-- >From charles.mitchell@kcl.ac.uk Mon Jan 10 10:26:57 2000 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 127c2K-0007eb-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 10:26:56 +0000 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id KAA07877 for ; Mon, 10 Jan 2000 10:24:59 GMT Message-Id: <3.0.6.32.20000110102741.007a0ac0@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Mon, 10 Jan 2000 10:27:41 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Teacakes Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable X-MIME-Autoconverted: from 8bit to quoted-printable by angelo.kcl.ac.uk id KAA07877 The CA has given judgment in Marks & Spencer v C & E Commissioners - 14/12/99 - now available on Casetrack. Schiemann LJ upheld Moses J's approach to the question whether M & S had passed on the wrongly paid VAT to their customers for the purposes of the VAT Act 1994, s 80(3). But he allowed part of M & S's appeal on the question whether the enactment of t= he Finance Act 1997 (which replaced the 6-year limitation period in VATA 199= 4, s 80(4) with a 3-year limitation period) improperly deprived M & S of the= ir right to recover in respect of payments made during the earlier period as= a matter of Community law. And he referred the question to the ECJ, =91whe= ther it is compatible with Community Law to enforce legislation which removes with retrospective effect a right under national law to reclaim VAT, whic= h right has existed unexercised for more than three years.' ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 >From lionel.smith@law.oxford.ac.uk Mon Jan 10 11:20:33 2000 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 127csD-00085p-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 11:20:33 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 127cqO-0000Zb-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 11:18:40 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.12 #1) id 127cqN-0003TZ-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 11:18:39 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 10 Jan 2000 11:17:06 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: news Content-Type: multipart/alternative; boundary="============_-1264619469==_ma============" --============_-1264619469==_ma============ Content-Type: text/plain; charset="us-ascii" ; format="flowed" It appears that, like most of the rest of the world, the RDG has been spared any Y2K effects. News: Lowson v Coombes [1999] Ch 373, CA: applying Tinsley: you can establish a purchase money resulting trust against your paramour even though you were trying to hide assets from your wife. N McBride, "Rescission of Settlement for Mistake and Non-Disclosure" [1999] CLJ 473 (note on BCCI v Ali [1999] 2 All ER 1005) D Wright, "Giumelli, Estoppel and the New Law of Remedies" [1999] CLJ 476 (note on Giumelli v Giumelli) G Virgo, "Recent Developments in Restitution of Mistaken Payments" [1999] CLJ 478 (note on Nurdin and Peacock v DB Ramsden and Lloyds Bank v Independent Insurance) S Worthington, "Fiduciaries: When is Self-Denial Obligatory?" [1999] CLJ 500 GJ Tolhurst, "Assignment, Equities, The Trident Beauty and Restitution" [1999] CLJ 546 S Meier, "Mistaken Payments in Three-Party Situations: A German View of English Law" [1999] CLJ 567 MP Thompson, "Constructive Notice of Undue Influence" [1999] Conv 510 (note on Northern Rock BS v Archer) (NB not Lord Archer) Lionel --============_-1264619469==_ma============ Content-Type: text/enriched; charset="us-ascii" It appears that, like most of the rest of the world, the RDG has been spared any Y2K effects. News: Lowson v Coombes [1999] Ch 373, CA: applying Tinsley: you can establish a purchase money resulting trust against your paramour even though you were trying to hide assets from your wife. N McBride, "Rescission of Settlement for Mistake and Non-Disclosure" [1999] CLJ 473 (note on BCCI v Ali [1999] 2 All ER 1005) D Wright, "Giumelli, Estoppel and the New Law of Remedies" [1999] CLJ 476 (note on Giumelli v Giumelli) G Virgo, "Recent Developments in Restitution of Mistaken Payments" [1999] CLJ 478 (note on Nurdin and Peacock v DB Ramsden and Lloyds Bank v Independent Insurance) S Worthington, "Fiduciaries: When is Self-Denial Obligatory?" [1999] CLJ 500 GJ Tolhurst, "Assignment, Equities, The Trident Beauty and Restitution" [1999] CLJ 546 S Meier, "Mistaken Payments in Three-Party Situations: A German View of English Law" [1999] CLJ 567 MP Thompson, "Constructive Notice of Undue Influence" [1999] Conv 510 (note on Northern Rock BS v Archer) (NB not Lord Archer) Lionel --============_-1264619469==_ma============-- >From lionel.smith@law.oxford.ac.uk Mon Jan 10 13:04:03 2000 Received: from oxmail2.ox.ac.uk ([163.1.2.