-- >From khgkhgk@yahoo.com Sat Sep 02 10:12:35 2000 Received: from sparc.uccb.ns.ca ([142.12.4.50]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 13V9Lm-0004CP-00 for restitution@maillist.ox.ac.uk; Sat, 2 Sep 2000 10:12:34 +0100 Received: from gis1.uccb.ns.ca (gis1.uccb.ns.ca [142.12.2.106]) by sparc.uccb.ns.ca (8.9.0.Beta5/8.9.0.Beta5) with SMTP id GAA11858; Sat, 2 Sep 2000 06:08:42 -0300 (ADT) From: khgkhgk@yahoo.com Received: from sdn-ar-001calangP069.dialsprint.net by gis1.uccb.ns.ca (5.65v3.2/1.1.10.5/30Apr97-0712AM) id AA29779; Sat, 2 Sep 2000 06:09:32 -0300 Date: 02 Sep 00 2:13:36 AM Message-Id: Subject: RE: Your Instant 3.95% Mortgage Quote Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Apparently-To: Bcc: Dear Home Owners and Home Buyers, Do you want to own your own home? 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If you no longer wish to receive any of our mailings please email webmaster911@telkom.net with the word remove in the subject line Thank you >From owner-restitution@maillist.ox.ac.uk Wed Sep 06 20:38:06 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13Wl0X-0001ez-00; Wed, 06 Sep 2000 20:37:17 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13Wl0X-0001es-00 for restitution@maillist.ox.ac.uk; Wed, 06 Sep 2000 20:37:17 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G0H002KUD1CPO@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Wed, 6 Sep 2000 15:34:24 -0400 (EDT) Date: Wed, 06 Sep 2000 15:35:49 -0400 From: Lionel Smith Subject: RDG: new book X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20000906153302.00a938e0@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith Steve Hedley has advised me of the publication of Peter Jaffey's book, The Nature and Scope of Restitution. From the Hart Publishing web site, : "In recent years there has been enormous interest in the law of restitution, with many new books and academic articles and a number of important decisions in the courts. However, there remains great controversy and some confusion, partly for historical reasons and partly as a result of continuing differences over the principles underlying the field. There are particular difficulties over the relation of the law of restitution to other areas of law, including contract and property law. "In this new and innovative work the author advances a view of the framework of fundamental principles underlying the law of restitution which offers a means of understanding the tangle of conflicting authorities and then proceeds to examine the case law in light of it. As part of his analysis, the author suggests new approaches to understanding the areas of overlap between restitution, contract, trusts and property law." I will add on a personal note that I am finally somewhat established in my office at McGill. For anyone who is interested, my new coordinates are: Faculty of Law, McGill University 3644 Peel St. Montreal, Quebec Canada H3A 1W9 Tel. + 1 514 398 6645 Fax + 1 514 398 7145 (or 398 4659) email ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Wed Sep 06 20:55:53 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13WlIE-0001hS-00; Wed, 06 Sep 2000 20:55:34 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13WlID-0001hL-00 for restitution@maillist.ox.ac.uk; Wed, 06 Sep 2000 20:55:34 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G0H0035MDVTI9@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Wed, 6 Sep 2000 15:52:41 -0400 (EDT) Date: Wed, 06 Sep 2000 15:54:06 -0400 From: Lionel Smith Subject: RDG: new book X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20000906155133.00a95100@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith And of course may I offer warm congratulations to Peter on the new book, which I look forward to reading. As I mentioned some time ago, the RDG will have to migrate to another server here at McGill. This has not yet occurred. I will keep you posted. Lionel _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Thu Sep 07 10:34:04 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13Wy3S-0002yT-00; Thu, 07 Sep 2000 10:33:10 +0100 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13Wy3S-0002yM-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 10:33:10 +0100 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (KAA169665); Thu, 7 Sep 2000 10:31:44 +0100 (BST) Message-Id: <3.0.5.32.20000907103138.007e6e40@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Thu, 07 Sep 2000 10:31:38 +0100 