From: Enrichment
- Restitution & Unjust Enrichment Legal Issues
<ENRICHMENT@LISTS.MCGILL.CA> on behalf of Andrew Dickinson
<0000040138809280-dmarc-request@LISTS.MCGILL.CA>
Sent: Thursday
28 August 2025 09:33
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG]
Recent cases
I would disagree with the proposition that cryptoassets do not
represent the "intangible fruits of labour", and cannot be seen as
analogous to goodwill for that reason. The value of cryptocurrencies (insofar
as they have value) results from the collective efforts of those who created
and participate in the networks, and in particular those engaged in the proofs
of work that validate transactions (mining), who have (in the case of Bitcoin,
at least) received cryptoassets as rewards for their efforts. The fact that
individuals are willing to use fiat currency to buy the entitlements to
participate in transactions within the network is evidence of that value rather
than the source of it.
Best wishes
Andrew
From: Enrichment -
Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on
behalf of David Hoffman <0000040ab18b0269-dmarc-request@LISTS.MCGILL.CA>
Sent: Wednesday, August 27, 2025 22:33
To: ENRICHMENT@LISTS.MCGILL.CA
<ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases
Goodwill is definitely intangible property as said below, it can be bought and sold and has a real value. It is no more mysterious than any intangible property, and I would say it fits into the law alongside intellectual property (without wanting to get into an argument whether it falls within that category, although I think there is at least an argument to be had there). It operates in commercial terms in the same way, and can be vindicated by the law (passing off as said by others) in the same way that, for instance, copyright can be purchased and vindicated. In Hohfeldian terms, it represents the same sort of bundle of rights / privileges etc as any other property right (a claim right to the item against anyone else who has it, claim rights not to be interfered with, powers to sell, dispose of, transfer, destroy etc in whatever specific terms).
I don t know enough about cryptocurrency to know if it counts as an intangible property right but on the whole I would tend to agree with the judgment in D Aloia v Persons Unknown that it does count as property. However, I don t think it is very much like goodwill though because it is not a form of property which represents the intangible fruits of labour (such as intellectual property or the intangible but real results of successfully trading under a brand or business name for many years); but rather it represents a form of value, since it started out as money and was traded into cryptocurrency and may or may not end up being traded back again in due course (whether or not it is a chose in action in the meantime or something a bit different).
In any case, I don t think either of these is very like the rights of barristers to be paid prior to being able to sue for fees. That was treated by both the barrister and the solicitor as money that was in effect owed but could not be sued for. As Matthew Hoyle notes in his email, there were professional consequences for not paying counsel, so there was a means of enforcement, just not through courts not as good as a right enforceable in the courts but of real significance, at least until relatively recently. I would suggest that this makes the right of counsel to be paid rather more like a contract that is unenforceable, such as maybe a gambling contract, but which, as Kelvin Low says in his email, carries with it at the very least a Hohfeldian immunity, since once paid there could be no claim by the paying party to return of the sum paid (with my legal history hat on, I ve come across at least one case where a barrister was paid incorrectly and refused to return the overpayment, and the sanction was not legal but professional, i.e. his colleagues).
I think though that the rights went further than just an immunity: it was not only lawful to retain the money, but if not paid, it was lawful to take very serious steps to pressure the solicitor into paying it (as Matthew notes), whereas that might otherwise be for instance an economic tort. That takes it very close to being something in respect of which there is some sort of claim right, just not one directly recognised by law. I would suggest that this means it is a form of debt, it is just defective as against the usual contractual debt, but it is not some different type of legal right or property.
Best regards
David
David Hoffman
Barrister at law, MA, BCL, FCIArb
18 St John Street Chambers, Manchester
4-5 Gray s Inn Square, London
From: Enrichment - Restitution & Unjust Enrichment
Legal Issues <ENRICHMENT@LISTS.MCGILL.CA>
On Behalf Of Lionel Smith
Sent: 27 August 2025 18:01
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Recent cases
I think there is more to it that, but goodwill is a bit mysterious.
