Date: Tue, 20 Mar 2001 10:34:35 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Fellowship MIME-version: 1.0 Content-type: text/html; charset="us-ascii" Greetings,

The RDG has been pretty quiet lately. I break radio silence with a notice from Canberra ...


Lionel


Institute of Advanced Studies

Research School of Social Sciences
Law Program

Postdoctoral Fellow (Level A)/Research Fellow (Level B)/Fellow (Level C)

Salary:         Postdoctoral Fellow     $39,316-47,444 per annum*
        Research Fellow $49,835 -$58,798 per annum
        Fellow          $60,589-$69,554 per annum
*(A successful applicant holding a PhD will be appointed at $44,336).

Ref: SS237

Applications are invited for a Postdoctoral Fellow/Research Fellow/Fellow position in the Law Program in the Research School of Social Sciences. We are seeking to appoint an individual who will bring perspectives, skills and experience to extend and complement the work of existing staff of the Program.

Applicants for the post should have a strong record of original research in law and a publications record appropriate to level. The person appointed will be expected to carry out advanced research that will contribute in Australia and internationally to theoretical and/or public policy debates in the area of conceptual foundations of law (with a preference for property law or the law of restitution) or in the area of governance and regulation.

Appointment-:Postdoctoral Fellow, fixed term for up to three years
Research Fellow/Fellow, fixed term for a period up to five years.

Applicants are encouraged to indicate ways in which their legal research might be of relevance to other social sciences.

The Research School of Social Sciences encourages applications from women and other equal opportunity target groups. People seeking secondment from an Australian university are also encouraged to apply.

Contact: Intending applicants must obtain a copy of the further particulars from the School Secretary at the Research School of Social Sciences either in writing, or by email on <schoolsec.rsss@anu.edu.au>, or by telephone on (02) 6125 2257.

Enquiries about the post to: The Head of the Law Program, Professor Peter Cane, by telephone on (02) 6125 2331 or by e-mail at <peter.cane@.anu.edu.au>

Applications must be sent to: The School Secretary, Research School of Social Sciences Building 9, The Australian National University Canberra ACT 0200, Australia.

