Date: Wed, 10 Jan 2001 12:59:21 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: new article on mistake MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Required reading in the new Legal Studies: Duncan Sheehan, "What is a Mistake?" (2000) 20 L.S. 538. 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: Fri, 12 Jan 2001 08:24:20 +0000 Reply-To: N.P.Hopkins@soton.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nick Hopkins Subject: Banner Homes / Pallant v Morgan equity MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII Dear all, are you aware of the CA decision in Banner Homes v Luff Developments [2000] 2 All ER 117, (with a judgment on the remedy reported at [2000] 2 WLR 772)? Briefly, it involved a failed joint venture for the acquisition of land between A and B. A and B were negotiating a joint venture, under which land would be bought by a third company, X, in which the parties would then be shareholders. X had been bought off the shelf for the purpose, and pending final agreement was wholly owned by A. Between contract and completion of the sale of land, A withdrew from the joint venture. The land was then acquired by X, with A as sole shareholder. Decision: A was held to hold the shares in X on constructive trust for A and B equally, charged for the payment by B of half the cost of the acquisition of the shares (ie, presumably half the purchase price of the land). The basis of the constructive trust was not necessarily that B had sufferred any detriment, but that A had obtained an advantage from B. A's advantage being that B was kept out of the market as a potential rival purchaser. I have two queries arising from this. Is this a constructive trust imposed as a response to unjust enrichment? Is there aurhority (in English law, in particular) for a constructive trust based on advantage to the trustee, rather than detriment by the beneficiary? Regards Nick Hopkins ---------------------- Nick Hopkins nph1@soton.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 13 Jan 2001 12:50:20 -0500 Reply-To: Ed Brewer Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Ed Brewer Subject: Re: Banner Homes / Pallant v Morgan equity In-Reply-To: MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii I cannot speak to English law, but this seems to be the principle that we have in the United States in Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928) (Cardozo, J.), that a joint venturer may not keep property or benefits from an opportunity belonging to or deriving from the joint venture, and holds the property or benefits in constructive trust for the other joint venturer. That enrichment was unjust because it was obtained in violation of the fiduciary duties arising from the joint venturers' business relationship (and in Meinhard, B's reliance on A's management of the joint venture, as a result of which A received the opportunity). Meinhard cited only New York cases. One of those was Mitchell v. Reed, 61 N.Y. 123 (1874), which cites both United States and English authorities for what again seems to be the same proposition. I can't parse the old reporter abbreviations, but there is a "Lond." here and a "Lord" there, suggesting English provenance. I also can't speak to whether those old cases lie on the side of A's enrichment rather than B's detriment, but the Mitchell court seems to think they did, and certainly both Meinhard and Mitchell are premised on A's enrichment rather than B's detriment, and both use the constructive trust. Given the necessary (and salutary) reliance by United States courts on English authorities during the early 19th century, were one to read around in the earlier decisions cited in Mitchell and its primary New York authorities, one would find English law in those earlier decisions. I am sure there are others who can be more directly responsive to Professor Hopkins' question, but I hope this is helpful. If your access to early United States authorities is as limited as my access to early English authorities, I will be happy to help anyone who wants them get copies. Best wishes, Ed Brewer At 08:24 AM 1/12/01 +0000, you wrote: >Dear all, > >are you aware of the CA decision in Banner Homes v Luff Developments >[2000] 2 All ER 117, (with a judgment on the remedy reported at >[2000] 2 WLR 772)? Briefly, it involved a failed joint venture for >the acquisition of land between A and B. A and B were negotiating a >joint venture, under which land would be bought by a third company, >X, in which the parties would then be shareholders. X had been >bought off the shelf for the purpose, and pending final agreement was >wholly owned by A. Between contract and completion of the sale of >land, A withdrew from the joint venture. The land was then acquired >by X, with A as sole shareholder. > >Decision: A was held to hold the shares in X on constructive trust >for A and B equally, charged for the payment by B of half the cost of >the acquisition of the shares (ie, presumably half the purchase price >of the land). The basis of the constructive trust was not >necessarily that B had sufferred any detriment, but that A had >obtained an advantage from B. A's advantage being that B was kept >out of the market as a potential rival purchaser. > >I have two queries arising from this. > >Is this a constructive trust imposed as a response to unjust >enrichment? > >Is there aurhority (in English law, in particular) for a constructive >trust based on advantage to the trustee, rather than detriment by the >beneficiary? > >Regards > >Nick Hopkins >---------------------- >Nick Hopkins >nph1@soton.ac.uk > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe 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: Sat, 13 Jan 2001 23:19:29 +0000 Reply-To: Edwin Simpson Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Edwin Simpson Subject: Banner Homes Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Please forgive the shameless plug, but Banner Homes Group plc v. Luff Developments Ltd [2000] Ch. 372, CA is considered in the new (17th) edition of Lewin on Trusts, Sweet & Maxwell, Dec 2000, at para. 9-72A, and an attempt made to incorporate it into the general survey of constructive trusts contained in chapter 7, at para. 7-17. So far as precursors are concerned, Pallant v. Morgan [1953] Ch. 43 and Holiday Inns Inc v. Broadhead (1974) 232 E.G. 951 were approved and applied by the Court of Appeal, along with other unreported first instance cases. The principle embodied would appear wider than that contained in Chattock v. Muller (1878) 8 Ch.D. 177, (which is probably best regarded on its facts as a specific performance case), and would seem rather to be based on the wider principles considered by Millett L.J. in Paragon Finance plc v. D.B. Thakerar & Co [1999] 1 All E.R. 400, at 408-9, (a judgment on which the structure of chapter 7 in Lewin is largely based). The Banner Homes principle is clearly related to proprietary estoppel, but it seems to me that it may not prove so wide as to be said to be based purely on advantage to the trustee, rather than detriment to the beneficiary. Do others agree? Edwin Simpson .............................................. Edwin Simpson Christ Church Oxford OX1 1DP Tel +44 (0)1865 276213 Fax +44 (0)1865 794199 ____________________________________________________________________ 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, 14 Jan 2001 14:37:19 +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 13/01/2001 and will not return until 21/01/2001. ____________________________________________________________________ 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: Mon, 15 Jan 2001 09:01:19 +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" Professor Michael Butler of the University of Birmingham is coming to King's later on this month to speak on "Switzerland and the Nazi Gold Affair: Appeasement or Resistance?", and it struck me that members of the group might be interested in this subject. Professor Butler's talk will take place on Mon 29th January at 6 pm, in Room 9.73 of the Franklin-Wilkins Building (which is close to Waterloo railway station). Further details can be obtained from: rachel.homer@kcl.ac.uk. ________________________________________________________________________ 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: Mon, 15 Jan 2001 12:19:54 -0500 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Re: Banner Homes / Pallant v Morgan equity Comments: To: N.P.Hopkins@soton.ac.uk Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII I am following up Nick Hopkins's question and Ed Brewer's helpful response about US law. Knowing no more about the evidence than Nick summarizes, particularly about the source of the consideration, a US court's form of relief might well be a resulting trust. A purchase money resulting trust if the plaintiff's money were used, an "intent-enforcing" resulting trust if the evidence showed that the parties "intended" joint ownership. As presented, a conscious breach of fiduciary duty would support "disgorgement" of defendant's profits, without detailed inquiry into plaintiff's losses. But weren't part of defendant's gains from the transaction diverted from plaintiff? Many US courts conflate resulting trusts with constructive trusts leaving the latter as an all-purpose form of equitable restitution with no more "injury" to doctrinal coherence than the average restitution decision. Doug Rendleman ____________________________________________________________________ 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: Mon, 15 Jan 2001 14:25:12 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Banner Homes In-Reply-To: MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Many congratulations to Edwin on the new edition of Lewin. I await the next boat from London carrying books ... meanwhile, with the arrival of the last one, we can also say congratulations to Peter Birks on the magnificent achievement of English Private Law (OUP 2000). I would also join Edwin in the shameless plug camp to say that Banner Homes is treated briefly in Kit Barker and Lionel Smith, "Unjust Enrichment", ch 21 in David Hayton ed Law's Future(s) (Hart 2000), 428, 431, in which a large number of people try, under 22 headings, to make predictions about where the law is going. My own reaction upon reading Banner Homes was mild astonishment that it was decided without noticing the direction in Australian law towards protecting reliance. To be fair, proprietary estoppel is mentioned as having something to do with something. We should fear "Pallant v Morgan equity" because whenever we name something by a case we are admitting intellectual defeat. I think in Banner Homes there is no discussion of breach of fiduciary duty and so the holding cannot be so explained. >Is there aurhority (in English law, in particular) for a constructive >trust based on advantage to the trustee, rather than detriment by the >beneficiary? I would have thought no trust could be based on that alone, as generally we allow people to derive advantages. But if we ask whether there are constructive trusts without detriment in the subtractive sense, ie the plaintiff's loss of the property now the subject of the trust (which is the sense in which there was no detriment in Banner Homes), then I think there are a lot. Even if we put aside constructive trusts