Enormous values are attached to it, especially in tech. If business A is being acquired by business B for $100 million, but the value of A s normal (patrimonial) assets is only $40 million, the accountants attribute the other $60 million to goodwill. And no one (at least no one at B) thinks they are paying $60 million for nothing. That value is linked to past achievements and to all the future prospects for making lots of money that are associated with the business. This bit is not obviously linked to enforceable rights; it is more like the memorized treasure map, valuable but not exigible.
More prosaically, if Dr. A sells their dental practice to Dr. B with the goodwill, this means that A will write a nice letter to all their patients telling them this, and telling them what a great dentist A thinks B is. The clients can go elsewhere but most will stay and this again is worth a lot to B. If A were to refuse to write the letter, or to regret the sale and try to poach the clients, this would not be passing off, but it would be unlawful. These bits are just contractual terms, though, express or implied. The client list itself is surely confidential and if A were to sell the contact information to C, this would also be unlawful but not passing off; rather breach of confidence.
Maybe there are more bits to it. I am no expert. It seems to be a mix of factual considerations and legal consequences of different kinds. The connection to crypto is plausible in my view.
L.
From: RDG <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Andrew
Tettenborn <0000027e08c44aae-dmarc-request@LISTS.MCGILL.CA>
Reply to: Andrew Tettenborn <a.m.tettenborn@SWANSEA.AC.UK>
Date: Wednesday, 27 August 2025 at 17:33
To: RDG <ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases
Not entirely sure about that, or actually whether there's much to goodwill at all. Isn't the rule about passing-off simply a rule that if you run a business, whether you started, bought or inherited it, you can sue third parties who tell untruths so as to associate their business with yours? A
On 27/08/2025 16:28, Robert Stevens wrote:
You don't often get email from 000003a2fa4f1335-dmarc-request@lists.mcgill.ca. Learn why this is important
CAUTION: This email originated from outside of Swansea University. Do not click links or open attachments unless you recognise the sender and know the content is safe.
RHYBUDD: Daeth yr e-bost hwn o'r tu allan i Brifysgol Abertawe. Peidiwch chlicio ar atodiadau neu agor atodiadau oni bai eich bod chi'n adnabod yr anfonwr a'ch bod yn gwybod bod y cynnwys yn ddiogel.As Lord Macnaughton said in IRC v Muller, "[a man] may vindicate his exclusive right to [goodwill] if necessary by process of law." [1901] AC 217, 223. This is done through the tort of passing off. If you buy a business with its goodwill, you acquire the goodwill, and can then sue anyone if they pass off their business as yours.
With goodwill, we have an identifiable transferable right. So, it is patrimonial property.
The problem with crypto is that it isn't like goodwill. Where is the right (or privilege, or power, or immunity) associated with it? The problem is starkly obvious in the conflict of laws: which specific right is it being claimed is being governed by which law?
Could the UK legislature abolish crypto, as it could abolish the (domestic) right to goodwill? What does the fact that it couldn't tell us?
If crypto does attract a right (or privilege, or power, or immunity) then it is patrimonial property, even if judges say it isn't. Conversely, if it doesn't, then it isn't patrimonial property however loudly or frequently judges say it is.
R
From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Andrew Dickinson <0000040138809280-dmarc-request@LISTS.MCGILL.CA>
Sent: Wednesday, August 27, 2025 15:08
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases
Goodwill has always seemed to me to provide a potentially valuable analogy, at least in the sphere of the conflict of laws (see IRC v Muller [1901] AC 217; Dickinson, ch 5 in Fox and Green (eds), Cryptocurrencies in Public and Private Law (OUP, 2019), [5.106]ff; Tulip Trading Ltd v Bitcoin Association For BSV & Ors [2022] EWHC 667 (Ch), [144]-[145]).
Although difficult to define in Hohfeldian terms, it attracts legal protection and represents more than a mere factual expectation of future benefit.
