Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Thu, 27 Mar 2003 09:45:17 |
| Re: |
Hendrix - just a confusion? |
It seems to me that Jamie and Peter (and, for that matter,
Hanoch and I) are in substantial agreement on the award in Hendrix. We
agree that it is a quite different beastie from the award in Blake, that
the court was right to reject a Blake-type remedy here, and we also agree
on how to calculate the applicable measure. What's to fight about? However:
* Some of us stress that there is a transfer of wealth
in these cases; Yet each one of these descriptions is true as far as
it goes, and none is necessarily inconsistent with any of the others.
("I'm looking at the elephant's tail!" is not inconsistent with "Yeah?
Well, I'm looking at its trunk!") The descriptions are actually not very
different from one another, and I'm not convinced the differences matter.
Yet Jamie suggests there is an inconsistency. However,
while he makes a good case for his own description, he is wrong to say
this constitutes disproof of other descriptions.
I suggest, on the contrary, that we are getting bogged
down with pseudo-arguments which are at root merely ones of terminology.
A difference which makes no difference is no difference at all. If Jamie
wants to establish that one description is BETTER than the others, he
will have to use very different arguments from the ones he has employed
so far - he should first prove that it makes any difference which description
we pick, and if he can't do that, his other points against Peter collapse.
Jamie wrote:
I do not think that the decision supports
the thesis in his stimulating monograph, The Nature and Scope of Restitution,
that a "use claim" (restitutionary damages) does not arise from a wrong
(here the breach of contract) but is based on an imputed contract between
the parties. It seems to me that the Court of Appeal, having rejected
the disgorgement damages award (account of profits) for the breach of
contract, was quite clearly awarding restitutionary damages (the use
claim) for the breach of contract.
But where is the inconsistency between Jamie's explanation
and Peter's? Of course proof of a wrong is required - but the court's
response to that wrong is indistinguishable from its saying that there
is a contract to pay. Peter's description relies on the existence of a
wrong just as much as Jamie's does.
Where courts say that these restitutionary
awards are given for a wrong (in this case, the breach of contract)
I think they should be taken at their word.
All of us are "taking the courts at their word", though
we often focus on different words, and argue over their meanings.
There is no necessary reason why we
should say that what the judges really meant was that the claim was
one for an imputed contract or that it should be re-interpreted as a
claim in unjust enrichment.
Of course - but no necessary reason not to say it, either.
A good reason not to might consist of showing that Peter's view distorted
what the court was doing. But merely pointing out that a different description
is possible is not enough.
Steve Hedley
============================================= ansaphone : +44 1223 334931 Christ's College Cambridge CB2 3BU
* Others stress that the transfer results in a gain to the defendant;
* Still others stress that it results in a loss to the claimant;
* Other others note that the transfer is treated much like a contract.
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
www.stevehedley.com
fax : +44 1223 334967
=============================================
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