based on wrongdoing, like Meinhard v. Salmon, AG Hong Kong v. Reid, and Soulos v. Korkontzilas, there are still a lot, namely every constructive trust which perfects an intention or which is activated by detrimental reliance. Into the former (perfecting intention) goes Re Rose. Into one or the other of perfection or detrimental reliance might go mutual wills, every secret trust if they are not express, and every trust which arises when I promise to transfer or declare a trust of specified property and value has been given for the promise (excepting a promise to transfer ownership of goods). See generally R Chambers, "Constructive Trusts in Canada" (1999) 37 Alta L Rev 173. Peter Birks might fit Banner Homes into subtractive unjust enrichment by saying that it is a case of interceptive subtraction. The general difficulty with this angle is that if the plaintiff was entitled to the asset in question, interceptive subtraction seems unnecessary (as Peter points out in "At the Expense of the Claimant: Direct and Indirect Enrichment in English Law" (2000) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org, at note 45, Re Rose can be understood just in this way, as making an equitable entitlement out of an opportunity based on transferor's intention, so making interceptive subtraction unnecessary). On the other hand, if the plaintiff was not entitled, unjust enrichment/interceptive subtraction cannot make him so without making a logical circle. The entitlement must be justified independently. Detrimental reliance seems to be a good candidate in Banner Homes; the discussion of "advantage" to the defendant seems to be nothing more than another way of talking about detrimental reliance, ie the plaintiff's position now, as measured against what it would be if the plaintiff had not relied on the defendant's words or actions: "It is necessary that, in reliance on the arrangement or understanding, the non-acquiring party should do (or omit to do) something which confers an advantage on the acquiring party in relation to the acquisition of the property; or is detrimental to the ability of the non-acquiring party to acquire the property on equal terms. It is the existence of the advantage to the one, or detriment to the other, gained or suffered as a consequence of the arrangement or understanding, which leads to the conclusion that it would be inequitable or unconscionable to allow the acquiring party to retain the property for himself, in a manner inconsistent with the arrangement or understanding which enabled him to acquire it." "There was evidence, to which I have referred, that the existence of the arrangement led Banner to regard the site as 'out of play'; that is to say, the existence of the arrangement made it unnecessary, and inappropriate, for Banner to consider the site as a potential acquisition for its own commercial portfolio. But, as the judge himself recognised, one of the reasons why Luff wanted Banner kept 'on board' -- and so did not disclose its own doubts as to the future of the joint venture -- was that, 'if dropped, Banner might emerge as a rival for the site'. In other words, Luff saw it as an advantage that Banner's belief that the site was out of play should be maintained. Luff wanted to keep Banner out of the market." 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: Tue, 16 Jan 2001 14:52:12 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: New article MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed More required reading, in the new OJLS: Mindy Chen-Wishart, "Unjust Factors and the Restitutionary Response" (2000) 20 OJLS 557. L ____________________________________________________________________ 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, 17 Jan 2001 15:24:30 +0000 Reply-To: N.P.Hopkins@soton.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nick Hopkins Subject: Re: Banner Homes / Pallant v Morgan equity Comments: To: Ed Brewer In-Reply-To: <5.0.0.25.2.20010113121839.00a41db0@mail.nku.edu> MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII There may be some similarity between the principles here, but the American principle could be distinguished if there was an actual joint venture; as opposed to the negotiations for a joint venture in Banner Homes. Nick Hopkins On Sat, 13 Jan 2001 12:50:20 -0500 Ed Brewer wrote: > I cannot speak to English law, but this seems to be the principle that we > have in the United States in Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928) > (Cardozo, J.), that a joint venturer may not keep property or benefits from > an opportunity belonging to or deriving from the joint venture, and holds > the property or benefits in constructive trust for the other joint > venturer. That enrichment was unjust because it was obtained in violation > of the fiduciary duties arising from the joint venturers' business > relationship (and in Meinhard, B's reliance on A's management of the joint > venture, as a result of which A received the opportunity). > > Meinhard cited only New York cases. One of those was Mitchell v. Reed, 61 > N.Y. 123 (1874), which cites both United States and English authorities for > what again seems to be the same proposition. I can't parse the old reporter > abbreviations, but there is a "Lond." here and a "Lord" there, suggesting > English provenance. I also can't speak to whether those old cases lie on > the side of A's enrichment rather than B's detriment, but the Mitchell > court seems to think they did, and certainly both Meinhard and Mitchell are > premised on A's enrichment rather than B's detriment, and both use the > constructive trust. Given the necessary (and salutary) reliance by United > States