Closing Date: 4 May 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: Tue, 20 Mar 2001 14:42:03 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Answers on a postcard MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Here is a question which is based on a real case. It did not go to court but to a form of arbitration. I will provide details later...North American members may be familiar. A comedian gives a live performance. The comedian is unutterably wealthy and well able to afford spontaneous acts of generosity. Near the end of the show he announces that he has not been very funny and he is going to refund the price of tickets. The modality of refund is, for the vast majority who paid for their tickets by credit card, a refund on the credit card account. The plaintiff bought his ticket at face value from the defendant, who bought it by credit card. The refund goes to the defendant. Can the plaintiff recover from the defendant? 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, 20 Mar 2001 17:10:30 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Silence broken by Derby? MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Christopher Archibald has pointed out that Derby v Scottish Equitable, the case on change of position as it relates to estoppel, was affirmed by the CA on Friday -- available on New Law Online. CA declines to pass on the relationship between estoppel and change of position. 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, 21 Mar 2001 09:36:45 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Re: Answers on a postcard In-Reply-To: <5.0.2.1.2.20010320143651.0227a3f0@po-box.mcgill.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 14:42 20/03/01 -0500, Lionel wrote: >Here is a question which is based on a real case. It did not go to court >but to a form of arbitration. I will provide details later...North American >members may be familiar. > >A comedian gives a live performance. The comedian is unutterably wealthy >and well able to afford spontaneous acts of generosity. Near the end of the >show he announces that he has not been very funny and he is going to refund >the price of tickets. The modality of refund is, for the vast majority who >paid for their tickets by credit card, a refund on the credit card account. >The plaintiff bought his ticket at face value from the defendant, who >bought it by credit card. The refund goes to the defendant. Can the >plaintiff recover from the defendant? > >Lionel > > Assuming the comedian isn't actually in breach of contract by being unfunny, and that this is a case of pure gift, surely the answer must be No. The reason, I suggest, is that contract (in this case the contract between the original purchaser and the spectator) ousts restitution. The spectator has bought a thing of value (the right to watch the performance), which he was prepared to pay face value for. The contract remains on foot and binding. I can't see any court implying a term in it that any refunds are to be passed on. To take the case out of this rather fantastic scenario, take a slightly more orthodox possibility. I buy a new car, at the same time entering a prize draw with the garage in which the first prize is a full refund of the price of a car bought within a given period. I sell the car on. Then I win the prize. No court in the kingdom would say that I had to account for the prize to the purchaser. He got what he paid for: there's no reason to give him any more. Andrew ____________________________________________________________________ > 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 > . > 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: Wed, 21 Mar 2001 09:52:08 -0000 Reply-To: "Shiers, Rupert" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Shiers, Rupert" Subject: Re: Answers on a postcard Comments: To: Andrew Tettenborn MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Though your first paragraph sounds right, surely the prize draw example is a different case - you've acquired (1) the right to enter the draw and (2) the car, but only sold on (2)? Whereas in the comedian situation, it's impossible on almost any realistic view - I think - to resolve what the original purchaser acquired into two elements. -----Original Message----- From: Andrew Tettenborn [mailto:A.M.Tettenborn@EXETER.AC.UK] Sent: 21 March 2001 09:37 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] Answers on a postcard At 14:42 20/03/01 -0500, Lionel wrote: >Here is a question which is based on a real case. It did not go to court >but to a form of arbitration. I will provide details later...North American >members may be familiar. > >A comedian gives a live performance. The comedian is unutterably wealthy >and well able to afford spontaneous acts of generosity. Near the end of the >show he announces that he has not been very funny and he is going to refund >the price of tickets. The modality of refund is, for the vast majority who >paid for their tickets by credit card, a refund on the credit card account. >The plaintiff bought his ticket at face value from the defendant, who >bought it by credit card. The refund goes to the defendant. Can the >plaintiff recover from the defendant? > >Lionel > > Assuming the comedian isn't actually in breach of contract by being unfunny, and that this is a case of pure gift, surely the answer must be No. The reason, I suggest, is that contract (in this case the contract between the original purchaser and the spectator) ousts restitution. The spectator has bought a thing of value (the right to watch the performance), which he was prepared to pay face value for. The contract remains on foot and binding. I can't see any court implying a term in it that any refunds are to be passed on. To take the case out of this rather fantastic scenario, take a slightly more orthodox possibility. I buy a new car, at the same time entering a prize draw with the garage in which the first prize is a full refund of the price of a car bought within a given period. I sell the car on. Then I win the prize. No court in the kingdom would say that I had to account for the prize to the purchaser. He got what he paid for: there's no reason to give him any more. Andrew ____________________________________________________________________ > 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 > . > 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 . _____________________________________________________________________ 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: Wed, 21 Mar 2001 11:44:44 -0000 Reply-To: "Penner,JE" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Penner,JE" Subject: Answers on a postcard MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" I write with some trepidation since I am very much a watcher of restitution, not an intellectual contributor, but it seems to me that Mr. Tettenborn's reply is somewhat hasty. Assuming this is a case of pure gift as he says, and by that I understand him to mean that the comedian is under no obligation to give the refund, contractual or otherwise (depending how lousy the jokes were, an action in tort might be an interesting thought experiment), I don't see how the terms of the contract between credit card purchaser and cash buyer are obviously relevant, and so I don't see the analogy with the car prize draw case. I know things such as prize draw gifts of this kind, along with other 'gratuitous' presents which are often provided as incentives to buy this or that have been construed by the courts as 'gifts' in certain circumstances, so that a purchaser who buys a box of breakfast cereal and the 'free' pokemon cards are missing cannot sue for them, but it seems clear that any right to these 'free gifts' would depend upon the contractual nexus between purchaser and seller, and hence the car prize draw winner can only be the person who actually purchased the car from the dealer. And unless the purchaser who sold the car on explicitly made it a term of the contract with his buyer that any prize draw he might receive was to be passed on, that second-hand buyer is out of luck. It seems to me the comedian case is different. I think that this really is a pure gift, one directed at those members of the audience who gave good consideration for their tickets. For convenience, the comedian chooses a particular means of effecting this gift, i.e. a credit card refund, assuming those who paid by credit card turned up. And it would seem to me that the comedian could have an action against the credit card holder in the instant case for restitution of the refund value on the basis that the gift was made on a failed basis, i.e. on the basis that the credit card holder, who didn't attend, was not the intended recipient of the gift, since he suffered no loss because of the rotten jokes. Now here's where I get stuck. I would hope that if the credit card holder did pass on the refund to his purchaser who actually attended, this would satisfy the intended basis of the comedian's transfer, and no action would lie against him in unjust enrichment. The credit card purchaser would, in effect, have perfected the intended gift. But I am not sure that the cash purchaser who attended would have an action against the credit card holder, because I am not sure that the credit card holder would have any obligation to make the comedian's gift operate as intended, but rather has merely the obligation to restore the value to the comedian, and let him do it himself properly, by giving the money himself to the cash purchaser who attended on proof that he paid the credit card holder and did attend. It is one thing to deny the credit card holder an unjust enrichment, and quite another to make him perfect the gift of the comedian. Does this make any sense? By the way, I think an even more difficult scenario is the case where X buys tickets to the show on his credit card which he then gives Y as a present. Does the fact that this can be construed as a contract for the benefit of a third party mean that Y is entitled to the refund? The problem here is that my suspicion would be that the comedian would intend the refund to go to X, because his present has turned out to be worthless, but in law I would imagine that Y would have a stronger case against X than the cash purchaser from the credit card buyer would have, and this seems anomalous. Does this make any sense? ____________________________________________________________________ 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, 21 Mar 2001 09:41:33 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Answers on a postcard In-Reply-To: MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed I am told by my colleague Stephen Scott that the facts of my case actually occurred. The comedian was Jerry Seinfeld. The proceedings between ticket buyer and refund recipient took place before Judge Judy. My understanding is that Judge Judy presides over something which is functionally equivalent to the People's Court of Judge Wapner, which North American members of a certain age may recall. That is, it is a TV show. Those sufficiently intrigued or appalled to wish for further details may consult . I honestly do not know what the noble & learned Judge Judy decided in this case. I have been promised a video of the proceedings and I will report as soon as can be. We may assume that the full weight of doctrine & authority was not cited to Judge Judy. But it did seem to me to be a difficult case. While Andrew Tettenborn's point about the contract between plaintiff and defendant seems unassailable, I also find James Penner's reasoning persuasive. It is kind of like a secret trust: you can prevent unjust enrichment of the first transferee by ordering restitution to the comedian; it is harder to justify the claim by the plaintiff against the defendant without relying on express trust reasoning. One way of tackling it would be to ask whether, in making the refund, the comedian intended to benefit those who were physically present before him. If so, then you might say that in this case, the refund should be held on trust for the plaintiff. This gets around the contract issue I think. But it is a bit of a stretch. Moreover what of the case in which the defendant made a gift of the tickets to the plaintiff ... or, where the sale price between plaintiff and defendant was otherwise unequal to the price the defendant had paid. (Andrew Little has pointed out that in Canada, a sale above the face value would be an offence rendering the contract void.) Stand by for further details. I should also clarify my note about Scottish Equitable -- the transcript is not yet available, just a summary. LDS At 11:44 AM 3/21/01 +0000, you wrote: >I write with some trepidation since I am very much a watcher of restitution, >not an intellectual contributor, but it seems to me that Mr. Tettenborn's >reply is somewhat hasty. Assuming this is a case of pure gift as he says, >and by that I understand him to mean that the comedian is under no >obligation to give the refund, contractual or otherwise (depending how lousy >the jokes were, an action in tort might be an interesting thought >experiment), I don't see how the terms of the contract between credit card >purchaser and cash buyer are obviously relevant, and so I don't see the >analogy with the car prize draw case. I know things such as prize draw gifts >of this kind, along with other 'gratuitous' presents which are often >provided as incentives to buy this or that have been construed by the courts >as 'gifts' in certain circumstances, so that a purchaser who buys a box of >breakfast cereal and the 'free' pokemon cards are missing cannot sue for >them, but it seems clear that any right to these 'free gifts' would depend >upon the contractual nexus between purchaser and seller, and hence the car >prize draw winner can only be the person who actually purchased the car from >the dealer. And unless the purchaser who sold the car on explicitly made it >a term of the contract with his buyer that any prize draw he might receive >was to be passed on, that second-hand buyer is out of luck. It seems to me >the comedian case is different. I think that this really is a pure gift, one >directed at those members of the audience who gave good consideration for >their tickets. For convenience, the comedian chooses a particular means of >effecting this gift, i.e. a credit card refund, assuming those who paid by >credit card turned up. And it would seem to me that the comedian could have >an action against the credit card holder in the instant case for restitution >of the refund value on the basis that the gift was made on a failed basis, >i.e. on the basis that the credit card holder, who didn't attend, was not >the intended recipient of the gift, since he suffered no loss because of the >rotten jokes. Now here's where I get stuck. I would hope that if the credit >card holder did pass on the refund to his purchaser who actually attended, >this would satisfy the intended basis of the comedian's transfer, and no >action would lie against him in unjust enrichment. The credit card purchaser >would, in effect, have perfected the intended gift. But I am not sure that >the cash purchaser who attended would have an action against the credit card >holder, because I am not sure that the credit card holder would have any >obligation to make the comedian's gift operate as intended, but rather has >merely the obligation to restore the value to the comedian, and let him do >it himself properly, by giving the money himself to the cash purchaser who >attended on proof that he paid the credit card holder and did attend. It is >one thing to deny the credit card holder an unjust enrichment, and quite >another to make him perfect the gift of the comedian. > >Does this make any sense? > >By the way, I think an even more difficult scenario is the case where X buys >tickets to the show on his credit card which he then gives Y as a present. >Does the fact that this can be construed as a contract for the benefit of a >third party mean that Y is entitled to the refund? The problem here is that >my suspicion would be that the comedian would intend the refund to go to X, >because his present has turned out to be worthless, but in law I would >imagine that Y would have a stronger case against X than the cash purchaser >from the credit card buyer would have, and this seems anomalous. > >Does this make any sense? > > ____________________________________________________________________ > 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, 21 Mar 2001 14:42:33 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Answers on a postcard Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all This is neither an answer (raising as it does more questions) nor a postcard (typically for me, the message does go on a bit :) ), but here goes. In Lionel's 'hypothetical', a third party makes a payment to the defendant which is then claimed by the plaintiff (in Ireland, as in Canada, we still call them plaintiffs not claimants). James Penner and Andrew Tettenborn argue that the plaintiff has no claim in unjust enrichment