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: RDG: regalian gloss Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Andrew Tettenborn An interesting gloss on Regalian and wasted expenses from Hart J. The MOD wanted wireless equipment. Racal wanted to tender and needed to subcontract the antennae. They approached Easat, & after the usual humming and hawing agreed that Easat would get the subcontract if they got the contract with the MoD. But the price was left to future negotiation, & so any possible contract claim by Easat was stymied by Walford v Miles. Later, by which time Easat (with sme encouragement from Racal) had incurred =A3100k plus R & D, Racal placed the subcontract elsewhere before successfully tendering to the MoD. Can Easat claim their R & D? Yes, despite Regalian. Regalian only applies where the claimant knows there isn't a contract & therefore acts at its own risk. Here Easat thought (wrongly as a matter of law) that there was a valid agreement, & this made all the difference. See Easat v Racal, unrep (I think) 28.3.00. The interesting point is that no-one seems to have mentioned the Planche v Colburn point, i.e. no benefit to Racal anyway. Or am I missing something? AT Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Personal Fax: 0870-0889339 / +44-870-0889339 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Thu Sep 07 13:06:30 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13X0RI-0003f9-00; Thu, 07 Sep 2000 13:05:56 +0100 Received: from libra.cus.cam.ac.uk ([131.111.8.19] ident=cusexim) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13X0RH-0003f2-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 13:05:55 +0100 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10) by libra.cus.cam.ac.uk with smtp (Exim 3.16 #3) id 13X0Pq-00049G-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 13:04:27 +0100 Message-Id: <3.0.6.32.20000907130430.02680820@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: Thu, 07 Sep 2000 13:04:30 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: Regalian gloss In-Reply-To: <3.0.5.32.20000907103138.007e6e40@pop.ex.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Steve Hedley I have now made the full text available on my restitution site; go to www.law.cam.ac.uk/restitution/restitution.htm and follow English/Welsh=20 cases --- Easat. The case certainly seems awkward for anyone who looks for "benefit" in any ordinary sense of the word, though of course there are various extraordinary senses doing the rounds, so to speak. At 10:31 07/09/00 +0100, you wrote: >An interesting gloss on Regalian and wasted expenses from Hart J. > > >The MOD wanted wireless equipment. Racal wanted to tender and needed to >subcontract the antennae. They approached Easat, & after the usual humming >and hawing agreed that Easat would get the subcontract if they got the >contract with the MoD. But the price was left to future negotiation, & so >any possible contract claim by Easat was stymied by Walford v Miles. Later, >by which time Easat (with sme encouragement from Racal) had incurred =A3100= k >plus R & D, Racal placed the subcontract elsewhere before successfully >tendering to the MoD. > Can Easat claim their R & D? Yes, despite Regalian. Regalian only applies >where the claimant knows there isn't a contract & therefore acts at its own >risk. Here Easat thought (wrongly as a matter of law) that there was a >valid agreement, & this made all the difference. See Easat v Racal, unrep >(I think) 28.3.00. > >The interesting point is that no-one seems to have mentioned the Planche v >Colburn point, i.e. no benefit to Racal anyway. Or am I missing something? > >Andrew Tettenborn MA LLB >Bracton Professor of Law > Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D 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 =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Thu Sep 07 13:42:36 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13X10N-0003nn-00; Thu, 07 Sep 2000 13:42:11 +0100 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13X10M-0003ng-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 13:42:10 +0100 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #3) id 13X0yx-0002lX-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 13:40:43 +0100 Received: from max47.public.ox.ac.uk ([192.76.27.47] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 3.13 #1) id 13X0yw-0001RA-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 13:40:43 +0100 Message-ID: <39B78B70.55217FA2@law.ox.ac.uk> Date: Thu, 07 Sep 2000 14:34:56 +0200 From: Gerhard Dannemann X-Mailer: Mozilla 4.51 [en] (Win95; I) X-Accept-Language: de MIME-Version: 1.0 To: "Maillist, Restitution" Subject: RDG: Regalian gloss Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Gerhard Dannemann Thanks to Steve Hedley for making this decision available. Is the following perhaps some explanation for the benefit and Planche v Colburn mysteries? Or have I overlooked something? Quote from the judgment: http://www.law.cam.ac.uk/restitution/archive/englcases/easat.htm "The Quantum Merit Claim = 55. This was put simply by Mr Dennys QC as being an archetypal case of services having been provided under an unenforceable contract, and he referred me to William Lacey (Hounslow) Ltd v. Davis [1957] 1 WLR 932, British Steel Corporation v. Cleveland Bridge & Engineering Co Ltd [1984] 1 AER 504, Craven Ellis v. Carnons Ltd [1936] 2 KB 403, Way v. Latilla [1937] 3 AER 759 and the discussion of those authorities in Goff and Jones, Law of Restitution, 5th edition, Chapter 23. The cost of the services provided by the claimant to the defendant (inclusive of the cost of manufacturing the space model) was agreed to have been =A3113,138= =2E The claimant elected to claim this sum under this heading rather than seeking to value the benefit to the defendant of the services and = claiming that value. It was not disputed by the defendant that it had obtained a benefit as a result of the services." Gerhard Dannemann -- = Dr. Gerhard Dannemann Erich Brost University Lecturer in German Civil and Commercial Law University of Oxford Tel 01865 2 81613 Fax 81611, or: Tel/Fax +49 (0)89 2899 6695 http://iuscomp.org _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Thu Sep 07 23:02:48 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13X9ji-0005wB-00; Thu, 07 Sep 2000 23:01:34 +0100 Received: from libra.cus.cam.ac.uk ([131.111.8.19] ident=cusexim) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13X9ji-0005w4-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 23:01:34 +0100 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10) by libra.cus.cam.ac.uk with smtp (Exim 3.16 #3) id 13X9iG-0005RT-00 for restitution@maillist.ox.ac.uk; Thu, 07 Sep 2000 23:00:04 +0100 Message-Id: <3.0.6.32.20000907230010.026118d0@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: Thu, 07 Sep 2000 23:00:10 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: Casenote on Blake - (2000) 1010 PE 9 Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Steve Hedley Those who both are interested in restitution and read "Private Eye", have an unexpected bonus this week. That normally austere publication has let its hair down, and carries what amounts to a casenote on AG v. Blake (HL, 27 July 2000). =20 For those who do not take this learned periodical, the article is reproduced below. I would have referred you to Private Eye's website (www.private-eye.co.uk), but unfortunately that is devoted to the sober business of political satire, and largely neglects restitutionary concerns. I really don't know how they stick at it, it all seems so serious!! Apparently, casenotes will only be an occasional feature. =20 While I have spent several seconds (or more) in anxious thought on the issue, nonetheless I do not consider that an action for breach of copyright for this re-publication is very likely. In any event, our esteemed list owner has made good his escape from the jurisdiction, and so has little to fear from the English courts. Or is breach of copyright an extraditable offence? Perhaps you shouldn't unpack that bag just yet, Lionel ;-)=20 I might add, for those who do not follow UK politics in detail, and so might not understand the first paragraph of the article, that "David Shayler" is a very junior secret service employee, recently in the news, who may soon stand trial for revealing official secrets. And for those who need to be told, "spook" is slang for "spy". IN THE COURTS ("Private Eye" no 1010, 8 September 2000, page 9) David Shayler is back in England, apparently confident that the new human rights act will keep him out of jail. But he seems to have forgotten an important legal principle: on hearing the magic words "secret service", British judges will happily twist the law or turn it upside down rather than upset the spooks. The point is amply confirmed by the recent denouement to an epic contest between Whitehall and George Blake, the former MI6 man who spied for the