Date: Wed, 13 Dec 2000 09:51:50 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: call for papers MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed This comes originally from Assistant Prof Tang Hang Wu: CALL FOR PAPERS/SUBSCRIPTION TO THE SINGAPORE JOURNAL OF LEGAL STUDIES I write on behalf of the Singapore Journal of Legal Studies ("SJLS"). By way of introduction, the SJLS was first published in 1959 as the University of Malaya Law Review and subsequently as Malaya Law Review. The Journal was then renamed the Singapore Journal of Legal Studies in 1991. Articles published in the SJLS have been often cited internationally including citations in judgments from the Australian High Court, the Canadian Supreme Court and the House of Lords. Our list of contributors has included distinguished scholars from the Commonwealth such as Professor EP Ellinger, Professor JD Davies, Professor FA Trindade and Professor FMB Reynolds. Recent contributors to the SJLS include Andrew Ashworth, Vinerian Professor of English Law, University of Oxford. A recent article which may be of great interest to restitution scholars is the article entitled "The Law Of Unjust Enrichment: A Millennial Resolution" by Peter Birks, Regius Professor of Civil Law, University of Oxford in our December 1999 issue. The SJLS welcome papers from scholars from the commonwealth. I would be happy to answer all enquiries on overseas subscription and submissions. I would be most grateful if you could forward this e-mail to your respective law library if it does not currently subscribe to the SJLS. Tang Hang Wu (Mr.) Assistant Professor Business Manager Singapore Journal of Legal Studies National University of Singapore ____________________________________________________________________ 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: Thu, 14 Dec 2000 01:52:50 +0800 Reply-To: CHONG_Chin_Chin@SUPCOURT.GOV.SG Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: CHONG_Chin_Chin@SUPCOURT.GOV.SG Subject: Chin Chin CHONG/SUPCOURT/SINGOV is out of the office. MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii I will be out of the office starting 11/12/2000 and will not return until 21/12/2000. For matters regarding CJ's dinner, pls contact Ms Sharon Lim at 332 4054. For EFS matters, pls contact Ms Tan Wen Shan at 332 3967. For all other matters, I will respond to you when I am back in the office. Thanks! ____________________________________________________________________ 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: Thu, 14 Dec 2000 09:54:57 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: call for papers (2) MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed I am sorry but in forwarding the call for papers for the Singapore Journal of Legal Studies, which came from Tang Hang Wu, I should have said that his email is . 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: Thu, 14 Dec 2000 15:45:20 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" The English Charity Commission has released a document setting out its views on the status of property held by a registered charity which is then removed from the register of charities for one reason or another: RR6 - Maintenance of an Accurate Register of Charities, available at: http://www.charity-commission.gov.uk In Annex C, para C6, the Commissioners observe that: It is possible that, for example, the Inland Revenue will, in certain circumstances, have and wish to enforce statutory and/or restitutionary claims against the institution for the recovery of reliefs which it has obtained on the basis of a mistaken understanding that it was a charity. Donors may also have restitutionary claims in respect of gifts which they have made on the basis of a similar misunderstanding. But these are matters on which the Commission cannot offer detailed advice: the premise is that the property of the institution is not held for charitable purposes. ________________________________________________________________________ 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 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: Thu, 14 Dec 2000 11:58:45 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Cass (Trustee in Bankruptcy) v. Karpnale? MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Here is a question for anyone interested, especially insolvency buffs. In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) the rogue Cass misappropriated money of the plaintiff and gambled it away at the casino operated by the defendant. One crucial element in the plaintiff's success was that under English gaming law, the gambling transactions were treated as executed gifts so that the defendant could not claim to be a good faith purchaser for value. Question: what would have happened if Cass's trustee in bankruptcy brought a proceeding against the defendant to recover all of the money as a "transaction at an undervalue" under ss 339 ff of the Insolvency Act 1986 (or: fill in the provisions of your national law which allow insolvency officers to get back gifts made by bankrupts on the eve of bankruptcy)? Let us assume for the purposes of s 341 that Cass was adjudged bankrupt on a petition presented within two years of his gambling spree (or: within the relevant time limit in your system). Lionel PS I know I am home because we have had 18 inches of snow in the last two days. ____________________________________________________________________ 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, 15 Dec 2000 09:23:23 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: cass's trustee in bankruptcy Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Lionel asks what might have happened if Cass's trustee in bankruptcy had tried to recover his losses to the casino as transactions at an undervalue. I'd have thought the trustee in bankruptcy would fail. Although s.339 doesn't say so in so many words, presumably it can't apply except to property which was the bankrupt's and which would otherwise have gone to the trustee. The money Cass used wasn't and wouldn't. Any comment from specialist insolvency lawyers? AT Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Personal Fax: 0870-0889339 / +44-870-0889339 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 15 Dec 2000 10:20:37 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Cass's trustte in bankruptcy MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit > I'd have thought the trustee in bankruptcy would fail. Although s.339 > doesn't say so in so many words, presumably it can't apply except to > property which was the bankrupt's and which would otherwise have gone to > the trustee. The money Cass used wasn't and wouldn't. > The problem is, of course, that the money was Cass's "where a banker's cheque payable to a third party or bearer is obtained by a partner from a bank which has received the authority of the partnership to pay the partner in question who has, however, unknown to the bank, acted beyond the authority of his partners in so operating the account, the legal property in the banker's cheque thereupon vests in the partner. The same must a fortiori be true when it is not such a banker's cheque but cash which is drawn by the partner in question." -Lord Goff The firm did have some form of proprietary interest in the money (Professor Birks says it was a power) but Lord Goff is not very clear as to what it was: " a right akin to ratification"?? Since Cass was gambling with money to which he had legal title, I don't myself see why a tib could not claim back the money as being paid out under a transaction at an undervalue. I