against the defendant in such circumstances. There is quite a body of law and commentary on the issues to which this fact structure gives rise. On the one hand, there is an important series of cases in which the courts have perfected such gifts by rectification of a deed of gift(1); indeed, there are some Irish(2), Canadian(3) and American(4) cases on this fact structure in which trusts have been imposed on the defendant in favour of the plaintiff. Furthermore, there is an important parallel line of authority in which a similar personal action has been granted(5). On the other hand, against these cases stand important objections similar to those voiced by James Penner. Prof Andrew Burrows and Graham Virgo argue that the absence of privity between the plaintiff and the defendant precludes the plaintiff=92s claim(6); Prof Lionel Smith argues that any enrichment of the defendant is at the expense of the third party payor and not of the plaintiff(7); and Prof Andrew Tettenborn has argued that in such circumstances, the fact that the defendant lawfully received from the third party provides him with a defence vis a vis the plaintiff(8). However, Prof Peter Birks has argued that the common law does not recognise this concept of privity, and that the enrichment of the defendant is at the expense of the plaintiff not by direct subtraction but by interceptive sutbraction(9). I have in the past agreed with the Birks side of this particular argument(10), and have just completed an article on whether the intended but disappointed beneficiary in a White v Jones(11) scenario can have a personal restitution action against the actual but unintended recipient, again agreeing with the Birks side of the argument(12) (all of the citations and references in this message are taken from that draft article). It would not therefore strike me as entirely unlikely if the Canadian arbitration held in favour of the plaintiff in the circumstances outlined in Lionel's 'hypothetical'. On the terms of the Canadian principle against unjust enrichment, (i) the payment to the defendant by the third party would constitute the enrichment; (ii) the interceptive subtraction - that the third party intended that the enrichment reach the members of the audience, including the plaintiff - would constitute a corresponding deprivation on the part of the plaintiff, into which context would fall the arguments between Burrows, Penner, Smith, Tettenborn and Virgo, on the one hand, and Birks and me on the other; (iii) as to whether, on the one hand, there was 'an absence of juristic reason', the debate here would be as to whether the plaintiff's 'ignorance' of the defendant's enrichment would constitute an 'unjust factor' and thus deprive the defendant of a juristic reason for the enrichment, or, on the other hand, the gift made by the third party amounted to a juristic reason for the defendant's enrichment. Why doesn't Lionel put those of us who are not familiar with the background to the hypothetical out of our misery and let us know how the arbitration turned out? Eoin. References (1) Walker v Armstrong (1856) 8 DeGM&G 531; 44 ER 495; Thompson v Whitmore (1860) 1 J&H 748; 70 ER 748; Lister v Hodgson(1867) LR 4 Eq 30 (approved in White v Jones [1995] 2 AC 207, 262 per Lord Goff); Bonhote v Henderson [1895] 1 Ch 742; McMechan v Warburton [1896] 1 IR 435 (Chatterton VC); aff=92d [1896] 1 IR 441 (CA Ir); Van Der Linde v Van Der Linde [1947] Ch 306; Craddock Brothers v Hunt [1923] 2 Ch 136 (CA). (2) Shanahan v Redmond (High Court, unreported, 21 June 1994, Carroll J; noted [1997] LMCLQ 197); Lac Minerals v Chevron Mineral Corporation of Ireland and Ivernia [1995] 1 ILRM 161, 176-178 per Murphy J discussing Craddock Brothers v Hunt (above), Majestic Homes Property v Wise [1978] Qd R 225 and Shepheard v Graham (1947) 66 NZLR 654. (3) In re the Estate of Tolin 622 So 2d 988 (1993; Florida SCt). (4) Farquhar =93Designated Insurance and Pension Beneficiaries and Unfulfilled Expectations=94 (1997) 14 Can JFL 63 (5) Jacob v Allen (1703) 1 Salk 27; 91 ER 26; Official Custodian for Charities v Mackey (No 2) [1985] 1 WLR 1308; In re PMPA Insurance [1986] ILRM 524 (Ir HC; Lynch J). (6) Burrows The Law of Restitution (Butterworths, London, 1993) 46-54; Virgo Principles of the Law of Restitution (OUP, Oxford, 1999) 106; see also Fitzgerald =93Ownership as the Proximity or Privity Principle in Unjust Enrichment Law=94 (1995) 18 UQLJ 166. (7) Smith =93Three-Party Restitution. A Critique of Birks=92 Theory of Interceptive Subtraction=94 (1991) 11 OJLS 481. (8) by Tettenborn =93Lawful Receipt - A Justifying Factor ?=94 [1997] RLR 1; His position on this debate is therefore unsurprising. (9) Birks An Introduction to the Law of Restitution (Oxford, rev ed, 1989) 133-134; Birks =93At the Expense of the Claimant: Direct and Indirect Enrichment in English Law=94 (2000) Oxford U Comparative Law Forum 1 at ouclf.iuscomp.org; Birks and Mitchell =93Unjust Enrichment=94 in Birks (ed) English Private Law (OUP, Oxford, 2000) vol II, 525, 530, 538. (10) O=92Dell =93Insurance Payments (Mis)Directed, Equitable Maxims (Mis)Used, and Restitution Doctrines Missed=94 [1997] LMCLQ 197; O=92Dell =93Restitution=94 in Byrne and Binchy (eds) Annual Review of Irish Law 1997 (Round Hall Sweet & Maxwell, Dublin, 1998) 607, 611-616. (11)[1995] 2 AC 207 (HL). (12) =93Restitution, Rectification and Mitigation: Negligent Solicitors and Wills, Again=94 (electronic draft available to anyone who is interested). 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: Wed, 21 Mar 2001 15:27:28 -0000 Reply-To: "Penner,JE" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Penner,JE" Subject: Re: Answers on a postcard Comments: To: Eoin O'Dell MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Fortified by the fact that I haven't been laughed off the mailing list (at least not yet), may I make my point a little more strongly, so as to suggest the interceptive subtraction and trust solutions are not warranted. IF it is true that the comedian has a claim for unjust enrichment against the defendant credit card purchaser, AND the law in general does not require the perfection of imperfect gifts, then I do not see how this can count as a case of interceptive subtraction, because the plaintiff was never and is not entitled to the receipt of the money from the defendant, and surely such an entitlement would be a necessary precondition for such a claim. Such an argument, I think, applies a fortiori to the imposition of (what must be a constructive) trust upon the defendant in the plaintiff's favour, for if there is any argument for a trust here then it would presumably be of the kind (assuming again, the IF... and AND... above are correct) argued for and rejected in Westdeutsche. The case of the secret trusts (I confess a prejudice here, since I think secret trusts absent actual fraud on the part of the legatee are completely unjustified, if not incoherent) is special, because in the absence of the forward looking trust the intended gift could not take place, because the intended donor has popped his cloggs and cannot try again to make the gift properly. JEP > -----Original Message----- > From: Eoin O'Dell [SMTP:eodell@TCD.IE] > Sent: Wednesday, 21 March 2001 14:43 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Answers on a postcard > > Hello all > > This is neither an answer (raising as it does more questions) nor a > postcard > (typically for me, the message does go on a bit :) ), but here goes. > > In Lionel's 'hypothetical', a third party makes a payment to the defendant > which is then claimed by the plaintiff (in Ireland, as in Canada, we still > call them plaintiffs not claimants). James Penner and Andrew Tettenborn > argue > that the plaintiff has no claim in unjust enrichment against the defendant > in > such circumstances. There is quite a body of law and commentary on the > issues > to which this fact structure gives rise. > > On the one hand, there is an important series of cases in which the courts > have perfected such gifts by rectification of a deed of gift(1); indeed, > there > are some Irish(2), Canadian(3) and American(4) cases on this fact > structure in > which trusts have been imposed on the defendant in favour of the > plaintiff. > Furthermore, there is an important parallel line of authority in which a > similar personal action has been granted(5). > > On the other hand, against these cases stand important objections similar > to > those voiced by James Penner. Prof Andrew Burrows and Graham Virgo argue > that > the absence of privity between the plaintiff and the defendant precludes > the > plaintiff's claim(6); Prof Lionel Smith argues that any enrichment of the > defendant is at the expense of the third party payor and not of the > plaintiff(7); and Prof Andrew Tettenborn has argued that in such > circumstances, the fact that the defendant lawfully received from the > third > party provides him with a defence vis a vis the plaintiff(8). However, > Prof > Peter Birks has argued that the common law does not recognise this concept > of > privity, and that the enrichment of the defendant is at the expense of the > plaintiff not by direct subtraction but by interceptive sutbraction(9). > > I have in the past agreed with the Birks side of this particular > argument(10), > and have just completed an article on whether the intended but > disappointed > beneficiary in a White v Jones(11) scenario can have a personal > restitution > action against the actual but unintended recipient, again agreeing with > the > Birks side of the argument(12) (all of the citations and references in > this > message are taken from that draft article). It would not therefore strike > me > as entirely unlikely if the Canadian arbitration held in favour of the > plaintiff in the circumstances outlined in Lionel's 'hypothetical'. > > On the terms of the Canadian principle against unjust enrichment, (i) the > payment to the defendant by the third party would constitute the > enrichment; > (ii) the interceptive subtraction - that the third party intended that the > enrichment reach the members of the audience, including the plaintiff - > would > constitute a corresponding deprivation on the part of the plaintiff, into > which context would fall the arguments between Burrows, Penner, Smith, > Tettenborn and Virgo, on the one hand, and Birks and me on the other; > (iii) as > to whether, on the one hand, there was 'an absence of juristic reason', > the > debate here would be as to whether the plaintiff's 'ignorance' of the > defendant's enrichment would constitute an 'unjust factor' and thus > deprive > the defendant of a juristic reason for the enrichment, or, on the other > hand, > the gift made by the third party amounted to a juristic reason for the > defendant's enrichment. > > Why doesn't Lionel put those of us who are not familiar with the > background to > the hypothetical out of our misery and let us know how the arbitration > turned > out? > > Eoin. > > > References > (1) Walker v Armstrong (1856) 8 DeGM&G 531; 44 ER 495; Thompson v Whitmore > (1860) 1 J&H 748; 70 ER 748; Lister v Hodgson(1867) LR 4 Eq 30 (approved > in > White v Jones [1995] 2 AC 207, 262 per Lord Goff); Bonhote v Henderson > [1895] > 1 Ch 742; McMechan v Warburton [1896] 1 IR 435 (Chatterton VC); aff'd > [1896] 1 > IR 441 (CA Ir); Van Der Linde v Van Der Linde [1947] Ch 306; Craddock > Brothers > v Hunt [1923] 2 Ch 136 (CA). > (2) Shanahan v Redmond (High Court, unreported, 21 June 1994, Carroll J; > noted > [1997] LMCLQ 197); Lac Minerals v Chevron Mineral Corporation of Ireland > and > Ivernia [1995] 1 ILRM 161, 176-178 per Murphy J discussing Craddock > Brothers v > Hunt (above), Majestic Homes Property v Wise [1978] Qd R 225 and Shepheard > v > Graham (1947) 66 NZLR 654. > (3) In re the Estate of Tolin 622 So 2d 988 (1993; Florida SCt). > (4) Farquhar "Designated Insurance and Pension Beneficiaries and > Unfulfilled > Expectations" (1997) 14 Can JFL 63 > (5) Jacob v Allen (1703) 1 Salk 27; 91 ER 26; Official Custodian for > Charities > v Mackey (No 2) [1985] 1 WLR 1308; In re PMPA Insurance [1986] ILRM 524 > (Ir > HC; Lynch J). > (6) Burrows The Law of Restitution (Butterworths, London, 1993) 46-54; > Virgo > Principles of the Law of Restitution (OUP, Oxford, 1999) 106; see also > Fitzgerald "Ownership as the Proximity or Privity Principle in Unjust > Enrichment Law" (1995) 18 UQLJ 166. > (7) Smith "Three-Party Restitution. A Critique of Birks' Theory of > Interceptive Subtraction" (1991) 11 OJLS 481. > (8) by Tettenborn "Lawful Receipt - A Justifying Factor ?" [1997] RLR 1; > His > position on this debate is therefore unsurprising. > (9) Birks An Introduction to the Law of Restitution (Oxford, rev ed, 1989) > 133-134; Birks "At the Expense of the Claimant: Direct and Indirect > Enrichment > in English Law" (2000) Oxford U Comparative Law Forum 1 at > ouclf.iuscomp.org; > Birks and Mitchell "Unjust Enrichment" in Birks (ed) English Private Law > (OUP, > Oxford, 2000) vol II, 525, 530, 538. > (10) O'Dell "Insurance Payments (Mis)Directed, Equitable Maxims (Mis)Used, > and > Restitution Doctrines Missed" [1997] LMCLQ 197; O'Dell "Restitution" in > Byrne > and Binchy (eds) Annual Review of Irish Law 1997 (Round Hall Sweet & > Maxwell, > Dublin, 1998) 607, 611-616. > (11)[1995] 2 AC 207 (HL). > (12) "Restitution, Rectification and Mitigation: Negligent Solicitors and > Wills, Again" (electronic draft available to anyone who is interested). > > 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 > . ____________________________________________________________________ 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, 21 Mar 2001 16:17:13 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Re: Answers on a postcard Comments: To: "Penner,JE" Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all: Lionel's message explaining that the matter came on before Her Honor, Judge Judy, crossed with mine seeking an explanation for the 'hypothetical'. Given that I never found Seinfeld's eponymous tv show funny, please can I have a claim against him for something, please ???? More seriously, James Penner argues that >the interceptive subtraction and trust solutions are not warranted. The first plank of his argument is based on the assumption that it is >true that the comedian has a claim for unjust enrichment against the >defendant credit card purchaser, The 'comedian' may very well have such an argument based on mistake or (as James suggests in his first message) failure of basis, but one of the reasons often given for allowing the plaintiff (here: the member of the audience) to sue the defendant (here: the credit card purchaser) is to short-circuit the multiplicity of actions implicit in requiring the third party (here: the 'comedian') to sue the defendant, and then requiring the plaintiff to sue the defendant(1). The second plank of his argument is that: >the law in general does not require the >perfection of imperfect gifts, The key here is in the concession that the law IN GENERAL does not require the perfection of imperfect gifts, implying that there are some specific cases in which it can and does. I referred to many of them in the notes to my previous message. >From these two planks, he argues that the facts retailed to us by Lionel cannot count as a >case of interceptive subtraction, because the plaintiff was never and is not >entitled to the receipt of the money from the defendant, and surely such an >entitlement would be a necessary precondition for such a claim. Proof of interceptive subtraction turns on the certainty of the donor=92s intention to benefit the claimant: in Birks=92 words, had the defendant not intervened, the enrichment must =93certainly=94 or =93indubitably=94 have reached the claimant(2). On such proof, there are at least three possible positions. The first is that taken by Lionel, who argues against the notion of interceptive subtraction partly on the ground that such certainty is impossibly elusive(3). The second is taken by Graham Virgo, who sees interceptive subtraction as one of the exceptions to which his version of privity is subject, and argues that =93the proper interpretation of the notion of inevitable receipt is that of legal inevitability=94, that is, inevitable because =93the third party was legally obliged to transfer the benefit to the plaintiff=94 and not because he had simply intended to do so(4). This requirement of legal inevitability is the point taken by James in his objection to the plaintiff=92s claim. The third possible position is that taken by Birks, for whom it is enough that, had the defendant not intervened, the enrichment would certainly have reached the claimant because the donor had so intended, whether or not the donor was legally obliged to do so. If this is right, the requirement of legal inevitability insisted on by James and by Graham Virgo is a good way to prove inevitability, but it is not the only way to do so. Nevertheless, although the authorities do not confine interceptive subtraction to cases where the third party donor is under a legal obligation to pay the