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 127eUN-0000D2-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 13:04:03 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 127eSX-0005Mn-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 13:02:09 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.12 #1) id 127eSX-0000qE-00 for restitution@maillist.ox.ac.uk; Mon, 10 Jan 2000 13:02:09 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 10 Jan 2000 13:00:36 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new books Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: quoted-printable Two new books which will be of interest to RDG members: Graham Virgo, The Principles of the Law of Restitution. Oxford,=20 Clarendon Press, 1999. 778 pages. ISBN 0-19-876377-8. =A335, softback.=20 More details at . A magisterial overview of the whole law of restitution. William Swadling and Gareth Jones, eds, The Search for Principle:=20 Essays in Honour of Lord Goff of Chieveley. Oxford University Press,=20 1999. 329 pages. ISBN 0-19-829883-8. =A345, hardback. A collection of 13 essays in honour of Lord Goff, plus a reprint of=20 his 1983 Maccabaean Lecture "The Search for Principle". Six of the=20 essays will be of specific interest to RDG members: in the order they=20 appear: Recovering Payments under Void Contracts in Scots Law - Lord=20 Rodger of Earlsferry; The Temptation of Elegance: Concurrence of=20 Restitutionary and Contractual Claims - Jack Beatson; Lord Goff's=20 Contribution to the Law of Restitution - Gareth Jones; The Role of=20 =46ault in the Law of Unjust Enrichment - Peter Birks; The Myth of=20 Phillips v Homfray - William Swadling; Reforming Non-Compensatory=20 Damages - Andrew Burrows. Other essays by other distinguished authors=20 cover a wide range of subjects. Lionel >From m.armstrong@lancaster.ac.uk Wed Jan 12 11:40:26 2000 Received: from alliance.lancs.ac.uk ([148.88.17.8]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 128M8Y-0007CM-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 11:40:26 +0000 Received: from exchange-ims.lancs.ac.uk ([148.88.17.22]) by alliance.lancs.ac.uk with esmtp (Exim 3.12 #1) id 128M6h-0000Mn-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 11:38:31 +0000 Received: by exchange-ims.lancs.ac.uk with Internet Mail Service (5.5.2448.0) id ; Wed, 12 Jan 2000 11:38:32 -0000 Message-ID: <7823222F821AD311844800204840353A417747@exchange2.lancs.ac.uk> From: "Armstrong, Mark" To: "'restitution@maillist.ox.ac.uk'" Subject: Subscription to discussion list Date: Wed, 12 Jan 2000 11:38:30 -0000 X-Mailer: Internet Mail Service (5.5.2448.0) Could I please subscribe to the discussion list? Yours, Mark Armstrong >From charles.mitchell@kcl.ac.uk Wed Jan 12 14:27:54 2000 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 128Okb-0007vd-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 14:27:53 +0000 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id OAA18215 for ; Wed, 12 Jan 2000 14:25:57 GMT Message-Id: <3.0.6.32.20000112142845.007b0640@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Wed, 12 Jan 2000 14:28:45 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" On Wednesday March 22nd, at 2 pm, the ever controversial David Wright, author of The Remedial Constructive Trust, will be addressing a staff seminar here at the King's College London Law School. The title of his paper will be 'The Role of Insolvency with Proprietary Remedies', and the seminar will take place on the King's Strand campus, in Room 2C. Any member of the RDG who would like to attend this seminar is welcome to do so. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 >From lionel.smith@law.oxford.ac.uk Wed Jan 12 16:27:47 2000 Received: from oxmail2.ox.ac.uk ([163.1.2.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 128Qcd-00001r-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 16:27:47 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 128Qam-0001FN-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 16:25:52 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.12 #1) id 128Qal-0004S2-00 for restitution@maillist.ox.ac.uk; Wed, 12 Jan 2000 16:25:52 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Wed, 12 Jan 2000 16:24:20 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Theoretical Inquiries In Law Content-Type: text/plain; charset="us-ascii" ; format="flowed" This new journal has been launched by the Cegla Institute for Comparative and Private International Law, Tel-Aviv University. It is semi-annual. Single issues US$15. Email ; I can provide fax and snail mail to anyone who asks. Vol. 1, No. 1, January 2000: Restitution and Unjust Enrichment EJ Weinrib, "Restitutionary Damages as Corrective Justice" J Gordley, "The Purpose of Awarding Restitutionary Damages: A Reply to Prof. Weinrib" G Jones, "Stripping a Criminal of the Profits of