-- >From owner-restitution@maillist.ox.ac.uk Mon Oct 02 16:30:39 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13g7X1-0004EV-00; Mon, 02 Oct 2000 16:29:31 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13g7X0-0004EO-00 for restitution@maillist.ox.ac.uk; Mon, 02 Oct 2000 16:29:31 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1T001I16VKBL@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Mon, 2 Oct 2000 11:26:08 -0400 (EDT) Date: Mon, 02 Oct 2000 11:27:41 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001002111801.00aaa380@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 References: <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith At 08:00 PM 9/30/00 +0100, Andrew Tettenborn wrote: >*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? This is a difficult and typically incisive and perceptive question ... At one level, a kind of commercial reality level, I am surprised at how easily the majority concludes that Hallmark did not take a credit risk. If you look at cases like Goldcorp, we say rather easily of consumers, "whether or not you realised it, because you do not know any law, you took a credit risk." It seems incongruous to me that when a commercial auto dealer parts with a car, "subject to finance," we say it did not take a credit risk. So then how to translate that to the more technical level on which the question is put? How about this: there was an obligation to pay for the truck, or at least for the depreciation incurred, arising from the law of unjust enrichment even if no contract was effected. It is a benefit transferred in anticipation of a contract which never arose. Ownership was retained to secure that obligation. 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 Mon Oct 02 16:30:43 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13g7Y2-0004Fd-00; Mon, 02 Oct 2000 16:30:34 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13g7Y1-0004FW-00 for restitution@maillist.ox.ac.uk; Mon, 02 Oct 2000 16:30:33 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1T0011J6XCVN@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Mon, 2 Oct 2000 11:27:12 -0400 (EDT) Date: Mon, 02 Oct 2000 11:28:45 -0400 From: Lionel Smith Subject: RDG: Blake case note X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001002112809.00aa8980@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 [2000] 4 Web JCLI, just published at , there is a case note by Steve Hedley on AG v. Blake. 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 Mon Oct 02 16:59:48 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13g80D-0004TP-00; Mon, 02 Oct 2000 16:59:41 +0100 Received: from truxa1.tcd.ie ([134.226.1.158]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13g80D-0004TI-00 for restitution@maillist.ox.ac.uk; Mon, 02 Oct 2000 16:59:41 +0100 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 QAA29351 for ; Mon, 2 Oct 2000 16:57:50 +0100 (BST) Date: Mon, 2 Oct 2000 16:57:50 +0100 (BST) 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: Re: RDG: Constructive trust (Ellingsen v Hallmark) Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: eodell@tcd.ie (Eoin O' Dell) Lionel answered Andrew Tettenborn that the obligation secured in Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd was >an obligation to pay for the >truck, or at least for the depreciation incurred, arising from the law of >unjust enrichment even if no contract was effected. It is a benefit >transferred in anticipation of a contract which never arose. Ownership was >retained to secure that obligation. Well, probably. I suspect that it is merely the case that the parties and the judges did not think very clearly amount the matter and merely felt that there was or must have been *some* obligation, without being at all sure what it was. [Of course, I could be committing all sorts of calumny here, as, like Andrew Tettenborn, I have had the benefit only of Lionel's summary]. But if this is so, then, as usual, it is left to subsequent readers to try to fill in the gaps. As to the obligation which must be found to fill in the gaps, certainly, there is an obligation in unjust enrichment to pay for the usage of the truck if and when it is returned (this is merely an updated example of Lord Mansfield's famous horse example in Hambly v Trott), and I presume that the hire-fee amount payable for the use of the truck would take depreciation, wear and tear and so on, into account. Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ________________________________________________________________________________ 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 Tue Oct 03 15:39:21 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gTAY-0001j0-00; Tue, 03 Oct 2000 15:35:46 +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 13gTAX-0001it-00 for restitution@maillist.ox.ac.uk; Tue, 03 Oct 2000 15:35:45 +0100 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (PAA30849); Tue, 3 Oct 2000 15:34:27 +0100 (BST) Message-Id: <3.0.5.32.20001003153351.007f9a40@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Tue, 03 Oct 2000 15:33:51 +0100 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-Reply-To: <4.3.2.7.2.20001002111801.00aaa380@po-box.mcgill.ca> References: <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Andrew Tettenborn I'm still a little sceptical about Lionel's analysis. True, there must be a restitutionary obligation in the buyer to pay for free use, etc. But was ownership of the lorry retained in order to secure it? In respect of that obligation, the seller looks to me like a bog-standard unsecured creditor. AT At 11:27 02/10/00 -0400, Lionel wrote: >At 08:00 PM 9/30/00 +0100, Andrew Tettenborn wrote: > >>*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? > >This is a difficult and typically incisive and perceptive question ... > >At one level, a kind of commercial reality level, I am surprised at how >easily the majority concludes that Hallmark did not take a credit risk. If >you look at cases like Goldcorp, we say rather easily of consumers, >"whether or not you realised it, because you do not know any law, you took >a credit risk." It seems incongruous to me that when a commercial auto >dealer parts with a car, "subject to finance," we say it did not take a >credit risk. > >So then how to translate that to the more technical level on which the >question is put? How about this: there was an obligation to pay for the >truck, or at least for the depreciation incurred, arising from the law of >unjust enrichment even if no contract was effected. It is a benefit >transferred in anticipation of a contract which never arose. Ownership was >retained to secure that obligation. > >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 >. > 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 St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email . >From owner-restitution@maillist.ox.ac.uk Tue Oct 03 16:20:52 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gTqQ-00024h-00; Tue, 03 Oct 2000 16:19:02 +0100 Received: from pony.its.uwo.ca ([129.100.2.63]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gTqP-00024a-00 for restitution@maillist.ox.ac.uk; Tue, 03 Oct 2000 16:19:01 +0100 Received: from julian.uwo.ca (jneyers.law.uwo.ca [129.100.113.152]) by pony.its.uwo.ca (8.10.0/8.10.0) with ESMTP id e93FHA304153; Tue, 3 Oct 2000 11:17:10 -0400 (EDT) Message-ID: <39D9F880.92A159E3@julian.uwo.ca> Date: Tue, 03 Oct 2000 11:17:20 -0400 From: Jason Neyers Organization: University of Western Ontario X-Sender: "Jason Neyers" X-Mailer: Mozilla 4.72 [en]C-CCK-MCD {UWO} (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: Andrew Tettenborn CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) References: <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> <3.0.5.32.20001003153351.007f9a40@pop.ex.ac.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Jason Neyers Perhaps I am missing something (I apologize if I am). Could you not say that the security interest was retained to ensure compliance with: 1) the obligation to secure financing; and 2) barring the fulfillment of that condition an obligation to return the truck? Therefore, the conditional sales contract had to be registered to be effective vis-a-vis the trustee in bankruptcy. If this is correct then the court was wrong to alter the priority regime as the dealer took the contractual credit risk that the buyer would go bankrupt before he could fulfill his promise to return the truck if financing were not available. In my opinion this is not a case for Unjust Enrichment at all as a jurisitic reason, i.e. the contract, justifies any loss / deprivation. In fact, the Unjust Enrichment analysis confuses the point as it tempts the courts to consider the Constructive Trust / Proprietary analysis. Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 Andrew Tettenborn wrote: > > I'm still a little sceptical about Lionel's analysis. True, there must be a > restitutionary obligation in the buyer to pay for free use, etc. But was > ownership of the lorry retained in order to secure it? In respect of that > obligation, the seller looks to me like a bog-standard unsecured creditor. > > AT > > At 11:27 02/10/00 -0400, Lionel wrote: > >At 08:00 PM 9/30/00 +0100, Andrew Tettenborn wrote: > > > >>*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? > > > >This is a difficult and typically incisive and perceptive question ... > > > >At one level, a kind of commercial reality level, I am surprised at how > >easily the majority concludes that Hallmark did not take a credit risk. If > >you look at cases like Goldcorp, we say rather easily of consumers, > >"whether or not you realised it, because you do not know any law, you took > >a credit risk." It seems incongruous to me that when a commercial auto > >dealer parts with a car, "subject to finance," we say it did not take a > >credit risk. > > > >So then how to translate that to the more technical level on which the > >question is put? How about this: there was an obligation to pay for the > >truck, or at least for the depreciation incurred, arising from the law of > >unjust enrichment even if no contract was effected. It is a benefit > >transferred in anticipation of a contract which never arose. Ownership was > >retained to secure that obligation. > > > >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 > >. > > > 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 > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, 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 Tue Oct 03 20:42:49 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gXwx-0003GT-00; Tue, 03 Oct 2000 20:42:03 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gXws-0003GM-00 for restitution@maillist.ox.ac.uk; Tue, 03 Oct 2000 20:42:02 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1V004D0D8AVY@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Tue, 3 Oct 2000 15:38:35 -0400 (EDT) Date: Tue, 03 Oct 2000 15:40:07 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: <3.0.5.32.20001003153351.007f9a40@pop.ex.ac.uk> X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001003151348.00aadc50@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 References: <4.3.2.7.2.20001002111801.00aaa380@po-box.mcgill.ca> <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith Andrew Tettenborn wrote: >I'm still a little sceptical about Lionel's analysis. True, there must be a >restitutionary obligation in the buyer to pay for free use, etc. But was >ownership of the lorry retained in order to secure it? In respect of that >obligation, the seller looks to me like a bog-standard unsecured creditor. Under the Art 9/PPSA system, you need figure out whether somebody has an interest in the goods. If so, then you ask, why does he? For what functional or economic purpose did he obtain or retain that interest? If to secure an obligation, then the Act is triggered. Depending on whether perfection steps have been taken, this may mean that the interest which he kept or acquired is one on which he can now not rely. And so he may end up as an unsecured creditor even though he retained, say, legal ownership. If, on the other hand (and this may be what Andrew is suggesting) you are an unsecured creditor, but along with that you happen to have an interest in goods, and that interest was not obtained or retained for the purpose of securing an obligation, then your ability to rely on the interest is governed by the general law and not the PPSA. And so you would be all right even if you had not registered. In my own mind, if you say, why did Hallmark not transfer ownership to Ellingsen?, the answer must be, because H wanted to be sure of getting paid. If that is right (and there are other ways of characterising the facts) then I think the game is over if you live in PPSA-land and have not registered. Jason Neyers said >Could you not say >that the security interest was retained to ensure compliance with: 1) >the obligation to secure financing; and 2) barring the fulfillment of >that condition an obligation to return the truck? (1) I am not sure there was an obligation to secure financing. In fact I doubt that very much. And I don't think (2) will work either. If the only reason an interest in goods is retained is to ensure the return of the very goods, the interest is not caught by the Act. It does not require the registration of every bailment. Jason also said >In my opinion this is not a case for Unjust Enrichment at all as a >jurisitic reason, i.e. the contract, justifies any loss / deprivation. The problem is that the majority decided that the contract was subject to a condition precedent which was not fulfilled, so that there was in a sense no contract governing the relationship. There may be an analogy with "sale or return". In fact whatever one decides for this case must govern a contract of "sale or return." It is notorious that Canadian PPSAs are not well-integrated with sales law, which is basically the 1893 English Act in most provinces. If anyone is so captivated by all of this that they feel the need to write a case note, please be in touch as I know one editor who would like one. Lionel PS to Andrew: I think we are talking about what we in North America would call a pickup truck ... a ute or a combi in different parts of the world but shurely not a lorry?? ________________________________________________________________________________ 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 Oct 04 12:55:17 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gn7m-0007Uz-00; Wed, 04 Oct 2000 12:54:14 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gn7l-0007Us-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 12:54:13 +0100 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 TZMXM3MQ; Wed, 4 Oct 2000 12:52:26 +0100 Message-ID: <009f01c02df8$5bd37d20$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: , Subject: RDG: Constructive trust (Ellingsen v Hallmark) Date: Wed, 4 Oct 2000 12:43:48 +0100 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_009C_01C02E00.BD887BD0" 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" This is a multi-part message in MIME format. ------=_NextPart_000_009C_01C02E00.BD887BD0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable =B6 I respectfully dissent from the implication that "Lord Mansfield = [C.J.K.B.]'s famous horse example in Hambly v. Trott [(1776) 1 Cowp. 371 = at 375]" illustrates an obligation in unjust enrichment. His Lordship = was making the point that an action of trover, but not one of assumpsit, = was caught by the maxim, "actio personalis moritur cum person=E2", which = is, being interpreted, "a personal action dies with the person". His = reported words were: "So if a man take a horse from another and bring = him back again; an action of trespass will not lie against his executor, = though it would against him; but an action for the use and hire of the = horse will lie against the executor." =B6 In Phillips v. Homfray (1883) 24 Ch.D. 439 at 457-60 Bowen, L.J., = speaking as well for Cotton L.J. as himself, explained the example as a = waiver of tort and consequent reliance on an implied contract. This is = obviously correct; for Lord Mansfield identified the appropriate action = as one based on a contract of hire. =B6 Such waiver is possible, not because it avoids unjust enrichment, = but because the defendant could deny the contract only by infringing the = maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere potest de = injuri=E2 su=E2 propri=E2", which is, being interpreted, "No one can = take advantage of the wrong of himself [or of another whom he = represents]." This explains why, as Bowen, L.J. said op. cit. at 461-2, = waiver of tort (which would enable the bringing of an action for use and = occupation) is not possible against a trespasser, who sets up an adverse = title to the land; for such a trespasser is denying any wrong and = alleging his right. -----Original Message----- From: Eoin O' Dell To: restitution@maillist.ox.ac.uk Date: 02 October 2000 17:06 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) Lionel answered Andrew Tettenborn that the obligation secured in = Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd was an = obligation to pay for the truck, or at least for the depreciation = incurred, arising from the law of unjust enrichment even if no contract = was effected. It is a benefit transferred in anticipation of a contract = which never arose. Ownership was retained to secure that obligation. = Well, probably. I suspect that it is merely the case that the parties = and the judges did not think very clearly amount the matter and merely = felt that there was or must have been *some* obligation, without being = at all sure what it was. [Of course, I could be committing all sorts of = calumny here, as, like Andrew Tettenborn, I have had the benefit only of = Lionel's summary]. But if this is so, then, as usual, it is left to = subsequent readers to try to fill in the gaps. As to the obligation = which must be found to fill in the gaps, certainly, there is an = obligation in unjust enrichment to pay for the usage of the truck if and = when it is returned (this is merely an updated example of Lord = Mansfield's famous horse example in Hambly v Trott), and I presume that = the hire-fee amount payable for the use of the truck would take = depreciation, wear and tear and so on, into account.=20 Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) _________________________________________________________________________= _ 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 . ------=_NextPart_000_009C_01C02E00.BD887BD0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