Russians. The saga began a full 10 years ago, in September 1990, when Messrs Jonathan Cape published Blake's self-justifying autobiography, "No Other Choice". Although ministers had advance notice of it, they made no attempt to prevent publication - perhaps because they'd been so badly burnt by the "Spycatcher" farce, and because none of the information in the book was remotely secret or damaging to the "national interest". In May 1991, however, they learned that Cape had promised Blake a =A3150,000 advance, of which he had already been paid =A360,000. The attorney-general then brought a private action against the author (though not against Cape), demanding the remaining =A390,000, plus damages, since the spy had breached his "fiduciary duty" to the crown. In keeping with the speedy traditions of British jurisprudence, the case was heard in the High Court a mere five years later. Blake, who lives in Moscow, was refused legal aid and therefore went unrepresented at the hearing. But the judge, Sir Richard Scott (of arms-to-Iraq fame), nevertheless found in his favour. Although Blake had signed the official secrets act on joining MI6 in 1944, it was "an interference with his rights of free expression" to suggest that this prevented him from writing anything at all, however harmless, even half a century afterwards. This robust verdict made the spooks very angry indeed since they have always operated on the principle that absolutely everything related to MI5 and MI6, even down to the type of biscuits served in the staff canteen, must remain secret in perpetuity. The attorney-general duly appealed. By the time the case reached the appeal court, in October 1997, there had been a general election; but the new regime was just as determined as its predecessor to bolster official secrecy. George Blake was again refused legal aid and had no representative in court; the government, by contrast, fielded a veritable battalion of barristers including Tony Blair's chum Lord Falconer QC, Philip Havers QC, Mary Vitoria QC plus junior counsel. Alas! The appeal judges - Woolf, Millett and Mummery - had to concede that Sir Richard Scott's verdict was legally unimpeachable: there was no known remedy against Blake in private law. But they agreed that it would be most shocking and reprehensible if "a notorious spy" were allowed to earn money from his autobiography. And so, in a patriotic spirit, they helpfully "prompted" the crown counsel to try public law instead. With the blessing of Lord Woolf and his two colleagues, the attorney-general hastily rewrote his statement of claim. Out went all the guff about fiduciary duty, to be replaced by an argument that in "exceptional cases" where the criminal courts were "powerless to act", the government should be allowed to claim "injunctive relief' to stop the law being brought into disrepute by KGB agents and other ne'er-do-wells. Delighted that the attorney-general had taken the hint, Woolf and Co granted an "interim injunction" in December 1997 restraining Blake from receiving his royalties "until further order". Even a first-year law student might notice the rather obvious flaw in this decision: how interim is interim? The money had not been frozen pending a criminal prosecution or a private lawsuit, but was in effect being seized indefinitely. This amounted to a common-law confiscation order, which the courts have no power to make. Now it was Blake's turn to appeal to the House of Lords, aided by a solicitor and two barristers who agreed to act for him on a pro bono basis. Following three days of hearings in March this year, the law lords published their judgment last month - and revealed an even more remarkable willingness to bend the law than the appeal judges. All five peers agreed that the injunction against Blake's royalties broke the important constitutional principle that there is no common-law power to confiscate property without compensation. But this left the government in the same horrible position it had been in three years earlier - unable to contemplate letting Blake get his money, but equally unable to find a single legal reason he shouldn't. It was time for a little more "prompting". With the encouragement and permission of their lordships the attorney-general changed tack yet again - heading back into private law and launching a cross-appeal which claimed that the government was entitled to Blake's =A390,000 as "restitutionary damages". This was even more nonsensical than the appeal