Lord President Rodger) and H McQueen, "Peter Birks and Scots
Enrichment Law" in A Burrows and Lord Rodger of Earlsferry (eds),
Mapping the Law [-] Essays in Memory of Peter Birks (2006) ("Mapping the
Law"), p 401 at p.402.)


Sadly my attempt to persuade the English CA that the Scots (quoting you)
and Germans (Sonia Meier) had the right idea did not appeal on a strike
out!

Hey ho,

Gerard



Gerard McMeel
Barrister

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-----Original Message-----
From: Enrichment - Restitution & Unjust Enrichment Legal Issues
[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Hector MacQueen
Sent: 14 November 2013 15:06
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Incidental Benefits

Interesting case. Incidentally, Peter Birks' example of the flat heated
by the downstairs neighbour's flat derived from the Scottish case,
Edinburgh and District Tramways Co Ltd v Courtenay 1909 SC 99, where
Lord President Dunedin said (at p 105): "One man heats his house, and
his neighbour gets a great deal of benefit. It is absurd to suppose
that the person who has heated his house can go to his neighbour and
say, 'Give me so much for my coal bill, because you have been warmed by
what I have done, and I did not intend to give you a present of it.'"
The example may have appealed to Peter particularly because of his own
experiences as an Edinburgh flat-dweller. Even though the case is about
Edinburgh trams, it is a useful one on what constitutes an incidental
benefit.

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

SSRN http://ssrn.com/author=463210

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting James Lee <j.s.f.lee@BHAM.AC.UK> on Thu, 14 Nov 2013 12:15:32
+0000:

> Dear Members,
>
>
>
> The English Court of Appeal has considered the law on incidental
> benefits today in TFL Management Services Ltd v Lloyds Bank Plc [2013]

> EWCA Civ 1415 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1415.html,
> in which RDGer Gerard McMeel appeared. The problem was whether summary

> judgment should be granted in favour of the defendant bank in
> circumstances as framed by Floyd LJ (at [1]):
>
>
>
> "A spends money seeking a judgment for the recovery of a debt from B.
> A fails to recover the debt because, so the court holds, the debt is
> not in fact owed by B to A (as A mistakenly thought), but owed by B to

> C. C then recovers the debt, relying on the judgment in A's
> unsuccessful claim. The question raised in this appeal is whether A
> has a claim based on unjust enrichment against C, enabling him to
> recover the money expended on obtaining the judgment."
>
>
>
> The Court considers academic commentary but declines to formulate
> general principles. It is also divided. Beatson LJ's concurring
> judgment is particularly worthwhile (see eg at [86]):
>
>
>
> "Given the position in the scholarly commentaries, and the absence
> of decisions which explicitly proceed on the basis of a principle
> barring "incidental benefits", or any clear (let alone agreed)
> formulation of what it is which is to be prevented, I do not
> consider that it is appropriate to give summary judgment on the
> basis of a general principle barring restitution in respect of
> benefits conferred "incidentally". To do so would, in particular, be
> to discount the possible alternative explanations for the scenarios
> which have been said to be examples of its operation."
>
>
>
> Best wishes,
>
> James
>
>
>
> --
> James Lee
> Senior Lecturer and Director of Admissions
> Birmingham Law School, room 235
> University of Birmingham
> Edgbaston
> Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail: j.s.f.lee@bham.ac.uk
>
>
> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
>
>
> SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219
>
> ====
>
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> send "signoff enrichment" to the same address. To make a posting to
> all group members, send to <enrichment@lists.mcgill.ca>. The list is
> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>
>



--
The University of Edinburgh is a charitable body, registered in
Scotland, with registration number SC005336.

====

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====

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 enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.