Crime" J Beatson, "Restitution and Contract: Non-Cumul?" H Dagan, "Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory" P Birks, "Recovering Value Transferred Under an Illegal Contract" C Rotherham, "Restitution and Property Rites: Reason and Ritual in the Law of Proprietary Remedies" Lionel >From lionel.smith@law.oxford.ac.uk Thu Jan 13 13:49:05 2000 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 128kcb-0003ut-00 for restitution@maillist.ox.ac.uk; Thu, 13 Jan 2000 13:49:05 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 128kak-0007mv-00 for restitution@maillist.ox.ac.uk; Thu, 13 Jan 2000 13:47:10 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.12 #1) id 128kak-0003lo-00 for restitution@maillist.ox.ac.uk; Thu, 13 Jan 2000 13:47:10 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Thu, 13 Jan 2000 13:45:40 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: French law Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: quoted-printable There is a new book on the French law of unjust enrichment: Christian=20 =46ilios, L'enrichissment sans cause en droit priv=E9 fran=E7ais: analyse=20 interne et vues comparatives. Athens/Brussels, Ant. N.=20 Sakkoulas/Emile Bruylant SA, 1999. 640 pages. ISBN 960-15-0154-1=20 (Sakkoulas)/2-8027-1327-2 (Bruylant). Lionel >From gerard.mcmeel@bristol.ac.uk Mon Jan 17 10:57:00 2000 Received: from dire.bris.ac.uk ([137.222.10.60]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12A9qG-00074e-00 for restitution@maillist.ox.ac.uk; Mon, 17 Jan 2000 10:57:00 +0000 Received: from eis.bris.ac.uk by dire.bris.ac.uk with SMTP-PRIV with ESMTP; Mon, 17 Jan 2000 10:54:56 +0000 Received: from law-brno.law.bris.ac.uk (brno.law.bris.ac.uk [137.222.84.104]) by eis.bris.ac.uk (8.9.3/8.9.3) with SMTP id KAA21288; Mon, 17 Jan 2000 10:54:38 GMT From: Gerard McMeel Sender: Gerard.McMeel@bristol.ac.uk Reply-To: gerard.mcmeel@bristol.ac.uk To: Simon Evans Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer and Innocent Donees In-Reply-To: <3845B205.C0BD9A86@law.unimelb.edu.au> Message-ID: Date: Mon, 17 Jan 2000 11:10:46 +0000 (GMT) Priority: NORMAL X-Mailer: Simeon for Win32 Version 4.1.5 Build (43) X-Authentication: IMSP MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII Sorry to revive this topic, but there is a spin on this which I believe was not raised. I was perusing Michael Crick's very readable biography of JA this morning, "Stranger han Fiction". This reminded me (at p 307 of the hardback) thet the main beneficiaries of Archer's libel damages were Cheltenham Ladies' College and two Cambridge colleges (of which the fragrant Mary was alumnus), together with Brasenose College, Oxford (of which Jeffrey is a quasi-alumnus) and Ely Cathedral. Personally I am somewhat sceptical that any cause of action exists, unless the Daily Star can establish bad faith bringing of civil suit or can succeed on an out-of-time appeal to the Court of Appeal. However, on the assumption that the right exists (and further asssuming JA's appearance of wealth is all a sham) would the claim extend to the innocent donees? This would test people's views on the reach of Diplock. Presumably the efficacy of change of position would be significant. ---------------------- Gerard McMeel gerard.mcmeel@bristol.ac.uk >From gordon.goldberg@buckingham.ac.uk Mon Jan 17 14:42:50 2000 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12ADMo-0008Mz-00 for restitution@maillist.ox.ac.uk; Mon, 17 Jan 2000 14:42:50 +0000 Received: from STF-LAW009 ([194.66.205.169]) by gila.buckingham.ac.uk with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id CZMJ2SJ4; Mon, 17 Jan 2000 14:43:39 -0000 Message-ID: <001501bf60f8$2ec372e0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: "Gerard McMeel" , "Simon Evans" Cc: Subject: Re: RDG: Archer and Innocent Donees Date: Mon, 17 Jan 2000 14:36:03 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 I believe that as regards accounting, not tracing, the "innocent donees" in Diplock were liable only because they knew they had received trust moneys. I do not see that knowledge of the source of Lord Archer's bounty would be the equivalent. -----Original Message----- From: Gerard McMeel To: Simon Evans Cc: restitution@maillist.ox.ac.uk Date: 17 January 2000 11:10 Subject: Re: RDG: Archer and Innocent Donees >Sorry to revive this topic, but there is a spin on this which I believe >was not raised. > >I was perusing Michael Crick's very readable biography of JA this >morning, "Stranger han Fiction". This reminded me (at p 307 of the >hardback) thet the main beneficiaries of Archer's libel damages were >Cheltenham Ladies' College and two Cambridge colleges (of which the >fragrant Mary was alumnus), together with Brasenose College, Oxford (of >which Jeffrey is a quasi-alumnus) and Ely