Restitution Discussion Group Archives
| Sender: |
Jason Neyers |
| Date: |
Fri, 26 Nov 1999 10:13:23 -0500 |
| Re: |
The classification of restitution claims |
Dear Mr. Gordon,
Just a couple of questions/comments for you:
1) What is wrong with "generalization and simplism"? Shouldn't we be
striving for the simplest and most coherent explanation of the phenomenon
in question (a scientific measure of the best explanation)? In this case,
the phenomenon being the common law rules that are not considered part
of contract or tort.
2) Where does the "generalization and simplism" (and
coherence) of the Canadian formulation leads us astray? If you are using
the Westdeutsche case
as an example, I do not think that you have proved your point. If you
are correct about cases like Westdeutsche and there is a legislative norm
in the some Act that prohibits the return of any money paid, then clearly
the case is wrongly decided. This does not mean that the principle of
UE is incorrect. Nothing in the Canadian formulation instructs judges
to give money back if the legislator demands that the judge do otherwise!
In fact, one could say that the clear statutory norm is a juristic reason
justifying the deprivation. In order to prove your point, you are going
to need a better set of facts to show the principle wrong.
3) At the end, you say that no legal system can digest concepts that
are fundamentally alien to it. Fair enough. But is unjust enrichment fundamentally
alien to the common law? Which ancient principle (such as the two-part
division of property into equitable and legal titles) does the principle
of unjust enrichment infringe upon? Also, at what point do you draw the
line to say what is alien or not? At 1950, 1900, the Judicature Acts,
1800, 1300? In some senses, the unifying ideas of fault and contract and
the principled reasoning of Donoghue v. Stevenson are alien to the older
common law of the forms of action, divided court structure, and specific
pleading. Why should the evolution of the common law be stymied and frozen
in 1999 and anything not included said to be alien? What would the common
law be like if someone had done this is 1920?
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