don't think that the fact that the firm had some form of proprietary interest in the money alters this. If the asset which the tib seeks to recover had been mortgaged to a third party recovery would have been still possible by the tib. Was the money paid by Cass as a gift? If it was the transaction was at an undervalue. I have never been at all happy with the House of Lords description of the gambling as executed gifts. I suspect that most punters would be surprised to learn that they are making gifts to Ladbrokes when they put a pony on the 4.30 at Uttoxeter. Charitable donation is the last thing they intend. I don't think that it logically follows that because the property was not transferred by reason of a valid contract that it must have been by way of gift. Valid gifts are non-returnable and I suspect that that was all that Lord Goff meant. In any event, assuming that gambling is a transaction at an undervalue, either because it is a gift or, possibly more accurately, for no consideration, what is the position? The claim of the trustee in bankruptcy is, in my view, a claim in unjust enrichment. Any claim would be personal as the money did not traceably survive in the hands of the Playboy club. The problem is much the same as if Cass had paid away the money he stole by mistake. Some people have argued (L Smith (1991) OJLS 481, 483) that unjust enrichment is a zero sum game. If correct it should follow from this that no claim in unjust enrichment other than Lipkin Gorman's could succeed. I cannot prove it but I do not think that this is right. I don't think that it should matter that more than one person has a claim in ue against the same defendant for the same sum. It is a bit like conversion. If A has, as against B, an immediate right to possess goods which B has converted it will not avail B to argue that C actually has a better right to possess than A. In any event, I do not think that the ranking of claims is very difficult in this case. If the money had not been squandered, the TIB could not have resisted the solicitor's (proprietary) claim to the return of the money. The TIB cannot be in any better position because the bankrupt is not only a thief but also an inveterate gambler. The easiest way of reaching the desired result (no recovery for TIB) is the wide discretion given to the court in the making of orders under s 339 ("such order as it thinks fit"). (Sorry for writing so much.) R > Andrew Tettenborn MA LLB > Bracton Professor of 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 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, 15 Dec 2000 11:14:36 -0000 Reply-To: Nicholas Briggs Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nicholas Briggs Subject: Section 339 IA 1986 MIME-Version: 1.0 Content-Type: text/plain Section 339 updated section 14 of the BA 1914. That section had defects in so far as it failed to assist in situations where there had been a disposition of the bankrupt's property by way of a gift. However, for the disposition to be set aside it has to be shown that the estate has lost something (i.e value). Section 436 of the IA 1986 provides the definition of property. It is very wide and includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest whether present or future or vested or contingent arising out of or incidental to property. If it can be shown that the money Cass had lost belonged to him and thus would have vested in his estate, the insolvency juridiction would be open. In these circumstances would the casino be able to plead change of position against the trustee who would be acting with the force of the statutory provision? ____________________________________________________________________ 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, 15 Dec 2000 11:31:15 -0000 Reply-To: "Armstrong-Cerfontaine, Mark" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Armstrong-Cerfontaine, Mark" Subject: Re: cass's trustee in bankruptcy Comments: To: Andrew Tettenborn I agree with Professor Tettenborn, provided that the "property" was the bankrupt's and vested in the Trustee in Bankruptcy. (1) When the TIB is appointed, the property of the bankrupt must be passed to the trustee. (2) Section 306(1) IA 1986 reinforces this position by stating that the "bankrupt's estate shall vest in the trustee immediately on his appointment taking effect..." (3) Section 306(2) states that "[w]here any property which is, or is to be, comprised in the bankrupt's estate vests in the trustee (whether under this section or under any other provision of this part), it shall so vest without any conveyance, assignment or transfer." (4)Question: what is the bankrupt's 'property'? There is jurisprudence on the meaning of 'property' within section 306(2), but no case, as far as I am aware (and I am a corporate insolvency sepcialist rather than a bankruptcy sepcialist), which would directly cover the point in issue. (5) Section 283 defines the meaning of "bankrupt's estate" as (a) "all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and (b) any property which by virtue of any of the following provisions of this Part is comprised in the estate or is treated as falling within the preceding paragraph", subject to section 283(2). Again, we come back to the perennial question, what is property? (6)One should note that any property held by the bankrupt on trust for any other person is not included within the bankrupt's estate by virtue of section 283(3)(a). Section 283 abolishes the doctrine of reputed ownership. (7)Section 283 must be read in conjuction with sections 307-9 and section 436 IA 1986. (8)The latter section is a general definition section where 'property' includes "money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or furture or vested or contingent arising out of, or incidental to, property"'. The courts construe the word "property" very generously. It extends to both legal and equitable ownership. (9)Therefore, to answer conclusively whether section 339 IA 1986 applies, one must determine the extent to which the money misapproriated by Cass was his money/property. Mark Armstrong-Cerfontaine. > -----Original Message----- > From: Andrew Tettenborn [SMTP:A.M.Tettenborn@EXETER.AC.UK] > Sent: 15 December 2000 09:23 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] cass's trustee in bankruptcy > > Lionel asks what might have happened if Cass's trustee in bankruptcy had > tried to recover his losses to the casino as transactions at an undervalue. > > I'd have thought the trustee in bankruptcy would fail. Although s.339 > doesn't say so in so many words, presumably it can't apply except to > property which was the bankrupt's and which would otherwise have gone to > the trustee. The money Cass used wasn't and wouldn't. > > Any comment from specialist insolvency lawyers? > > > AT > > > Andrew Tettenborn MA LLB > Bracton Professor of Law > > > Tel: 01392-263189 / +44-392-263189 (international) > Fax: 01392-263196 / +44-392-263196 (international) > Personal Fax: 0870-0889339 / +44-870-0889339 (international) > > Snailmail: School of Law, > University of Exeter, > Amory Building, > Rennes Drive, > Exeter EX4 4RJ > England > > [ Homepage: http://www.ex.ac.uk/law/ ]. > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe 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 > . ____________________________________________________________________ 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, 15 Dec 2000 11:45:52 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Section 339 IA 1986 Comments: To: Nicholas Briggs MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Whether