¶ I respectfully dissent from the implication that "Lord = Mansfield=20 [C.J.K.B.]'s famous horse example in Hambly v. Trott = [(1776) 1=20 Cowp. 371 at 375]" illustrates an obligation in unjust enrichment. = His=20 Lordship was making the point that an action of trover, but not one of=20 assumpsit, was caught by the maxim, "actio personalis moritur = cum=20 personâ", which is, being interpreted, "a personal = action=20 dies with the person". His reported words were: "So if a man = take a=20 horse from another and bring him back again; an action of trespass will = not lie=20 against his executor, though it would against him; but an action for the = use and=20 hire of the horse will lie against the executor."
¶ In=20 Phillips v. Homfray (1883) 24 Ch.D. 439 at 457-60 = Bowen, L.J.,=20 speaking as well for Cotton L.J. as himself, explained the example as a = waiver=20 of tort and consequent reliance on an implied contract. This is = obviously=20 correct; for Lord Mansfield identified the appropriate action as one = based on a=20 contract of hire.
¶ Such waiver is possible, not because it = avoids=20 unjust enrichment, but because the defendant could deny the contract = only by=20 infringing the maxim, quoted in Co.Litt. at 148b, "Nullus = commodum=20 capere potest de injuriâ suâ propriâ", which = is,=20 being interpreted, "No one can take advantage of the wrong of = himself [or=20 of another whom he represents]." This explains why, as Bowen, L.J. = said=20 op. cit. at 461-2, waiver of tort (which would enable the = bringing of an=20 action for use and occupation) is not possible against a trespasser, who = sets up=20 an adverse title to the land; for such a trespasser is denying any wrong = and=20 alleging his right.

-----Original Message-----
From: Eoin O' = Dell=20 <eodell@tcd.ie>
To: restitution@maillist.ox.ac.uk = <restitution@maillist.ox.ac.uk>
Date: 02=20 October 2000 17:06
Subject: Re: RDG: Constructive trust (Ellingsen v=20 Hallmark)

Lionel answered Andrew Tettenborn that the obligation = secured=20 in Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd was an=20 obligation to pay for the truck, or at least for the depreciation = incurred,=20 arising from the law of unjust enrichment even if no contract was = effected. It=20 is a benefit transferred in anticipation of a contract which never = arose.=20 Ownership was retained to secure that obligation. Well, probably. I = suspect that=20 it is merely the case that the parties and the judges did not think very = clearly=20 amount the matter and merely felt that there was or must have been = *some*=20 obligation, without being at all sure what it was. [Of course, I could = be=20 committing all sorts of calumny here, as, like Andrew Tettenborn, I have = had the=20 benefit only of Lionel's summary]. But if this is so, then, as usual, it = is left=20 to subsequent readers to try to fill in the gaps. As to the obligation = which=20 must be found to fill in the gaps, certainly, there is an obligation in = unjust=20 enrichment to pay for the usage of the truck if and when it is returned = (this is=20 merely an updated example of Lord Mansfield's famous horse example in = Hambly v=20 Trott), and I presume that the hire-fee amount payable for the use of = the truck=20 would take depreciation, wear and tear and so on, into account.=20
Eoin.

EOIN O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin = University Law=20 Journal.
Barrister, Lecturer in Law, Trinity College, Dublin 2,=20 Ireland.
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739=20 (m);
eodell@tcd.ie
(All opinions are = personal. No=20 legal responsibility whatsoever is=20 accepted.)
___________________________________________________________= _______________
This=20 message was delivered through the Restitution Discussion Group, an = international=20 internet LISTSERV devoted to all aspects of the law of unjust = enrichment. To=20 subscribe, send "subscribe restitution" in the body of a = message to=20 <majordomo@maillist.ox.ac.uk>. To = unsubscribe,=20 send "unsubscribe restitution" to the same address. To make a = posting=20 to all group members, send to <restitution@maillist.ox.ac.uk>. = The list is=20 run by Lionel Smith of St. Hugh's College, Oxford, U.K., tel. (0)1865 = 274 966,=20 email <lionel.smith@law.ox.ac.uk>.

------=_NextPart_000_009C_01C02E00.BD887BD0-- ________________________________________________________________________________ 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 Oct 04 16:33:19 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gqX0-00017f-00; Wed, 04 Oct 2000 16:32:30 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gqX0-00017Q-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 16:32:30 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1W00LI6WCHN7@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Wed, 4 Oct 2000 11:29:05 -0400 (EDT) Date: Wed, 04 Oct 2000 11:30:36 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: <009f01c02df8$5bd37d20$a9cd42c2@stf-law009.buckingham.ac.uk> X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001004104648.00a9a350@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 At 12:43 PM 10/4/00 +0100, Gordon Goldberg wrote: >This is obviously correct; for Lord Mansfield identified the appropriate=20 >action as one based on a contract of hire. >=B6 Such waiver is possible, not because it avoids unjust enrichment, but= =20 >because the defendant could deny the contract only by infringing the=20 >maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere potest de=20 >injuri=E2 su=E2 propri=E2", which is, being interpreted, "No one can take= =20 >advantage of the wrong of himself [or of another whom he represents]."=20 >This explains why, as Bowen, L.J. said op. cit. at 461-2, waiver of tort=20 >(which would enable the bringing of an action for use and occupation) is=20 >not possible against a trespasser, who sets up an adverse title to the=20 >land; for such a trespasser is denying any wrong and alleging his right. Although this has a certain Jesuitical logic deriving from the forms of=20 action, the difficulty I have is that it does not make sense as a legal=20 rule. I understand Gordon to be saying that if I wrongfully take your horse= =20 or occupy your land, acknowledging it to be yours, I am liable for the use= =20 value, but if I take it while asserting that it is mine, I am not liable. The concept denoted by the word "assumpsit" was never more than a tool for= =20 getting from things that happened in the world to defensible outcomes when= =20 disputes needed to be resolved. Since it initially evolved to resolve=20 situations involving the making of an undertaking, it was a rather clumsy=20 tool for resolving situations with no such undertaking. Although the old=20 common lawyers did their best, one is always hampered by bad tools. When=20 better ones are available the old ones should be retired from active=20 service, even if it is pleasant sometimes to take them off the shelf and=20 think about how difficult things used to be. I note that in Taylor v. Plumer it was argued unsuccessfully that you could= =20 have a proprietary claim to a traceable product of your asset only if the=20 person who made the substitution was authorized to do so; if he acted=20 outside his authority you were restricted to a personal claim. This=20 argument, similar in pattern, structure, and logic to Gordon's, was=20 rejected. Even if the claim is understood as some kind of ratification=20 based on not allowing people to set up their own wrongdoing (as Gordon=20 argues [2000] RLR 212), why should a trespasser who "denies any wrong and=20 alleges his right" be allowed to set up his wrongful trespass any more than= =20 any other kind of trespasser? And so ratification is otiose in this=20 context; we can move directly from wrongs to legal outcomes, such as=20 accountability for profit. (In fact it is well established that=20 ratification, properly so called, is only possible in respect of an act=20 which purports to be done in the capacity of agent; and Lord Ellenborough=20 CJ specifically rejected a ratification theory in his judgment in Taylor v.= =20 Plumer.) 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 Wed Oct 04 17:19:23 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13grG8-0001S6-00; Wed, 04 Oct 2000 17:19:08 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13grG8-0001Rx-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 17:19:08 +0100 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 TZMXMP1J; Wed, 4 Oct 2000 17:17:21 +0100 Message-ID: <010d01c02e1d$5e587a80$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: "Lionel Smith" , Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) Date: Wed, 4 Oct 2000 17:08:43 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" When he claims that Lord Ellenborough, C.J., specifically rejected a ratification theory in his judgment in Taylor v. Plumer, is Lionel referring to the last sentence of his Lordship's judgment? If so, I endeavoured in [2000] R.L.R. at 213 (in n.157 and its accompanying text) to explain that sentence's relationship to his Lordship's acceptance arguendo of ratification as the basis of waiver of tort, which I had quoted ibid. at 210. -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 04 October 2000 16:41 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) At 12:43 PM 10/4/00 +0100, Gordon Goldberg wrote: >This is obviously correct; for Lord Mansfield identified the appropriate >action as one based on a contract of hire. >¶ Such waiver is possible, not because it avoids unjust enrichment, but >because the defendant could deny the contract only by infringing the >maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere potest de >injuriâ suâ propriâ", which is, being interpreted, "No one can take >advantage of the wrong of himself [or of another whom he represents]." >This explains why, as Bowen, L.J. said op. cit. at 461-2, waiver of tort >(which would enable the bringing of an action for use and occupation) is >not possible against a trespasser, who sets up an adverse title to the >land; for such a trespasser is denying any wrong and alleging his right. Although this has a certain Jesuitical logic deriving from the forms of action, the difficulty I have is that it does not make sense as a legal rule. I understand Gordon to be saying that if I wrongfully take your horse or occupy your land, acknowledging it to be yours, I am liable for the use value, but if I take it while asserting that it is mine, I am not liable. The concept denoted by the word "assumpsit" was never more than a tool for getting from things that happened in the world to defensible outcomes when disputes needed to be resolved. Since it initially evolved to resolve situations involving the making of an undertaking, it was a rather clumsy tool for resolving situations with no such undertaking. Although the old common lawyers did their best, one is always hampered by bad tools. When better ones are available the old ones should be retired from active service, even if it is pleasant sometimes to take them off the shelf and think about how difficult things used to be. I note that in Taylor v. Plumer it was argued unsuccessfully that you could have a proprietary claim to a traceable product of your asset only if the person who made the substitution was authorized to do so; if he acted outside his authority you were restricted to a personal claim. This argument, similar in pattern, structure, and logic to Gordon's, was rejected. Even if the claim is understood as some kind of ratification based on not allowing people to set up their own wrongdoing (as Gordon argues [2000] RLR 212), why should a trespasser who "denies any wrong and alleges his right" be allowed to set up his wrongful trespass any more than any other kind of trespasser? And so ratification is otiose in this context; we can move directly from wrongs to legal outcomes, such as accountability for profit. (In fact it is well established that ratification, properly so called, is only possible in respect of an act which purports to be done in the capacity of agent; and Lord Ellenborough CJ specifically rejected a ratification theory in his judgment in Taylor v. Plumer.) 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 . ________________________________________________________________________________ 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 Oct 04 17:43:38 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13grdV-0001bE-00; Wed, 04 Oct 2000 17:43:17 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13grdU-0001b7-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 17:43:16 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G1W0004BZMFB1@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Wed, 4 Oct 2000 12:39:51 -0400 (EDT) Date: Wed, 04 Oct 2000 12:41:25 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: <010d01c02e1d$5e587a80$a9cd42c2@stf-law009.buckingham.ac.uk> X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001004123121.00aad600@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 >When he claims that Lord Ellenborough, C.J., specifically rejected a >ratification theory in his judgment in Taylor v. Plumer, is Lionel referring >to the last sentence of his Lordship's judgment? If so, I endeavoured in >[2000] R.L.R. at 213 (in n.157 and its accompanying text) to explain that >sentence's relationship to his Lordship's acceptance arguendo of >ratification as the basis of waiver of tort, which I had quoted ibid. at >210. He is referring to the bit which says, "If this case had rested ... on any supposed adoption and ratification on [the defendant's] part ... we think, it could not have been well supported on that ground." That does not seem to me to require any explanation. If someone does an act on my behalf but without authority, we can sensibly talk of my ratifying it, and then worry about whether and when we will allow this. But it seems to me that to try to explain liabilities which do not depend on authority or agreement as somehow dependent on ratification, authority, or assumpsit is to speak in riddles. 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 Wed Oct 04 18:10:04 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gs3G-0001k8-00; Wed, 04 Oct 2000 18:09:54 +0100 Received: from truxa1.tcd.ie ([134.226.1.158]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gs3G-0001jz-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 18:09:54 +0100 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 SAA08844 for ; Wed, 4 Oct 2000 18:08:05 +0100 (BST) Date: Wed, 4 Oct 2000 18:08:05 +0100 (BST) 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: RDG: Hambly v Trott Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: eodell@tcd.ie (Eoin O' Dell) Hello all: In respect of Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd, I observed that "certainly, there is an obligation in unjust enrichment to pay for the usage of the truck if and when it is returned (this is merely an updated example of Lord Mansfield's famous horse example in Hambly v Trott)". Well, it plainly isn't so certain, because Gordon Goldberg "respectfully dissent[ed] from the implication that ... [the example] illustrates an obligation in unjust enrichment. My chain of reasoning in support of my observation is this: (1) In Hambly v. Trott, Lord Mansfield said: "So if a man take a horse from another and bring him back again; an action of trespass will not lie against his executor, though it would against him; but an action for the use and hire of the horse will lie against the executor." (2) Therefore Lord Mansfield said: "So if a man take a horse from another and bring him back again ... an action for the use and hire of the horse will lie against the executor." (3) The action can lie against the executor only because it lay against the deceased; hence the proposition becomes: So if a man take a horse from another and bring him back again, an action for the use and hire of the horse will lie against him. (4) The nature of the action which lies against both him and his executor, as Lord Mansfield made clear, is not trespass; so the action is not predicated upon the wrong of trespass. (5) Rather the action for use and hire is an action which, as Gordon Goldberg's citation from Phillips v. Homfray illustrates, was once based on *implied* contract [rather than one agreed by the parties] (6) With the decline of the implied contract theory, and its replacement by the principle against unjust enrichment, the action for use and hire is now based on unjust enrichment. (7) Hence, if a man take a horse from another and bring him back again, an action in unjust enrichment for the use and hire of the horse will lie against him. Does this hold? (I thought it clear when I sent my original message, and think it clear now having typed it out, but will accept if it does not) Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ________________________________________________________________________________ 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 Oct 04 18:31:28 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gsNy-0001qX-00; Wed, 04 Oct 2000 18:31:18 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gsNx-0001qQ-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 18:31:17 +0100 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 TZMXMPH0; Wed, 4 Oct 2000 18:29:30 +0100 Message-ID: <014b01c02e27$734444b0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: , Subject: RDG: Constructive trust (Ellingsen v Hallmark) Date: Wed, 4 Oct 2000 18:20:53 +0100 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0148_01C02E2F.D4F96A70" 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" This is a multi-part message in MIME format. ------=_NextPart_000_0148_01C02E2F.D4F96A70 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I neglected previously to point out that the "defensible outcome" in the = situation covered by Bowen, L.J.'s assertion could be achieved by an = action for mesne profits. If I remember the relevant statute, this = action would today, survive against the trespasser's estate, as would an = action for trespass against the taker of the horse in Lord Mansfield's = example -----Original Message----- From: Gordon Goldberg To: Lionel Smith ; restitution@maillist.ox.ac.uk = Date: 04 October 2000 17:27 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) When he claims that Lord Ellenborough, C.J., specifically rejected a = ratification theory in his judgment in Taylor v. Plumer, is Lionel = referring to the last sentence of his Lordship's judgment? If so, I = endeavoured in [2000] R.L.R. at 213 (in n.157 and its accompanying text) = to explain that sentence's relationship to his Lordship's acceptance = arguendo of ratification as the basis of waiver of tort, which I had = quoted ibid. at 210. -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 04 October 2000 16:41 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) At 12:43 PM 10/4/00 +0100, Gordon Goldberg wrote: This is obviously correct; for Lord Mansfield identified the appropriate = action as one based on a contract of hire. =B6 Such waiver is possible, not because it avoids unjust enrichment, = but because the defendant could deny the contract only by infringing the = maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere potest de = injuri=E2 su=E2 propri=E2", which is, being interpreted, "No one can = take advantage of the wrong of himself [or of another whom he = represents]." This explains why, as Bowen, L.J. said op. cit. at 461-2, = waiver of tort (which would enable the bringing of an action for use and = occupation) is not possible against a trespasser, who sets up an adverse = title to the land; for such a trespasser is denying any wrong and = alleging his right. Although this has a certain Jesuitical logic deriving from the forms of = action, the difficulty I have is that it does not make sense as a legal = rule. I understand Gordon to be saying that if I wrongfully take your = horse or occupy your land, acknowledging it to be yours, I am liable for = the use value, but if I take it while asserting that it is mine, I am = not liable. The concept denoted by the word "assumpsit" was never more = than a tool for getting from things that happened in the world to = defensible outcomes when disputes needed to be resolved. Since it = initially evolved to resolve situations involving the making of an = undertaking, it was a rather clumsy tool for resolving situations with = no such undertaking. Although the old common lawyers did their best, one = is always hampered by bad tools. When better ones are available the old = ones should be retired from active service, even if it is pleasant = sometimes to take them off the shelf and think about how difficult = things used to be. I note that in Taylor v. Plumer it was argued unsuccessfully that you = could have a proprietary claim to a traceable product of your asset only = if the person who made the substitution was authorized to do so; if he = acted outside his authority you were restricted to a personal claim. = This argument, similar in pattern, structure, and logic to Gordon's, was = rejected. Even if the claim is understood as some kind of ratification = based on not allowing people to set up their own wrongdoing (as Gordon = argues [2000] RLR 212), why should a trespasser who "denies any wrong = and alleges his right" be allowed to set up his wrongful trespass any = more than any other kind of trespasser? And so ratification is otiose in = this context; we can move directly from wrongs to legal outcomes, such = as accountability for profit. (In fact it is well established that = ratification, properly so called, is only possible in respect of an act = which purports to be done in the capacity of agent; and Lord = Ellenborough CJ specifically rejected a ratification theory in his = judgment in Taylor v. Plumer.) 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 . _________________________________________________________________________= _______ 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 . ------=_NextPart_000_0148_01C02E2F.D4F96A70 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