claimant, they do not go very much further. For example, they demonstrate that outside this context of legal inevitability, the convincing evidence of the third party=92s intention to benefit the claimant will most often be provided by the fact that the donor had done all that he could do to ensure that the plaintiff received the enrichment, as in the Re Rose line of authority(5). Such inevitability (meeting the conclusion drawn by James) is the proper basis upon which a gift will, exceptionally, be perfected, and on which a personal claim in restitution will be allowed (meeting plank 2 of his argument) thereby shortcuiting the need for the third party's claim - if any - against the defendant followed by the plaintiff's claim - if any - against the third party (meeting plank 1). So, for the plaintiff's claim to succeed, two questions must be answered in his favour: (i) does the law allow an enrichment of the defendant at the expense of the plaintiff to be established where a third party transferred the enrichment to the defendant, intending it for the plaintiff, only where the third party is obliged to make the relevant transfer or does such a claim extend to cases where the third party merely factually intends to do so, and has done all that he could do to ensure that the enrichment arrives with the plaintiff; and (ii) if the latter (as I argue in principle that it should be), is this standard met on the facts? It is open to question whether in fact this standard is in fact met on the facts, but that does not alter the point that such a claim might in principle be made. Eoin. References (1) See Official Custodian for Charities v Mackey (No 2)[1985] 1 WLR 1308, 1313-1315 per Nourse J; Dawson =93Indirect Enrichment=94 in von C=E4mmerer, Mentschikoff and Zweigert (eds) Ius Privatum Gentium: Festschrift f=FCr Max Rheinstein zum 70 Geburtstag, Band II (Nationales und Vergleichendes Recht) (JCB Mohr, Paul Siebeck, T=FCbingen 1969) 789, 801; Virgo Principles of the Law of Restitution (OUP, Oxford, 1999) 110). (2) Birks, 133, 136. (3) Smith =93Three-Party Restitution. A Critique of Birks=92 Theory of Interceptive Subtraction=94 (1991) 11 OJLS 481, 486-487; see also Jaffey The Nature and Scope of Restitution (Hart Publishing, Oxford, 2000) 260-270 and Grantham and Rickett Enrichment and Restitution in New Zealand (Hart Publishing, Oxford, 2000) (hereafter: Grantham and Rickett) 20. (4) Virgo, 109-111. Re Rose; Rose v Inland Revenue Commissioners [1952] 1 Ch 499 (CA). See also the earlier Re Rose; Midland Bank Executor and Trustee Co v Rose [1949] Ch 78; Vandervell v IRC [1967] 2 AC 291 (HL): Corin v Patton (1990) 169 CLR 54 (HCA); T Choithram International SA v Pagarnai [2001] 1 WLR 1 (PC). > 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: Wed, 21 Mar 2001 11:32:09 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Fwd: Re: Judge Judy MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed >X-Confirm-reading-to: Scott@falaw.lan.mcgill.ca >X-PMrqc: 1 >Date: Wed, 21 Mar 2001 11:15:02 -0500 >From: "Stephen A. Scott" >Subject: Re: Judge Judy >To: Lionel Smith >Organization: McGill University - Faculty of Law >X-Mailer: Pegasus Mail for Win32 (v3.12b) >Priority: normal > >My recollection is that she found for the plaintiff (the guy in the >audience who had bought the ticket from the original purchaser) >and against the defendant (who had originally bought the ticket with >his credit card and received the refund). > >I disagree with her decision. Seinfeld himself might have had a right >of recovery against the original purchaser, on the ground that the >refund was paid in error. He might then give the same amount to >the man in the audience, though I think he could not be compelled >to carry out even a previously-announced promise of benefaction or >incomplete act benefaction. But there seems to me no acceptable >basis for saying that, in any sense, defendant had plaintiff's money. > >Will try to find the tape and copy it for you shortly. > >Date sent: Wed, 21 Mar 2001 10:51:34 -0500 >From: Lionel Smith >Subject: Judge Judy >To: scott@falaw.lan.mcgill.ca > >Hi Stephen, > >The general consensus among restitution lawyers seems to be that it is >difficult to permit the claim. We are now collectively desperate to know >what the learned judge decided. > >Thanks, > >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, 21 Mar 2001 12:40:33 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Fwd: Re: Judge Judy Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit 1 plaintiff bought the ticket and suffered through the performance 2 judge judy, vox dei via vox populi , gives the money back to the plaintiff 3 but vox RDG at most can only get the money back from the defendant to seinfeld 4. is there something that RDG is missing or some higher good that the public just doesn't understand? ____________________________________________________________________ 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, 22 Mar 2001 10:07:08 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Grobbelaar v News Group Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Could the recent surge of discussion on the RDG have anything to do with the end of term, I wonder? Members of the group who recall the Archer libel damages discussion last year might like to read Grobbelaar v News Group Newspapers Ltd [2001] EWCA Civ 33, in which the English Court of Appeal overturned a jury's 'perverse' verdict that the appellant, a well-known footballer, had been defamed, when the Sun newspaper ran a series of articles in which he was accused of taking bribes to throw football matches. If you don't find Seinfeld funny, then you might try reading the transcripts of the Sun's secret tape recordings of Grobbelaar's conversation: they make President Nixon's performance on the Watergate tapes seem mild and well-spoken. It is not clear to me from the judgments, however - and perhaps a group member can tell us? - whether the Sun actually paid Grobbelaar the damages awarded and now can get them back. ________________________________________________________________________ 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, 22 Mar 2001 10:25:12 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Answers on a postcard In-Reply-To: <5.0.2.1.2.20010321084953.0228bcf0@po-box.mcgill.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 09:41 21/03/01 -0500, Lionel Smith wrote: >I should also clarify my note about Scottish >Equitable -- the transcript is not yet available, just a summary. > >LDS > Full text of Scots Equitable v Derby now on my website at http://www.law.cam.ac.uk/restitution/restitution.htm (Cases --> England and Wales --> Scottish Equitable) Judge Judy's ruling, by contrast, does not seem to be reported in full yet, either on her website or elsewhere. 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: Thu, 22 Mar 2001 11:09:41 -0000 Reply-To: Nicholas Briggs Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nicholas Briggs Subject: FW: [RDG:] Answers on a postcard MIME-Version: 1.0 Content-Type: text/plain > -----Original Message----- > From: Nicholas Briggs > Sent: 22 March 2001 11:09 > To: 'Steve Hedley' > Subject: RE: [RDG:] Answers on a postcard > > You can find a full transcript on Casetrack.com. The case number is > A2/00/0418 or for those of you who are familiar with the neutral citation > [2001] EWCA CIV 369. The CA have ducked the issue of whether estoppel > survives the defence of change of position. The Court said that it would > leave that question for another case (curious as there was a direct > finding of fact at first instance in relation to estoppel). A member of my > chambers shall be running the argument that estoppel does survive. The > Court of Appeal adjourned the hearing pending the outcome of Derby and > have acknowledged that the argument is live. The matter is called National > Westminster Bank Plc v Somer International and is due to be heard in the > Court of Appeal on 9 April 200. All arguments to support estoppel > greatfully received. > > -----Original Message----- > From: Steve Hedley [SMTP:swh10@CAM.AC.UK] > Sent: 22 March 2001 10:25 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Answers on a postcard > > At 09:41 21/03/01 -0500, Lionel Smith wrote: > >I should also clarify my note about Scottish > >Equitable -- the transcript is not yet available, just a summary. > > > >LDS > > > > > Full text of Scots Equitable v Derby now on my website at > http://www.law.cam.ac.uk/restitution/restitution.htm > (Cases --> England and Wales --> Scottish Equitable) > > Judge Judy's ruling, by contrast, does not seem to be > reported in full yet, either on her website or elsewhere. > > 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 > . ____________________________________________________________________ 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, 22 Mar 2001 12:05:53 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: FW: [RDG:] Answers on a postcard Comments: To: Nicholas Briggs MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Before I read Derby v Scottish Equitable in full an hour ago I was of the strong view that estoppel ought to survive. Estoppel is (as far as I know) a 'defence' which can be invoked against the assertion of any type of right. It seems anomalous that the only type of right against which it could not succeed would be where what is claimed is restitution of an unjust enrichment. Estoppel, unlike change of position, requires that the claimant has made a representation. Unlike the defence of change of position it does not show that the defendant is no longer enriched. Where it is invoked against a claim based upon unjust enrichment, estoppel prevents the claimant from asserting that the enrichment is unjust(-ified). However, having read the following passage it seems to me that it can now be argued that the existence of the defence of change of position prevents the defendant, in the usual case, from establishing that he has detrimentally relied upon the claimant's statement: 'A pays £1000 to B, representing to him "I have carefully checked all the figures and this is all yours". B spends £250 on a party and puts £750 in the bank. A discovers that he has made a mistake and owed B nothing. He learns that B has spent £250 and he asks B to repay £750. B: "You are estopped by your representation on which I have acted to my detriment." A: "You have not acted to your detriment. You have had a good party, and at my expense, because I cannot recover the £250 back from you."' This is clearly a powerful argument. If, however, absent the representation, B would not have thrown the party but queried the receipt of the money it is arguable that B's expenditure on the party was caused by the representation and not by the enrichment. If this is correct it might be argued that change of position ought to fail and, consequently, estoppel succeed. Derby v Scottish Equitable seems to reject this. It might of course be thought problematic that the correct characterisation of a claim as being one based upon unjust enrichment or otherwise determines the applicability of the defence of estoppel The characterisation exercise is not a very easy one. The recognition of the defence of change of position already necessitates this enquiry however. Any remaining scope for the defence of estoppel may turn upon the scope of the defence of change of position. For example D represents to E ""I have carefully checked all the figures and I owe you £1000". In reliance upon this statement E spends £250 on a party. D pays E £1000. If change of position in anticipation of an receipt is not a defence then estoppel ought to succeed. The only other argument I can think of is that there may be cases where the non-recogniton of the defence of estoppel in claims for restitution might lead to incoherent results where a claimant was estopped from asserting some rights but not others. For example: The Inland Revenue represent to F that he has overpaid £1000 during the tax year. In reliance upon this representation F spends £250 on a party. The inland revenue pay F £1000. In fact F has underpaid the Revenue £2000. Is the Revenue estopped from claiming the unpaid tax from F but not estopped from seeking restitution of the money reimbursed? Sorry for writing so much. Robert Stevens ----- Original Message ----- From: "Nicholas Briggs" To: Sent: Thursday, March 22, 2001 11:09 AM Subject: [RDG:] FW: [RDG:] Answers on a postcard > > -----Original Message----- > > From: Nicholas Briggs > > Sent: 22 March 2001 11:09 > > To: 'Steve Hedley' > > Subject: RE: [RDG:] Answers on a postcard > > > > You can find a full transcript on Casetrack.com. The case number is > > A2/00/0418 or for those of you who are familiar with the neutral citation > > [2001] EWCA CIV 369. The CA have ducked the issue of whether estoppel > > survives the defence of change of position. The Court said that it would > > leave that question for another case (curious as there was a direct > > finding of fact at first instance in relation to estoppel). A member of my > > chambers shall be running the argument that estoppel does survive. The > > Court of Appeal adjourned the hearing pending the outcome of Derby and > > have acknowledged that the argument is live. The matter is called National > > Westminster Bank Plc v Somer International and is due to be heard in the > > Court of Appeal on 9 April 200. All arguments to support estoppel > > greatfully received. > > > > -----Original Message----- > > From: Steve Hedley [SMTP:swh10@CAM.AC.UK] > > Sent: 22 March 2001 10:25 > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: [RDG:] Answers on a postcard > > > > At 09:41 21/03/01 -0500, Lionel Smith wrote: > > >I should also clarify my note about Scottish > > >Equitable -- the transcript is not yet available, just a summary. > > > > > >LDS > > > > > > > > > Full text of Scots Equitable v Derby now on my website at > > http://www.law.cam.ac.uk/restitution/restitution.htm > > (Cases --> England and Wales --> Scottish Equitable) > > > > Judge Judy's ruling, by contrast, does not seem to be > > reported in full yet, either on her website or elsewhere. > > > > 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 > > . > > ____________________________________________________________________ > 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: Thu, 22 Mar 2001 12:36:40 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Friedmann on Seinfeld MIME-version: 1.0 Content-type: text/plain; charset="iso-8859-1"; format=flowed Content-transfer-encoding: quoted-printable Professor Dan Friedmann has asked me to distribute his thoughts on the=20 Seinfeld case: "This seems to me the answer to your question: Judge Judy=92s decision is correct and so is Allan Axelrod. Where D sells an= =20 interest to P and afterwards D receives (from C) payment in respect of this= =20 interest, he is accountable to P. E.g. D assigns to P a debt which C owes=20 him. C pays the debt to D. P can recover the payment from D (even if he has= =20 an alternative claim against C). The same rule applies where D is in=20 possession of P=92s property and receives from a third party compensation in= =20 respect of loss or damage to this property. This applies irrespective of=20 whether C was legally liable to make the payment (provided he did not=20 intend a personal gift to D. The case of the comedian is not a case of a=20 pure gift even if the comedian was not legally liable. He was under a moral= =20 obligation and this obligation was to P). I suppose that the difficulty of the RDG stems from the fact that important= =20 cases, such as The Winkfield, The Alabazero and Hepburn v. Tomlinson, that= =20 are relevant to this principle are not discussed in the leading English=20 books on restitution (on this lacuna see Restitution =AD Past, present and= =20 Future 138)." I should have known that the law of tracing would save the day. 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: Thu, 22 Mar 2001 15:46:24 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: FW: [RDG:] Answers on a postcard Comments: To: Robert Stevens MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------DE47FA2BEDF3492A0CD1DF7D" --------------DE47FA2BEDF3492A0CD1DF7D Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Robert Stevens wrote: > > > 'A pays £1000 to B, representing to him "I have carefully checked all the > figures and this is all yours". B spends £250 on a party and puts £750 in > the bank. A discovers that he has made a mistake and owed B nothing. He > learns that B has spent £250 and he asks B to repay £750. > > B: "You are estopped by your representation on which I have acted to my > detriment." > ==================== isn't the representation of careful checking and a felt obligation implied in any commercial payment of a substantial sum of money? could estoppel, if ever relevant, be usefully confined to cases where the payor makes the representation after inquiry and an expression of puzzlement from the payee? > > --------------DE47FA2BEDF3492A0CD1DF7D Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit  