Best wishes
Andrew
From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Matthew Hoyle <MHoyle@OECLAW.CO.UK>
Sent: Wednesday, August 27, 2025 14:27
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: Re: [RDG] Recent cases
Counsel fees are an odd example. Although its often said they constituted a gentleman s obligation , the reality is more complex than that. Certainly by the 20th century, payment was a professional obligation for a solicitor and non-payment of fees was regarded as professional misconduct.
I m not sufficiently familiar with the history to say for certain that this was always the case, but as things presently stand fees still have important juristic effects. An unwillingness to assume liability for fees by a solicitor means the barrister is not subject to the cab rank rule (Code of Conduct, rC30.7.a). A failure to pay fees is a recognised ground for returning instructions unilaterally (rC26.5), and a solicitor who fails to pay can be listed on the Bar Council s List of Defaulting Solicitors (which in turn is a further group disapplying the cab rank rule from any instructions they offer: gC91).
In Scotland, I believe that a system similar to the old English one still obtains, and (although some on the list will know better than I) advocates will generally refuse instructions from solicitors whom the Faculty has listed as defaulting on payment.
So the payment of fees, even if not directly enforceable, had/has important juristic consequences for both parties.
Matthew Hoyle
Barrister
One Essex Court
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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> On Behalf Of Kelvin F.K. Low
Sent: 27 August 2025 13:09
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Recent cases
On D'Aloia, Timothy Chan and I have a comment in the LMCLQ. On the subject of 'property', this is what we say in reply:
"Three cases supposedly mandate the recognition of a third category of personal property absent any Hohfeldian legal relationship whatsoever provided there is a clear and well founded expectation. First, unenforceable contractual rights in Ex parte Huggins; In re Huggins. Secondly, barrister s outstanding fees, which under the old regime created no debt at all, in Gwinnutt v George. However, although neither creditor in Ex parte Huggins or Gwinnutt v George could bring actions against their debtors , a natural obligation nevertheless exists in both cases which creates a legal relationship. While there may be no Hohfeldian claim right in either case, both cases involved Hohfeldian privileges as both creditors would be immune to recovery of any sums paid on the basis of unjust enrichment even if they could not bring an action to recover said sums.
This leaves the difficult case of Attorney-General of Hong Kong v Nai-Keung, in which export quotas for textiles were held by the Privy Council to be other intangible property under the Hong Kong Theft Ordinance 1970. According to D Aloia, the quotas similarly entailed no rights but merely an expectation that a corresponding licence would be granted. But surely a mere expectation would not suffice otherwise spes successionis would also be property. What distinguishes the export quotas in Nai-Keung from mere spes are public law rights conferred upon holders of the former to challenge any wrongful denial of licences. These are, without doubt, a form of Hohfeldian relation."
A preprint of the case comment is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5033278.
Kelvin
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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Lionel Smith <lionel.smith@MCGILL.CA>
Sent: Wednesday, August 27, 2025 7:33:51 PM
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: [RDG] Recent cases
Some interesting effects of the decision in Byers can be seen in Humphrey v Bennett [2025] EWHC 448 (Ch), a long-running saga. This episode concerns some contentious amendments to the pleadings. There is some interesting discussion of s 29 of the LRA 2002, of want of authority as a ground of unjust enrichment liability, and of pleading issues. Since it is all about amendments, though, nothing is really resolved as a matter of law
On the crypto front, the lengthy judgment in D Aloia v Persons Unknown [2024] EWHC 2342 (Ch); [2025] 1 WLR 821 may be of interest. This jumped out at me personally:
[5] USDT attract property rights under English law. It is neither a chose in action nor a chose in possession, but rather a distinct form of property not premised on an underlying legal right. It can be the subject of tracing and can constitute trust property in the same way as other property.
The discussion of the nature of property ([104]-[173]) includes some interesting cases and a great deal of academic commentary, and concludes in part ([173]): I have concluded that: as a matter of existing English case law an expectation can suffice for the foundation of property rights even in the absence of a legal relationship
Lionel
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This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith <lionel.smith@mcgill.ca>.
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This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith <lionel.smith@mcgill.ca>.