court's confiscation order. Restitution (which is not the same as compensation) is normally used only where commercial or proprietary interests are involved. It has a narrow and specific legal meaning that the defendant must return property which rightly belongs to the plaintiff. It can also be used to force someone who is unjustly enriched to reimburse the person at whose expense the enrichment took place. But since the attorney-general hadn't even attempted to argue that the government had a "proprietary right" to Blake's royalties or his book, it was obviously inapplicable in this case. Nevertheless, four of the five law lords happily found in favour of the crown, on the grounds that Blake was a "notorious traitor" who must be punished somehow, even if this meant bending the law. It was left to the only dissenting voice, Lord Hobhouse of Woodborough, to blow the gaff on his fellow-judges' jiggery-pokery. As he pointed out, the government failed to stop Blake publishing his book when it could have done, tried to close the stable door in the high court, and lost. It then tried the court of appeal, which froze Blake's payment - but without any legal justification. So, to save the government from embarrassment, the Lords cooked up an entirely novel concept in contract law: that "restitutional damages" can be awarded merely because judges don't like the cut of the defendant's jib. If this precedent is applied to commercial law, he warned, "the consequences will be very far reaching and disruptive". Never mind: at least the government can celebrate a famous victory. After running up legal bills close to =A31m - funded by the taxpayer - it has at last obtained handsome "restitution": a cheque for the grand sum of, er, =A390,000. _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Fri Sep 08 05:12:54 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13XFWT-0006Ua-00; Fri, 08 Sep 2000 05:12:17 +0100 Received: from lawfac.anu.edu.au ([150.203.87.125] helo=law.anu.edu.au) by penguin.oucs.ox.ac.uk with smtp (Exim 3.14 #1) id 13XFWR-0006UT-00 for restitution@maillist.ox.ac.uk; Fri, 08 Sep 2000 05:12:16 +0100 Received: from ANU-Message_Server by law.anu.edu.au with Novell_GroupWise; Fri, 08 Sep 2000 15:10:34 +1000 Message-Id: X-Mailer: Novell GroupWise Internet Agent 5.5.2.1 Date: Fri, 08 Sep 2000 15:10:11 +1000 From: "Joachim Dietrich" To: Subject: RDG: Easat v Racal Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Joachim Dietrich" Perhaps the point re benefit in this case, and others like it, is that = such benefit is unnecessary in order to establish the claim (in restitution= or otherwise). It appears from the facts to be a pretty standard example = of a "precontractual" arrangement amounting to an express or implied = "minor" agreement by the defendant to bear the risk of any expenses = incurred by the plaintiff (on a reasonable assumption of a "main" contract = being entered), should such main contract not come about. The fact that = there was some encouragement by Racal of such considerable expenditure = would go a long way to supporting such an assumption of liability on = Racal's part. It should surely be irrelevant then, given the implied = agreement to pay for any such expenses, whether such expenses are of = benefit to Racal. Joachim Dietrich Faculty of LAw Australian National University Canberra, ACT AUSTRALIA 61 2 62494654 _____________________________________________________________________ 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 the Faculty of Law, McGill University, Montreal, Quebec, Canada H3A 1W9, tel. + 1 514 398 6645, email . >From owner-restitution@maillist.ox.ac.uk Fri Sep 08 17:34:05 2000 Received: from majordom by penguin.oucs.ox.ac.uk with local (Exim 3.14 #1) id 13XR5G-00010h-00; Fri, 08 Sep 2000 17:32:58 +0100 Received: from virgo.cus.cam.ac.uk ([131.111.8.20] ident=cusexim) by penguin.oucs.ox.ac.uk with esmtp (Exim 3.14 #1) id 13XR5G-00010a-00 for restitution@maillist.ox.ac.uk; Fri, 08 Sep 2000 17:32:58 +0100 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10) by virgo.cus.cam.ac.uk with smtp (Exim 3.16 #3) id 13XR3o-0005T1-00 for restitution@maillist.ox.ac.uk; Fri, 08 Sep 2000 17:31:28 +0100 Message-Id: <3.0.6.32.20000908173138.0181e560@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, 08 Sep 2000 17:31:38 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: Privy Council In-Reply-To: <3.0.6.32.20000907230010.026118d0@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Steve Hedley List members may be interested to know that the Privy Council Office now has a website. http://www.privy-council.org.uk/ The section on the Judicial Committee includes judgments back to January 1999, and selected judgments before then. 