courts on English authorities during the early 19th century, were > one to read around in the earlier decisions cited in Mitchell and its > primary New York authorities, one would find English law in those earlier > decisions. > > I am sure there are others who can be more directly responsive to > Professor Hopkins' question, but I hope this is helpful. If your access to > early United States authorities is as limited as my access to early English > authorities, I will be happy to help anyone who wants them get copies. > > Best wishes, > > Ed Brewer > > At 08:24 AM 1/12/01 +0000, you wrote: > >Dear all, > > > >are you aware of the CA decision in Banner Homes v Luff Developments > >[2000] 2 All ER 117, (with a judgment on the remedy reported at > >[2000] 2 WLR 772)? Briefly, it involved a failed joint venture for > >the acquisition of land between A and B. A and B were negotiating a > >joint venture, under which land would be bought by a third company, > >X, in which the parties would then be shareholders. X had been > >bought off the shelf for the purpose, and pending final agreement was > >wholly owned by A. Between contract and completion of the sale of > >land, A withdrew from the joint venture. The land was then acquired > >by X, with A as sole shareholder. > > > >Decision: A was held to hold the shares in X on constructive trust > >for A and B equally, charged for the payment by B of half the cost of > >the acquisition of the shares (ie, presumably half the purchase price > >of the land). The basis of the constructive trust was not > >necessarily that B had sufferred any detriment, but that A had > >obtained an advantage from B. A's advantage being that B was kept > >out of the market as a potential rival purchaser. > > > >I have two queries arising from this. > > > >Is this a constructive trust imposed as a response to unjust > >enrichment? > > > >Is there aurhority (in English law, in particular) for a constructive > >trust based on advantage to the trustee, rather than detriment by the > >beneficiary? > > > >Regards > > > >Nick Hopkins > >---------------------- > >Nick Hopkins > >nph1@soton.ac.uk > > > > ____________________________________________________________________ > > This message was delivered through the Restitution Discussion Group, > > an international internet LISTSERV devoted to all aspects of the law > > of unjust enrichment. To subscribe, send "subscribe 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 > . ---------------------- Nick Hopkins nph1@soton.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 17 Jan 2001 15:41:56 +0000 Reply-To: N.P.Hopkins@soton.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nick Hopkins Subject: Re: Banner Homes MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII Banner Homes certainly seems to be based on the "detrimental reliance" form of constructive trust (this ties in with the analogy to proprietary estoppel Edwin Simpson mentions, as it is this type of constructive trust which may overlap with PE). My sense is that in any event, constructive trusts which perfect an intention (such as Re Rose) deal with exceptional instances - Re Rose itself is fairly confined, another eg is a constructive trust arising from a donatio mortis causa of land - the exceptional circumstance of an impending death. If I can also join the shamless plug camp, I consider these (and the detrimental reliance trust) in my book on Informal Acquisition of Rights in Land (2000) Sweet & Maxwell. In terms of a detrimental reliance constructive trust, I still have some difficulty extending these where there is no "net loss" by the claimaint (even accepting the broad nature the detriment may take following Gillett v Holt). Banner Homes had not really lost anything, but they had instead failed to make a gain: their position was the same as it would be if they had not relied on D's words / actions. All that they could claim to have lost is a purely speculative chance to look for other means of bidding for the land. The analogy between the Banner Homes principle and proprietary estoppel begs the same question as regards detriment. Many thanks to all who responded to my initial query - I'll be kept busy reading for some time! Nick Hopkins On Mon, 15 Jan 2001 14:25:12 -0500 Lionel Smith wrote: > Many congratulations to Edwin on the new edition of Lewin. I await the next > boat from London carrying books ... meanwhile, with the arrival of the last > one, we can also say congratulations to Peter Birks on the magnificent > achievement of English Private Law (OUP 2000). > > I would also join Edwin in the shameless plug camp to say that Banner Homes > is treated briefly in Kit Barker and Lionel Smith, "Unjust Enrichment", ch > 21 in David Hayton ed Law's Future(s) (Hart 2000), 428, 431, in which a > large number of people try, under 22 headings, to make predictions about > where the law is going. > > My own reaction upon reading Banner Homes was mild astonishment that it was > decided without noticing the direction in Australian law towards protecting > reliance. To be fair, proprietary estoppel is mentioned as having something > to do with something. We should fear "Pallant v Morgan equity" because > whenever we name something by a case we are admitting intellectual defeat. > I think in Banner Homes there is no discussion of breach of fiduciary duty > and so the holding cannot be so explained. > > >Is there aurhority (in English law, in particular) for a constructive > >trust based on advantage to the trustee, rather than detriment by the > >beneficiary? > > I would have thought no trust could be based on that alone, as generally we > allow people to derive advantages. But if we