Cathedral. > >Personally I am somewhat sceptical that any cause of action exists, >unless the Daily Star can establish bad faith bringing of civil suit or >can succeed on an out-of-time appeal to the Court of Appeal. However, >on the assumption that the right exists (and further asssuming JA's >appearance of wealth is all a sham) would the claim extend to the >innocent donees? This would test people's views on the reach of >Diplock. Presumably the efficacy of change of position would be >significant. > >---------------------- >Gerard McMeel >gerard.mcmeel@bristol.ac.uk > > >___________________________________________________________________________ _____ >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 restitution" in the body of a >message to . To unsubscribe, send "unsubscribe >restitution" to the same address. To make a posting to all group members, >send to . The list is run by Lionel Smith of >St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email >. > >From lionel.smith@law.oxford.ac.uk Fri Jan 21 12:44:10 2000 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12BdQA-00026j-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 12:44:10 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12BdOE-00053I-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 12:42:10 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12BdOD-0002tT-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 12:42:09 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Fri, 21 Jan 2000 12:40:46 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: change of position in NSW Content-Type: text/plain; charset="us-ascii" ; format="flowed" Robert Stevens has alerted me to Gertsch v Atsas, 1 Oct 99, NSW SC, It is a Diplock-type case of a claim against two innocent recipients from an estate. They took legacies under a will later found to be forged. Not all on the RDG will agree with the reasoning. Foster AJ held that the defence of change of position was applicable both to personal and proprietary claims: "22 It is plain, in my view, that it is reasonable to regard "proprietary" claims, at least in respect of moneys provided, in breach of trust, to a defendant who is, relevantly, an innocent volunteer as being comprehended within claims relating to "unjust enrichment" and as being susceptible to defences appropriate to such claims. In particular, the defence of "change of position" on the part of the defendant may be raised." Liability "as a constructive trustee" was rejected against both, due to an absence of the required fault. Perhaps the most interesting part is the application of the defence of change of position to a defendant who used much of the money received to pay off the mortgage on her house. "92 Quite plainly, the defence of change of position, as presently developed in the cases, does not admit of precise formulation. I find it of little assistance to focus upon individual statements in the judgments to the exclusion of the broad overarching concept that restitution will be ordered, in whole or in part, only where the defendant has been unjustly enriched by the amount received. Conversely, restitution is not to be ordered where the circumstances would render it unjust to do so. Clearly the circumstances must always be looked at as a whole. To say that, for instance, it is no defence that the moneys have been merely expended is to fail, in my opinion, to distinguish between two situations: one, where the defendant, notwithstanding the expenditure, can repay the amount expended from other funds at his or her disposal, and the other, where the defendant has no access to other funds and the requirement to repay would occasion great financial hardship, even penury or perhaps bankruptcy. Similarly the requirement that a defendant should have acted to his or her detriment on the faith of the receipt will not always be easy to apply. Is the concept restricted to financial disadvantage or is it of wider import? Even if restricted to financial matters, how is it to be determined? Is the concept a broad one, or should the Court undertake the production of a form of profit and loss account detailing advantages and disadvantages to the defendant accruing from the receipt and use of the money? One matter does, however, appear to be tolerably clear on the authorities. The defence does not apply in respect of such moneys as have been expended on ordinary living expenses. Such expenditure would not, by its very nature, involve any relevant change of position. In many cases, of course, where the moneys in question have been mixed with other funds of the recipient, it will be difficult to determine whether any part of the money received has been used in the defraying of ordinary living expenses as it has merely augmented the pool of financial resources