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 =================================================== ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Thu Sep 28 14:55:01 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13ee77-0005K6-00; Thu, 28 Sep 2000 14:52:41 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13ee77-0005Jy-00 for restitution@maillist.ox.ac.uk; Thu, 28 Sep 2000 14:52:41 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1L00584NQCHX@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Thu, 28 Sep 2000 09:49:25 -0400 (EDT) Date: Thu, 28 Sep 2000 09:52:36 -0400 From: Lionel Smith Subject: RDG: constructive trust X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20000928093945.00a86f00@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith In Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd., 18 August 2000, British Columbia CA, Ellingsen wanted to buy a car from the defendant but there was difficulty arranging the financing. He was allowed to take the truck away, financing to be arranged later. The written agreement said "subject to credit approval." He went bankrupt and the defendant had not made any filing in the Personal Property Registry. The trustee in bankruptcy sought an order that under the terms of the Personal Property Security Act, the truck vested in the trustee clear of any rights of the defendant. The defendant sought a remedial constructive trust. The court held, 2-1, that such a trust was appropriate, as the sale contract was subject to an unfulfilled condition precedent and thus Hallmark had not taken a credit risk. (I am not so sure of this.) This is one of only two Canadian cases of which I am aware in which a CT actually alters insolvency priorities. Lionel ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Thu Sep 28 14:55:03 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13ee78-0005KE-00; Thu, 28 Sep 2000 14:52:42 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13ee78-0005K3-00 for restitution@maillist.ox.ac.uk; Thu, 28 Sep 2000 14:52:42 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1L005DLNQEEO@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Thu, 28 Sep 2000 09:49:26 -0400 (EDT) Date: Thu, 28 Sep 2000 09:46:08 -0400 From: Lionel Smith Subject: RDG: Change of Position X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20000928090403.00aa1610@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Content-type: text/plain; charset="iso-8859-1"; format=flowed Content-transfer-encoding: quoted-printable Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith Two new English cases on change of position: Scottish Equitable plc v Derby [2000] 3 All ER 793 (QBD): the defendant had= =20 a life assurance/ investment product with the plaintiff. The plaintiff=20 forgot that the defendant had taken benefits and sent him a statement=20 showing he had =A3200,000+ when it should have showed =A329,000. The= erroneous=20 statement was confirmed by the plaintiff. The defendant took out =A351,000= =20 cash and invested the rest with another company in a pension-paying=20 product. The lump sum was spent as to =A342,000 on paying his mortgage and= as=20 to the rest on 'modest improvements to lifestyle.' The plaintiff discovered= =20 the error and the pension product was changed to yield a smaller pension,=20 with a capital refund to the plaintiff. The defendant, now in financial=20 difficulties, resisted repayment of the lump sum, arguing estoppel and also= =20 change of position, on the basis that he had been denied the opportunity to= =20 make other provision for himself and his wife. The plaintiff agreed to=20 limit its claim to the =A342,000 if the court was satisfied that the=20 defendant was not aware of the mistake at the time he spent the rest (and=20 it was so satisfied). Held, no defence of change of position except as=20 conceded by the plaintiff. Estoppel not allowed due to the availability of= =20 c of p on the facts of this case (without stating a general bar). Philip Collins Ltd v Davis [2000] 3 All ER 808 (ChD): By mistake the=20 plaintiff overpaid royalties to the defendants, and proposed to recoup this= =20 by set off against future royalties. The defendants pleaded estoppel and c= =20 of p. As to estoppel: mere payment was not a representation; moreover, it=20 should not be available where c of p is apt. As to c of p: the defence was= =20 argued on the basis of a general adjustment of day-to-day life on the basis= =20 of the level of royalties coming in. Held that the defendant had the burden= =20 of proving the defence, and no particular expenditures were shown to have=20 been made in reliance on the overpayments; but it was permissible to base=20 the defence on a general adjustment of lifestyle to a stream of income.