Restitution Discussion Group Archives
| Sender: |
Jason Neyers |
| Date: |
Thu, 13 Jul 2000 14:32:07 -0400 |
| Re: |
Questions on Prof. Birks' "Equity, Conscience, and Unjust Enrichment" |
Dear Duncan
Sheehan,
You wrote:
Lastly a question for German lawyers. I understood
that the reason why gifts are not caught by section 812 of the BGB was
that in German law it was possible to have contracts of donation, which
since contracts are juristic causes prevent the section's bite. These
cannot exist in English law which is why going over to the legal ground
German analysis entails looking anew at gifts. Christoph Coen seems
to make out that we do not as English lawyers need to look anew at gifts.
I think I am missing something and I would be grateful for attempts
at explaining what. While I am by no means a German lawyer and cannot speak
on that issue, I fail to see the common law problem. Even under a "pure"
common law analysis, isn't a completed gift, much like a will, a juridical
act? It is a legally effective way of manifesting one's intentions, in
this case a transfer of wealth/property without value in return. If this
is true, then there could be no restitution of an unjust enrichment (i.e.
the completed gift) because there is a juristic reason justifying the
transfer of value. But perhaps I am missing something in your question?
Jason W. Neyers
Law Clerk, Ontario Court Of Appeal
(416) 327-5107
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