available to the recipient, from which both ordinary and extraordinary expenditures are made. However, in the present case, because of the careful and candid analysis which has been made by Ms Hamilton, this problem has been reduced." She got $100,000, used $70,000 for the debt, and accounted for the rest in a general way, claiming she spent more day to day than she would otherwise have done (more take away meals etc). As to the $30,000 the judge took the view that 12.5% was ordinary living expenses and so she was liable for $3,750. As to the $70,000: "98 However, as a direct result of receipt of the legacy, she forsook the exercise of her earning capacity. By 1994 when the first indication of some doubts as to the validity of the legacy surfaced and, certainly, by 1996 when the claim for restitution was made, she had, in my view, foregone in earnings, an amount considerably in excess of the amount of the legacy, which by the end of 1992 she had fully expended. As against this, she had, of course, qualified for the receipt of the pensions and grants paid to her as an unemployed student. The evidence does not permit of any precise calculations. However, doing the best that I can, I have formed the view that, had she not received the legacy and, consequently, remained in employment rather than pursuing a university course, she would have, in all probability, paid off a large part of the relatively small mortgage that remained after she had made the financial adjustments referred to during Mr Gertsch's lifetime. I think it reasonable to find that the mortgage debt would have been reduced to $10,000 by the time that restitution was claimed. I consider that this sum reasonably represents the amount of her unjust enrichment from the use of the legacy moneys for the payment of the mortgage debt. Although the receipt of the legacy has resulted in her absence from the ordinary work force for a lengthy period, I do not consider that any further adjustment is called for. She has been enabled to obtain a University degree which, at least in the long term, would provide her with reasonable remuneration." Total liability: $13,750. A liberal application of the defence by any standard. Similarly for the other defendant who had received $300,000: "140 It is clear that he quite frequently took friends out to dinner as his guests. Also, he dined out, himself, far more often than he had previously, as he says, "up to four times per week." He also hired boats for fishing trips, sometimes at a cost of $250 per day, which was far beyond his previous means. He also spent money on week-ends away "once or twice per month" at an expenditure of approximately $150 per trip. Mr Fidirikkos estimated that he "regularly spent in the region of $200 to $400 per week on meals and entertainment." He also made gifts to his family which would otherwise have been beyond his means. Whilst accepting that it is possible that, over the two year period, he may well have spent more on such items, I consider it reasonable to accept that he expended from the legacy moneys an amount of $40,000 over and above what he would ordinarily have spent. 141 Mr Fidirikkos, finally claimed he spent money on his daughters' weddings well in excess of what he would have been able to spend had he not received the legacy. These amounts are claimed in Schedule G. There is a difficulty as to possible overlapping between amounts claimed in respect of weddings in Annexure A. Additionally, of course, it must be accepted that Mr Fidirikkos would have pushed his previous restricted means to their limit to provide his daughters with weddings, which he would have regarded as suitable. A considerable sum of money is claimed in Schedule G. I think it reasonable to allow no more than the amount of $12,750 in order to allow for the factors that I have mentioned. 142 In the result I am satisfied by the evidence that in relation to the amount of $300,000 received by Mr Fidirikkos he has relevantly changed his position through the expenditure of $240,000." >From lionel.smith@law.oxford.ac.uk Fri Jan 21 13:08:00 2000 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12BdnE-0002Hm-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 13:08:00 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12BdlJ-0002Ik-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 13:06:01 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12BdlJ-0000bA-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 13:06:01 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Fri, 21 Jan 2000 13:04:38 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: big time disgorgement Content-Type: text/plain; charset="us-ascii" ; format="flowed" On 21 December 1999 the Canadian federal government launched a lawsuit in US federal court against