the defence of change of position can be raised to a claim under s 339 is a difficult question. The section gives the court a wide power to "make such order as it thinks fir for restoring the position to what it would have been in if the individual had not entered into the transaction." On its face it this leaves it open for the defendant to argue that he should not be required to repay where he has changed his position as this would not be to "restore the position to what it would have been" as he would now be worse off. If the court could be persuaded that the clawback provisions in the Insolvency Act are based upon the principle of unjust enrichment (unless restitution is awarded the defendant will be unjustly enriched at the expense of the bankrupt's estate) they might be persuaded to apply the defence. The statute (see s 342), the caselaw and the textbooks give painfully little guidance as to how the court's power under s339 is to be exercised. R ----- Original Message ----- From: "Nicholas Briggs" To: Sent: Friday, December 15, 2000 11:14 AM Subject: [RDG:] Section 339 IA 1986 > Section 339 updated section 14 of the BA 1914. That section had defects in > so far as it failed to assist in situations where there had been a > disposition of the bankrupt's property by way of a gift. However, for the > disposition to be set aside it has to be shown that the estate has lost > something (i.e value). > > Section 436 of the IA 1986 provides the definition of property. It is very > wide and includes money, goods, things in action, land and every description > of property wherever situated and also obligations and every description of > interest whether present or future or vested or contingent arising out of or > incidental to property. > > If it can be shown that the money Cass had lost belonged to him and thus > would have vested in his estate, the insolvency juridiction would be open. > In these circumstances would the casino be able to plead change of position > against the trustee who would be acting with the force of the statutory > provision? > > ____________________________________________________________________ > 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 > . > ____________________________________________________________________ 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, 15 Dec 2000 11:47:23 GMT Reply-To: Eoin O' Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O' Dell Subject: Lipkin Gorman v. Cass (Trustee in Bankruptcy) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Further to Lionel Smith's point discussed by Andrew Tettenborn, Robert Stevens and Nicholas Briggs), can I pose a consequential question: If Cass's trustee in bankruptcy does have a successful claim against the Club under ss 339ff of the Insolvency Act 1986 (or equivalent), would the Firm then be able to trace into trustee's hands and make a proprietary claim against the insolvency? 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 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, 15 Dec 2000 12:06:49 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Voidable prefernces and change of position Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Further to Robert Stevens' message re the lack of authority on IA 1986 s 339, I would add that there is some case-law and writing on the analogous sections relating to corporate insolvencies, ss 239-241: 1/ In his enlightening SPTL paper/CfiLR article/chapter in the Restitution and Insolvency book, ^ÑThe Recovery of Voidable Preferences: Aspects of Restoration', Andrew Keay identifies these sections as a statutory restitutionary regime, whose policy goals are: (i) fostering the collective insolvency process; (ii) enabling the equal distribution of an insolvent's assets; and (iii) deterring the dismemberment of companies on the verge of insolvency. 2/ The question when the innocent recipient of a voidable preference should be entitled to invoke a change of position defence has been considered in several Commonwealth cases construing similar statutory regimes, some of which specifically provide for such a defence in general terms: see the cases discussed in T O'Sullivan, ^ÑDefending a Liquidator's Claim for Repayment of a Voidable Transaction' (1997) 9 Otago LR 111, and also: Re Ernst and Young Inc (1997) 147 DLR (4th) 229, Alberta CA; Countrywide Banking Corp Ltd v Dean [1998] AC 338, PC; Moller Johnson (Motors) Hawera Ltd v RD and SM Taplin Contracting Ltd (No 2) (15 July 1998, unreported), NZHC. _______________________________________________________________________ _ 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 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, 15 Dec 2000 10:44:47 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: cass's trustee in bankruptcy In-Reply-To: <7823222F821AD311844800204840353A417B2F@exchange2.lancs.ac.uk> MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Mark Armstrong-Cerfontaine wrote: >(9)Therefore, to answer conclusively whether section 339 IA 1986 applies, one >must determine the extent to which the money misapproriated by Cass was his >money/property. I agree and I think this is, as they say around here, the $64,000 question. Eoin wrote >If Cass's trustee in bankruptcy does have a successful claim against the >Club under ss 339ff of the Insolvency Act 1986 (or equivalent), would the >Firm then be able to trace into trustee's hands and make a proprietary >claim against the insolvency? As the computer in Hitchhiker's Guide to the Galaxy said when asked the meaning of life, the universe and everything: Tricky. If a debtor holds property in trust, and transfers it to a bona fide purchaser for value without notice so the trust interest is lost, then even if the trustee in bankruptcy gets it back as a preference, the trust beneficiary has no priority claim to it, ie the trust is not revived: Re First Capital Mortgage Loan Corporation, 917 F.2d 424 (10th Cir. 1990); cf Re Yagerphone [1935] Ch 392. If however we had decided that the property in Karpnale's hands belonged all along to LG (ie they had some pre-existing interest which was not lost on transfer to Karpnale), then any recovery of it by the trustee would be unauthorized by the bankruptcy law and the trustee would have to hand it (or its traceable proceeds) over just as much as Karpnale would. So we are back to the same mystery of what kind of interest LG had in the money paid to Karpnale. ____________________________________________________________________ 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, 15 Dec 2000 11:12:01 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: cass's trustee in bankruptcy Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Lionel Smith wrote: > Mark Armstrong-Cerfontaine wrote: > > >(9)Therefore, to answer conclusively whether section 339 IA 1986 applies, one > >must determine the extent to which the money misapproriated by Cass was his > >money/property. > > I agree and I think this is, as they say around here, the $64,000 question. > in 1996, there was a group discussion of preference avoidance where the bankrupt had improperly acquired the money paid out: the head was DEFENSES ____________________________________________________________________ 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, 15 Dec 2000 12:01:06 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Lionel Smith wrote: > Here is a question for anyone interested, especially insolvency buffs. > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > the rogue Cass misappropriated money of the plaintiff and gambled it away > at the casino operated by the defendant. One crucial element in the > plaintiff's success was that under English gaming law, the gambling > transactions were treated as executed gifts so that the defendant could not > claim to be a good faith purchaser for value. ======================= under a US statute called something like the 'religious liberty' act, good-faith charitable gifts by an insolvent are not avoidable a court able to describe a loss to a casino as a 'gift' should have little trouble recognizing a casino as a 'charity' ____________________________________________________________________ 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, 15 Dec 2000 17:34:50 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: axelrod@ANDROMEDA.RUTGERS.EDU Presumably a casino will not be registered as a charity for tax purposes. A gift on the other hand is a disposition of property other than for valuable consideration. If I place a bet, pay money to the casino and get no right to sue for recovery of my winnings if I choose the right numbers on the roulette, I have given away my money for nothing (legally enforceable) in return. Hence a gift. -----Original Message----- From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] Sent: 15 December 2000 17:01 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? Lionel Smith wrote: > Here is a question for anyone interested, especially insolvency buffs. > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > the rogue Cass misappropriated money of the plaintiff and gambled it away > at the casino operated by the defendant. One crucial element in the > plaintiff's success was that under English gaming law, the gambling > transactions were treated as executed gifts so that the defendant could not > claim to be a good faith purchaser for value. ======================= under a US statute called something like the 'religious liberty' act, good-faith charitable gifts by an insolvent are not avoidable a court able to describe a loss to a casino as a 'gift' should have little trouble recognizing a casino as a 'charity' ____________________________________________________________________ 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 . ******* This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance 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 . ======================================================================= == Date: Fri, 15 Dec 2000 17:44:26 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: Matthew.Scully@CLIFFORDCHANCE.COM MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Mr Scully wrote:- A gift on the other hand is a disposition of property other than for valuable consideration. Is it? What is the authority for this? (Other than Lipkin Gorman v Karpnale) We wouldn't describe mistaken payments as gifts. R > -----Original Message----- > From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] > Sent: 15 December 2000 17:01 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > Lionel Smith wrote: > > > Here is a question for anyone interested, especially insolvency buffs. > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > > the rogue Cass misappropriated money of the plaintiff and gambled it away > > at the casino operated by the defendant. One crucial element in the > > plaintiff's success was that under English gaming law, the gambling > > transactions were treated as executed gifts so that the defendant could > not > > claim to be a good faith purchaser for value. > > ======================= > under a US statute called something like the 'religious liberty' act, > good-faith > charitable gifts by an insolvent are not avoidable > > a court able to describe a loss to a casino as a 'gift' should have little > trouble > recognizing a casino as a > 'charity' > > ____________________________________________________________________ > 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 > . > > > ******* > > This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. > > For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance 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 > . > ____________________________________________________________________ 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, 15 Dec 2000 12:40:26 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit a US case in re chomakos [allard v flamingo hilton] 69 f3 769 1995 holds that a casino gives reasonably equivalent value when it offers the insolvent a win prospect even though the casino games have a built-in house advantage of up to ten percent [incidentally the house percentage can be improved by getting the bettor drunk, which is not againsst the US casino free-drink policy] the insolvent would be well advised to keep gambling until she either wins herself back to solvency or loses all non-exempt assets query an insolvent who has invested heavily in the english national lottery: i believe it returns well under 50% to the bettors, altho use of proceeds for culture might fit the US charity exception ??? ____________________________________________________________________ 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, 15 Dec 2000 17:58:52 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: robert.stevens@law.oxford.ac.uk Firstly I left out the word "voluntary" before "disposition of property". Secondly, in the case of a mistaken payment, the mistake vitiates this voluntary element. If a mistaken payment is subsequently ratified (e.g. if I pay X £100 meaning to pay Y, discover my mistake and tell X to keep the money anyway), then the ratification removes this vitiating factor and mistaken payment becomes a gift. -----Original Message----- From: Robert Stevens [mailto:robert.stevens@law.oxford.ac.uk] Sent: 15 December 2000 17:44 To: Matthew.Scully@CLIFFORDCHANCE.COM; ENRICHMENT@LISTS.MCGILL.CA Subject: Re: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? Mr Scully wrote:- A gift on the other hand is a disposition of property other than for valuable consideration. Is it? What is the authority for this? (Other than Lipkin Gorman v Karpnale) We wouldn't describe mistaken payments as gifts. R > -----Original Message----- > From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] > Sent: 15 December 2000 17:01 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > Lionel Smith wrote: > > > Here is a question for anyone interested, especially insolvency buffs. > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > > the rogue Cass misappropriated money of the plaintiff and gambled it away > > at the casino operated by the defendant. One crucial element in the > > plaintiff's success was that under English gaming law, the gambling > > transactions were treated as executed gifts so that the defendant could > not > > claim to be a good faith purchaser for value. > > ======================= > under a US statute called something like the 'religious liberty' act, > good-faith > charitable gifts by an insolvent are not avoidable > > a court able to describe a loss to a casino as a 'gift' should have little > trouble > recognizing a casino as a > 'charity' > > ____________________________________________________________________ > 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 > . > > > ******* > > This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. > > For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance 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 > . > ____________________________________________________________________ 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, 15 Dec 2000 18:10:49 