=20 Half of the overpayments were recoverable. Lionel ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Fri Sep 29 01:22:57 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13enwV-0008EM-00; Fri, 29 Sep 2000 01:22:23 +0100 Received: from lawfac.anu.edu.au ([150.203.87.125] helo=law.anu.edu.au) by penguin.ox.ac.uk with smtp (Exim 3.14 #1) id 13enwT-0008EF-00 for restitution@maillist.ox.ac.uk; Fri, 29 Sep 2000 01:22:22 +0100 Received: from ANU-Message_Server by law.anu.edu.au with Novell_GroupWise; Fri, 29 Sep 2000 11:20:33 +1000 Message-Id: X-Mailer: Novell GroupWise Internet Agent 5.5.2.1 Date: Fri, 29 Sep 2000 11:20:22 +1000 From: "Joachim Dietrich" To: Subject: RDG: Constructive trust (Ellingsen v Hallmark) Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Joachim Dietrich" The case noted by Lionel seems reasonable enough in its result, but could = the same result not have been reached by a more direct route (not having = read the case, these comments are purely speculative). Could it not have = been argued that the presumption of the passing of property on delivery = was rebutted by the absence of an effective contract under which the = property in the goods passed?; ie, since the contract was subject to an = unfulfilled condition precedent, the basis on which property was to pass = had also not been fulfilled and thus Hallmark still had good (legal) title = to the goods. Hence, there would not have been a need to resort to a = constructive trust.=20 Or am I missing something? Joachim Dietrich Faculty of Law, ANU Australia On 29/09 Lionel wrote: In Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd., 18 = August=20 2000, British Columbia CA, Ellingsen wanted to buy a car from the = defendant=20 but there was difficulty arranging the financing. He was allowed to = take=20 the truck away, financing to be arranged later. The written agreement = said=20 "subject to credit approval." He went bankrupt and the defendant had = not=20 made any filing in the Personal Property Registry. The trustee in=20 bankruptcy sought an order that under the terms of the Personal Property=20= Security Act, the truck vested in the trustee clear of any rights of = the=20 defendant. The defendant sought a remedial constructive trust. The = court=20 held, 2-1, that such a trust was appropriate, as the sale contract was=20 subject to an unfulfilled condition precedent and thus Hallmark had not=20 taken a credit risk. (I am not so sure of this.) This is one of only two Canadian cases of which I am aware in which a = CT=20 actually alters insolvency priorities. ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Fri Sep 29 13:36:07 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13ezNn-0001u5-00; Fri, 29 Sep 2000 13:35:19 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13ezNm-0001ty-00 for restitution@maillist.ox.ac.uk; Fri, 29 Sep 2000 13:35:18 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1N003AAETFUW@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Fri, 29 Sep 2000 08:32:03 -0400 (EDT) Date: Fri, 29 Sep 2000 08:33:34 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith This was held by one of the two majority judges. However it is not enough to resolve the case. Under a PPSA/Article 9 regime, any interest in personal property which secures payment or performance of an obligation is subject to the Act and is useless against a trustee in bankruptcy if not registered or otherwise perfected. This includes legal ownership. (There are some exceptions, discussed in the case.) So it is not enough to say Hallmark remained legal owner, you also have to say that the ownership was not retained to secure payment or performance of an obligation. Lionel At 11:20 AM 9/29/00 +1000, Joachim Dietrich wrote: >The case noted by Lionel seems reasonable enough in its result, but could >the same result not have been reached by a more direct route (not having >read the case, these comments are