Robert Stevens wrote:

 

'A pays £1000 to B, representing to him "I have carefully checked all the
figures and this is all yours". B spends £250 on a party and puts £750 in
the bank. A discovers that he has made a mistake and owed B nothing. He
learns that B has spent £250 and he asks B to repay £750.

B: "You are estopped by your representation on which I have acted to my
detriment."
====================

isn't the representation of careful checking and a felt obligation  implied  in any commercial payment of a substantial sum of money?   could estoppel, if ever relevant, be usefully confined to cases where the payor  makes the representation after  inquiry and an expression of puzzlement from the payee?
 
 
--------------DE47FA2BEDF3492A0CD1DF7D-- ____________________________________________________________________ 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, 23 Mar 2001 14:40:03 +1100 Reply-To: Joachim Dietrich Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Joachim Dietrich Subject: RDG: Estoppel/Change of Position Mime-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable My response to Nicholas Briggs (requesting arguments in support of = estoppel) is that there is a need in the law of restitution for a broad, = flexible defence which is not limited in its scope to identifying payments = causally connected to the receipt of the mistaken payment. Whether such a = broad defence is applied using estoppel principles, or by treating change = of position itself as a broad equitable defence allowing for a balancing = of the equities between the parties (as the NZ CA did in BAnk of NZ v = Waitaki [1999] 2 NZLR 211) may not be overly important (one benefit of the = latter approach is that it does not require the identification of a = "representation" by the payer; one benefit of estoppel is that it may be = more grounded in established principle and authorities). The important = thing is that the courts should take into account factors such as the = following. (1) The emotional distress and turmoil induced by a request to = repay money, say, many years after its receipt. (Cf Commonwealth v = Verwayen, where some members of the HC of Australia considered that the = detriment suffered if a representor were not estopped from denying the = representation would include the "stress and anxiety" suffered by the = representee if the representation/assumption were not made good: eg = Gaudron J 170 CLR 394 at 487). I would think that in Australia, at least, = the estoppel defence would not necessarily operate in an all or nothing = way, the courts being able to shape the remedy according to the minimum = equity needed to do justice between the parties. This may mean that in = some circumstances, the remedy may be limited to reversing the detriment = incurred in reliance upon the representation. It does not mean, however, = that the detriment suffered in consequence of the denial of the = representation is necessarily limited to and measured by the financial = losses incurred in reliance upon or causally connected to, the receipt of = the money. (2) Related to this point is the fact that an unqualified and authoritative= representation may lead payees to hold expectations the denial of which = may have detrimental consequences which can not necessarily be measured by = reference to financial expenses incurred (but which detriment is more than = merely the disappointment of not having one's expectation fulfilled. (3) Any negligence of both payers and payees must also be relevant (cf = Waitaki). It would be odd if in our system of law, carelessness (or = "contributory negligence"?) were not a relevant consideration. The theory = that even gross negligence on the part of the payer in making or insisting = upon the payment is irrelevant has always struck me as counter-intuitive.= =20 (4) Any other relevant factors, such as "risk allocation" between the = parties and relative fault, need to be considered (Thomas J in Waitaki at = 229). In Scottish Equity itself, the gross negligence of the payer and the = unqualified representation that the payee was entitled to the payment = ought to have been taken into account in balancing the equities between = the parties. I for one do not think that the payee ought to be liable to = repay the money used for mortgage payments in that case. At least in = relation to those paymnts, the payee's expectations ought to be made good, = for if they are not and the payee is required to repay them, I think it = is accurate to say that the payee will be worse off than if the mistaken = payment had never been received. There are some considerable similarities = to Verwayen's case. In relation to the point made by Robert Stevens: However, having read the following passage [in Scottish Equitable] it = seems to me that it can now be argued that the existence of the defence of change of position = prevents the defendant, in the usual case, from establishing that he has detrimenta= lly relied upon the claimant's statement: 'A pays =A31000 to B, representing to him "I have carefully checked = all the figures and this is all yours". B spends =A3250 on a party and puts = =A3750 in the bank. A discovers that he has made a mistake and owed B nothing. = He learns that B has spent =A3250 and he asks B to repay =A3750. B: "You are estopped by your representation on which I have acted to = my detriment." A: "You have not acted to your detriment. You have had a good party, = and at my expense, because I cannot recover the =A3250 back from you."' In my view, the Court of Appeal seem to be saying that estoppel does = operate in this situation, but is limited to the minimum equity to do = justice: ie there is no detriment which arises from denying the representat= ion as to B's right to =A3750 only. This must be right (and see also Fung = and Ho Note in 117 LQR 14). But what the Court of Appeal does not = recognise (but which the NZ CA in using change of position and the = Australian HC in its development of estoppel do recognise) is that the = minimum equity to do justice between the parties cannot be determined = merely by reference to expenditure incurred which is causally connected to = the receipt (to repeat the point I made above). Joachim Dietrich Law Faculty ANU, CAnberra > -----Original Message----- > From: Nicholas Briggs > Sent: 22 March 2001 11:09 > To: 'Steve Hedley' > Subject: RE: [RDG:] Answers on a postcard > > You can find a full transcript on Casetrack.com. The case number is > A2/00/0418 or for those of you who are familiar with the neutral = citation > [2001] EWCA CIV 369. The CA have ducked the issue of whether estoppel > survives the defence of change of position. The Court said that it would > leave that question for another case (curious as there was a direct > finding of fact at first instance in relation to estoppel). A member of = my > chambers shall be running the argument that estoppel does survive. The > Court of Appeal adjourned the hearing pending the outcome of Derby and > have acknowledged that the argument is live. The matter is called = National > Westminster Bank Plc v Somer International and is due to be heard in the > Court of Appeal on 9 April 200. All arguments to support estoppel > greatfully received. > ____________________________________________________________________ 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, 23 Mar 2001 12:31:13 +0800 Reply-To: Lusina Ho Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lusina Ho Organization: HKU Subject: Fw: [RDG:] RDG: Estoppel/Change of Position MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Dear All, The argument referred to by Robert Walker LJ in Derby (CA) is attractive indeed. However, it assumes that the money spent as a result of the representation would not lead to a detriment if the surviving amount is taken back. This works in the illustration given, where £250 was spent on a party (an enjoyed benefit) and there would be no detriment if £750 was taken back. However, once one moves beyond this scenario, the argument might not work. For instance, what if as a result of the receipt and representation, money is spent to forgo a beneficial opportunity A in pursuit of a future benefit B, such that B would not be realised if the surviving amount is taken back, and further more leaving the recipient in a position whereby he would not be able to pursue A. This might sound very abstract. The following factual scenario might help illustrate the point: 1. D has originally set aside £50 from his wealth for the purchase of a limited edition print which costs £50. 2. P mistakenly pays £100 to D, representing to D that he is entitled to keep the full amount. 3. Thinking that he now has £150 in total, D decides to purchase a more expensive print which costs £120, also in limited edition. He orders the print accordingly and pays a non-refundable deposit of £80. 4. P discovers the mistake, and demands the return of £20, whilst accepting a change of position for the £80 that has been paid for the deposit. 5. However, this would still leave D with a detriment, namely the forgone opportunity to purchase the print which costs £50. 6. If D is allowed the defence of estoppel, he could at least keep £20, which to some extent makes up for the detriment. Hope this makes sense. Eugene Fung and I have alluded to this possibility in (2001) 117 LQR 14 at 17, but unfortunately have not elaborated on it. We hope to explore the arguments further in our next paper. In the meantime, your comments would be greatly appreciated. Cheers, Lusina Ho Faculty of Law University of Hong Kong ____________________________________________________________________ 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, 23 Mar 2001 09:02:20 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Fw: [RDG:] RDG: Estoppel/Change of Position Comments: To: Lusina Ho MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit > This might sound very abstract. The following factual scenario might help > illustrate the point: > > 1. D has originally set aside £50 from his wealth for the purchase of a > limited edition print which costs £50. > > 2. P mistakenly pays £100 to D, representing to D that he is entitled to > keep > the full amount. > > 3. Thinking that he now has £150 in total, D decides to purchase a more > expensive print which costs £120, also in limited edition. He orders the > print accordingly and pays a non-refundable deposit of £80. > > 4. P discovers the mistake, and demands the return of £20, whilst accepting > a > change of position for the £80 that has been paid for the deposit. > > 5. However, this would still leave D with a detriment, namely the forgone > opportunity to purchase the print which costs £50. > > 6. If D is allowed the defence of estoppel, he could at least keep £20, > which > to some extent makes up for the detriment. Whether D has detrimentally changed his position in reliance upon the representation so as to be able to rely upon estoppel seems to turn upon the scope of the defence of change of position. If the lost opportunity to purchase the print can be valued there seems to be no reason why it cannot be said that D has, to that extent, changed his position. Indeed it is to be hoped that that is the law otherwise D would have an inadequate defence if there was no representation in the example you give. Whether that is the law is almost incapable of being answered as the defence of change of position has so rarely been successfully invoked. Robert Stevens ____________________________________________________________________ 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, 23 Mar 2001 09:12:39 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: RDG: Estoppel/Change of Position Comments: To: Joachim Dietrich MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Joachim Dietrich wrote: "In relation to the point made by Robert Stevens: However, having read the following passage [in Scottish Equitable] it seems to me that it can now be argued that the existence of the defence of change of position prevents the defendant, in the usual case, from establishing that he has detrimentally relied upon the claimant's statement: 'A pays £1000 to B, representing to him "I have carefully checked all the figures and this is all yours". B spends £250 on a party and puts £750 in the bank. A discovers that he has made a mistake and owed B nothing. He learns that B has spent £250 and he asks B to repay £750. B: "You are estopped by your representation on which I have acted to my detriment." A: "You have not acted to your detriment. You have had a good party, and at my expense, because I cannot recover the £250 back from you."' In my view, the Court of Appeal seem to be saying that estoppel does operate in this situation, but is limited to the minimum equity to do justice: ie there is no detriment which arises from denying the representation as to B's right to £750 only. This must be right (and see also Fung and Ho Note in 117 LQR 14)." Walker L.J. states that the argument is "that, since Lipkin Gorman, the defence of change of position pre-empts and disables the defence of estoppel by negativing detriment." (para 45). I find it difficult to see how on any fair reading the CA are suggesting applying the defence of estoppel. Robert Stevens ____________________________________________________________________ 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, 23 Mar 2001 10:22:36 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Re: SPTL Conference 2001 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Most subscribers to the List will know that the SPTL holds an annual conference during which there are Subject Section meetings. Many of the papers delivered at the Restitution Section meetings have, on publication, made influential and important contributions to the development of the subject. This year the conference is in Glasgow from 10 to 13 September. The Restitution sessions will be during the first two days. delegates may attend all or part of the conference. In the past at least, the SPTL has welcomed to the conference non-members. Four sessions are available to Restitution. Each is about 90 minutes long. Our practice is for the speaker to submit his paper in advance for prior circulation, then to have 30 minutes for presentation, leaving 60 minutes for discussion. All those attending the conference, including speakers, are responsible for financing their attendance, though I may be able to find some support. I am receiving proposals for papers for the Glasgow conference. If you wish to offer a paper, please let me know as soon as possible. In any event, I hope that, as usual, we shall see a large number of Restitution enthusiasts at Glasgow, where this year's conference is expected to be especially convivial! Francis D. Rose Convener, SPTL Restitution Section Faculty of Law University of Bristol Wills Memorial Building Queen's Road Bristol BS8 1RJ (Tel: 0117-954-5318) - ____________________________________________________________________ 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, 23 Mar 2001 11:12:16 -0000 Reply-To: Andrew Burrows Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Burrows Organization: University of Oxford Faculty of Law Subject: Change of position MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Dear All, 1. I agree with what Robert Stevens says in his reply to Lusina Ho: the change of position defence should be wide enough to embrace all the detriment suffered by D in Lusina's example. 