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: Matthew.Scully@CliffordChance.com MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit I would have thought that one of the essential features of a gift was donative intent. Certainly the Insolvency Act (s339, s 238) assumes that gifts and payments other than for valuable consideration are not synonymous. If this is incorrect as a matter of law it would be a shame as the law would be strangely out of step with every day language. R ----- Original Message ----- From: To: ; ; Sent: Friday, December 15, 2000 5:58 PM Subject: RE: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > Firstly I left out the word "voluntary" before "disposition of property". > Secondly, in the case of a mistaken payment, the mistake vitiates this > voluntary element. If a mistaken payment is subsequently ratified (e.g. if > I pay X £100 meaning to pay Y, discover my mistake and tell X to keep the > money anyway), then the ratification removes this vitiating factor and > mistaken payment becomes a gift. > > -----Original Message----- > From: Robert Stevens [mailto:robert.stevens@law.oxford.ac.uk] > Sent: 15 December 2000 17:44 > To: Matthew.Scully@CLIFFORDCHANCE.COM; ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > Mr Scully wrote:- > A gift on the other hand is a disposition of property other than for > valuable consideration. > > Is it? What is the authority for this? (Other than Lipkin Gorman v Karpnale) > We wouldn't describe mistaken payments as gifts. > R > > > -----Original Message----- > > From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] > > Sent: 15 December 2000 17:01 > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > > > > Lionel Smith wrote: > > > > > Here is a question for anyone interested, especially insolvency buffs. > > > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC > 548) > > > the rogue Cass misappropriated money of the plaintiff and gambled it > away > > > at the casino operated by the defendant. One crucial element in the > > > plaintiff's success was that under English gaming law, the gambling > > > transactions were treated as executed gifts so that the defendant could > > not > > > claim to be a good faith purchaser for value. > > > > ======================= > > under a US statute called something like the 'religious liberty' act, > > good-faith > > charitable gifts by an insolvent are not avoidable > > > > a court able to describe a loss to a casino as a 'gift' should have little > > trouble > > recognizing a casino as a > > 'charity' > > > > ____________________________________________________________________ > > 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 > > . > > > > > > ******* > > > > This message and any attachment are confidential and may be privileged or > otherwise protected from disclosure. If you are not the intended recipient, > please telephone or email the sender and delete this message and any > attachment from your system. If you are not the intended recipient you must > not copy this message or attachment or disclose the contents to any other > person. > > > > For further information about Clifford Chance please see our website at > http://www.cliffordchance.com or refer to any Clifford Chance 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 > > . > > > ____________________________________________________________________ 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, 15 Dec 2000 18:05:04 -0000 Reply-To: "Worthington,S" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Worthington,S" Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? MIME-Version: 1.0 Content-Type: text/plain Although Cass obtains legal title form the bank, surely he holds the funds on trust for his defrauded partners (partnership/fiduciary law), so his trustee in bankruptcy could not distribute the funds to Cass's creditors ...nor reclaim them from the Playboy Club. Sarah > -----Original Message----- > From: Lionel Smith [SMTP:lionel.smith@MCGILL.CA] > Sent: 14 December 2000 16:59 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > Here is a question for anyone interested, especially insolvency buffs. > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > the rogue Cass misappropriated money of the plaintiff and gambled it away > at the casino operated by the defendant. One crucial element in the > plaintiff's success was that under English gaming law, the gambling > transactions were treated as executed gifts so that the defendant could > not > claim to be a good faith purchaser for value. > > Question: what would have happened if Cass's trustee in bankruptcy brought > a proceeding against the defendant to recover all of the money as a > "transaction at an undervalue" under ss 339 ff of the Insolvency Act 1986 > (or: fill in the provisions of your national law which allow insolvency > officers to get back gifts made by bankrupts on the eve of bankruptcy)? > Let > us assume for the purposes of s 341 that Cass was adjudged bankrupt on a > petition presented within two years of his gambling spree (or: within the > relevant time limit in your system). > > Lionel > > PS I know I am home because we have had 18 inches of snow in the last two > days. > > ____________________________________________________________________ > 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 > . ____________________________________________________________________ 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, 15 Dec 2000 18:35:33 -0000 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? (1) I concede that I was wrong to classify gifts and payments other than for "valuable consideration" as the same thing. As often, it comes from careless use of a word with too many meanings, "consideration". (2) I agree that donative intent is an essential feature of a gift. But is the intention to make a gift any different from the intention to transfer property without receiving anything (whether or not the something can be classified as "valuable consideration") in return? (3) Legal language and spoken language are frequently out of step. The law adopts logical classifications, we use loose concepts. This is why it is legally possible to analyse gambling as making "gifts" to a casino, whereas we have trouble analysing it as such as a matter of everyday speech because it is not akin to giving Christmas presents (even if legally the same thing appears to happen). -----Original Message----- From: Robert Stevens [mailto:robert.stevens@law.oxford.ac.uk] Sent: 15 December 2000 18:11 To: Matthew.Scully@CliffordChance.com; robert.stevens@law.oxford.ac.uk; ENRICHMENT@LISTS.MCGILL.CA Subject: Re: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? I would have thought that one of the essential features of a gift was donative intent. Certainly the Insolvency Act (s339, s 238) assumes that gifts and payments other than for valuable consideration are not synonymous. If this is incorrect as a matter of law it would be a shame as the law would be strangely out of step with every day language. R ----- Original Message ----- From: To: ; ; Sent: Friday, December 15, 2000 5:58 PM Subject: RE: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > Firstly I left out the word "voluntary" before "disposition of property". > Secondly, in the case of a mistaken payment, the mistake vitiates this > voluntary element. If a mistaken payment is subsequently ratified (e.g. if > I pay X £100 meaning to pay Y, discover my mistake and tell X to keep the > money anyway), then the ratification removes this vitiating factor and > mistaken payment becomes a gift. > > -----Original