RJR-Macdonald, alleging that they were involved in smuggling cigarettes into Canada and seeking $1 billion, much of that as disgorgement of profits. The action is brought under RICO, under which civil damage awards are tripled. Newspaper account: http://www.nationalpost.com/news.asp?s2=national&s3=news&f=991222/158027.html Department of Justice press release: http://canada.justice.gc.ca/en/news/nr/1999/doc_24494.html DOJ summary of allegations: http://canada.justice.gc.ca/en/news/nr/1999/doc_24498.html DOJ case summary, as filed in the District Court (NDNY): http://canada.justice.gc.ca/en/news/nr/1999/doc_24500.html >From swh10@cus.cam.ac.uk Fri Jan 21 22:35:07 2000 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Bme3-0006az-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 22:35:07 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10) by ursa.cus.cam.ac.uk with smtp (Exim 3.13 #1) id 12Bmc6-0007Eo-00 for restitution@maillist.ox.ac.uk; Fri, 21 Jan 2000 22:33:06 +0000 Message-Id: <3.0.6.32.20000121223306.01200480@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Fri, 21 Jan 2000 22:33:06 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: big time what ?! In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 13:04 21/01/00, "Lionel Smith" wrote: >On 21 December 1999 the Canadian federal government launched a >lawsuit in US federal court against RJR-Macdonald, alleging that they >were involved in smuggling cigarettes into Canada and seeking $1 >billion, much of that as disgorgement of profits. The action is >brought under RICO, under which civil damage awards are tripled. > > Interesting. But in what sense is this "disgorgement" ? The relevant provision of RICO seems to be simply triple damages: "1964(c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee ...." (RICO is at http://www4.law.cornell.edu/uscode/18/ch96.html). Is this disgorgement ? If so, is disgorgment *any* penalty which: (a) obviously exceeds the loss suffered by the victim, and (b) is meant to punish wrongs with an economic motivation ? Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From lionel.smith@law.oxford.ac.uk Mon Jan 24 10:02:15 2000 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12CgK7-0007s2-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:02:15 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12CgI9-0007fv-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:00:13 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12CgI9-0007Zz-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:00:13 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <3.0.6.32.20000121223306.01200480@pop.cus.cam.ac.uk> References: <3.0.6.32.20000121223306.01200480@pop.cus.cam.ac.uk> Date: Mon, 24 Jan 2000 09:58:53 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re: RDG: big time what ?! Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: quoted-printable >Interesting. But in what sense is this "disgorgement" ? The relevant >provision of RICO seems to be simply triple damages: By disgorgement I only mean an award measured by defendant's gain=20 without regard to loss. The allegations make it clear that the=20 plaintiff thinks it can make this kind of claim. From the "summary of=20 allegations" at : "Reasons for This Action - To recover damages suffered by the Canadian government - To restrain the Defendants and their co-conspirators from engaging=20 in fraud and other unlawful conduct - To compel Defendants to surrender the proceeds of their wrongdoing - To defend the Government of Canada's policy of protecting young=20 Canadians from the deadly tobacco addiction." Whether they are right that no. 3 is cognisable in a civil action=20 under RICO, I do not know. Perhaps they have found some precedent for=20 extending the ferocious forfeiture provisions of criminal RICO=20 (=A71963) to civil actions. The document also says that they are=20 relying on common law fraud as well as civil RICO. L >From lionel.smith@law.oxford.ac.uk Mon Jan 24 10:04:39 2000 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12CgMR-0007vf-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:04:39 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12CgKT-0007kK-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:02:37 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 3.13 #1) id 12CgKT-0002Kw-00 for restitution@maillist.ox.ac.uk; Mon, 24 Jan 2000 10:02:37 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 24 Jan 2000 10:01:17 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Lloyd's Reports Banking Content-Type: text/plain; charset="us-ascii" ; format="flowed" A number of the cases which have been mentioned on the RDG in the last few weeks are reported in the specialist series Lloyd's Reports Banking: Bank of America v Arnell [1999] Lloyd's Rep Bank 