Restitution Discussion Group Archives
| Sender: |
Allan Axelrod |
| Date: |
Mon, 2 Apr 2001 12:55:24 -0400 |
| Re: |
Just when you thought it was safe to go back to the list |
following
on an exchange with eoin o'dell, i think it worthwhile to call the group's
attention to two rules that work against reformation [rectification] and
perhaps ought to inhibit easy constructive trust remediation of gratuitous
transfer mistakes
a. [already mentioned] the statute of frauds
b 'equity will not aid a volunteer'
those rules express a hard-boiled social policy which
certainly is not now in vogue, and alien particularly to warm-hearted
believers in restitution, to wit:
if the proper forms are not observed, and no paid-for
expectations at stake, there is not much social interest in moving the
windfall back to the person lucky to have been intended as a beneficiary
and away from the even luckier person with no entitlement whatsoever except
the words of the instrument.
the same hard-boiled attitude found expression in a rule
which has been overturned at least in sunny california: it used to be
that the disappointed beneficiary of a bequest defeated by a scrivener's
negligence had no cause of action against the scrivener.
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