Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Thu, 26 Oct 1995 15:26:42 -0700 |
| Re: |
Course Organisation |
Hello to all. The
restitution discussion group continues to grow. With members joining in
the US and Singapore, we are now up to over 50 members.
I would like to respond to Mitchell McInnes's posting
regarding the structure of the course. I agree wholeheartedly that a careful
overview (with historical background) is appropriate at the start of the
course. I was extremely interested to learn that Mitchell considers defences
and remedies before going into the "unjust factors," ie the grounds for
restitution.
On those points, I have a more traditional approach (if
anything is traditional in restitution) in which I consider subtractive
unjust enrichment before remedies and defences. I take Mitch's point,
however, that it is easier to get a "big picture" when you are aware of
the defences. In fact, although formally we have not got to defences yet,
I have long ago taken the time to explain the nature of the defence of
change of position. Without an awareness of that, the law of restitution
can look too plaintiff-biased.
This year, however, I decided to address the unjust factors
before the question of whether the defendant was enriched and whether
it was at the plaintiff's expense. Logically, those questions probably
precede a consideration of the unjust factor, but they are very abstract
(services as enrichments, three-party cases etc) and I think are easier
to understand when the grounds for restitution are in place.
A skeleton of my syllabus looks like this. Those who
have seen the Restitution Research Resource will see that I have drawn
on it:
Part One: Introduction Part Two: Autonomous Unjust Enrichment
I. Unjust Factors
1. No Intention to Transfer Wealth
(a) Ignorance
(b) Mistake (d) Ultra Vires Demands by a Public Authority (e) Compulsion by Circumstances IV. Personal or
Proprietary Restitution?
V. Tracing
VI. Domestic Context; Unjust Sacrifice
VII. Defences Part Three: Restitution for Wrongs Part Four: Comparative Aspects
This is for an undergraduate course which lasts for one
13-week term, three hours a week. Anyone who would like to see the full
syllabus and who has access to the World Wide Web can find it at:
http://gpu.srv.ualberta.ca/~liosmith/restitution.html
If you do not have access to the Web and would like a
copy, by email or snail mail, drop me a line.
I might add that I have always thought that a great introduction
to the subject is Lord Denning's review of the first edition of Goff &
Jones, which is at (1967) 83 LQR 277. This 2-page review is the first
item on my reading list.
Lionel Smith
I. Nature of the Subject
II. Organization of the Subject
III. History
II. Was the Defendant Enriched?
2. Conditional Intention to Transfer Wealth
(i) Induced Mistake (Misrepresentation)
(c) Compulsion by the Payee
(ii) Spontaneous Mistake
(iii) Mistake of Law
(i) Recovery from Payee
(ii) Recovery from Person Primarily Liable
(i) Recovery from Recipient
(f) Inequality of Bargaining Power
(ii) Recovery from Person Primarily Liable
(a) No Contract
3. Unconscientious Receipt
(b) Anticipated Contract Which Does Not Arise
(c) Frustrated Contract
(d) Discharged Contract
4. Is an Unjust Factor Needed?
1. Discharge of an Obligation Owed by the Defendant
III. Was the Enrichment at the Expense of the Plaintiff?
2. Services and Improvements
1. Change of Position and Estoppel
2. Agent's Accounting Defence
3. Bona Fide Purchase
4. Passing On
5. Illegality
6. Counter Restitution is Impossible
7. Limitation
I. Breach of Fiduciary Obligation
II. Breach of Confidence
III. Torts
IV. Intellectual Property
V. Breach of Contract
VI. Crime
Faculty of Law
University of Alberta
403 492 2599; Fax 403 492 4924
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