399 Twinsectra Ltd v Yardley [1999] Lloyd's Rep Bank 438, CA Heinl v Jyske Bank (Gibraltar) Ltd [1999] Lloyd's Rep Bank 511, CA L >From RCHAMBER@law.ualberta.ca Tue Jan 25 20:10:20 2000 Received: from thejudge.law.ualberta.ca ([129.128.108.13]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 12DCI7-0007Df-00 for restitution@maillist.ox.ac.uk; Tue, 25 Jan 2000 20:10:20 +0000 Received: from LAWDOM-Message_Server by thejudge.law.ualberta.ca with Novell_GroupWise; Tue, 25 Jan 2000 13:08:15 -0700 Message-Id: X-Mailer: Novell GroupWise 5.5 Date: Tue, 25 Jan 2000 13:07:54 -0700 From: "Robert CHAMBERS" To: Subject: Canadian Bar Review Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Members might be interested in three essays published in (1999) 78 = Canadian Bar Review: Laura Hoyano, "The Profit Paradox: Protecting Legitimate Expectations in = Tort", pp 363-415 Mitchell McInnes, "Reflections on the Canadian Law of Unjust Enrichment: = Lessons From Abroad", pp 416-444 Leonard Rotman, "Balancing the 'Scales of Justice': Fiduciary Obligations = and Stewart v CBC", pp 445-485 Robert Chambers University of Alberta Faculty of Law Edmonton, Alberta, Canada, T6G 2H5 (1780) 492-2599 (telephone) (1780) 492-4924 (fax) >From eodell@truxa1.tcd.ie Wed Jan 26 12:32:03 2000 Received: from truxa1.tcd.ie ([134.226.1.158]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12DRcB-0004tg-00 for restitution@maillist.ox.ac.uk; Wed, 26 Jan 2000 12:32:03 +0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by truxa1.tcd.ie (8.9.3/8.9.3) with SMTP id MAA00374 for ; Wed, 26 Jan 2000 12:29:57 GMT Date: Wed, 26 Jan 2000 12:29:57 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: New Irish Chief Justice Hello all Just a note, for those who are interested, to let you know that Keane J, who wrote the judgment of the Irish Supreme Court in the Bricklayers' Hall case, was yesterday appointed Chief Justice. Eoin. EOIN O'DELL Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland (353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m); eodell@tcd.ie (All opinions are personal. No legal responsibility whatsoever is accepted.) Eunice and I had a wonderful little baby boy, Andrew, on 24.7.99 !! >From gerhard.dannemann@law.oxford.ac.uk Thu Jan 27 15:30:57 2000 Received: from oxmail2.ox.ac.uk ([163.1.2.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 12Dqsr-0002rB-00 for restitution@maillist.ox.ac.uk; Thu, 27 Jan 2000 15:30:57 +0000 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 12Dqqs-0006SK-00 for restitution@maillist.ox.ac.uk; Thu, 27 Jan 2000 15:28:54 +0000 Received: from max32.public.ox.ac.uk ([192.76.27.32] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 3.13 #1) id 12Dqqq-0006OZ-00 for restitution@maillist.ox.ac.uk; Thu, 27 Jan 2000 15:28:53 +0000 Message-ID: <38906350.72D28873@law.ox.ac.uk> Date: Thu, 27 Jan 2000 16:25:04 +0100 From: Gerhard Dannemann X-Mailer: Mozilla 4.51 [en] (Win95; I) X-Accept-Language: de MIME-Version: 1.0 To: "Maillist, Restitution" Subject: Change of position in NSW and Germany Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Re: Gertsch v Atsas, 1 Oct 99, NSW SC, = As concerns the lady who paid off her mortgage, comparatists will be interested to note that the reasoning is not far away from that adopted by the German Federal Court of Justice in BGH 17.6.1992, BGHZ 118, 383 =3D= Markesinis, Lorenz and Dannemann, The German Law of Obligations Vol. I, case no. 131). = This was an overpayment of maintenance (rather than a Diplock type will), and the lady paid off her car (rather her mortgage), but the rest is rather similar. The following is a quote from the judgment (please note that "lapse of enrichment" denotes more or less the same as "change of position"): "It is the enriched party which must prove the lapse of the enrichment, as this is a defence which destroys the claim (BGH NJW 1958, 1725 =3D LM = =A7 134 BGB Nr. 30). Court practice has created alleviations for this proof as regards overpayment of salaries and benefits owed to civil servants, which, by their nature and purpose, are similar to maintenance allowances. These alleviations operate if the overpayment has not been used during the time in question to build up specific savings, or other pecuniary advantages. Experience of life will argue in favour of recipients, in particular those on a low or average income, i.e. that they have spent the overpayment on improving their standard of life, without having to show specifically how this money was actually spent (RGZ 83, 161, at 163; BVerwGE 13, 107; other references omitted). But even if a lasting pecuniary advantage has been created, this does not necessarily exclude such alleviations. The Bundesverwaltungsgericht (BVerwGE 15, 15, at 18) has also assumed a lapse of enrichment under =A7 818 III BGB in