Restitution Discussion Group Archives
| Sender: |
Duncan Sheehan |
| Date: |
Thu, 13 Jul 2000 23:14:59 +0100 |
| Re: |
Questions on Prof. Birks' "Equity, Conscience, and Unjust Enrichment" |
Actually
the problem I have is that I do not know whether your solution, to say
that a gift is simply a completed juridical act showing an intention to
transfer property gratuitously is all a contract of donation is in German
law. If it is then the reason why there is no problem in German law is
the same as the reason why there is no problem in English law and we have
no problem. If not we may still have no problem, but it will be for a
different reason to that in German law. However, we need to explain, and
it may be that your solution is all we need, why we have no problem and
why that is different from German law. That last question is, I think
crucial, if we are claiming to import the civilian legal ground analysis
into English law. If we find it difficult to find a satisfactory answer
maybe that tells us that we shouldn't import the system, that is causes
too many ripples elsewhere in the law.
Duncan Sheehan
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