I neglected previously to point = out that the=20 "defensible outcome" in the situation covered by Bowen, L.J.'s = assertion could be achieved by an action for mesne profits. If I = remember the=20 relevant statute, this action would today, survive against the = trespasser's=20 estate, as would an action for trespass against the taker of the horse = in Lord=20 Mansfield's example

-----Original Message-----
From: = Gordon Goldberg=20 <gordon.goldberg@buckingh= am.ac.uk>
To:=20 Lionel Smith <lionel.smith@mcgill.ca>; = restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
Date:=20 04 October 2000 17:27
Subject: Re: RDG: Constructive trust (Ellingsen = v=20 Hallmark)

When he claims that Lord Ellenborough, C.J., specifically rejected a=20 ratification theory in his judgment in Taylor v. Plumer, is Lionel = referring to=20 the last sentence of his Lordship's judgment? If so, I endeavoured in = [2000]=20 R.L.R. at 213 (in n.157 and its accompanying text) to explain that = sentence's=20 relationship to his Lordship's acceptance arguendo of ratification as = the basis=20 of waiver of tort, which I had quoted ibid. at 210.

-----Original = Message-----
From: Lionel Smith <lionel.smith@mcgill.ca>
To: = restitution@maillist.ox.ac.uk = <restitution@maillist.ox.ac.uk>
Date: 04=20 October 2000 16:41
Subject: Re: RDG: Constructive trust (Ellingsen v=20 Hallmark)


At 12:43 PM 10/4/00 +0100, Gordon Goldberg=20 wrote:

This is obviously correct; for Lord Mansfield identified = the=20 appropriate action as one based on a contract of hire.

¶ Such waiver is possible, not because it avoids unjust = enrichment, but=20 because the defendant could deny the contract only by infringing the = maxim,=20 quoted in Co.Litt. at 148b, "Nullus commodum capere potest de = injuriâ=20 suâ propriâ", which is, being interpreted, "No one = can=20 take advantage of the wrong of himself [or of another whom he = represents]."=20 This explains why, as Bowen, L.J. said op. cit. at 461-2, waiver of tort = (which=20 would enable the bringing of an action for use and occupation) is not = possible=20 against a trespasser, who sets up an adverse title to the land; for such = a=20 trespasser is denying any wrong and alleging his right.

Although = this has=20 a certain Jesuitical logic deriving from the forms of action, the = difficulty I=20 have is that it does not make sense as a legal rule. I understand Gordon = to be=20 saying that if I wrongfully take your horse or occupy your land, = acknowledging=20 it to be yours, I am liable for the use value, but if I take it while = asserting=20 that it is mine, I am not liable. The concept denoted by the word=20 "assumpsit" was never more than a tool for getting from things = that=20 happened in the world to defensible outcomes when disputes needed to be=20 resolved. Since it initially evolved to resolve situations involving the = making=20 of an undertaking, it was a rather clumsy tool for resolving situations = with no=20 such undertaking. Although the old common lawyers did their best, one is = always=20 hampered by bad tools. When better ones are available the old ones = should be=20 retired from active service, even if it is pleasant sometimes to take = them off=20 the shelf and think about how difficult things used to be.

I note = that in=20 Taylor v. Plumer it was argued unsuccessfully that you could have a = proprietary=20 claim to a traceable product of your asset only if the person who made = the=20 substitution was authorized to do so; if he acted outside his authority = you were=20 restricted to a personal claim. This argument, similar in pattern, = structure,=20 and logic to Gordon's, was rejected. Even if the claim is understood as = some=20 kind of ratification based on not allowing people to set up their own = wrongdoing=20 (as Gordon argues [2000] RLR 212), why should a trespasser who = "denies any=20 wrong and alleges his right" be allowed to set up his wrongful = trespass any=20 more than any other kind of trespasser? And so ratification is otiose in = this=20 context; we can move directly from wrongs to legal outcomes, such as=20 accountability for profit. (In fact it is well established that = ratification,=20 properly so called, is only possible in respect of an act which purports = to be=20 done in the capacity of agent; and Lord Ellenborough CJ specifically = rejected a=20 ratification theory in his judgment in Taylor v.=20 Plumer.)

Lionel


_______________________________________= _____________________________________
____
This=20 message was delivered through the Restitution Discussion Group,=20 an
international internet LISTSERV devoted to all aspects of the law = of=20 unjust
enrichment. To subscribe, send "subscribe = restitution" in=20 the body of a
message to <majordomo@maillist.ox.ac.uk>. To = unsubscribe,=20 send "unsubscribe
restitution" to the same address. To make = a=20 posting to all group members,
send to <restitution@maillist.ox.ac.uk>. = The list is=20 run by Lionel Smith of
St. Hugh's College, Oxford, U.K., tel. (0)1865 = 274=20 966, email
<lionel.smith@law.ox.ac.uk>.



___________________________________________= _____________________________________
This=20 message was delivered through the Restitution Discussion Group,=20 an
international internet LISTSERV devoted to all aspects of the law = of=20 unjust
enrichment. To subscribe, send "subscribe = restitution" in=20 the body of a
message to <majordomo@maillist.ox.ac.uk>. To = unsubscribe,=20 send "unsubscribe
restitution" to the same address. To make = a=20 posting to all group members,
send to <restitution@maillist.ox.ac.uk>. = The list is=20 run by Lionel Smith of
St. Hugh's College, Oxford, U.K., tel. (0)1865 = 274=20 966, email
<lionel.smith@law.ox.ac.uk>.