ask whether there are > constructive trusts without detriment in the subtractive sense, ie the > plaintiff's loss of the property now the subject of the trust (which is the > sense in which there was no detriment in Banner Homes), then I think there > are a lot. Even if we put aside constructive trusts based on wrongdoing, > like Meinhard v. Salmon, AG Hong Kong v. Reid, and Soulos v. Korkontzilas, > there are still a lot, namely every constructive trust which perfects an > intention or which is activated by detrimental reliance. Into the former > (perfecting intention) goes Re Rose. Into one or the other of perfection or > detrimental reliance might go mutual wills, every secret trust if they are > not express, and every trust which arises when I promise to transfer or > declare a trust of specified property and value has been given for the > promise (excepting a promise to transfer ownership of goods). See generally > R Chambers, "Constructive Trusts in Canada" (1999) 37 Alta L Rev 173. > > Peter Birks might fit Banner Homes into subtractive unjust enrichment by > saying that it is a case of interceptive subtraction. The general > difficulty with this angle is that if the plaintiff was entitled to the > asset in question, interceptive subtraction seems unnecessary (as Peter > points out in "At the Expense of the Claimant: Direct and Indirect > Enrichment in English Law" (2000) Oxford U Comparative L Forum 1 at > ouclf.iuscomp.org, at note 45, Re Rose can be understood just in this way, > as making an equitable entitlement out of an opportunity based on > transferor's intention, so making interceptive subtraction unnecessary). On > the other hand, if the plaintiff was not entitled, unjust > enrichment/interceptive subtraction cannot make him so without making a > logical circle. The entitlement must be justified independently. > > Detrimental reliance seems to be a good candidate in Banner Homes; the > discussion of "advantage" to the defendant seems to be nothing more than > another way of talking about detrimental reliance, ie the plaintiff's > position now, as measured against what it would be if the plaintiff had not > relied on the defendant's words or actions: > > "It is necessary that, in reliance on the arrangement or understanding, the > non-acquiring party should do (or omit to do) something which confers an > advantage on the acquiring party in relation to the acquisition of the > property; or is detrimental to the ability of the non-acquiring party to > acquire the property on equal terms. It is the existence of the advantage > to the one, or detriment to the other, gained or suffered as a consequence > of the arrangement or understanding, which leads to the conclusion that it > would be inequitable or unconscionable to allow the acquiring party to > retain the property for himself, in a manner inconsistent with the > arrangement or understanding which enabled him to acquire it." > > "There was evidence, to which I have referred, that the existence of the > arrangement led Banner to regard the site as 'out of play'; that is to say, > the existence of the arrangement made it unnecessary, and inappropriate, > for Banner to consider the site as a potential acquisition for its own > commercial portfolio. But, as the judge himself recognised, one of the > reasons why Luff wanted Banner kept 'on board' -- and so did not disclose > its own doubts as to the future of the joint venture -- was that, 'if > dropped, Banner might emerge as a rival for the site'. In other words, Luff > saw it as an advantage that Banner's belief that the site was out of play > should be maintained. Luff wanted to keep Banner out of the market." > > 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 > . ---------------------- Nick Hopkins nph1@soton.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 17 Jan 2001 11:06:14 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: cases MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Clef Aquitaine Sarl v Laporte Materials (Barrow) Ltd [2000] 3 WLR 1760, [2000] 3 All ER 493, CA: damages for deceit even though transaction was profitable, because it would have been more so but for the deceit. It would have been more so, it seems, out of the defendant's pocket as a different contract would have been concluded. Is this a step towards deceit's being a disgorgement-yielding wrong? Vine v Waltham Forest London Borough Council [2000] 4 All ER 169, [2000] LGR 481 CA. Restitution of money paid under duress of goods ie car clamping. Exemplary damages denied. This case has an extraordinary procedural point in the tail. The appeal was originally heard by two LJJ, who could not agree and who therefore ordered that it be re-argued before a panel of another three, but the parties were not informed of this order, so did not have a chance to say that they did not think this was a good idea in the case of a sum of GBP100, and so it was indeed argued twice before the CA. One does not often see the court apologizing to the litigants. The argument that if an even number of appellate judges split evenly then the appeal must be dismissed was swept aside on the basis that the two LJJ had ordered a rehearing before three; sed quaere. I only ever once heard before of an appellate judge who took the position that he was not obliged to deliver a judgment. Smith v Lloyds TSB Group plc [2000] 3 WLR 1725 CA: No liability in conversion on either collecting or paying bank in respect of materially altered cheques/bank draft, at the suit of the payee in each case, as the alteration made it void and so valueless. [Ironically cited in argument was Bank of Canada v Bank of Montreal (1977) 76 DLR (3d) 385 (SCC), in which an even number of judges divided evenly so the appeal was dismissed.] If I am reading this right, in the case of the cheque the bank must re-credit the account of the drawer (having paid without mandate) so the payee should be all right, but in the case of the draft (drawer being also the drawee, the defendant paying bank) the payee bears the loss. Hard cheese indeed. The assumption appears to be that while the bank might have issued a new draft had the invalidity of the earlier one come to light before it was paid, the bank was under no such obligation now. Is this right? If the draft ceased to be a draft on alteration, it was effectively destroyed, a fortiori from "lost" in ss 69-70 Bills of Exchange Act. It was held (barely) in the SCC case mentioned that if promissory notes (of which bank notes and bank drafts are subsets) are destroyed they must be replaced. This holding was approbated by FA Mann in the CBLJ. 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: Wed, 17 Jan 2001 22:00:53 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: No constitutional right to retain money wrongly paid Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all, Those of you in jurisdictions with constitutions might be interested in a report from today's Irish Times, under the headline "Businessman must repay =A343,000 welfare", that the Supreme Court held yesterday that a man who received disability benefit while allegedly owning three businesses must repay the Ir=A343,000 he had received from the former Department of Social Welfare. The High Court had held that the relevant statutory provision under which the Department can recover such benefits was not retrospective and thus did not cover the period of the relevant periods, but the Supreme Court reversed. Fennelly J held that the relevant Act was capable of retrospective effect, and that he could not identify any constitutional right to retain the benefit of money wrongly paid, so that a retrospective reading of the legislation would not infringe any constitutional right. For more detail see: http://www.ireland.com/newspaper/ireland/2001/0117/courts1.htm Best regards 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: Thu, 18 Jan 2001 16:23:33 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Lohia v Lohia/resulting trusts/LPA 1925 s 60(3) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Decided last summer by Nicholas Strauss QC, sitting as a deputy High Court judge, Lohia v Lohia has now been reported in [2001] Wills & Trusts Law Reports. At 110-113, he affirms Robert Chambers' analysis of LPA 1925, s 60(3), in _Resulting Trusts_ pp 18-19: i.e. he agrees with Robert that the effect of the sub-section was to abolish the presumption of resulting trust which arose prior to the 1925 legislation, on a voluntary conveyance of land. He disagrees with counsel that Lord Browne-Wilkinson's remarks in Tinsley v Milligan [1994] 1 AC 340 at 371 support the view that the presumption was not affected by s 60(3). And he considers that "the countervailing consideration, that s 60(3) on this view would change the law with regard to real property alone, and therefore would lead to different conclusions in relation to real and personal property in the same situation, does not seem to me to be a factor of sufficient potency to displace the natural construction of the section". ________________________________________________________________________ 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: Tue, 23 Jan 2001 17:08:38 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: new journals MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Lots of ue in the new CLJ: three tracing case notes (C Rotherham on Foskett, D Fox on Twinsectra, R Nolan on BCCI v Akindele) and Janet O'Sullivan, "Rescission as a Self-Help Remedy: A Critical Analysis." Over in the Nov LMCLQ, P Jaffey notes Dimond v Lovell, A Tettenborn notes Twinsectra ... and, if I may be permitted to drift off list a bit, Andy Burrows writes on "The Contracts (Rights of Third Parties) Act 1999 and its Implications for Commercial Contracts." Speaking of Prof Burrows, I understand that his inaugural lecture will be given on 1 March at 5.45pm in the Law Faculty, St Cross Building, Oxford: "We do this at Common Law but that in Equity". All are welcome. Finally, the Nov/Dec Conveyancer has a note by the case note editor on Scottish Equitable plc v Derby and Phil Collins Ltd v Davis. 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: Wed, 24 Jan 2001 08:59:01 -0800 Reply-To: William Swadling Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: William Swadling Subject: Lectures MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0B21_01C085E3.E54971C0" This is a multi-part message in MIME format. ------=_NextPart_000_0B21_01C085E3.E54971C0 Content-Type: text/plain; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Colleagues might like to know that Kit Barker of Southampton University = is giving a lecture entitled "Riddles, Remedies and Restitution: = Quantifying Gain in Unjust Enrichment Law" at the Faculty of Laws, UCL, = on Thursday, 1st February at 6 pm. William J Swadling Fellow and Tutor in Law Tutor for Admissions Brasenose College OXFORD OX1 4AJ Tel: +44 1865 277869 (Direct) Tel: +44 1865 277510 (Secretary) Fax: +44 1865 277520 ------=_NextPart_000_0B21_01C085E3.E54971C0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable
Colleagues might like to know that Kit Barker of Southampton = University is=20 giving a lecture entitled "Riddles, Remedies and Restitution: = Quantifying Gain=20 in Unjust Enrichment Law" at the Faculty of Laws, UCL, on Thursday, 1st = February=20 at 6 pm.