Message----- > From: Robert Stevens [mailto:robert.stevens@law.oxford.ac.uk] > Sent: 15 December 2000 17:44 > To: Matthew.Scully@CLIFFORDCHANCE.COM; ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > Mr Scully wrote:- > A gift on the other hand is a disposition of property other than for > valuable consideration. > > Is it? What is the authority for this? (Other than Lipkin Gorman v Karpnale) > We wouldn't describe mistaken payments as gifts. > R > > > -----Original Message----- > > From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] > > Sent: 15 December 2000 17:01 > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > > > > Lionel Smith wrote: > > > > > Here is a question for anyone interested, especially insolvency buffs. > > > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC > 548) > > > the rogue Cass misappropriated money of the plaintiff and gambled it > away > > > at the casino operated by the defendant. One crucial element in the > > > plaintiff's success was that under English gaming law, the gambling > > > transactions were treated as executed gifts so that the defendant could > > not > > > claim to be a good faith purchaser for value. > > > > ======================= > > under a US statute called something like the 'religious liberty' act, > > good-faith > > charitable gifts by an insolvent are not avoidable > > > > a court able to describe a loss to a casino as a 'gift' should have little > > trouble > > recognizing a casino as a > > 'charity' > > > > ____________________________________________________________________ > > 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 > > . > > > > > > ******* > > > > This message and any attachment are confidential and may be privileged or > otherwise protected from disclosure. If you are not the intended recipient, > please telephone or email the sender and delete this message and any > attachment from your system. If you are not the intended recipient you must > not copy this message or attachment or disclose the contents to any other > person. > > > > For further information about Clifford Chance please see our website at > http://www.cliffordchance.com or refer to any Clifford Chance 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 > > . > > > ____________________________________________________________________ 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, 15 Dec 2000 18:30:49 -0000 Reply-To: "Shiers, Rupert" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Shiers, Rupert" Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable What I am about to say is probably just a function of a tired brain. But what is there to donative intent (from a legal, as opposed to spiritual perspective) other than an intention to transfer my property to you for no consideration? I have to confess that I am ignoring dividends and similar transfers here, but if pressed, would be pleased to try explain those away. section 238 reads to me like typical legislative "action, inaction or otherwise"-style drafting. -----Original Message----- From: Robert Stevens [mailto:robert.stevens@LAW.OXFORD.AC.UK] Sent: 15 December 2000 18:11 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? I would have thought that one of the essential features of a gift was donative intent. Certainly the Insolvency Act (s339, s 238) assumes that gifts and payments other than for valuable consideration are not synonymous. If this is incorrect as a matter of law it would be a shame as the law would be strangely out of step with every day language. R ----- Original Message ----- From: To: ; ; Sent: Friday, December 15, 2000 5:58 PM Subject: RE: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > Firstly I left out the word "voluntary" before "disposition of property". > Secondly, in the case of a mistaken payment, the mistake vitiates this > voluntary element. If a mistaken payment is subsequently ratified (e.g. if > I pay X =A3100 meaning to pay Y, discover my mistake and tell X to keep t= he > money anyway), then the ratification removes this vitiating factor and > mistaken payment becomes a gift. > > -----Original Message----- > From: Robert Stevens [mailto:robert.stevens@law.oxford.ac.uk] > Sent: 15 December 2000 17:44 > To: Matthew.Scully@CLIFFORDCHANCE.COM; ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > Mr Scully wrote:- > A gift on the other hand is a disposition of property other than for > valuable consideration. > > Is it? What is the authority for this? (Other than Lipkin Gorman v Karpnale) > We wouldn't describe mistaken payments as gifts. > R > > > -----Original Message----- > > From: Allan Axelrod [mailto:axelrod@ANDROMEDA.RUTGERS.EDU] > > Sent: 15 December 2000 17:01 > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > > > > Lionel Smith wrote: > > > > > Here is a question for anyone interested, especially insolvency buffs. > > > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC > 548) > > > the rogue Cass misappropriated money of the plaintiff and gambled it > away > > > at the casino operated by the defendant. One crucial element in the > > > plaintiff's success was that under English gaming law, the gambling > > > transactions were treated as executed gifts so that the defendant could > > not > > > claim to be a good faith purchaser for value. > > > > =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D > > under a US statute called something like the 'religious liberty' act, > > good-faith > > charitable gifts by an insolvent are not avoidable > > > > a court able to describe a loss to a casino as a 'gift' should have little > > trouble > > recognizing a casino as a > > 'charity' > > > > ____________________________________________________________________ > > 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 > > . > > > > > > ******* > > > > This message and any attachment are confidential and may be privileged or > otherwise protected from disclosure. If you are not the intended recipient, > please telephone or email the sender and delete this message and any > attachment from your system. If you are not the intended recipient you must > not copy this message or attachment or disclose the contents to any other > person. > > > > For further information about Clifford Chance please see our website at > http://www.cliffordchance.com or refer to any Clifford Chance 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 > > . > > > ____________________________________________________________________ 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 . _____________________________________________________________________ CONFIDENTIALITY NOTICE The contents of this e-mail are confidential to the ordinary user of the e-mail address to which it was addressed and may also be privileged. If you are not the addressee of this e-mail you may not copy, forward, disclose or otherwise use it or any part of it in any form whatsoever. If you have received this e-mail in error please e-mail the sender by replying to this message. A list of the partners of Norton Rose, Solicitors, can be inspected at www.nortonrose.com ______________________________________________________________________ ____________________________________________________________________ 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, 15 Dec 2000 13:48:25 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: Matthew.Scully@CLIFFORDCHANCE.COM MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit > applying a definition of a gift as a voluntary transfer without receiving > property or rights in exchange, matthew notes that no rights are received by > the bettor