------=_NextPart_000_0148_01C02E2F.D4F96A70-- ________________________________________________________________________________ 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 Oct 04 18:50:47 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13gsgU-0001v0-00; Wed, 04 Oct 2000 18:50:26 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13gsgU-0001ut-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 18:50:26 +0100 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 TZMXMPJH; Wed, 4 Oct 2000 18:48:39 +0100 Message-ID: <017901c02e2a$20061eb0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: "Lionel Smith" , Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) Date: Wed, 4 Oct 2000 18:40:02 +0100 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" In the light of, inter alia, the parts of the quotation which Lionel omits, I continue to see the requirement which he does not. We must agree to differ; and I look forward to further criticisms of my article from those kind enough to read it. -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 04 October 2000 17:50 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) > >>When he claims that Lord Ellenborough, C.J., specifically rejected a >>ratification theory in his judgment in Taylor v. Plumer, is Lionel referring >>to the last sentence of his Lordship's judgment? If so, I endeavoured in >>[2000] R.L.R. at 213 (in n.157 and its accompanying text) to explain that >>sentence's relationship to his Lordship's acceptance arguendo of >>ratification as the basis of waiver of tort, which I had quoted ibid. at >>210. > >He is referring to the bit which says, "If this case had rested ... on any >supposed adoption and ratification on [the defendant's] part ... we think, >it could not have been well supported on that ground." That does not seem >to me to require any explanation. > >If someone does an act on my behalf but without authority, we can sensibly >talk of my ratifying it, and then worry about whether and when we will >allow this. But it seems to me that to try to explain liabilities which do >not depend on authority or agreement as somehow dependent on ratification, >authority, or assumpsit is to speak in riddles. > >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 >. > ________________________________________________________________________________ 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 Oct 04 20:49:29 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13guWm-0002OY-00; Wed, 04 Oct 2000 20:48:32 +0100 Received: from pony.its.uwo.ca ([129.100.2.63]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13guWl-0002OR-00 for restitution@maillist.ox.ac.uk; Wed, 04 Oct 2000 20:48:31 +0100 Received: from julian.uwo.ca (jneyers.law.uwo.ca [129.100.113.152]) by pony.its.uwo.ca (8.10.0/8.10.0) with ESMTP id e94JkeK12982; Wed, 4 Oct 2000 15:46:40 -0400 (EDT) Message-ID: <39DB892A.515C8056@julian.uwo.ca> Date: Wed, 04 Oct 2000 15:46:50 -0400 From: Jason Neyers Organization: University of Western Ontario X-Sender: "Jason Neyers" X-Mailer: Mozilla 4.72 [en]C-CCK-MCD {UWO} (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: Lionel Smith CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) References: <4.3.2.7.2.20001002111801.00aaa380@po-box.mcgill.ca> <3.0.6.32.20000930200058.007a77e0@pop.ex.ac.uk> <4.3.2.7.2.20000929082939.00aa6b70@po-box.mcgill.ca> <4.3.2.7.2.20001003151348.00aadc50@po-box.mcgill.ca> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Jason Neyers Dear Lionel and all, I have had a chance to examine the judgment and wondered what would be wrong with the following analysis: 1) Although there was no completed sale (in the technical sense) there was an agreement whereby the dealer transferred ownership and use of the truck to the bankrupt in return for a promise by the bankrupt to sign financing agreements should he be approved (the conditional sales contract) or barring that to return the truck. 2) From this it follows that there could be no registration under the PPSA because no security interest was retained to secure return of the truck (title had been given and no conditional sales contract had been entered). (though perhaps I am missing something). 3) Since registration was impossible and given that this is a standard contractual/ personal obligation, the dealer can have no interest over the trustee. 4) Likewise, there cannot be an UE claim leading to a constructive Trust because there has not been an unjust enrichment -- this agreement is a juristic reason for the loss. In any event, one could say that by necessary implication the dealer willingly took the risk that the personal obligation of return would not be performed before an assignment in bankruptcy. In this sense, the dissent seems closer to the correct result than the majority. Jason Lionel Smith wrote: > > Andrew Tettenborn wrote: > > >I'm still a little sceptical about Lionel's analysis. True, there must be a > >restitutionary obligation in the buyer to pay for free use, etc. But was > >ownership of the lorry retained in order to secure it? In respect of that > >obligation, the seller looks to me like a bog-standard unsecured creditor. > > Under the Art 9/PPSA system, you need figure out whether somebody has an > interest in the goods. If so, then you ask, why does he? For what > functional or economic purpose did he obtain or retain that interest? If to > secure an obligation, then the Act is triggered. Depending on whether > perfection steps have been taken, this may mean that the interest which he > kept or acquired is one on which he can now not rely. And so he may end up > as an unsecured creditor even though he retained, say, legal ownership. If, > on the other hand (and this may be what Andrew is suggesting) you are an > unsecured creditor, but along with that you happen to have an interest in > goods, and that interest was not obtained or retained for the purpose of > securing an obligation, then your ability to rely on the interest is > governed by the general law and not the PPSA. And so you would be all right > even if you had not registered. > > In my own mind, if you say, why did Hallmark not transfer ownership to > Ellingsen?, the answer must be, because H wanted to be sure of getting > paid. If that is right (and there are other ways of characterising the > facts) then I think the game is over if you live in PPSA-land and have not > registered. > > Jason Neyers said > > >Could you not say > >that the security interest was retained to ensure compliance with: 1) > >the obligation to secure financing; and 2) barring the fulfillment of > >that condition an obligation to return the truck? > > (1) I am not sure there was an obligation to secure financing. In fact I > doubt that very much. And I don't think (2) will work either. If the only > reason an interest in goods is retained is to ensure the return of the very > goods, the interest is not caught by the Act. It does not require the > registration of every bailment. > > Jason also said > > >In my opinion this is not a case for Unjust Enrichment at all as a > >jurisitic reason, i.e. the contract, justifies any loss / deprivation. > > The problem is that the majority decided that the contract was subject to a > condition precedent which was not fulfilled, so that there was in a sense > no contract governing the relationship. > > There may be an analogy with "sale or return". In fact whatever one decides > for this case must govern a contract of "sale or return." It is notorious > that Canadian PPSAs are not well-integrated with sales law, which is > basically the 1893 English Act in most provinces. > > If anyone is so captivated by all of this that they feel the need to write > a case note, please be in touch as I know one editor who would like one. > > Lionel > > PS to Andrew: I think we are talking about what we in North America would > call a pickup truck ... a ute or a combi in different parts of the world > but shurely not a lorry?? > > ________________________________________________________________________________ > 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 > . -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ________________________________________________________________________________ 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 Oct 05 11:32:22 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13h8JM-0005Bf-00; Thu, 05 Oct 2000 11:31:36 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13h8JM-0005BY-00 for restitution@maillist.ox.ac.uk; Thu, 05 Oct 2000 11:31:36 +0100 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 TZMXMQP1; Thu, 5 Oct 2000 11:29:49 +0100 Message-ID: <006c01c02eb5$f9f05790$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: Subject: RDG: RDG Fw: Hambly v. Trott / Advance Warning Date: Thu, 5 Oct 2000 11:21:08 +0100 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0069_01C02EBE.5B9C2E80" 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" This is a multi-part message in MIME format. ------=_NextPart_000_0069_01C02EBE.5B9C2E80 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable The following correspondence is forwarded with Eoin O' Dell's consent, = for which I am grateful. -----Original Message----- From: Gordon Goldberg To: Eoin O' Dell Date: 04 October 2000 18:34 Subject: Re: Hambly v. Trott / Advance Warning I am happy to agree to differ. Thanks for the trouble you have taken to = cope with my difficulties and again for your courtesy. Needless to say your wishes are reciprocated.=20 -----Original Message----- From: Eoin O' Dell To: Gordon Goldberg Date: 04 October 2000 18:07 Subject: Re: Hambly v. Trott / Advance Warning Dear Gordon, =B6 You write: "As I have endeavoured to explain elsewhere, [2000] = R.L.R. 189 at 199, I do not accept 'the decline of the implied contract = theory, and its replacement by the principle against unjust enrichment' = to be warranted. I do not expect you to agree with me on that." Yes; I = had forgotten your RLR piece when I drafted my last comment. And you are = right that I don't agree with you on that. My "Bricks and Stones and the = Structure of the Law of Restitution" (1998) 20 DULJ (ns) 101 is an = extended statement of why I buy the orthodoxy. =B6 You write also: "On the other hand, I had not realized that the = decline and replacement are seen, by those who believe in them, as = extending to the theory of waiver of tort." Well, actually, yes. For = example, where I waive a tort and sue in assumpsit, the assumpsit claim = would be explained as an implied contract claim, and would now be = understood by unjust enrichment enthusiasts as an unjust enrichment = claim. Hence, my point vis a vis Hambly v. Trott is that the claim for = use and hire of the horse is not a claim in tort but an assumpsit claim = based on implied contract and thus on unjust enrichment. Of course, you = would stop after implied contract. =B6 Finally you clarified that your "dissent was confined to the = implication that Lord Mansfield considered his example to be based on = unjust enrichment. If, objectively, that implication was clearly absent = from your assertion, I beg your pardon." I should have been clearer. = Lord Mansfield considered his example to be based in assumpsit, and I = have translated that into unjust enrichment, as explained above. It is = over the translation that we differ, I'm afraid. And now, I'm going to = send my message to the list, and go home. Best from Dublin, Eoin. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) -----Original Message----- From: Gordon Goldberg To: Eoin O' Dell Date: 04 October 2000 15:45 Subject: Re: Hambly v. Trott / Advance Warning =B6 Many thanks for the courtesy of your warning. My dissent was = confined to the implication that Lord Mansfield considered his example = to be based on unjust enrichment. If, objectively, that implication was = clearly absent from your assertion, I beg your pardon. =B6 As I have endeavoured to explain elsewhere, [2000] R.L.R. 189 at = 199, I do not accept "the decline of the implied contract theory, and = its replacement by the principle against unjust enrichment" to be = warranted. I do not expect you to agree with me on that. On the other = hand, I had not realized that the decline and replacement are seen, by = those who believe in them, as extending to the theory of waiver of tort. -----Original Message----- From: Eoin O' Dell To: Gordon Goldberg Date: 04 October 2000 15:13 Subject: Hambly v. Trott / Advance Warning Dear Gordon Thanks for your provocative email on my glib assertion about the above = case. I am going to send the following message to the RDG in reply. Best Eoin. _________________________________________________________________________= __ Hello all: In respect of Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales = Ltd,I observed that "certainly, there is an obligation in unjust = enrichment to pay for the usage of the truck if and when it is returned = (this is merely an updated example of Lord Mansfield's famous horse = example in Hambly v Trott)". Well, it plainly isn't so certain, because = Gordon Goldberg "respectfully dissent[ed] from the implication that ... = [the example] illustrates an obligation in unjust enrichment." My chain of reasoning in support of my observation is this: 1.. In Hambly v. Trott, Lord Mansfield said: "So if a man take a = horse from another and bring him back again; an action of trespass will = not lie against his executor, though it would against him; but an action = for the use and hire of the horse will lie against the executor." 2.. Therefore Lord Mansfield said: "So if a man take a horse from = another and bring him back again ... an action for the use and hire of = the horse will lie against the executor." 3.. The action can lie against the executor only because it lay = against the deceased; hence the proposition becomes: So if a man take a = horse from another and bring him back again, an action for the use and = hire of the horse will lie against him. 4.. The nature of the action which lies against both him and his = executor, as Lord Mansfield made clear, is not trespass; so the action = is not predicated upon the wrong of trespass. 5.. Rather the action for use and hire is an action which, as Gordon = Goldberg's citation from Phillips v. Homfray illustrates, was once based = on *implied* contract [rather than one agreed by the parties], 6.. With the decline of the implied contract theory, and its = replacement by the principle against unjust enrichment, the action for = use and hire is now based on unjust enrichment. 7.. Hence, if a man take a horse from another and bring him back = again, an action in unjust enrichment for the use and hire of the horse = will lie against him. Does this hold? (I thought it clear when I sent my original message, and = think it clear now having typed it out, but will accept if it does not). Eoin. ________________________________________________________________________ EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. 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.) ------=_NextPart_000_0069_01C02EBE.5B9C2E80 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

The following correspondence is forwarded with Eoin O' Dell's = consent, for=20 which I am grateful.

-----Original Message-----
From: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>
To: Eoin=20 O' Dell <eodell@tcd.ie>
Date: 04 October = 2000=20 18:34
Subject: Re: Hambly v. Trott / Advance Warning

I am happy to agree to differ. = Thanks for the=20 trouble you have taken to cope with my difficulties and again = for
your=20 courtesy. Needless to say your wishes are reciprocated.

-----Original Message-----
From: Eoin O' Dell <eodell@tcd.ie>
To: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>
Date: 04=20 October 2000 18:07
Subject: Re: Hambly v. Trott / Advance = Warning

Dear Gordon,
¶ You write: "As I have = endeavoured to=20 explain elsewhere, [2000] R.L.R. 189 at 199, I do not accept 'the = decline of the=20 implied contract theory, and its replacement by the principle against = unjust=20 enrichment' to be warranted. I do not expect you to agree with me on = that."=20 Yes; I had forgotten your RLR piece when I = drafted my=20 last comment. And you are right that I don't agree with you on that. My=20 "Bricks and Stones and the Structure of the Law of = Restitution" (1998)=20 20 DULJ (ns) 101 is an extended statement of why I buy the = orthodoxy.
¶=20 You write also: "On the other hand, I had not realized that the = decline and=20 replacement are seen, by those who believe in them, as extending to the = theory=20 of waiver of tort." Well, actually, yes. For example, where I waive = a tort=20 and sue in assumpsit, the assumpsit claim would be explained as an = implied=20 contract claim, and would now be understood by unjust enrichment = enthusiasts as=20 an unjust enrichment claim. Hence, my point vis a vis Hambly v. Trott is = that=20 the claim for use and hire of the horse is not a claim in tort but an = assumpsit=20 claim based on implied contract and thus on unjust enrichment. Of = course, you=20 would stop after implied contract.
¶ Finally you clarified that = your=20 "dissent was confined to the implication that Lord Mansfield = considered his=20 example to be based on unjust enrichment. If, objectively, that = implication was=20 clearly absent from your assertion, I beg your pardon." I should = have been=20 clearer. Lord Mansfield considered his example to be based in assumpsit, = and I=20 have translated that into unjust enrichment, as explained above. It is = over the=20 translation that we differ, I'm afraid. And now, I'm going to send my = message to=20 the list, and go home.
Best from Dublin,
Eoin.

EOIN O'DELL = BCL(NUI)=20 BCL(Oxon)
Editor, Dublin University Law Journal.
Barrister, = Lecturer in=20 Law, Trinity College, Dublin 2, Ireland.
(353/0 1) 608 1178 (w) 677 = 0449=20 (fx); (353/0 86) 286 0739 (m);
eodell@tcd.ie
(All opinions are = personal. No=20 legal responsibility whatsoever is accepted.)

-----Original Message-----
From: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>
To: Eoin O' Dell <eodell@tcd.ie>
Date:=20 04 October 2000 15:45
Subject: Re: Hambly v. Trott / Advance=20 Warning

¶ Many thanks for the courtesy of your warning. My dissent was = confined=20 to the implication that Lord Mansfield considered his example to be = based on=20 unjust enrichment. If, objectively, that implication was clearly absent = from=20 your assertion, I beg your pardon.
¶ As I have endeavoured to = explain=20 elsewhere, [2000] R.L.R. 189 at 199, I do not accept "the decline = of the=20 implied contract theory, and its replacement by the principle against = unjust=20 enrichment" to be warranted. I do not expect you to agree with me = on that.=20 On the other hand, I had not realized that the decline and replacement = are seen,=20 by those who believe in them, as extending to the theory of waiver of=20 tort.

-----Original Message-----
From: Eoin O' Dell = <eodell@tcd.ie>
To: Gordon Goldberg <gordon.goldberg@buckingham.ac.uk>
Date: 04=20 October 2000 15:13
Subject: Hambly v. Trott / Advance = Warning

Dear=20 Gordon
Thanks for your provocative email on my glib assertion about = the above=20 case. I am going to send the following message to the RDG in=20 reply.
Best
Eoin.
______________________________________________= _____________________________
Hello=20 all:
In respect of Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford = Sales=20 Ltd,I observed that "certainly, there is an obligation in unjust = enrichment=20 to pay for the usage of the truck if and when it is returned (this is = merely an=20 updated example of Lord Mansfield's famous horse example in Hambly v=20 Trott)". Well, it plainly isn't so certain, because Gordon Goldberg = "respectfully dissent[ed] from the implication that ... [the = example]=20 illustrates an obligation in unjust enrichment."
My chain of = reasoning=20 in support of my observation is this:

  1. In Hambly v. Trott, Lord Mansfield said: "So if a man take = a horse=20 from another and bring him back again; an action of trespass will = not lie=20 against his executor, though it would against him; but an action for = the use=20 and hire of the horse will lie against the executor."
  2. Therefore Lord Mansfield said: "So if a man take a horse = from=20 another and bring him back again ... an action for the use and hire = of the=20 horse will lie against the executor."
  3. The action can lie against the executor only because it lay = against the=20 deceased; hence the proposition becomes: So if a man take a horse = from=20 another and bring him back again, an action for the use and hire of = the=20 horse will lie against him.
  4. The nature of the action which lies against both him and his = executor,=20 as Lord Mansfield made clear, is not trespass; so the action is not=20 predicated upon the wrong of trespass.
  5. Rather the action for use and hire is an action which, as Gordon = Goldberg's citation from Phillips v. Homfray illustrates, was once = based on=20 *implied* contract [rather than one agreed by the parties],
  6. With the decline of the implied contract theory, and its = replacement by=20 the principle against unjust enrichment, the action for use and hire = is now=20 based on unjust enrichment.
  7. Hence, if a man take a horse from another and bring him back = again, an=20 action in unjust enrichment for the use and hire of the horse will = lie=20 against him.

Does this hold? (I thought it clear when I sent my original message, = and=20 think it clear now having typed it out, but will accept if it does=20 not).
Eoin.

______________________________________________________________________= __
EOIN=20 O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin University Law=20 Journal.
Barrister, Lecturer in Law, Trinity College, Dublin 2,=20 Ireland.
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739=20 (m);
eodell@tcd.ie
(All opinions are = personal. No=20 legal responsibility whatsoever is = accepted.)