a case where a civil servant used the overpaid amount for paying off debts which he would equally have paid off without the overpayment by restricting his standard of life. In that case, the Court argued that the overpayment had resulted in no more than that the civil servant, by adapting to the extra amount which was at his disposal, restricted his lifestyle less than he would have done if he had paid off his debts on the lower income to which he was entitled. According to these principles, to which this Senate subscribes, it does not matter for the purposes of proving lapse of enrichment whether the surviving pecuniary advantage has been acquired by using the excess amount which was paid without legal ground, or by using the basic sum which was paid with legal ground. In most cases, it will be impossible to establish which of the two amounts was used to pay off the debt, because usually the amount owed and the amount not owed are paid in one total sum, and because the recipient will not distinguish between the partial amounts he uses in order to cover his ongoing living expenses on the one hand, and to pay off debts or to acquire objects which become part of his assets on the other (Lieb, in: M=FCnchKomm, 2nd ed. 1986, =A7 818 no. 83)= =2E What is decisive is rather the proof that the enriched party would at any event, and without the overpayment, have acquired the pecuniary advantage in question, if necessary by restricting its lifestyle, with the result that the overpayment has not caused this pecuniary advantage to the enriched party. It is without success that the appeal argues that stricter rules of evidence should operate for the protection of the maintenance debtor as regards overpayment of maintenance above the amount the maintenance debtor must be allowed to keep for his own subsistence. Rather, the rules on evidence which have been developed for the civil servants cases are also to be applied to wage or maintenance payments under private law. For this situation is comparable to that involving salaries for civil servants (reference omitted). This is in particular true for the present case. With DM 1,800 per month, the maintenance which the defendant received is within the area of a lower to middle civil servants' salary. There is nothing to show that civil servants demonstrate spending patterns which differ from those of a maintenance creditor. Equally, there are no other reasons which could justify a distinction. Nor do the interests of the enrichment creditor necessitate a presumption to the effect that any pecuniary advantage left with the enrichment debtor has been financed using the amount of the overpayment, with the consequence that such a presumption can be rebutted only by concrete proof that the amount in dispute has been spent otherwise. On the contrary, such a presumption would create too onerous a burden of proof, and contradict the statutory purpose which ties the duty of the enrichment debtor to provide compensation to a true increase of assets which stems from his having received something without legal ground (BGHZ 55, 128, at 134). This is even more so true because, in the income areas under consideration, larger acquisitions, e.g. of household goods or of a car, will, as a rule, be financed on a loan basis, whereby the necessary instalments for capital repayment and interests are paid by making sacrifices on other expenditure. Otherwise, reliance on change of position would be excluded in nearly all of these cases. It is therefore sufficient for the defendant to prove that she would have repaid her debts even without the overpayment. The defendant has proved this point. It is not disputed that she has continued to pay monthly instalments of DM 267 since 1980 until very recently. This does include payments made by restricting her ongoing living expenses during those months in which, due to the temporary stay of execution, she had no more at her disposal than maintenance payments amounting to DM 1,000 per month. In addition, the Appeal Court has stated, without being challenged, that the defendant has not debited her accounts for any larger sums which could indicate any other savings she might have made. Likewise, the Appeal Court has stated that the defendant did not dispose of any other means which she could have used for her own subsistence. The Appeal Court was allowed to conclude from the above that the defendant had already previously planned the repayment of her loan as a fixed part of her monthly outgoings to be met in advance, and that any means which exceeded these outgoings, such as the overpayments, were used to improve her standard of living." -- Gerhard Dannemann = Dr. Gerhard Dannemann Erich Brost University Lecturer in German Civil and Commercial Law University of Oxford http://iuscomp.org