if a win cannot be enforced against the casino [the US case I gave > was out of nevada where gambling debts are enforceable] that a reasonable expectation-in-fact of collecting from a gambling loser is as good as a legal right for some purposes has been established in US law: before Nevada gambling debts became enforceable, it was held that a casino received income for tax purposes when it received the debtor's promise to pay: the court noted that the collection rate on these 'unenforceable' promises was well over 90% > ____________________________________________________________________ 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, 15 Dec 2000 14:05:29 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? In-Reply-To: <9FA9249A2A86D31188CF0060970D041B03B87AC3@titan.nortonrose.com> MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed My you are all up late over there. Go home, it's Friday. Rupert Shiers said >What I am about to say is probably just a function of a tired brain. But >what is there to donative intent (from a legal, as opposed to spiritual >perspective) other than an intention to transfer my property to you for no >consideration? I have to confess that I am ignoring dividends and similar >transfers here, but if pressed, would be pleased to try explain those away. Over here in Canada, we do think of dividends as a kind of gift, constrained of course by the directors' obligations to act in the best interests of the corporation. So it says in the leading corporate law text, approved by the majority of the Supreme Court of Canada in McClurg v Canada [1990] 3 S.C.R. 1020. Gratuitous bailments too? I agree with Sarah Worthington that everything looks different if you let the trust out of wherever it was put in Lipkin Gorman. ____________________________________________________________________ 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: Sun, 17 Dec 2000 10:26:16 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Cass (Trustee in Bankruptcy) v. Karpnale? MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0010_01C06813.C9A5FDA0" This is a multi-part message in MIME format. ------=_NextPart_000_0010_01C06813.C9A5FDA0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable In [2000] R.L.R. 189, I have argued at 201-5 that the casino had = furnished valuable consideration and at 215 that, if it had not, = equitable tracing was the only appropriate remedy for the casino's = innocent receipt of the proceeds of Cass's breach of his fiduciary duty. = I believe the argument to support the "Original Messages" below. -----Original Message----- From: Allan Axelrod To: ENRICHMENT@LISTS.MCGILL.CA Date: 15 December 2000 17:20 Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? Under a US statute called something like the 'religious liberty' act, = good-faith charitable gifts by an insolvent are not avoidable. A court = able to describe a loss to a casino as a 'gift' should have little = trouble recognizing a casino as a 'charity'. -----Original Message----- From: Worthington,S To: ENRICHMENT@LISTS.MCGILL.CA Date: 15 December 2000 18:25 Subject: Re: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? Although Cass obtains legal title from the bank, surely he holds the = funds on trust for his defrauded partners (partnership/fiduciary law), = so his trustee in bankruptcy could not distribute the funds to Cass's = creditors...nor reclaim them from the Playboy Club. ------=_NextPart_000_0010_01C06813.C9A5FDA0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
In [2000] R.L.R. 189, I have argued = at 201-5=20 that the casino had furnished valuable consideration and at 215 that, if = it had=20 not, equitable tracing was the only appropriate remedy for the casino's = innocent=20 receipt of the proceeds of Cass's breach of his fiduciary duty. I = believe the=20 argument to support the "Original Messages" = below.
 
 
-----Original Message-----
From: = Worthington,S=20 <S.Worthington@LSE.AC.UK> To: ENRICHMENT@LISTS.MCGILL.CA= <ENRICHMENT@LISTS.MCGILL.CA= >
Date:=20 15 December 2000 18:25
Subject: Re: [RDG:] Cass (Trustee in = Bankruptcy) v.=20 Karpnale?
Although Cass obtains legal title from the = bank,=20 surely he holds the funds on trust for his defrauded partners=20 (partnership/fiduciary law), so his trustee in bankruptcy could not = distribute=20 the funds to Cass's creditors...nor reclaim them from the Playboy=20 Club.
------=_NextPart_000_0010_01C06813.C9A5FDA0-- ____________________________________________________________________ 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: Tue, 19 Dec 2000 15:13:41 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Cass (Trustee in Bankruptcy) v. Karpnale? Comments: To: "Worthington,S" In-Reply-To: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Fri, 15 Dec 2000, Worthington,S wrote: > Although Cass obtains legal title form the bank, surely he holds the funds > on trust for his defrauded partners (partnership/fiduciary law), so his > trustee in bankruptcy could not distribute the funds to Cass's creditors > ...nor reclaim them from the Playboy Club. > Sarah I am not sure that this can be said with certainty. There are plenty of cases following re Yagerphone [1935] Ch 392 which state that the fact that an asset has been charged to a third party does not prevent it being recovered by a liquidator from a preferred creditor. I have only found one case on lexis where the asset was held on trust. The bankrupt used trust money to pay off his overdraft. It was argued that as the money was held on trust and would not have been available to the general body of creditors it should not be capable of recovery as a preference. This argument was rejected: Richardson v Commercial Banking Co of Sydney Ltd (1952) 85 CLR 110. The court seemed to be concerned that the beneficiary may not pursue her claim against the recipient bank but merely prove in the bankruptcy. The bank would therefore be preferred at the expense of the general body of creditors R > > > -----Original Message----- > > From: Lionel Smith [SMTP:lionel.smith@MCGILL.CA] > > Sent: 14 December 2000 16:59 > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: [RDG:] Cass (Trustee in Bankruptcy) v. Karpnale? > > > > Here is a question for anyone interested, especially insolvency buffs. > > > > In Lipkin Gorman v. Karpnale (let's say it all together: [1991] 2 AC 548) > > the rogue Cass misappropriated money of the plaintiff and gambled it away > > at the casino operated by the defendant. One crucial element in the > > plaintiff's success was that under English gaming law, the gambling > > transactions were treated as executed gifts so that the defendant could > > not > > claim to be a good faith purchaser for value. > > > > Question: what would have happened if Cass's trustee in bankruptcy brought > > a proceeding against the defendant to recover all of the money as a > > "transaction at an undervalue" under ss 339 ff of the Insolvency Act 1986 > > (or: fill in the provisions of your national law which allow insolvency > > officers to get back gifts made by bankrupts on the eve of bankruptcy)? > > Let > > us assume for the purposes of s 341 that Cass was adjudged bankrupt on a > > petition presented within two years of his gambling spree (or: within the > > relevant time limit in your system). > > > > Lionel > > > > PS I know I am home because we have had 18 inches of snow in the last two > > days. > > > > ____________________________________________________________________ > > 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 > > . > > ____________________________________________________________________ > 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 > . > ____________________________________________________________________ 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: Wed, 20 Dec 2000 15:11:52 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Equitably inclined members of the RDG may like to know that a discussion group centring on trusts and equity has been set up by a research student here at King's, Jonathon Garton. It is called 'Equity-list' and has been running for a few weeks now. Please sign up and share your thoughts! To subscribe to Equity-list either send an e-mail to jiscmail@jiscmail.ac.uk with: join equity-list firstname lastname in the main body of the text; or go to the web site and click on subscribe - http://www.jiscmail.ac.uk/lists/equity-list.html _______________________________________________________________________ _ 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 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, 22 Dec 2000 14:45:56 -0700 Reply-To: Jay Beswick Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jay Beswick MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_016E_01C06C25.E46CCFE0" This is a multi-part message in MIME format. ------=_NextPart_000_016E_01C06C25.E46CCFE0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable "subscribe enrichment" ------=_NextPart_000_016E_01C06C25.E46CCFE0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
"subscribe = enrichment"
------=_NextPart_000_016E_01C06C25.E46CCFE0-- ____________________________________________________________________ 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, 23 Dec 2000 05:52:47 +0800 Reply-To: CHONG_Chin_Chin@SUPCOURT.GOV.SG Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: CHONG_Chin_Chin@SUPCOURT.GOV.SG Subject: Chin Chin CHONG/SUPCOURT/SINGOV is out of the office. MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii I will be out of the office starting 21/12/2000 and will not return until 02/01/2001. ____________________________________________________________________ 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, 22 Dec 2000 15:08:24 -0700 Reply-To: Jay Beswick Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jay Beswick Subject: Re: Improvements to Church Property in Polygamist Community MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0179_01C06C29.07DA9B80" This is a multi-part message in MIME format. ------=_NextPart_000_0179_01C06C29.07DA9B80 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I am a victims advocate searching for answers! A friend recommended the = filing of a CC1 from the Uniform Coomercial Code, to save a family from = eviction. If you have seen the national news in the past 4 months, there have been = many stories of a woman named Lenore Holm, who refused parental consent = for her daughter age 16 to become a plural wife in the polygamist = community of Colorado City Arizona. A home built over a 24 year period = on trust lands is at issue. When the 500 residents built on church land = over a 40 year period, each was told to build like you would be there = forever and I have seen 16,000 sq. ft. homes. The Trustees of the = corporation changed in 1986 and have purged by eviction anyone unwilling = to follow the polygamist lifestyle that includes giving up daughters as = young as 12 to the church priesthood. When Lenore refused her daughter earlier this year, a forceable detainer = for an eviction was served on this poor couple, that still have 11 = children at home. The church took the 16 year old daughter and placed = her with a married man and local authorities have refused to cross over = the religious freedom issue. If you saw 20/20 Down Town on 12-19-00 or the Novembers 13th issue of = Newsweek, Lenore's issue and Colorado City were in those issues. In an earlier class action in Utah, the Utah Supreme Court Ruled in = favor of the tenants, under undo enrichment. Lenore is not in Utah but = rather the Arizona Supreme Court and she has no lawyer or the million = dollars that the earlier 22 families had spent. Her home is unfinished on the outside, but 5,000 sq ft. If she files = this UCC 1 form for the labor and construction value of the home, which = sounds to me like a Contractors Mechanic's Lein, what will be her = outcome? The new trustees and their attorney's claim that she is a = "Tenant at will", something she did not agree to by signature. Does my friend know what he is talking about with this recorded document = and does this mother of 13 children have a prayer? If she waits to be = forceably evicted, can they put her on the street legally where it is = sub freezing with this many young children? I know nothing of these = laws, but time and hope are running out. I am at graffiti@infowest.com Lenore is at stayinthenow@hotmail.com Please Help! or pass it on. Thank You/ Jay Beswick ------=_NextPart_000_0179_01C06C29.07DA9B80 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
I am a victims advocate searching for=20 answers!  A friend recommended the filing of a CC1 from the Uniform = Coomercial Code, to save a family from eviction.
 
If you have seen the national news in = the past 4=20 months, there have been many stories of a woman named Lenore Holm, who = refused=20 parental consent for her daughter age 16 to become a plural wife = in the=20 polygamist community of Colorado City Arizona.  A home built over a = 24 year=20 period on trust lands is at issue.  When the 500 residents built on = church=20 land over a 40 year period, each was told to build like you would be = there=20 forever and I have seen 16,000 sq. ft. homes. The Trustees of the = corporation=20 changed in 1986 and have purged by eviction anyone unwilling to follow = the=20 polygamist lifestyle that includes giving up daughters as young as 12 to = the=20 church priesthood.
 
When Lenore refused her daughter = earlier this year,=20 a forceable detainer for an eviction was served on this poor couple, = that still=20 have 11 children at home.  The church took the 16 year old daughter = and=20 placed her with a married man and local authorities have refused to = cross over=20 the religious freedom issue.
 
If you saw 20/20 Down Town on 12-19-00 = or the=20 Novembers 13th issue of Newsweek, Lenore's issue and Colorado City were = in those=20 issues.
 
In an earlier class action in Utah, the = Utah=20 Supreme Court Ruled in favor of the tenants, under undo enrichment. = Lenore is=20 not in Utah but rather the Arizona Supreme Court and she has no lawyer = or the=20 million dollars that the earlier 22 families had spent.
 
Her home is unfinished on the outside, = but 5,000 sq=20 ft. If she files this UCC 1 form for the labor and construction value of = the=20 home, which sounds to me like a Contractors Mechanic's Lein, what will = be her=20 outcome?  The new trustees and their attorney's claim that she is a = "Tenant=20 at will", something she did not agree to by signature.
 
Does my friend know what he is talking = about with=20 this recorded document and does this mother of 13 children have a = prayer? =20 If she waits to be forceably evicted, can they put her on the street = legally=20 where it is sub freezing with this many young children?  I know = nothing of=20 these laws, but time and hope are running out.
 
I am at graffiti@infowest.com
 
Lenore is at stayinthenow@hotmail.com
 
Please Help!  or pass it = on.
 
Thank You/ Jay = Beswick
------=_NextPart_000_0179_01C06C29.07DA9B80-- ____________________________________________________________________ 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 .