2. As I understand the "novel and ingenious argument" that Robert Walker LJ found convincing in Derby v Scottish Equitable, it is that the defences of change of position and estoppel are mutually exclusive because change of position operates to knock out the detriment required for estoppel. Much as I support the withering away of estoppel now that we have change of position, I do have some concerns about this argument: (1) Couldn't the defendant overcome the argument by simply saying: "I am here invoking the estoppel defence not the change of position defence" ie apply estoppel first. (2) If the argument were correct, wouldn't it mean that, irrespective of the development of the change of position defence, a restitutionary clamant could always have defeated the estoppel defence by conceding that its claim for a mistaken payment was limited to the payment minus the defendant's detriment? Eg in Robert Walker LJ's example, by formulating the restitutionary claim as one for £750 rather than £1000? If so, the argument is not so much one of principle against the contination of estoppel, but rather one indicating how tactically that defence can, and always has been able to, be avoided. Andrew Burrows ____________________________________________________________________ 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, 23 Mar 2001 12:23:32 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Change of position MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Andrew Burrows wrote - > 2. As I understand the "novel and ingenious argument" that Robert Walker LJ > found convincing in Derby v Scottish Equitable, it is that the defences of > change of position and estoppel are mutually exclusive because change of > position operates to knock out the detriment required for estoppel. Much as > I support the withering away of estoppel now that we have change of > position, I do have some concerns about this argument: > (1) Couldn't the defendant overcome the argument by simply saying: "I am > here invoking the estoppel defence not the change of position defence" ie > apply estoppel first. I don't think that the defendant can overcome the logic of junior counsel's ingenious argument in this way. The very availability of the defence of change of position means that the expenditure has not been detrimental. > (2) If the argument were correct, wouldn't it mean that, irrespective of the > development of the change of position defence, a restitutionary clamant > could always have defeated the estoppel defence by conceding that its claim > for a mistaken payment was limited to the payment minus the defendant's > detriment? Eg in Robert Walker LJ's example, by formulating the > restitutionary claim as one for £750 rather than £1000? If so, the argument > is not so much one of principle against the contination of estoppel, but > rather one indicating how tactically that defence can, and always has been > able to, be avoided. Maybe so. Perhaps no bad thing. It is perhaps a comfort for us to discover that the law actually is what commentators have been arguing it ought to be. (I wish I'd thought of it.) Robert Stevens ____________________________________________________________________ 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, 23 Mar 2001 14:52:40 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Estoppel/Change of Position Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all I have three (and, I hope) short points to make about the estoppel v change of position debate, in response to the message from Nicholas Briggs: >A member of my chambers shall be running the >argument that estoppel does survive. All >arguments to support estoppel greatfully received. First; they are separate defences because they operate on different levels. Defences to restitutionary claims are of three kinds: (1) those which deny an essential element of the principle against unjust enrichment (as change of position, if it is enrichment-related, denies enrichment; or as bona fide purchase or ministerial receipt deny enrichment); (2) those which preclude a claim even if the terms of the principle are fulfilled (as counter-restitution impossible operates; or, as change of position does if it responds to an element of injustice); and (3) those which operate as defences to claims generally, and which therefore can operate as defences to claims in restitution (limitation, res judicata). Change of position is a defence of the first kind (or, in some jurisdictions, of the second kind); estoppel is a defence of the third kind. They operate at different levels, and the mere fact that a more specific defence is available should not oust the more general one. Second; they are separate defences because they focus on different things. The essentials of estoppel require a statement, reliance thereupon, and consequential detriment. That detriment may flow directly from the statement itself, or - much more likely - from the consequences of falsifying the statement. I tell you: =B3here is =A3x; it=B9s yours=B2. Your spending it demonstrates reliance upon my statement. The detrminent would consist in your having to return it if you cannot keep me to my statement Since the statement referred to the entire of the =A3x, the estoppel relates to the entire of the =A3x. On the other hand, the essentials of change of position require a receipt, and reliance thereupon by consequential expenditure. If you have spent =A3y (a sum less than or equal to =A3x) the defence relates only to the =A3y consequentially expended and not to the entire of the =A3x (if y. 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, 23 Mar 2001 14:55:26 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Change of position Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all Further to my general message on the estoppel v change of position debate, I would like to make two more specific points about Robert Walker LJ=B9s judgment in Derby v Scottish Equitable. First, quoting Prof Burrows, =8Cthe =B3novel and ingenious argument=B2 that Robert Walker LJ found convincing in ... is that the defences of change of position and estoppel are mutually exclusive because change of position operates to knock out the detriment required for estoppel=B2. This must misconstrue the nature of the detriment to be established for the purposes of estoppel, which would consist in having to return money which has been spent (at least if I am right in my previous message that estoppel requires a statement, reliance, and consequential detriment which may flow from the consequences of falsifying the statement by requiring the return of the money). Furthermore, I agree with Prof Burrows that the short answer to Robert Walker LJ=B9s point must be that it is for the defendant to decide what defence he wants to plead, and if he wants to plead estoppel first, and change of position second or not all, that is up to him. Focussing more specifically on Robert Walker LJ=B9s example of A paying =A31000 to B, representing that it is B=B9s, so B spends =A3250, B has a change of position defence in respect of that =A3250, and as a consequence, Robert Walker LJ argues that B cannot argue estoppel. I think this must be wrong, at least if I am right in my previous message that estoppel requires a statement, reliance, and consequential detriment which may flow from the consequences of falsifying the statement by requiring the return of the money. Plainly, B cannot return the =A3250. Because estoppel focusses on the statement, and operates in an =8Call or nothing=B9 way upon that statement, if there are any difficulties in returning any of the money, estoppel operates as a complete defence. These are facts in which estoppel would operate as an =B3all=B2 defence, a complete defence. There are four separate issues here. Take Robert Walker LJ=B9s example of A paying =A31000 to B, representing that it is B=B9s. At one end of the spectrum stands the case where B had spent the full =A31000 and estoppel would again operate as an =B3all=B2 defence, a complete defence. At the other end of the spectrum stands the case where B had spent nothing, (and assuming that there is nothing else to constitute a detriment) then estoppel would operate as a =B3nothing=B2 defence, that is, it would not operate at all. Near the centre stand two cases; in one, estoppel operates as an =B3all=B2 defence, a complete defence, where it seems strange that it should: as where expenditure of some money gives a complete defence; in the other, estoppel does not operate as a defence at all, where it seems strange that it should not: as where expenditure of some money does not generate any defence. These last two examples are mirror opposites - where there is no defence of estoppel where perhaps there ought to be; and where there is a defence of estoppel where perhaps there ought not to be - and they arise because of the =B3all or nothing=B2 way in which estoppel operates. As with the previous message, again, sorry for going on for so long; I hope some of this is helpful / makes some sense. Best 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, 23 Mar 2001 10:28:00 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Closure on Judge Judy MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Before we leave the Seinfeld case behind, I would like to report that I viewed the proceedings last night. The defendant argued the contract point: that the plaintiff got what he bargained for. The plaintiff did not really articulate his case but Judy J helped him along. She took the hypothetical case (it is just like the Year Books really ... sorry Paul Matthews) of Jerry Seinfeld's announcing that everyone should look under their chairs, and some lucky audience members would find a prize. Even the defendant agreed that in such a case, any prize under the plaintiff's seat would belong to the plaintiff. From this Judy J extracted the proposition, in very similar terms to Dan Friedmann's argument, that the plaintiff "bought the tickets and everything that flowed from them." Following (a) a slight detour via the proposition that if the law and morality gave divergent results, the law should bend, and (b) an introduction of the litigants to the saying "the law is an ass" (although, illustrating the dictum that the US and England are two countries divided by a common language, this was seemingly under the impression that this maxim refers to a part of the human anatomy rather than a barnyard animal), the learned judge gave judgment for the plaintiff. I think I am going to show this tape in my restitution course next term. 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: Sat, 24 Mar 2001 00:04:24 +0800 Reply-To: Lusina Ho Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lusina Ho Subject: Fw: [RDG:] Change of position MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit > 1. I agree with what Robert Stevens says in his reply to Lusina Ho: the > change of position defence should be wide enough to embrace all the > detriment suffered by D in Lusina's example. Though two points remain: (1) In so far as the defence of change of position is still nascent, and it is not yet crystal clear (in light of the dearth of decided cases) that the change of position would cover the example, estoppel might still have a role to play. In fact, a litigant may justifiably prefer to go for the more certain defence of estoppel. (2) Even if the change of position defence is such that it is available whenever estoppel is, change of position only allows D in my example to keep what estoppel also allows him to keep. It cannot, contrary to what is claimed by the 'novel' argument, knock out all of D's detriment. Illustration: In the example, what if the print is now worth £100 in the market (or to avoid causation difficulties the lost opportunity can be an investment in a fund with guaranteed returns). D would suffer at least a loss of £50. Even if change of position applies so D can keep all of £100, he would still be left with a detriment of £30, since his total loss (£50 from the increased price and £80 from the deposit) exceeds the mistaken payment. The change of position defence would still not knock out all his detriment. Anyway, this is just a minor technical point on the argument. Whether estoppel and change of position should merge should rest on wider, policy considerations, it seems. Lusina Ho ____________________________________________________________________ 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, 23 Mar 2001 19:29:04 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Sharwood Company v. MFC (Ont. C.A.) MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit For those of you who may be interested, the Ont. C.A. has just released a new case on unjust enrichment dealing with quantum meruit, free acceptance and incontrovertible benefits. See: Sharwood