------=_NextPart_000_0069_01C02EBE.5B9C2E80-- ________________________________________________________________________________ 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 Oct 06 12:24:31 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13hVb2-0003b9-00; Fri, 06 Oct 2000 12:23:24 +0100 Received: from gila.buckingham.ac.uk ([195.194.186.227]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13hVb2-0003b2-00 for restitution@maillist.ox.ac.uk; Fri, 06 Oct 2000 12:23:24 +0100 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 TZMXMTG7; Fri, 6 Oct 2000 12:21:36 +0100 Message-ID: <003d01c02f86$60496600$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: , Subject: RDG: Constructive trust (Ellingsen v Hallmark) Date: Fri, 6 Oct 2000 12:12:55 +0100 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_003A_01C02F8E.C1F3B650" 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 Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Gordon Goldberg" This is a multi-part message in MIME format. ------=_NextPart_000_003A_01C02F8E.C1F3B650 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable =B6 Since in his message, dated 04 October 2000 17:50, Lionel revealed = that to him I seem to speak in riddles, presumably it behoves me to = attempt to explain why, in the situation covered by Bowen, L.J.'s = assertion, I consider the recovery of mesne profits to be a defensible = outcome. =B6 Mesne profts are a form of damages - Elliott v. Boynton [1924] 1 Ch. = 236 at 250 per Warrington, L.J. Yet they are not limited to the = demonstrable damage (if any) suffered by the plaintiff, who may recover = under this head the full potential value of the land to the defendant = trespasser for the period of the defendant's wrongful occupation - = Inverugie Investments v. Hackett [1995] 1 W.L.R. 713 P.C. In my = respectful submission, this is not restitution based on a general theory = of unjust enrichment. The trespasser has wrongfully deprived the = plaintiff of the land and so is caught by the maxim, "In odium = spoliatoris omnia praesumuntur", which is, being interpreted, = "Everything is presumed to the prejudice of a plunderer." Accordingly it = is presumed that the full potential value of the land to the trespasser = would have been available to the plaintiff. This is the maxim, which I = was taught to be the warrant for Vice-Chancellor Wood's "second = principle", stated in Frith v. Cartland (1865) 2 H. & M. 417at 420: "... = if a man mixes trust funds with his own, the whole will be treated as = the trust property, except so far as he may be able to distinguish what = is his own". It would also justify the presumption, to which the same = judge (then Lord Hatherley, L.C.) referred in Burdick v. Garrick (1870) = 5 Ch. App. 233 at 241-2 and which requires a fiduciary to pay compound = interest on money wrongfully invested by him in trade. =B6 In his message, my particular speaking in riddles of which Lionel = complained was, "... to try to explain liabilities which do not depend = on authority or agreement as somehow dependent on ratification, = authority, or assumpsit ...". In my respectful submission, Lord = Tenterden, C.J.K.B.'s exposition in Stone v. Marsh (1827) 6 B. & C. = 551at 565, which I quote in [2000] R.L.R. at 213, shows any such riddle = to be purely imaginary. -----Original Message----- From: Gordon Goldberg To: lionel.smith@mcgill.ca ; = restitution@maillist.ox.ac.uk Date: 04 October 2000 18:20 Subject: RDG: Constructive trust (Ellingsen v Hallmark) =20 =20 I neglected previously to point out that the "defensible outcome" in = the situation covered by Bowen, L.J.'s assertion could be achieved by an = action for mesne profits. If I remember the relevant statute, this = action would today survive against the trespasser's estate, as would an = action for trespass against the taker of the horse in Lord Mansfield's = example -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 04 October 2000 17:50 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) He is referring to the bit which says, "If this case had rested ... = on any supposed adoption and ratification on [the defendant's] part ... = we think, it could not have been well supported on that ground." That = does not seem to me to require any explanation.=20 If someone does an act on my behalf but without authority, we can = sensibly talk of my ratifying it, and then worry about whether and when = we will allow this. But it seems to me that to try to explain = liabilities which do not depend on authority or agreement as somehow = dependent on ratification, authority, or assumpsit is to speak in = riddles. =20 Lionel =20 =20 -----Original Message----- From: Gordon Goldberg To: Lionel Smith ; = restitution@maillist.ox.ac.uk Date: 04 October 2000 17:27 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) =20 When he claims that Lord Ellenborough, C.J., specifically rejected a = ratification theory in his judgment in Taylor v. Plumer, is Lionel = referring to the last sentence of his Lordship's judgment? If so, I = endeavoured in [2000] R.L.R. at 213 (in n.157 and its accompanying text) = to explain that sentence's relationship to his Lordship's acceptance = arguendo of ratification as the basis of waiver of tort, which I had = quoted ibid. at 210. =20 -----Original Message----- From: Lionel Smith To: restitution@maillist.ox.ac.uk Date: 04 October 2000 16:41 Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) =20 =20 At 12:43 PM 10/4/00 +0100, Gordon Goldberg wrote: =20 This is obviously correct; for Lord Mansfield identified the = appropriate action as one based on a contract of hire. =B6 Such waiver is possible, not because it avoids unjust = enrichment, but because the defendant could deny the contract only by = infringing the maxim, quoted in Co.Litt. at 148b, "Nullus commodum = capere potest de injuri=E2 su=E2 propri=E2", which is, being = interpreted, "No one can take advantage of the wrong of himself [or of = another whom he represents]." This explains why, as Bowen, L.J. said op. = cit. at 461-2, waiver of tort (which would enable the bringing of an = action for use and occupation) is not possible against a trespasser, who = sets up an adverse title to the land; for such a trespasser is denying = any wrong and alleging his right. =20 Although this has a certain Jesuitical logic deriving from the forms = of action, the difficulty I have is that it does not make sense as a = legal rule. I understand Gordon to be saying that if I wrongfully take = your horse or occupy your land, acknowledging it to be yours, I am = liable for the use value, but if I take it while asserting that it is = mine, I am not liable. The concept denoted by the word "assumpsit" was = never more than a tool for getting from things that happened in the = world to defensible outcomes when disputes needed to be resolved. Since = it initially evolved to resolve situations involving the making of an = undertaking, it was a rather clumsy tool for resolving situations with = no such undertaking. Although the old common lawyers did their best, one = is always hampered by bad tools. When better ones are available the old = ones should be retired from active service, even if it is pleasant = sometimes to take them off the shelf and think about how difficult = things used to be. =20 I note that in Taylor v. Plumer it was argued unsuccessfully that = you could have a proprietary claim to a traceable product of your asset = only if the person who made the substitution was authorized to do so; if = he acted outside his authority you were restricted to a personal claim. = This argument, similar in pattern, structure, and logic to Gordon's, was = rejected. Even if the claim is understood as some kind of ratification = based on not allowing people to set up their own wrongdoing (as Gordon = argues [2000] RLR 212), why should a trespasser who "denies any wrong = and alleges his right" be allowed to set up his wrongful trespass any = more than any other kind of trespasser? And so ratification is otiose in = this context; we can move directly from wrongs to legal outcomes, such = as accountability for profit. (In fact it is well established that = ratification, properly so called, is only possible in respect of an act = which purports to be done in the capacity of agent; and Lord = Ellenborough CJ specifically rejected a ratification theory in his = judgment in Taylor v. Plumer.) =20 Lionel =20 =20 = _________________________________________________________________________= ___ 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 . ------=_NextPart_000_003A_01C02F8E.C1F3B650 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
¶ Since in his message, dated = 04 October=20 2000 17:50, Lionel revealed that = to him I seem=20 to speak in riddles, presumably it behoves me to attempt to explain why, = in the=20 situation covered by Bowen, L.J.'s assertion, I consider the recovery of = mesne=20 profits to be a defensible outcome.
¶ Mesne profts are a form of = damages -=20 Elliott v. Boynton [1924] 1 Ch. 236 at 250 = per=20 Warrington, L.J. Yet they are not limited to the demonstrable damage (if = any)=20 suffered by the plaintiff, who may recover under this head the full = potential=20 value of the land to the defendant trespasser for the period of the = defendant's=20 wrongful occupation - Inverugie Investments v. Hackett = [1995]=20 1 W.L.R. 713 P.C. In my respectful submission, this is = not=20 restitution based on a general theory of unjust enrichment. The = trespasser has=20 wrongfully deprived the plaintiff of the land and so is caught by the = maxim,=20 "In odium spoliatoris omnia praesumuntur", = which is,=20 being interpreted, "Everything is presumed to the prejudice of a=20 plunderer." Accordingly it is presumed that the full potential = value of the=20 land to the trespasser would have been available to the plaintiff. This = is the=20 maxim, which I was taught to be the warrant for Vice-Chancellor Wood's=20 "second principle", stated in Frith v. = Cartland=20 (1865) 2 H. & M. 417at 420: "... if a man mixes trust funds = with his=20 own, the whole will be treated as the trust property, except so far as = he may be=20 able to distinguish what is his own". It would also justify the=20 presumption, to which the same judge (then Lord Hatherley, L.C.) = referred in=20 Burdick v. Garrick (1870) 5 Ch. App. 233 at 241-2 and = which=20 requires a fiduciary to pay compound interest on money wrongfully = invested by=20 him in trade.
¶ In his = message, my=20 particular speaking in riddles of which Lionel complained was, "... = to try to explain liabilities which do not = depend on=20 authority or agreement as somehow dependent on ratification, authority, = or=20 assumpsit ...". In my respectful submission, Lord Tenterden, = C.J.K.B.'s=20 exposition in Stone v. Marsh (1827) 6 B. & C. = 551at 565,=20 which I quote in [2000] R.L.R. at 213, shows any such riddle to be = purely=20 imaginary.
-----Original = Message-----
From:=20 Gordon Goldberg <gordon.goldberg@buckingh= am.ac.uk>
To:=20 lionel.smith@mcgill.ca=20 <lionel.smith@mcgill.ca>;=20 restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
Date:=20 04 October 2000 18:20
Subject: RDG: Constructive trust = (Ellingsen v Hallmark)

I neglected previously to = point out that=20 the "defensible outcome" in the situation covered by = Bowen, L.J.'s=20 assertion could be achieved by an action for mesne profits. If I = remember=20 the relevant statute, this action would today survive against the=20 trespasser's estate, as would an action for trespass against the = taker of=20 the horse in Lord Mansfield's example

-----Original Message-----
From: = Lionel Smith=20 <lionel.smith@mcgill.ca>
= To:=20 restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
Date:=20 04 October 2000 17:50
Subject: Re: RDG: Constructive trust = (Ellingsen v=20 Hallmark)

He is referring to the bit which = says, "If=20 this case had rested ... on any supposed adoption and ratification = on [the=20 defendant's] part ... we think, it could not have been well = supported on=20 that ground." That does not seem to me to require any = explanation.=20

If = someone does an=20 act on my behalf but without authority, we can sensibly talk of my = ratifying=20 it, and then worry about whether and when we will allow this. But it = seems=20 to me that to try to explain liabilities which do not depend on = authority or=20 agreement as somehow dependent on ratification, authority, or = assumpsit is=20 to speak in riddles.

Lionel

-----Original Message-----
From: = Gordon=20 Goldberg <gordon.goldberg@buckingh= am.ac.uk>
To:=20 Lionel Smith <lionel.smith@mcgill.ca>; = restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
Date:=20 04 October 2000 17:27
Subject: Re: RDG: Constructive trust = (Ellingsen v=20 Hallmark)

When he claims that Lord Ellenborough, C.J., specifically = rejected a=20 ratification theory in his judgment in Taylor v. Plumer, is Lionel = referring=20 to the last sentence of his Lordship's judgment? If so, I = endeavoured in=20 [2000] R.L.R. at 213 (in n.157 and its accompanying text) to explain = that=20 sentence's relationship to his Lordship's acceptance arguendo of=20 ratification as the basis of waiver of tort, which I had quoted = ibid. at=20 210.

-----Original Message-----
From: Lionel Smith = <lionel.smith@mcgill.ca>
To: = restitution@maillist.ox.ac.uk = <restitution@maillist.ox.ac.uk>
Date: 04=20 October 2000 16:41
Subject: Re: RDG: Constructive trust = (Ellingsen v=20 Hallmark)


At 12:43 PM 10/4/00 +0100, Gordon Goldberg=20 wrote:

This is obviously correct; for Lord Mansfield = identified the=20 appropriate action as one based on a contract of hire.

¶ Such waiver is possible, not because it avoids unjust = enrichment,=20 but because the defendant could deny the contract only by infringing = the=20 maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere = potest de=20 injuriâ suâ propriâ", which is, being = interpreted,=20 "No one can take advantage of the wrong of himself [or of = another whom=20 he represents]." This explains why, as Bowen, L.J. said op. = cit. at=20 461-2, waiver of tort (which would enable the bringing of an action = for use=20 and occupation) is not possible against a trespasser, who sets up an = adverse=20 title to the land; for such a trespasser is denying any wrong and = alleging=20 his right.

Although this has a certain Jesuitical logic = deriving from=20 the forms of action, the difficulty I have is that it does not make = sense as=20 a legal rule. I understand Gordon to be saying that if I wrongfully = take=20 your horse or occupy your land, acknowledging it to be yours, I am = liable=20 for the use value, but if I take it while asserting that it is mine, = I am=20 not liable. The concept denoted by the word "assumpsit" = was never=20 more than a tool for getting from things that happened in the world = to=20 defensible outcomes when disputes needed to be resolved. Since it = initially=20 evolved to resolve situations involving the making of an = undertaking, it was=20 a rather clumsy tool for resolving situations with no such = undertaking.=20 Although the old common lawyers did their best, one is always = hampered by=20 bad tools. When better ones are available the old ones should be = retired=20 from active service, even if it is pleasant sometimes to take them = off the=20 shelf and think about how difficult things used to be.

