Restitution Discussion Group Archives
| Sender: |
Robert Chambers |
| Date: |
Sun, 7 May 2006 12:14:16 -0600 |
| Re: |
Waiver of Tort |
John makes a good point, but not I think about the "Birksian
line".
Birks also believed in the independent cause of action
in cases which used the phrase, 'waiver of tort'. He wrote, in Unjust
Enrichment (2nd edn, 2005) 83, that there are "two paths to restitution,
either by standing on the tort but asking for restitution rather than
the more usual compensation or by ignoring the tort and treating the facts
as an enrichment at your expense and absolutely without your consent."
He agreed with Beatson J and Friedmann (see the preface to the first edition
of Unjust Enrichment), although Beatson, writing in 1978, argued
for the existence of an "independent restitutionary claim" rather than
for unjust enrichment.
It is useful to expand on John's quotation from Beatson,
The Use and Abuse of Unjust Enrichment, pp 242-243:
This essay has sought to show that the restitutionary
claim given by way of 'waiver of tort', is not parasitic and does not
depend on the existence of a tort. The 'waiver of tort' mechanism should
simply be seen as the core of a class of restitutionary claims based
on the wrongful acquisition of a benefit. This is certainly so where
the defendant has taken or used the plaintiff's money or property. It
is arguably also the case in other situations in which the defendant
has been enriched by the misappropriation of an interest of the plaintiff's
which is properly treated as part of his wealth. In both types of case
it is necessary to show that the enrichment is attributable to the interest
in the sense that the proximate cause of the enrichment is that interest.
Birks agreed with all of this and so, I believe, does
Russ, writing below, who points out Cullity J's error: he allowed the
plaintiffs to proceed with a claim for restitution of an enrichment that
was not acquired at the plaintiffs' expense (unjust enrichment) nor obtained
through a wrong done to them (wrongful enrichment). There was nothing
connecting the plaintiffs to the defendants' gain and the use of an incantation
like 'waiver of tort' does not make it so.
With best wishes, Robert Chambers ----- Forwarded message ----- For the benefit of a former and cherished
teacher of mine (Swan that is), I feel compelled to point out that it
would be sporting for Russ to concede that not everyone shares the Birksian
line which he has advanced concerning the nature of waiver of tort.
Thus, for example, Beatson speaks for many (including myself) when he
writes: "...the restitutionary claim given by way of 'waiver of
tort' is not parasitic and does not depend on the existence of a tort"
see p.242 of "The Use and Abuse ...". Dan Friedmann is another
who has written in the same vein in his articles on the subject (e.g.
in the Jones symposium).
With respect to those who hold differing
views, it seems obvious to me, for the reasons advanced by Jack and
Dan and others, that waiver of tort, like breach of fiduciary obligation,
is a cause of action, and is not helpfully viewed as merely parasitic
on the existence of another cause of action in tort or, in the case
of fiduciary obligation, in "equity". Back (unhappily) to
marking!
Rob
University of Alberta
Date: Sun, 7 May 2006 10:15:36 -0400
Subject: Re: [RDG] ODG: A Change of Topic
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