Company v. Municipal Financial Corporation http://www.ontariocourts.on.ca/decisions/2001/march/sharwood.htm -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 24 Mar 2001 15:12:11 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: Change of position Comments: To: Andrew Burrows MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit It is with great interest that I have been reading the discussion on the interrelationship between change of position and the defence of estoppel. Of particular interest was the argument made by Prof. Burrows relating the defendant's (possible) ability to say that they are invoking the estoppel defence first, instead of the change of position defence. Perhaps the difficulty that is being engendered by this issue results from attempting to view change of position as a defence to an otherwise valid claim in unjust enrichment rather than as a constituent part of the cause of action itself. If one says that a person is enriched if, and only if, the transferred value is still retained, then perhaps a better view of the interrelationship between the two ideas can discovered. If this view is correct, then estoppel could only (theoretically) operate after the cause of action had been made out and there would be no question of the plaintiff choosing estoppel first. Based on the arguments already made, if change of position must operate first, estoppel would seemingly have a very minor role (if any) to play. Just a thought. -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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, 26 Mar 2001 09:46:40 +0100 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" Jason Neyers suggests that it may be wrong >to view change of position as a defence to an otherwise >valid claim in unjust enrichment rather than as a constituent part of >the cause of action itself. Also, that one might instead say that > a person is enriched if, and only if, the transferred value is still retained As I understand the rules on pleading actions in unjust enrichment, it is enough for a claimant to show that the defendant was enriched by receipt of a benefit at the claimant's expense, and there is no need for the claimant to show that the defendant is still enriched at the time of his action, although it may be to his advantage to do so if the value surviving in the defendant's hands is greater than the value received and he wishes to claim the larger sum (cf Jones v Jones). ________________________________________________________________________ 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, 26 Mar 2001 13:38:12 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: [RDG] Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" >Jason Neyers suggests that it may be wrong > >>to view change of position as a defence to an otherwise >>valid claim in unjust enrichment rather than as a constituent part of >>the cause of action itself. > >Also, that one might instead say that > >> a person is enriched if, and only if, the transferred value is still >retained > >As I understand the rules on pleading actions in unjust enrichment, it is >enough for a claimant to show that the defendant was enriched by receipt of >a benefit at the claimant's expense, and there is no need for the claimant >to show that the defendant is still enriched at the time of his action, >although it may be to his advantage to do so if the value surviving in the >defendant's hands is greater than the value received and he wishes to claim >the larger sum (cf Jones v Jones). >________________________________________________________________________ > >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 > There's a further difficulty with saying that you aren't enriched in so far as you haven't still got whatever it was enriched you. What do you do about the person who has changed his position in bad faith, and how do you differentiate him from the good faith big spender? To say the former is enriched but the latter isn't lands you in the realm of pure fiction. To say that neither is enriched but the bad faith position-changer is treated as if he were is not much more satisfactory. The only logical way to look at it is the old-fashioned one: both are enriched, but there's a very good reason not to make the good faith position-changer cough up. AMT 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: Mon, 26 Mar 2001 14:44:10 -0000 Reply-To: rory white Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: rory white Subject: quick query Mime-Version: 1.0 Content-Type: text/plain; format=flowed In Barclays Bank v. Simms 1980 QB a bank recovered money which it had paid when the defendant presented a cheque for payment, having overlooked the drawer company's instructions to stop the cheque. What was the legal basis for the bank making good the drawer company's account? (i.e. before pursuing the payee). Damages for breach of fiduciary duty/ agency agreement?? R. White Dublin _________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.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: Mon, 26 Mar 2001 12:02:28 -0500 Reply-To: Ed Brewer Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Ed Brewer Subject: Disgorgment and Restitution MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii Colleagues, I am interested in the problems that arise (or seem to me to arise) when administrative or judicial disgorgment proceedings seek the same relief that private parties might seek (or be subject to) in an arbitral, administrative, or judicial proceeding. As an example, in the USA, the Securities and Exchange Commission can bring an enforcement proceeding in federal court, seeking disgorgement of receipts or profits (can't remember whether it's gross or net) from unlawful securities transactions. A private person who is wronged under the securities laws can seek damages or restitution for the same conduct. The SEC has never seemed particularly concerned about the potential for double recovery that would arise should it (in its infinite administrative wisdom and discretion) not see fit to distribute the disgorged proceeds to the private parties, or should it do so in a manner that left some claims satisfied but not others, etc. This can also have implications for bankruptcy, with regard to the automatic stay of non-bankruptcy proceedings under our section 362 and with regard to priorities among unsecured creditors. A related, procedural question is whether an enforcement agency authorized by statute to obtain ancillary equitable relief (such as back pay for employees in a discrimination case) should be limited to seeking disgorgment where there is an arbitration agreement between the private parties (e.g., between employee and the employer). This does not appear in the SEC cases that I know about, and I am not sure I have ever seen it argued before, but the question follows on some very recent US Supreme Court decisions approving the enforcement of arbitration agreements in the non-union employment context. I think that I am probably not discovering a new wheel here, and that others may be aware of articles or have thoughts about these issues. Any of either would be appreciated. Ed Brewer ____________________________________________________________________ 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, 26 Mar 2001 22:45:04 +0100 Reply-To: Paul Matthews Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Paul Matthews Subject: Re: quick query In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" The bank has no legal basis for debiting the drawer's account, since the drawer has not (now) authorised this. So the drawer's claim for an account will not show the debit, or (if it does) the debit will be ignored. Bank therefore pays the balance of the account, undebited. No loss, so no need for damages. Paul Matthews At 14:44 26/03/01 -0000, Rory White wrote: >In Barclays Bank v. Simms 1980 QB a bank recovered money which it had paid >when the defendant presented a cheque for payment, having overlooked the >drawer company's instructions to stop the cheque. > >What was the legal basis for the bank making good the drawer company's >account? (i.e. before pursuing the payee). >Damages for breach of fiduciary duty/ agency agreement?? > >R. White >Dublin >_________________________________________________________________________ >Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.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 > . > > ____________________________________________________________________ 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, 27 Mar 2001 09:25:54 +0100 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" In response to Ed Brewer's question about the potential for double recovery by a securities regulator and a private individual affected by illegal securities dealings, the British Parliament has enacted a new Financial Services and Markets Act 2000, s 382 of which seems to cover this situation (the act is not yet in force). As I read this section, the Secretary of State or Financial Services Authority is obliged to turn over money recovered from infringers to 'qualifying persons', suggesting that the problem outlined by Ed Brewer may not arise. The section follows. We may note that the term 'Restitution Order' is used to cover both loss-based and gain-based orders, a further example of the loose use of the term 'restitution' by Parliamentary draftsman which was noted by Lionel Smith and Steve Hedley last year (or maybe this was Lionel's own example? - my memory fails me, I'm afraid). > Financial Services and Markets Act 2000 (c 8) > > 14 June 2000 > > CROSS-HEADING: Part XXV Injunctions and Restitution: > Restitution orders > > SECTION: 382 Restitution orders > > DATE-IN-FORCE: To be appointed > > TEXT: > (1) The court may, on the application of the Authority or the Secretary of >State, make an order under subsection (2) if it is satisfied that a person has >contravened a relevant requirement, or been knowingly concerned in the >contravention of such a requirement, and-- > > (a) that profits have accrued to him as a result of the contravention; or > > (b) that one or more persons have suffered loss or been otherwise adversely >affected as a result of the contravention. > > (2) The court may order the person concerned to pay to the Authority such sum >as appears to the court to be just having regard-- > > (a) in a case within paragraph (a) of subsection (1), to the profits >appearing to the court to have accrued; > > (b) in a case within paragraph (b) of that subsection, to the extent of the >loss or other adverse effect; > > (c) in a case within both of those paragraphs, to the profits appearing to >the court to have accrued and to the extent of the loss or other adverse effect. > > (3) Any amount paid to the Authority in pursuance of an order under >subsection (2) must be paid by it to such qualifying person or distributed by it >among such qualifying persons as the court may direct. > > (4) On an application under subsection (1) the court may require the person >concerned to supply it with such accounts or other information as it may require >for any one or more of the following purposes-- > > (a) establishing whether any and, if so, what profits have accrued to him as >mentioned in paragraph (a) of that subsection; > > (b) establishing whether any person or persons have suffered any loss or >adverse effect as mentioned in paragraph (b) of that subsection and, if so, the >extent of that loss or adverse effect; and > > (c) determining how any amounts are to be paid or distributed under >subsection (3). > > (5) The court may require any accounts or other information supplied under >subsection (4) to be verified in such manner as it may direct. > > (6) The jurisdiction conferred by this section is exercisable by the High >Court and the Court of Session. > > (7) Nothing in this section affects the right of any person other than the >Authority or the Secretary of State to bring proceedings in respect of the >matters to which this section applies. > > (8) "Qualifying person" means a person appearing to the court to be someone-- > > (a) to whom the profits mentioned in subsection (1)(a) are attributable; or > > (b) who has suffered the loss or adverse effect mentioned in subsection >(1)(b). > > (9) "Relevant requirement"-- > > (a) in relation to an application by the Authority, means a requirement-- > > (i) which is imposed by or under this Act; or > > (ii) which is imposed by or under any other Act and whose contravention >constitutes an offence which the Authority has power to prosecute under this >Act; > > (b) in relation to an application by the Secretary of State, means a >requirement which is imposed by or under this Act and whose contravention >constitutes an offence which the Secretary of State has power to prosecute under >this Act. > > (10) In the application of subsection (9) to Scotland-- > > (a) in paragraph (a)(ii) for "which the Authority has power to prosecute >under this Act" substitute "mentioned in paragraph (a) or (b) of section 402(1); >and > > (b) in paragraph (b) omit "which the Secretary of State has power to >prosecute under this Act". > ________________________________________________________________________ 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, 27 Mar 2001 09:42:49 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: quick query Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Under its contract with its customer a bank cannot debit its customer's account without authority from that customer. The fact that the bank thought it had that authority is irrelevant if in fact it did not because the cheque had been stopped. AT >X-Originating-IP: [194.145.135.187] >X-OriginalArrivalTime: 26 Mar 2001 14:44:10.0787 (UTC) > FILETIME=[380C6F30:01C0B603] >Date: Mon, 26 Mar 2001 14:44:10 -0000 >Reply-To: rory white >Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues >From: rory white >Subject: [RDG:] quick query >To: ENRICHMENT@LISTS.MCGILL.CA > >In Barclays Bank v. Simms 1980 QB a bank recovered money which it had paid >when the defendant presented a cheque for payment, having overlooked the >drawer company's instructions to stop the cheque. > >What was the legal basis for the bank making good the drawer company's >account? (i.e. before pursuing the payee). >Damages for breach of fiduciary duty/ agency agreement?? > >R. White >Dublin >_________________________________________________________________________ >Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.