I note = that in=20 Taylor v. Plumer it was argued unsuccessfully that you could have a=20 proprietary claim to a traceable product of your asset only if the = person=20 who made the substitution was authorized to do so; if he acted = outside his=20 authority you were restricted to a personal claim. This argument, = similar in=20 pattern, structure, and logic to Gordon's, was rejected. Even if the = claim=20 is understood as some kind of ratification based on not allowing = people to=20 set up their own wrongdoing (as Gordon argues [2000] RLR 212), why = should a=20 trespasser who "denies any wrong and alleges his right" be = allowed=20 to set up his wrongful trespass any more than any other kind of = trespasser?=20 And so ratification is otiose in this context; we can move directly = from=20 wrongs to legal outcomes, such as accountability for profit. (In = fact it is=20 well established that ratification, properly so called, is only = possible in=20 respect of an act which purports to be done in the capacity of = agent; and=20 Lord Ellenborough CJ specifically rejected a ratification theory in = his=20 judgment in Taylor v.=20 = Plumer.)

Lionel


_______________________________________= _____________________________________

This message was delivered through the Restitution Discussion = Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe restitution" in = the body=20 of a message to <majordomo@maillist.ox.ac.uk>. = To=20 unsubscribe, send "unsubscribe restitution" to the same = address.=20 To make a posting to all group members, send to <restitution@maillist.ox.ac.uk>. The list=20 is run by Lionel Smith of St. Hugh's College, Oxford, U.K., tel. = (0)1865 274=20 966, email <lionel.smith@law.ox.ac.uk>.