purely speculative). Could it not have >been argued that the presumption of the passing of property on delivery >was rebutted by the absence of an effective contract under which the >property in the goods passed?; ie, since the contract was subject to an >unfulfilled condition precedent, the basis on which property was to pass >had also not been fulfilled and thus Hallmark still had good (legal) title >to the goods. Hence, there would not have been a need to resort to a >constructive trust. >Or am I missing something? > >Joachim Dietrich >Faculty of Law, ANU >Australia ________________________________________________________________________________ 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 owner-restitution@maillist.ox.ac.uk Sat Sep 30 20:05:14 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13fRvR-0005hx-00; Sat, 30 Sep 2000 20:03:57 +0100 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13fRvR-0005hq-00 for restitution@maillist.ox.ac.uk; Sat, 30 Sep 2000 20:03:57 +0100 Received: from dialup33.ex.ac.uk [144.173.6.233] by hermes via SMTP (UAA35669); Sat, 30 Sep 2000 20:02:31 +0100 (BST) Message-Id: <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Sat, 30 Sep 2000 20:00:58 +0100 To: Lionel Smith From: Andrew Tettenborn Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) Cc: restitution@maillist.ox.ac.uk In-Reply-To: <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> References: Mime-Version: 1.0 Content-Type: multipart/mixed; boundary="=======7A3C3041======="; x-avg-checked=avg-ok-725B5B3A Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Andrew Tettenborn --=======7A3C3041======= Content-Type: text/plain; charset=us-ascii; x-avg-checked=avg-ok-725B5B3A *What* obligation was the ownership retained to secure? Not the duty to repay the purchase money loan, because ex hypothesi there wasn't one. Nor, arguably, the duty to find finance: I'd have thought if the buyer couldn't find finance the whole deal would be off. And if these are ruled out, I can't see any other candidates. Or am I being purblind? AT At 08:33 29/09/00 -0400, you wrote: > >This was held by one of the two majority judges. However it is not enough >to resolve the case. Under a PPSA/Article 9 regime, any interest in >personal property which secures payment or performance of an obligation is >subject to the Act and is useless against a trustee in bankruptcy if not >registered or otherwise perfected. This includes legal ownership. (There >are some exceptions, discussed in the case.) So it is not enough to say >Hallmark remained legal owner, you also have to say that the ownership was >not retained to secure payment or performance of an obligation. > >Lionel > >At 11:20 AM 9/29/00 +1000, Joachim Dietrich wrote: >>The case noted by Lionel seems reasonable enough in its result, but could >>the same result not have been reached by a more direct route (not having >>read the case, these comments are purely speculative). Could it not have >>been argued that the presumption of the passing of property on delivery >>was rebutted by the absence of an effective contract under which the >>property in the goods passed?; ie, since the contract was subject to an >>unfulfilled condition precedent, the basis on which property was to pass >>had also not been fulfilled and thus Hallmark still had good (legal) title >>to the goods. Hence, there would not have been a need to resort to a >>constructive trust. >>Or am I missing something? >> >>Joachim Dietrich >>Faculty of Law, ANU >>Australia > > >___________________________________________________________________________ _____ >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 >. > > >--- >Incoming mail is certified Virus Free. >Checked by AVG anti-virus system (http://www.grisoft.com). >Version: 6.0.191 / Virus Database: 91 - Release Date: 11/09/00 > Andrew Tettenborn Bracton Professor of Law Snailmail: Dept of Law Amory Building Rennes Drive University of Exeter Exeter EX4 4RJ England Tel: (+44)(0)1392-263189 Office Fax: (+44)(0)1392-263196 Personal Fax: (+44)(0)870-284-1426 --=======7A3C3041======= Content-Type: text/plain; charset=us-ascii; x-avg-checked=avg-ok-725B5B3A --- Outgoing mail is certified Virus Free. Checked by AVG anti-virus system (http://www.grisoft.com). Version: 6.0.191 / Virus Database: 91 - Release Date: 11/09/00 --=======7A3C3041=======-- ________________________________________________________________________________ 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 .