Restitution Discussion Group Archives
| Sender: |
Gerhard Dannemann |
| Date: |
Thu, 13 Nov 2003 15:23:26 +0100 |
| Re: |
Quote of the day |
Thanks to Steve for finding this nice quote. It has a
delphic touch. I am looking forward to this making an appearance in future
exam papers - "Discuss." What was Hart J trying to tell us? This is the
quote in larger context:
"Mr Anderson, on behalf of the claimant, has submitted
that the true case of election only arises when a claimant must choose
between a compensatory remedy and a restitutionary remedy. So far as
the label of the latter is concerned, I would myself avoid the reference
to a restitutionary remedy, since the pond called restitution is of
uncertain limits and surrounded by a variety of anglers using different
tackle; and wrong use of the word can have the effect of a brick causing
ripples to occur in unexpected directions. But if, by that phrase, is
understood a remedy which, as opposed to compensating the claimant for
loss, is one which obliges the defendant to disgorge benefits, then
I accept that that provides an example of an alternative remedy which
will give rise to the need for a claimant to elect, although it seems
to me that it is only one of a number of possible such examples known
to the law." I would see it as an attempt to limit the doctrine of
election in unjust enrichment / wrongs contexts on the one hand, and to
keep the door open for other applications of a doctrine of election on
the other. I am not sure whether the irony in the quote is against those
who advocate restitution as a coherent area of law, but cannot agree on
its boundaries, or against others who seek to expand this field into incoherence
- the reference to anglers and tackle might allude to practitioners who
want to make the most out of the restitution bandwagon in the interest
of their clients.
Incidentally, this is not a restitution case. Another
reason why this reminds me of the famous dictum of Lord Diplock in Orakpo
v Manson Investments Ltd [1978] AC 95, at 104:
"My Lords, there is no general doctrine of unjust enrichment
recognised in English law. What it does is to provide specific remedies
in particular cases of what might be classified as unjust enrichment
in a legal system that is based upon the civil law." I have always wondered whether Lord Diplock was aware
of the irony that this case - which concerned subrogation - would not
have been a restitution case in the first place in "a legal system that
is based upon the civil law".
Gerhard Dannemann
Hedley, Steve schrieb:
"... I would myself avoid the reference
to a restitutionary remedy, since the pond called restitution is of
uncertain limits and surrounded by a variety of anglers using different
tackle; and wrong use of the word can have the effect of a brick causing
ripples to occur in unexpected directions."
Westminster
City Council v. Porter [2002] EWHC 1589 (Ch), per Hart J. --
Prof. Dr. Gerhard Dannemann
Centre for British Studies
Humboldt-Universität
Jägerstr. 10-11
10117 Berlin
Tel. +49 30 2093 5334
Fax +49 30 2093 5370
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