------=_NextPart_000_003A_01C02F8E.C1F3B650-- ________________________________________________________________________________ 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 Oct 06 14:29:46 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13hXYZ-0004l2-00; Fri, 06 Oct 2000 14:28:59 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13hXYZ-0004kv-00 for restitution@maillist.ox.ac.uk; Fri, 06 Oct 2000 14:28:59 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G2000ILSFYMQR@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Fri, 6 Oct 2000 09:25:35 -0400 (EDT) Date: Fri, 06 Oct 2000 09:27:05 -0400 From: Lionel Smith Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark) In-reply-to: <003d01c02f86$60496600$a9cd42c2@stf-law009.buckingham.ac.uk> X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <4.3.2.7.2.20001006085812.00a84360@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 I retract my comment about speaking in riddles, and I apologize to Gordon=20 if it was offensive. But I still think it is better to say what is the rule= =20 and why it makes sense than to interpose maxims and unnecessary concepts=20 like ratification. I said that my understanding of Gordon's original comment was that you=20 could recover the profits of a wrong against a wrongdoer who knew he was=20 acting wrongfully, but not against one who claimed to be entitled to take=20 whatever it was that he took. That distinction, if it is to be justified,=20 needs to be justified on its own terms and not by reference to maxims. I=20 personally do not think it could be justified, and this becomes clearer=20 when the language of ratification and assumpsit is stripped away. Here is another example of what I mean: Gordon said: >=B6 Mesne profts are a form of damages - Elliott v. Boynton [1924] 1 Ch.= 236=20 >at 250 per Warrington, L.J. Yet they are not limited to the demonstrable=20 >damage (if any) suffered by the plaintiff, who may recover under this head= =20 >the full potential value of the land to the defendant trespasser for the=20 >period of the defendant's wrongful occupation - Inverugie Investments v.=20 >Hackett [1995] 1 W.L.R. 713 P.C. In my respectful submission, this is not= =20 >restitution based on a general theory of unjust enrichment. The trespasser= =20 >has wrongfully deprived the plaintiff of the land and so is caught by the= =20 >maxim, "In odium spoliatoris omnia praesumuntur", which is, being=20 >interpreted, "Everything is presumed to the prejudice of a plunderer."=20 >Accordingly it is presumed that the full potential value of the land to=20 >the trespasser would have been available to the plaintiff. I agree that this is not restitution based on a general theory of unjust=20 enrichment. I think it is a disgorgement response which is available as an= =20 alternative to the usual compensatory response, in the case of trespass to= =20 land. Is there a difference between that and what Gordon says? Yes. What if= =20 the defendant was able to prove, as an affirmative fact, that the plaintiff= =20 suffered no loss (even though the defendant profited)? You might say, in=20 that case, that there would be no claim to the profit. But let's assume=20 that you want to allow the claim in such a case, because I think Gordon and= =20 I agree on that. On my reasoning you say: because the claim is measured by= =20 the defendant's gain, and does not purport to be a damages claim for=20 compensation, it is irrelevant that the plaintiff suffered no loss. But if= =20 you want to allow the claim on Gordon's reasoning, I think you have to say= =20 that Gordon's maxim/presumption is an irrebuttable presumption. But Wigmore= =20 showed, a long time ago, that an irrebuttable presumption is not a=20 presumption at all, it is a rule of substantive law. In other words, if you= =20 say that it is presumed irrebuttably as a matter of law that the plaintiff= =20 suffered a loss which is equal to the defendant's gain, then what you are=20 really saying is that it is *completely irrelevant* whether the plaintiff=20 suffered a loss. But then look what you are doing. You allow the claim on=20 the reasoning that it is compensation for damages; but it is measured by=20 the defendant's gain, because you have a rule that the plaintiff's=20 compensation is deemed to be the defendant's gain. That is what I mean when= =20 I speak of riddles: without trying to give offence, I am only saying that=20 it is an unnecessarily mysterious way of rationalizing (I am back in Canada= =20 so I can spell with z's again) the liability. If you do not just admit that= =20 the claim is measured by the defendant's gain, you have to use a fictional= =20 deemed loss to build a kind of semantic bridge from compensation for loss=20 to disgorgement of gain. > This is the maxim, which I was taught to be the warrant for=20 > Vice-Chancellor Wood's "second principle", stated in Frith v. Cartland=20 > (1865) 2 H. & M. 417at 420: "... if a man mixes trust funds with his own,= =20 > the whole will be treated as the trust property, except so far as he may= =20 > be able to distinguish what is his own". This context is dear to my heart, and I agree that the rule stated in Frith= =20 v Cartland is based on subordinating the interests of those who wrongfully= =20 create evidentiary difficulties. But on the same reasoning I have deployed= =20 above, this is also not a presumption properly so called, because if it is= =20 a presumption it is irrebuttable, and then it is not really a presumption=20 at all. That is why I have argued that the tracing rules, contrary to the=20 usual understanding, do not involve presumptions at all. If they did=20 involve presumptions of honesty on the part of breaching trustees, there=20 would be no way to justify the "lowest intermediate balance rule", which=20 was affirmed in Frith v. Cartland itself. That rule only makes sense if we= =20 lose the language of presumptions and say that *while* every possible=20 inference is drawn against the person who wrongfully created an evidentiary= =20 difficulty, *nonetheless* (because this is not an irrebuttable presumption= =20 of law, just a rule for resolving difficulties of evidence) we cannot draw= =20 inferences which are contrary to the known facts. That is the logical limit which is imposed when the reasoning is based on=20 evidentiary considerations, which is why, in the context of profitable=20 trespass, you need to explain the liability without reference to=20 evidentiary considerations (such as deemed losses), unless you do not want= =20 the plaintiff to have the defendant's gain in the case where the plaintiff= =20 can be shown to have suffered no loss. 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 Tue Oct 10 18:28:39 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13j38k-00086P-00; Tue, 10 Oct 2000 18:24:34 +0100 Received: from oxmail3.ox.ac.uk ([129.67.1.180] helo=oxmail.ox.ac.uk) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13j38k-00086I-00 for restitution@maillist.ox.ac.uk; Tue, 10 Oct 2000 18:24:34 +0100 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 3.12 #1) id 13j36x-0006vF-00 for restitution@maillist.ox.ac.uk; Tue, 10 Oct 2000 18:22:43 +0100 Received: from max55.public.ox.ac.uk ([192.76.27.55] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 3.13 #1) id 13j36w-0003jI-00 for restitution@maillist.ox.ac.uk; Tue, 10 Oct 2000 18:22:43 +0100 Message-ID: <39E35053.51ADA3CE@law.ox.ac.uk> Date: Tue, 10 Oct 2000 18:22:27 +0100 From: Gerhard Dannemann X-Mailer: Mozilla 4.51 [en] (Win95; I) X-Accept-Language: de MIME-Version: 1.0 To: "Maillist, Restitution" Subject: RDG: Oxford University Comparative Law Forum Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Gerhard Dannemann The Oxford University Comparative Law Forum goes public today with seven articles on restitution: 1. Peter Birks, At the Expense of the Claimant: Direct and Indirect Enrichment in English Law 2. Mindy Chen-Wishart, In Defence of Unjust Factors: a study of rescission for duress, fraud and exploitation 3. Thomas Krebs, In Defence of Unjust Factors 4. Gerhard Dannemann, Illegality as Defence Against Unjust Enrichment Claims 5. William Swadling, The Role of Illegality in the English Law of Unjust Enrichment 6. Lionel Smith, Property, Subsidiarity, and Unjust Enrichment 7. Simon Whittaker, Performance of Another's Obligation: French and English Law Contrasted All at: http://ouclf.iuscomp.org This is an interactive website. The forum provides a discussion platform for each article. Readers can ask questions and comment on everything published. Members of the restitution maillist are cordially invited to kick off the debate! Gerhard Dannemann -- Dr. Gerhard Dannemann Erich Brost University Lecturer in German Civil and Commercial Law University of Oxford Tel 01865 2 81613 Fax 81611 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 St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email . >From owner-restitution@maillist.ox.ac.uk Tue Oct 17 08:19:11 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13lR0h-0004Vv-00; Tue, 17 Oct 2000 08:18:07 +0100 Received: from virgo.cus.cam.ac.uk ([131.111.8.20] ident=cusexim) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13lR0h-0004Vo-00 for restitution@maillist.ox.ac.uk; Tue, 17 Oct 2000 08:18:07 +0100 Received: from swh10 (helo=localhost) by virgo.cus.cam.ac.uk with local-smtp (Exim 3.16 #3) id 13lQyn-0007Cc-00 for restitution@maillist.ox.ac.uk; Tue, 17 Oct 2000 08:16:09 +0100 Date: Tue, 17 Oct 2000 08:16:09 +0100 (BST) From: Steve Hedley To: restitution@maillist.ox.ac.uk Subject: RDG: Notes on Kleinwort Benson Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Steve Hedley In the latest number of the European Review of Private Law (2000 no 2) there is commentary on the issues in Kleinwort Benson, and especially on retrospectivity. The contributors are: Nils Jansen Lena Olsen Carolina Vicente E Cunha Hector MacQueen Willibald Posch Luisa Antoniolli Deflorian Steve Hedley, Faculty of Law, University of Cambridge ====================================================== * e-mail : swh10@cam.ac.uk * * voice (+ answering machine): 01223 334931 * * fax : 01223 334967 * * snailmail : 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 Tue Oct 17 10:07:42 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13lSeY-0005I6-00; Tue, 17 Oct 2000 10:03:22 +0100 Received: from haymarket.ed.ac.uk ([129.215.128.53]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13lSeX-0005Hy-00 for restitution@maillist.ox.ac.uk; Tue, 17 Oct 2000 10:03:21 +0100 Received: from srv0.law.ed.ac.uk (srv0.law.ed.ac.uk [129.215.244.1]) by haymarket.ed.ac.uk (8.8.7/8.8.7) with ESMTP id KAA26721 for ; Tue, 17 Oct 2000 10:01:24 +0100 (BST) Message-Id: <200010170901.KAA26721@haymarket.ed.ac.uk> Received: from LAW-SRV0/SpoolDir by srv0.law.ed.ac.uk (Mercury 1.43); 17 Oct 100 10:01:24 +0000 Received: from SpoolDir by LAW-SRV0 (Mercury 1.43); 17 Oct 100 10:00:52 +0000 From: "Hector MacQueen" To: restitution@maillist.ox.ac.uk Date: Tue, 17 Oct 2000 10:00:46 +0000 Subject: RDG: Piper Alpha X-mailer: Pegasus Mail for Win32 (v3.01b) Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: "Hector MacQueen" For those interested, the Piper Alpha case is now available in printed report form: 2000 SLT 1123 (Scots Law Times, issue 32 for 2000, date 13 October 2000). I understand that Session Cases, which is the main series of Scottish reports, will be producing a special volume, presumably to include the first instance judgment as well (SLT misses this out). The last I heard from counsel in the case, an appeal to the House of Lords is underway but some distance off in the future. Hector MacQueen Hector.MacQueen@ed.ac.uk Professor of Private Law University of Edinburgh Edinburgh EH8 9YL UK Tel (UK)-0131-650-2060/2009 Fax (UK)-0131-662-6317 Editor Edinburgh Law Review ________________________________________________________________________________ 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 Mon Oct 23 19:09:12 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13nm0t-0004p5-00; Mon, 23 Oct 2000 19:07:59 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13nm0t-0004oy-00 for restitution@maillist.ox.ac.uk; Mon, 23 Oct 2000 19:07:59 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G2W00EPCA756K@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Mon, 23 Oct 2000 14:04:17 -0400 (EDT) Date: Mon, 23 Oct 2000 14:05:54 -0400 From: Lionel Smith Subject: RDG: class action X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Cc: Jacob Ziegel , roy.goode@law.ox.ac.uk, ronald.cuming@usask.ca, mboodman@mccarthy.ca Message-id: <5.0.0.25.2.20001023131746.009fdeb0@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 5.0 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith Hi all, It looks as though we will move to the new server soon. I hope to announce this later in the week. Meanwhile here is something I learned about at the 30th annual Workshop on Commercial and Consumer Law, held in Toronto this past weekend. There is a service in the US called "Uncover" which allows you to search for and order copies of articles. There is a class action in the US District Court (ND Cal) pending against this outfit for breach of copyright. The action is being settled without admission of liability. The settlement is over US$7 million (although expect the lawyers to take a chunk). Friday 27 October 2000 is the deadline for registering a claim that you are a member of the plaintiff class, which would allow you to share in the settlement. To be a member of the class, all of these things need to be true (1) you published an article after 1977; (2) it was copied via the service and (3) you retained copyright. There is a search engine to help you determine (2). Further info at . Spread the word as the service is by no means confined to law journals. I am sorry to say that I am not a class member, but eg Andrew Kull, Stephen Waddams, Graham Virgo, there could be a new toaster in this for you. Or maybe several. Cheques are due to be mailed out in Demember of this year. If you are in the class, I think you can claim over the web. This is not a joke. Lionel (I am copying this to workshop participants Jacob Ziegel, Sir Roy Goode, Martin Boodman and Ronald Cuming, since Rick Bowes announced that you were all class members but you might not know how to follow it up ... Jacob maybe you could pass it on to Mr. Justice Sharpe as time is running short for that toaster ...) ________________________________________________________________________________ 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 Oct 25 17:01:14 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13oSxe-0005so-00; Wed, 25 Oct 2000 16:59:30 +0100 Received: from po-box.mcgill.ca ([132.206.27.42]) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13oSxc-0005sh-00 for restitution@maillist.ox.ac.uk; Wed, 25 Oct 2000 16:59:28 +0100 Received: from smithl.mcgill.ca ([132.206.155.113]) by po-box.mcgill.ca (PMDF V5.2-32 #38403) with ESMTP id <0G2Z009H1TKS1A@po-box.mcgill.ca> for restitution@maillist.ox.ac.uk; Wed, 25 Oct 2000 11:55:41 -0400 (EDT) Date: Wed, 25 Oct 2000 11:57:20 -0400 From: Lionel Smith Subject: RDG: RLR X-Sender: lsmith8@po-box.mcgill.ca To: restitution@maillist.ox.ac.uk Message-id: <5.0.0.25.2.20001025114639.009fea90@po-box.mcgill.ca> MIME-version: 1.0 X-Mailer: QUALCOMM Windows Eudora Version 5.0 Content-type: text/plain; charset="us-ascii"; format=flowed Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Lionel Smith Hi everyone, I have just received part 3 of the now-quarterly Restitution Law Review (RLQR??). Article: Professor A Burrows, "Quadrating Restitution and Unjust Enrichment: A Matter of Principle?" Comment: Peter Jaffey, "Restitution, Reliance and Quantum Meruit (Countryside Communications v ICL Pathway)" Regional Digests Review Articles: 1. Kit Barker reviews P Birks and F Rose eds., Lessons of the Swaps Litigation 2. Peter Jaffey reviews M Spence, Protecting Reliance 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 Oct 26 16:19:24 2000 Received: from majordom by penguin.ox.ac.uk with local (Exim 3.14 #1) id 13oonL-0003XQ-00; Thu, 26 Oct 2000 16:18:19 +0100 Received: from angelo.kcl.ac.uk ([137.73.66.5] ident=root) by penguin.ox.ac.uk with esmtp (Exim 3.14 #1) id 13oon7-0003XG-00 for restitution@maillist.ox.ac.uk; Thu, 26 Oct 2000 16:18:05 +0100 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id e9QFG1U04531 for ; Thu, 26 Oct 2000 16:16:02 +0100 (BST) Message-Id: <3.0.6.32.20001026162529.007988c0@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: Thu, 26 Oct 2000 16:25:29 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: RDG: Gifts and theft Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-restitution@maillist.ox.ac.uk Precedence: bulk Reply-To: Charles Mitchell Just up on the House of Lords' website: Hinks, in which their Lordships affirm by a 3:2 majority that a person who receives title to property by way of gift can be said to have 'appropriated' it for the purposes of the Theft Act 1968, s 1(1). Go to http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd001 026/hinks-1.htm ________________________________________________________________________ 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 ________________________________________________________________________________ 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 . Envelope-to: swh10@hermes.cam.ac.uk Date: Wed, 1 Nov 2000 09:15:37 -0500 From: "L-Soft list server at McGill University Computing Centre (1.8d)" Subject: File: "ENRICHMENT LOG0010D" To: swh10@CAM.AC.UK ========================================================================= Date: Fri, 27 Oct 2000 12:03:46 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: test MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed testing ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 13:36:52 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: test2 MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed test2 ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 13:38:04 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: test3 MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed test3 ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 13:39:46 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: test4 MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed test4 ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 13:40:44 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed test5 no subject ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 14:12:13 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: test n MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed last test I hope? ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 14:52:54 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Fwd: MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed add enrichment dd=rdg import pw=kempsonhouse //rdg dd* 100433.2016@compuserve.com a.m.tettenborn@exeter.ac.uk abraid@bldgrobson.lan1.umanitoba.ca akull@law.emory.edu alison.dunn@newcastle.ac.uk b.c.allan@massey.ac.nz baileym@knot.queensu.ca barkane@cgs.edu c.rickett@auckland.ac.nz donal.nolan@kcl.ac.uk dore@unb.ca eodell@tcd.ie frtoube@cix.compulink.co.uk gary.davis@flinders.edu.au gerard.mcmeel@bristol.ac.uk hdw@phillipsfox.co.nz j.maxton@auckland.ac.nz jaykes@iafrica.com jeannie.paterson@law.monash.edu.au jnb@deakin.edu.au joannab@law.usyd.edu.au john.glover@law.monash.edu.au l.falconer@unsw.edu.au lawsohkb@nus.edu.sg levans@bldgrobson.lan1.umanitoba.ca llznpg@lln1.law.nottingham.ac.uk lproksch@ecel.uwa.edu.au lusinaho@hkucc.hku.hk mcclean@law.ubc.ca mgelowit@osler.com mindy.chen-wishart@merton.ox.ac.uk mulland@qsilver.queensu.ca nha1000@cus.cam.ac.uk peter.jaffey@brunel.ac.uk pg.watts@auckland.ac.nz r.grantham@auckland.ac.nz rayoung@unixg.ubc.ca samh@deakin.edu.au serbac@deakin.edu.au u.cheer@laws.canterbury.ac.nz ghj1000@cus.cam.ac.uk efung@HK.Super.NET Andrew.Dickinson@cliffordchance.com jpbauer@nbnet.nb.ca ruthw@mailserv.waikato.ac.nz mpmcinne@julian.uwo.ca william.swadling@brasenose.oxford.ac.uk L.M.Costello@exeter.ac.uk S.WORTHINGTON@lse.ac.uk sgap2@hermes.cam.ac.uk charles.mitchell@kcl.ac.uk P.E.H.Davies@icsl.ac.uk cir1000@cus.cam.ac.uk B.McDonald@law.usyd.edu.au lawyeotm@nus.edu.sg cwebb@deakin.edu.au janes@coombs.anu.edu.au admitch@ariel.ucs.unimelb.EDU.AU C.Barker@soton.ac.uk mjackson@hkucc.hku.hk Halkerston@aol.com crossinn@allenovery.com dominic.osullivan@exeter.oxford.ac.uk pcane@coombs.anu.edu.au steven.elliott@merton.oxford.ac.uk s.waddams@utoronto.ca jcsheahan@compuserve.com e.mckendrick@ucl.ac.uk Yuen-Yee_Cho@msj.com.au Rafal_Zakrzewski@msj.com.au wwhite@cw-c.co.uk gerhard.dannemann@Law.oxford.ac.uk Tania_Voon@msj.com.au jmcconnachy@hotmail.com niwilson@ozemail.com.au gjv1000@hermes.cam.ac.uk jerrym@mweb.co.za donaldbr@ozemail.com.au alison.jones@kcl.ac.uk axelrod@andromeda.rutgers.edu vng@deakin.edu.au sihomb@hkucc.hku.hk lawtjioh@nus.edu.sg lawcrown@nus.edu.sg Susan.Thomas@law.monash.edu.au rhaigh@deakin.edu.au Pauline.Ridge@anu.edu.au junger@samsara.law.cwru.edu andrew.horne@strath.ac.uk Simone.Degeling@nottingham.ac.uk C.Kilgannon@soton.ac.uk george.panagopoulos@hertford.oxford.ac.uk lawteyth@nus.edu.sg caridib@one.net.au jao21@cus.cam.ac.uk duncan.sheehan@corpus-christi.oxford.ac.uk Birt@BrickCourt.co.uk meng.wee@worcester.oxford.ac.uk arianna.pretto@brasenose.oxford.ac.uk stephen.watterson@st-johns.oxford.ac.uk CHONG_Chin_Chin@SUPCOURT.gov.sg etmc@hkucc.hku.hk WylieP@cardiff.ac.uk droliver.schultz@netcologne.de Christos.Mantziaris@anu.edu.au manisha.ramchurn@kcl.ac.uk a.hudson@qmw.ac.uk DoyoJul@DDSM.ca johanndieckmann@yahoo.de rchamber@law.ualberta.ca eusl07@srv0.law.ed.ac.uk paul.matthews@kcl.ac.uk alittle@osler.com s.evans@law.unimelb.edu.au h9614431@hkusua.hku.hk francesco.giglio@brasenose.oxford.ac.uk ebant@ecel.uwa.edu.au ian@carno9233.freeserve.co.uk P.Butler@mailbox.uq.edu.au bridgemg@nortonrose.com wmjones@wantree.com.au EBrown3441@aol.com elisabeth@law.usyd.edu.au njm33@hermes.cam.ac.uk DWC@sglaw.co.nz phood@srv0.law.ed.ac.uk jeyagalloway@hotmail.com richard.sutton@stonebow.otago.ac.nz dkreltszheim@kpmg.com.au chriswebb@bigpond.com.au andreasgledhill@southsquare.com Andrea.Murray@gmx.net PaulMichalik@wn.moke.co.nz H.vanKooten@law.uu.nl crchamb@telusplanet.net jeffrey.hackney@wadham.oxford.ac.uk shiersra@nortonrose.com fiona.tregonning@bellgully.co.nz dmf24@hermes.cam.ac.uk fwgc3224@mb.infoweb.ne.jp m.pratt@mailbox.uq.edu.au frank_l_schaefer@hotmail.com hajime8@yahoo.com pradan@law.law.mq.edu.au jpcoughlan@hotmail.com bondj@ozemail.com.au dmf24@cam.ac.uk lawaho@julian.uwo.ca andrew@nus.edu.sg jsdouglas@qldbar.asn.au scott.dickson@ed.ac.uk ASLLEE@ntu.edu.sg naszaklama@yahoo.co.uk Oonagh.Breen@ucd.ie c.kirkbride@lancaster.ac.uk ivan_shopov@yahoo.com dave_chan@pacific.net.sg vinodh@shooklin.com.sg mhogg@srv0.law.ed.ac.uk colin.riegels@harneys.com rcn1002@hermes.cam.ac.uk joshua.getzler@law.oxford.ac.uk P.N.Todd@swansea.ac.uk georgia.bedworth@st-hughs.oxford.ac.uk joerg.degenhardt@lady-margaret-hall.oxford.ac.uk sai.leung@law.oxford.ac.uk P.Giliker@qmw.ac.uk gregg.rowan@keble.oxford.ac.uk christopher.savundra@law.oxford.ac.uk andrew.burrows@st-hughs.ox.ac.uk daniel.gal@university-college.oxford.ac.uk thomast@uakron.edu rakesh.rajani@christ-church.oxford.ac.uk drfilios@hellasnet.gr peter.birks@all-souls.oxford.ac.uk wvhrogers@w432.freeserve.co.uk rjm1000@cam.ac.uk Jason.Neyers@jus.gov.on.ca hfraser@qldbar.asn.au james.cutress@virgin.net hannes.unberath@worcester.oxford.ac.uk john.blackie@strath.ac.uk ian.brungs@brasenose.oxford.ac.uk cdaly80@hotmail.com wanwaiyee@hotmail.com ben.mcfarlane@christ-church.ox.ac.uk cdf25@cam.ac.uk s_haren@hotmail.com m.armstrong@lancaster.ac.uk sandra@sbernstein.on.ca Paul.Michell@torytory.ca robert.pearce@buckingham.ac.uk jewellmj@hotmail.com g.tolhurst@unsw.edu.au bprimus@sunbeach.net mskj1@singnet.com.sg robertsq@bigpond.com steen@gofree.indigo.ie chloe.carpenter@brasenose.oxford.ac.uk brendan.mcgurk@wadham.oxford.ac.uk helen.scott@balliol.oxford.ac.uk roryjwhite@hotmail.com ruthcannon@hotmail.com mgergen@mail.law.utexas.edu J.S.Ulph@durham.ac.uk paul@magney-rhodes.com.au lss@alphalink.com.au wemyss.sound@excite.com Justice_Atkinson@justice.qld.gov.au athena.tsangarides@st-johns.oxford.ac.uk matsuoka@law.kyoto-u.ac.jp phc@hicksons.com.au jilliancsj@hotmail.com johnbd.@bigpond.com jameswatthey@hotmail.com mmkc839@netvigator.com james.edelman@magdalen.oxford.ac.uk aedit_a@pacific.net.sg t.krebs@ucl.ac.uk josephcrabtree@hotmail.com dchanmo@excite.com elias@rnc.ro bridgetc@ior.com j.p.moore@bigpond.com J.E.Penner@lse.ac.uk james.neville@butterworths.co.uk carole.deleamont@benefiat.demon.co.uk edwin.simpson@christ-church.oxford.ac.uk coenchri@uni-freiburg.de Andrew.Simester@nottingham.ac.uk Donald_Robertson@freehills.com.au lawthw@nus.edu.sg robert.stevens@law.oxford.ac.uk gordon.goldberg@buckingham.ac.uk andrewphang@smu.edu.sg cdf25@hermes.cam.ac.uk johnm@bigpond.net.au fefarrow@mail.smartchat.net.au georgia_bedworth@hotmail.com frie@post.tau.ac.il DSTEVENS@goodmancarr.com robwilliams@sony-vaio.fsnet.co.uk DietrichJ@law.anu.edu.au lukegoh@mas.gov.sg cameron.stewart@mq.edu.au robcannon@iol.ie wongfy@pacific.net.sg jneyers@julian.uwo.ca whitey_darren@hotmail.com francis.rose@buckingham.ac.uk DH-D@bigpond.com john.cartwright@christ-church.oxford.ac.uk jordon@corplink.com.au Vincent.Sagaert@law.kuleuven.ac.be R.Verhagen@jur.kun.nl syl27@hermes.cam.ac.uk nicholas.briggs@lineone.net Matthew.Scully@CliffordChance.com Nigel.Gravells@nottingham.ac.uk rmccoll@ozemail.com.au Daniel.Smith@SlaughterandMay.com RendlemanD@wlu.edu Simon.Leung@BakerNet.com jmccamus@yorku.ca gdrhui@hotmail.com A.R.Bates@ncl.ac.uk brewerec@NKU.EDU msclapton@hotmail.com Michael.Izzo@lincoln.oxford.ac.uk sfmccoll@netspace.net.au paramail@para-protect.com A.M.Kramer@durham.ac.uk benjamin.parker@zoom.co.uk swh10@cam.ac.uk jennifer.barrett@somerville.oxford.ac.uk gillian.skelton@buckingham.ac.uk fefarrow@vicbar.com.au robertjmcallister@hotmail.com elp29@hermes.cam.ac.uk DeanofLaw@law.ucc.ie iclq@biicl.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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 15:15:05 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed add enrichment dd=ddname import pw=kempsonhouse //ddname dd * 100433.2016@compuserve.com a.m.tettenborn@exeter.ac.uk abraid@bldgrobson.lan1.umanitoba.ca akull@law.emory.edu alison.dunn@newcastle.ac.uk b.c.allan@massey.ac.nz baileym@knot.queensu.ca barkane@cgs.edu c.rickett@auckland.ac.nz donal.nolan@kcl.ac.uk dore@unb.ca eodell@tcd.ie frtoube@cix.compulink.co.uk gary.davis@flinders.edu.au gerard.mcmeel@bristol.ac.uk hdw@phillipsfox.co.nz j.maxton@auckland.ac.nz jaykes@iafrica.com jeannie.paterson@law.monash.edu.au jnb@deakin.edu.au joannab@law.usyd.edu.au john.glover@law.monash.edu.au l.falconer@unsw.edu.au lawsohkb@nus.edu.sg levans@bldgrobson.lan1.umanitoba.ca llznpg@lln1.law.nottingham.ac.uk lproksch@ecel.uwa.edu.au lusinaho@hkucc.hku.hk mcclean@law.ubc.ca mgelowit@osler.com mindy.chen-wishart@merton.ox.ac.uk mulland@qsilver.queensu.ca nha1000@cus.cam.ac.uk peter.jaffey@brunel.ac.uk pg.watts@auckland.ac.nz r.grantham@auckland.ac.nz rayoung@unixg.ubc.ca samh@deakin.edu.au serbac@deakin.edu.au u.cheer@laws.canterbury.ac.nz ghj1000@cus.cam.ac.uk efung@HK.Super.NET Andrew.Dickinson@cliffordchance.com jpbauer@nbnet.nb.ca ruthw@mailserv.waikato.ac.nz mpmcinne@julian.uwo.ca william.swadling@brasenose.oxford.ac.uk L.M.Costello@exeter.ac.uk S.WORTHINGTON@lse.ac.uk sgap2@hermes.cam.ac.uk charles.mitchell@kcl.ac.uk P.E.H.Davies@icsl.ac.uk cir1000@cus.cam.ac.uk B.McDonald@law.usyd.edu.au lawyeotm@nus.edu.sg cwebb@deakin.edu.au janes@coombs.anu.edu.au admitch@ariel.ucs.unimelb.EDU.AU C.Barker@soton.ac.uk mjackson@hkucc.hku.hk Halkerston@aol.com crossinn@allenovery.com dominic.osullivan@exeter.oxford.ac.uk pcane@coombs.anu.edu.au steven.elliott@merton.oxford.ac.uk s.waddams@utoronto.ca jcsheahan@compuserve.com e.mckendrick@ucl.ac.uk Yuen-Yee_Cho@msj.com.au Rafal_Zakrzewski@msj.com.au wwhite@cw-c.co.uk gerhard.dannemann@Law.oxford.ac.uk Tania_Voon@msj.com.au jmcconnachy@hotmail.com niwilson@ozemail.com.au gjv1000@hermes.cam.ac.uk jerrym@mweb.co.za donaldbr@ozemail.com.au alison.jones@kcl.ac.uk axelrod@andromeda.rutgers.edu vng@deakin.edu.au sihomb@hkucc.hku.hk lawtjioh@nus.edu.sg lawcrown@nus.edu.sg Susan.Thomas@law.monash.edu.au rhaigh@deakin.edu.au Pauline.Ridge@anu.edu.au junger@samsara.law.cwru.edu andrew.horne@strath.ac.uk Simone.Degeling@nottingham.ac.uk C.Kilgannon@soton.ac.uk george.panagopoulos@hertford.oxford.ac.uk lawteyth@nus.edu.sg caridib@one.net.au jao21@cus.cam.ac.uk duncan.sheehan@corpus-christi.oxford.ac.uk Birt@BrickCourt.co.uk meng.wee@worcester.oxford.ac.uk arianna.pretto@brasenose.oxford.ac.uk stephen.watterson@st-johns.oxford.ac.uk CHONG_Chin_Chin@SUPCOURT.gov.sg etmc@hkucc.hku.hk WylieP@cardiff.ac.uk droliver.schultz@netcologne.de Christos.Mantziaris@anu.edu.au manisha.ramchurn@kcl.ac.uk a.hudson@qmw.ac.uk DoyoJul@DDSM.ca johanndieckmann@yahoo.de rchamber@law.ualberta.ca eusl07@srv0.law.ed.ac.uk paul.matthews@kcl.ac.uk alittle@osler.com s.evans@law.unimelb.edu.au h9614431@hkusua.hku.hk francesco.giglio@brasenose.oxford.ac.uk ebant@ecel.uwa.edu.au ian@carno9233.freeserve.co.uk P.Butler@mailbox.uq.edu.au bridgemg@nortonrose.com wmjones@wantree.com.au EBrown3441@aol.com elisabeth@law.usyd.edu.au njm33@hermes.cam.ac.uk DWC@sglaw.co.nz phood@srv0.law.ed.ac.uk jeyagalloway@hotmail.com richard.sutton@stonebow.otago.ac.nz dkreltszheim@kpmg.com.au chriswebb@bigpond.com.au andreasgledhill@southsquare.com Andrea.Murray@gmx.net PaulMichalik@wn.moke.co.nz H.vanKooten@law.uu.nl crchamb@telusplanet.net jeffrey.hackney@wadham.oxford.ac.uk shiersra@nortonrose.com fiona.tregonning@bellgully.co.nz dmf24@hermes.cam.ac.uk fwgc3224@mb.infoweb.ne.jp m.pratt@mailbox.uq.edu.au frank_l_schaefer@hotmail.com hajime8@yahoo.com pradan@law.law.mq.edu.au jpcoughlan@hotmail.com bondj@ozemail.com.au dmf24@cam.ac.uk lawaho@julian.uwo.ca andrew@nus.edu.sg jsdouglas@qldbar.asn.au scott.dickson@ed.ac.uk ASLLEE@ntu.edu.sg naszaklama@yahoo.co.uk Oonagh.Breen@ucd.ie c.kirkbride@lancaster.ac.uk ivan_shopov@yahoo.com dave_chan@pacific.net.sg vinodh@shooklin.com.sg mhogg@srv0.law.ed.ac.uk colin.riegels@harneys.com rcn1002@hermes.cam.ac.uk joshua.getzler@law.oxford.ac.uk P.N.Todd@swansea.ac.uk georgia.bedworth@st-hughs.oxford.ac.uk joerg.degenhardt@lady-margaret-hall.oxford.ac.uk sai.leung@law.oxford.ac.uk P.Giliker@qmw.ac.uk gregg.rowan@keble.oxford.ac.uk christopher.savundra@law.oxford.ac.uk andrew.burrows@st-hughs.ox.ac.uk daniel.gal@university-college.oxford.ac.uk thomast@uakron.edu rakesh.rajani@christ-church.oxford.ac.uk drfilios@hellasnet.gr peter.birks@all-souls.oxford.ac.uk wvhrogers@w432.freeserve.co.uk rjm1000@cam.ac.uk Jason.Neyers@jus.gov.on.ca hfraser@qldbar.asn.au james.cutress@virgin.net hannes.unberath@worcester.oxford.ac.uk john.blackie@strath.ac.uk ian.brungs@brasenose.oxford.ac.uk cdaly80@hotmail.com wanwaiyee@hotmail.com ben.mcfarlane@christ-church.ox.ac.uk cdf25@cam.ac.uk s_haren@hotmail.com m.armstrong@lancaster.ac.uk sandra@sbernstein.on.ca Paul.Michell@torytory.ca robert.pearce@buckingham.ac.uk jewellmj@hotmail.com g.tolhurst@unsw.edu.au bprimus@sunbeach.net mskj1@singnet.com.sg robertsq@bigpond.com steen@gofree.indigo.ie chloe.carpenter@brasenose.oxford.ac.uk brendan.mcgurk@wadham.oxford.ac.uk helen.scott@balliol.oxford.ac.uk roryjwhite@hotmail.com ruthcannon@hotmail.com mgergen@mail.law.utexas.edu J.S.Ulph@durham.ac.uk paul@magney-rhodes.com.au lss@alphalink.com.au wemyss.sound@excite.com Justice_Atkinson@justice.qld.gov.au athena.tsangarides@st-johns.oxford.ac.uk matsuoka@law.kyoto-u.ac.jp phc@hicksons.com.au jilliancsj@hotmail.com johnbd.@bigpond.com jameswatthey@hotmail.com mmkc839@netvigator.com james.edelman@magdalen.oxford.ac.uk aedit_a@pacific.net.sg t.krebs@ucl.ac.uk josephcrabtree@hotmail.com dchanmo@excite.com elias@rnc.ro bridgetc@ior.com j.p.moore@bigpond.com J.E.Penner@lse.ac.uk james.neville@butterworths.co.uk carole.deleamont@benefiat.demon.co.uk edwin.simpson@christ-church.oxford.ac.uk coenchri@uni-freiburg.de Andrew.Simester@nottingham.ac.uk Donald_Robertson@freehills.com.au lawthw@nus.edu.sg robert.stevens@law.oxford.ac.uk gordon.goldberg@buckingham.ac.uk andrewphang@smu.edu.sg cdf25@hermes.cam.ac.uk johnm@bigpond.net.au fefarrow@mail.smartchat.net.au georgia_bedworth@hotmail.com frie@post.tau.ac.il DSTEVENS@goodmancarr.com robwilliams@sony-vaio.fsnet.co.uk DietrichJ@law.anu.edu.au lukegoh@mas.gov.sg cameron.stewart@mq.edu.au robcannon@iol.ie wongfy@pacific.net.sg jneyers@julian.uwo.ca whitey_darren@hotmail.com francis.rose@buckingham.ac.uk DH-D@bigpond.com john.cartwright@christ-church.oxford.ac.uk jordon@corplink.com.au Vincent.Sagaert@law.kuleuven.ac.be R.Verhagen@jur.kun.nl syl27@hermes.cam.ac.uk nicholas.briggs@lineone.net Matthew.Scully@CliffordChance.com Nigel.Gravells@nottingham.ac.uk rmccoll@ozemail.com.au Daniel.Smith@SlaughterandMay.com RendlemanD@wlu.edu Simon.Leung@BakerNet.com jmccamus@yorku.ca gdrhui@hotmail.com A.R.Bates@ncl.ac.uk brewerec@NKU.EDU msclapton@hotmail.com Michael.Izzo@lincoln.oxford.ac.uk sfmccoll@netspace.net.au paramail@para-protect.com A.M.Kramer@durham.ac.uk benjamin.parker@zoom.co.uk swh10@cam.ac.uk jennifer.barrett@somerville.oxford.ac.uk gillian.skelton@buckingham.ac.uk fefarrow@vicbar.com.au robertjmcallister@hotmail.com elp29@hermes.cam.ac.uk DeanofLaw@law.ucc.ie iclq@biicl.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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 27 Oct 2000 15:35:11 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Welcome to the new RDG MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Finally, I have ported the RDG. All 282 subscribers have been signed up to the new list. The main thing to be aware of is that, of course, there are new email addresses for postings and for commands to the server. The new posting address is enrichment@lists.mcgill.ca In other words, according to the server's view of things, the name of the list is "enrichment." It could be neither "RDG" nor "restitution" as it had to be 4-10 characters. But as before we can call it RDG when we are not talking to the server. The new server's email address is: listserv@lists.mcgill.ca So long as we can all use those addresses, it will be pretty seamless (he hopes). Basic commands: subscribe with "subscribe enrichment", unsubscribe with "signoff enrichment" (although listserv also allows "unsubscribe" I think), see a list of subscribers with "review enrichment". Remember that commands go to the server, not the posting address. ANYONE RECEIVING THIS MESSAGE IS ALREADY SUBSCRIBED. For those who do not know, there are searchable RDG archives, accessible on the web. We have list member Steve Hedley to thank for an archive of all RDG postings from the beginning (1995). This is on Steve's Restitution web site at Cambridge University: http://www.law.cam.ac.uk/restitution Steve's site also has cases, articles and other material relating to the law of restitution for unjust enrichment. The McGill server automatically creates a web-based archive, which is accessible at: http://lists.mcgill.ca/archives/enrichment.html This archive, however, begins only with the migration of the RDG to McGill and so there is nothing on there yet. If you are interested in a full explanation of the listserv software, which will tell you about commands you can send to the server to customize some aspects of your subscription, see the users' manual at: http://www.lsoft.com/manuals/1.8d/userindex.html To prevent the Star-Trek-like problem of existing in parallel universes, the Oxford majordomo server will no longer allow postings to go through automatically. They will be bounced to me and I will post them on the new list. Nor will it accept any new subscriptions. So please update your email address books. 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Sat, 28 Oct 2000 08:51:20 +0800 Reply-To: GOH Peng Ee Luke Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: GOH Peng Ee Luke Subject: Luke Goh is out of the office MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii I will be away from the office from 21/10/2000, and will return to the office on 06/11/2000. For urgent matters, please leave a message with Wendy Tan at 2299769. I will revert as soon as possible when I return to the office. ____________________________________________________________________ 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 . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email .