 
William J Swadling
Fellow and Tutor in Law
Tutor for=20 Admissions
Brasenose College
OXFORD OX1 4AJ
 
Tel: +44 1865 277869 (Direct)
Tel: +44 1865 277510 = (Secretary)
Fax:=20 +44 1865 277520
------=_NextPart_000_0B21_01C085E3.E54971C0-- ____________________________________________________________________ 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, 24 Jan 2001 17:24:38 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: new company law list: UK/Eire MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed I am passing this on. L. >From: Fergus O'Rourke >Subject: Re: [IRISHLAW] Company Law >To: IRISHLAW@LISTSERV.HEANET.IE >Date: Wed, 24 Jan 2001 18:43:24 -0000 > >This provides me with an opportunity to tell the list that I have recently >started an e-mail list for the discussion of company law issues arising >both in the Republic of Ireland and in the UK. To join, send a blank >e-mail to colaw-subscribe@topica.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: Sat, 27 Jan 2001 09:55:39 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: New article on Mistake Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Hanoch Dagan has a new piece on mistake. Abstract: "This Article presents a normative framework for analyzing how the law of restitution responds to mistakes in the unilateral conferral of benefits, such as mistaken payments, mistaken provision of services, and mistaken improvements of property. The Article explores the two main perspectives typically applied to mistakes analysis: First, from the perspective of mistakes as involuntariness, mistakes may invite the law's corrective measures to reinstate the commands of a mistaken party's will, thus expanding her freedom of action and securing the integrity of her self. The law should respond favorably and accord restitution if the recipient has not been harmed by the mistake, or if she should fairly bear such harm. Second, from the perspective of mistakes as accidents with casualties, mistakes should be analyzed in terms of minimizing social costs by inducing the appropriate avoidance behavior of both parties, properly allocating between them the costs of mistakes, and minimizing the system’s administrative costs. The law should grant restitution if it is supported by such an efficiency analysis. Using these autonomy- and efficiency-based analyses of mistakes, this Article concludes with an evaluation of the prevailing rules of the law of mistakes as restated by a recent Discussion Draft of the Restatement of the Law of Restitution and Unjust Enrichment. " It is at ssrn.com, more specifically at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=255344 Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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: Mon, 29 Jan 2001 16:43:16 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Knowing receipt Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" The Court of Appeal's decision in Grupo Torras SA v Al-Sabah, 2nd Nov 2000, is primarily concerned with liability for dishonest assistance in a breach of trust or other fiduciary duty, but group members may be interested by the following passage of the judgment jointly given by Robert Walker and Tuckey LJJ and Sir Murray Stuart-Smith (which appears at para 122 of the transcript): 'The basis of liability in a case of knowing receipt is quite different from that in a case of dishonest assistance. One is a receipt-based liability which may on examination prove to be either a vindication of persistent property rights or a personal restitutionary claim based on unjust enrichment by subtraction; the other is a fault-based liability as an accessory to a breach of fiduciary duty.' ________________________________________________________________________ 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: Tue, 30 Jan 2001 02:18:15 +0000 Reply-To: joshua.getzler@law.oxford.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Dr Joshua Getzler Organization: Faculty of Law and St Hugh's College, University of Oxford Subject: Gambling as money laundering? Comments: To: joshua getzler MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit In Pet Far Eastern (M) Sdn Bhd v Tay Young Huat & Ors (1999) 5 MLJ 558, the High Court of Malaysia (Abdul Malik Ishak J) analysed recovery of embezzled monies and the nature of illegal and void gambling contracts. The judgment dates back to 30 April 1999. Professor Maurizio Lupoi of University of Genova is to be thanked for drawing attention to this case. D1 was an employee in charge of company P’s finances and accounts. D1 forged requests for drafts to P’s banks in favour of himself and of five designated payees, D2-D6. Sums amounting to RM8.25m were drawn from P’s account under this scheme of fraud. RM 4.5m was deposited in D2’s bank account in Malaysia. D2 alleged that D1 had in fact gambled away this sum at D2’s offshore gambling casino, so that the sum was paid away for value as discharge of a debt. P sought to recover the sum from D2 on constructive trust, alleging that D2 had sufficient knowledge of the tainted provenance of the money to allow an equitable remedy, and could not claim to be a bona fide taker; or alternatively that the D1-D2 contract was void for illegality and so there had been no transfer for value. The judge accepted that all the recipients of bank drafts from P, that is D2 through D6, had no prior relationship with P and that this alone was enough to fix them all with knowledge that something was amiss in the transfer of the monies; the recipients could be taken as knowing they had no entitlement to this money. The learned judge recommended the use of Mareva injunctions against all recipients in order to determine the precise circumstances of their receipt. He rejected D2’s defence of a valid gaming contract with D1, holding that despite the sale of gambling chips and the language of debt and account, the gaming agreements between D1 and D2 were void for illegality (breach of Malaysian licensing legislation) so that D2 had no contractual defence to the claim by P for recovery; the monies were therefore to be held by D2 on constructive trust for P. The offshore status of the casino was held to be unimportant, as payments in pursuit of the gambling agreements had been made within Malaysia. The judge was not entirely clear why an unjust enrichment claim for payment made without consideration was not at least possible as an alternative analysis. He held that Moses v Macferlan pointed the way for ‘equitable’ recovery and left it there. The history of legislation repressing the gambling contract as nudum pactum was discussed by the judge as follows: 'In those days, the English -- fine ladies and gentlemen -- gambled freely and incessantly. Huge sums of money changed hands over cards and dice. This gave rise to the English Gaming Act 1710 which enacted that all forms of gaming were void. But the English Gaming Act 1710 did not put an end to gaming. Instead, gaming flourished. It must be emphasized that the classical principle of nudum pactum was drawn from the English Marine Insurance Act 1745. Later, when the English Gaming Act 1845 was passed -- all contracts and agreements entered by way of gaming or wagering became void. The evils of gambling are too wellknown and too unsavoury to elaborate. Public policy became the order of the day and the policy was to suppress gambling at all costs. The courts showed no mercy to gamblers.' The case holds interest at a number of levels. -- Dr Joshua Getzler Law Fellow St Hugh's College & Law Faculty, University of Oxford ____________________________________________________________________ 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, 30 Jan 2001 11:33:05 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: UE, politics, and Auckland Harbour Board MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed A political football here in Canada has just turned into an unjust enrichment claim. The leader of Her Majesty's Loyal Opposition, Stockwell Day, was previously a cabinet minister in the provincial government of Alberta. Lorne Goddard, a lawyer in Day's constituency, was defending an accused charged with possession of child pornography. Day wrote a letter to the local newspaper which allegedly alleged that since Goddard was defending this man, he must share his opinions. Goddard sued Day for defamation. A confidential settlement was reached last month and it was revealed that Day was covered under a provincial insurance fund which exists to protect legislators from job-related liabilities. Because of the involvement of public funds there was a public demand that the terms of the settlement be revealed, which eventually they were. It seems that the total payout from the fund was almost $800,000. Of this, $474,426 goes to Day's lawyers, $246,000 to Goddard's lawyers, $60,000 to Goddard. Goddard agreed to make the settlement public only on condition that earlier settlement offers also be made public, and they show his willingness to settle months ago for the same $60,000 that he ultimately got. Today's papers say that a former speaker of the Alberta legislature has launched a lawsuit against the government and Day which would require Day to repay the funds on the basis that the executive usurped the function of the legislature in paying Day out of the fund. According to the print version of today's Globe and Mail, the lawsuit is based on unjust enrichment. The Globe's web site does not seem to have a version of the story; the National Post's site says "The suit asks the court to order Mr. Day to repay $792,064.40, the total cost of the settled suit, and declare his initial coverage under the insurance fund illegal. At a news conference yesterday, Bill Code, a prominent Calgary litigator, said the government had no right to cover the costs without asking the legislature. "We don't doubt that if they want, [the government] could put forward a bill to pay the $800,000 to Stockwell Day and take responsibility for it," Mr. Code said. "But they are relying on an insurance adjustor to interpret the law for them, rather than the legislative assembly who holds the duty to do so." The suit says the Alberta government "acted illegally in determining that Stockwell Day, as a Member of the Legislative Assembly, was acting within the scope of his duties." " The story is somewhat complicated by an earlier report of the Alberta Ethics Commissioner, online at , in which he determined in Nov 99 that Day (who was then still a provincial cabinet minister) would be in breach of provincial law if he raised funds privately for his defence. But this ruling apparently ceased to apply when Day resigned his seat in the provincial legislature to take over the leadership of the federal party which he now heads. 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 .