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 > . > 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: Tue, 27 Mar 2001 11:58:43 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Just when you thought it was safe to go back to the list ... Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all Notwithstanding Prof Birks=92 reports of its demise, the remedial constructive trust is, it seems, alive and well and living in the Irish High Court. Further to the thread on Judge Judy, Seinfeld, interceptive subtraction and disappointed beneficiaries, yesterday=92s Irish Times brings news of a remedial constructive trust imposed to reverse the unjust enrichment of a recipient (a beneficiary under a will, enriched by interceptive subtraction) at the expense of an intended but disappointed beneficiary. The case is In re Cahill. Kelly v. Cahill, Irish Times Law Report, 26 March 2001 (High Court, Barr J., 18 January 2001; on Bailii as [2001] IEHC 2 at http://www.bailii.org/ie/cases/IEHC/2001/2.html with a link to this via Steve Hedley=92s restitution page at ). The deceased=92s will, dated 23 October 1969, left his property jointly to his wife and brother for life, with remainder in trust for his nephew. However, in January 1994, the deceased instructed his solicitor that he no longer wished to benefit his nephew, and instead wished to leave all of his property to his wife. To avoid probate tax, the solicitor advised the deceased not to alter his will but instead to transfer his lands from his sole name into the joint names of himself and his wife, as joint tenants The solicitor drew up a deed of transfer which was duly executed by the deceased and his wife. All parties believed that it referred to all of the deceased=92s property, but in fact, through the inadvertence of the solicitor and unknown to the testator and his wife, much of the testator=92s land was not in fact included in the deed of transfer contrary to the express intentions of the testator. When the deceased died, those lands passed under the will ultimately for the benefit of the nephew. Barr J held that the kernel of the question which he had to determine was =93whether the evidence establishes a clear, positive intention on the part of the testator that his wife should inherit all of his property on his death; that he took appropriate steps to bring that about and that he could not reasonably have known that through his solicitor=92s error the Deed of Transfer, which he and his wife duly executed, did not include all of his lands and that his stated intention to benefit his wife exclusively on his death was defeated in part=94 and held that it did. That having been established, it followed that =93=91justice and good conscience=92 require[d] that the [nephew] should not be allowed to inherit the testator=92s property or any part of it on the death of his widow and that his interest in remainder under the will should be deemed to be a constructive trust in favour of the widow. In my opinion a =91New Model=92 constructive trust of that nature the purpose of which is to prevent unjust enrichment is an equitable concept which deserves recognition in Irish law.=94 For the law upon which this holding is based Barr J adopted =93with respect=94 the assessment of =93=91New Model=92 constructive trusts=94 by The Hon Mr Justice Ronan Keane [now the Chief Justice] in _Equity and the Law of Trusts in the Republic of Ireland_ (Butterworths, London, 1988) pp 196-197: =93In recent years, there has been much discussion in other jurisdictions as to whether a constructive trust can be said to arise in any circumstances where permitting the defendant to retain the property would result in his being =91unjustly enriched=92. This, it has been said, effectively means treating the constructive trust as a form of remedy intended to restore property to a person to whom in justice it should belong rather than as an institution analogous to the express or resulting trust. The constructive trust, in its additional form, arises because of equity=92s refusal to countenance any form of fraud: in this wider modern guise it is imposed by law =91whenever justice and good conscience require it=92 =85 Broadly speaking, it may be said that the application of the principle of unjust enrichment requires the restoration by the defendant to the plaintiff of a benefit which it would be unjust for him to retain. Sometimes this can be done by a simple award of money, e.g., the refund of money paid under a mistake of fact. But sometimes the restoration of the benefit can only be achieved by giving the plaintiff an interest in property. Thus, the constructive trust is imposed by the Court as an equitable remedy intended to restore to the plaintiff the benefit of which he has been deprived. In the words of Cardozo J =91a constructive trust is the formula through which the conscience of equity finds expression=92=94 (discussing Hussey v Palmer [1972] 3All ER 744, 747 per Lord Denning MR; Beatley v Guggenheim Exploration Co. 225 NY 380, 386; to the authorities discussed by Keane J, Barr J added HKN Invest OY and Anor. v Incotrade PVT Limited (In liquidation) and Ors . [1993] 3 IR 152, 162 per Costello J.). Discussion of this case will be incorporated into my piece on =93Restitution, Rectification and Mitigation: Negligent Solicitors and Wills, Again=94 (mentioned in an earlier message; electronic copies available to anyone who asks). Best 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: Tue, 27 Mar 2001 12:17:19 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Just when you thought it was safe to go back to the list... Comments: To: Eoin O'Dell MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Eoin O'Dell wrote: > Hello all > > Notwithstanding Prof Birks’ reports of its demise, the remedial constructive > trust is, it seems, alive and well and living in the Irish High Court. the case thereafter described imposes a constructive trust on a person receiving by will property which the testator had intended to convey to another under an instrument which by mistake did not have that effect 1. the same result would have been effected through the court's reforming the instrument to include the inadvertantly omitted property [a reformation effective against the testator's successor who was not a purchaser for value] 2. if reformation had been the theory of decision, it might have been noted that the deed was being reformed up--ie to include more property than the original writing. US cases have held 'reforming up' is improper as to land because of the Statute of frauds ____________________________________________________________________ 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, 28 Mar 2001 11:42:45 EST Reply-To: McMeel@law.law.sc.edu Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues Comments: Resent-From: "Gerald McMeel" Comments: Originally-From: "Gerald McMeel" From: Gerald McMeel Organization: law.law.sc.edu Subject: Re: "Restitution" and the Financial Services Authority Comments: cc: ENRICHMENT@MCGILL.CA, lionel.smith@MCGILL.CA In-Reply-To: <3.0.6.32.20010327092554.007ade80@law-mail.kcl.ac.uk> MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT The UK's Financial Services and Markets Act 2000 provides only the framework for this part of the Financial Services Authority's powers. These will come into force later this year (the Treasury now says no later than November 2001). The detail of how the FSA plans to use its enforcement powers are to be found in DRAFT annexed to its Consultation Paper 65 and the acompanyiing draft Enforcement Manual. See CP 65 paras 3.89 to 3.92. The relevant part of the Enforcement Manual is Chapter 10. I can see nothing (on a quick read through) which deals precisely with Ed Brewer's request, although the factors which the FSA takes into account before seeking a restitution order may be of interest. See also ENF 10.5.3 G and 10.6.6G (to use the FSA's citation system) on respectively the fact that the FSA will distribute recoveries on the basis ordered by the court and the meaning of an "appropriate person". Presumably courts will be astute not to permit double recovery. My instinct is that academic lawyers tend to underestimate the good sense of courts in not allowing individuals to accumulate recoveries. All this can be found at the FSA's website - www.fsa.gov.uk. The Enforcement Manual will form a block in the new FSA Handbook. We are curently awaiting a Policy Statement and the final form of the Enforcement Manual rules. Lastly, on the terminology point: (Lionel Smith may be particularly interested) in Professor Gower's seminal early 1980s reports, which are the source of much modern UK financial serices regulation, the term employed was "disgorgement." However, as Charles Mitchell notes, whether under the current Financial Services Act 1986 regime, or under the impending 2000 Act regime, the power (regardless of terminology) embraces both loss- based and gain-based claims. Gerard McMeel University of South Carolina PS Ignore the nomenclature on this e-mail - I have not changed my name! I just can not persuade IT here that "Gerard" is a name. PPS Lionel - please forward to the list if I cannot access it from my USC address. On 27 Mar 01, at 9:25, Charles Mitchell wrote: > In response to Ed Brewer's question about the potential for double recovery > by a securities regulator and a private individual affected by illegal > securities dealings, the British Parliament has enacted a new Financial > Services and Markets Act 2000, s 382 of which seems to cover this situation > (the act is not yet in force). As I read this section, the Secretary of > State or Financial Services Authority is obliged to turn over money > recovered from infringers to 'qualifying persons', suggesting that the > problem outlined by Ed Brewer may not arise. The section follows. We may > note that the term 'Restitution Order' is used to cover both loss-based and > gain-based orders, a further example of the loose use of the term > 'restitution' by Parliamentary draftsman which was noted by Lionel Smith > and Steve Hedley last year (or maybe this was Lionel's own example? - my > memory fails me, I'm afraid). > > > Financial Services and Markets Act 2000 (c 8) > > > > 14 June 2000 > > > > CROSS-HEADING: Part XXV Injunctions and Restitution: > > Restitution orders > > > > SECTION: 382 Restitution orders > > > > DATE-IN-FORCE: To be appointed > > > > TEXT: > > (1) The court may, on the application of the Authority or the Secretary of > >State, make an order under subsection (2) if it is satisfied that a person > has > >contravened a relevant requirement, or been knowingly concerned in the > >contravention of such a requirement, and-- > > > > (a) that profits have accrued to him as a result of the contravention; or > > > > (b) that one or more persons have suffered loss or been otherwise > adversely > >affected as a result of the contravention. > > > > (2) The court may order the person concerned to pay to the Authority > such sum > >as appears to the court to be just having regard-- > > > > (a) in a case within paragraph (a) of subsection (1), to the profits > >appearing to the court to have accrued; > > > > (b) in a case within paragraph (b) of that subsection, to the extent of > the > >loss or other adverse effect; > > > > (c) in a case within both of those paragraphs, to the profits appearing to > >the court to have accrued and to the extent of the loss or other adverse > effect. > > > > (3) Any amount paid to the Authority in pursuance of an order under > >subsection (2) must be paid by it to such qualifying person or distributed > by it > >among such qualifying persons as the court may direct. > > > > (4) On an application under subsection (1) the court may require the > person > >concerned to supply it with such accounts or other information as it may > require > >for any one or more of the following purposes-- > > > > (a) establishing whether any and, if so, what profits have accrued to > him as > >mentioned in paragraph (a) of that subsection; > > > > (b) establishing whether any person or persons have suffered any loss or > >adverse effect as mentioned in paragraph (b) of that subsection and, if > so, the > >extent of that loss or adverse effect; and > > > > (c) determining how any amounts are to be paid or distributed under > >subsection (3). > > > > (5) The court may require any accounts or other information supplied under > >subsection (4) to be verified in such manner as it may direct. > > > > (6) The jurisdiction conferred by this section is exercisable by the High > >Court and the Court of Session. > > > > (7) Nothing in this section affects the right of any person other than the > >Authority or the Secretary of State to bring proceedings in respect of the > >matters to which this section applies. > > > > (8) "Qualifying person" means a person appearing to the court to be > someone-- > > > > (a) to whom the profits mentioned in subsection (1)(a) are > attributable; or > > > > (b) who has suffered the loss or adverse effect mentioned in subsection > >(1)(b). > > > > (9) "Relevant requirement"-- > > > > (a) in relation to an application by the Authority, means a requirement-- > > > > (i) which is imposed by or under this Act; or > > > > (ii) which is imposed by or under any other Act and whose contravention > >constitutes an offence which the Authority has power to prosecute under this > >Act; > > > > (b) in relation to an application by the Secretary of State, means a > >requirement which is imposed by or under this Act and whose contravention > >constitutes an offence which the Secretary of State has power to prosecute > under > >this Act. > > > > (10) In the application of subsection (9) to Scotland-- > > > > (a) in paragraph (a)(ii) for "which the Authority has power to prosecute > >under this Act" substitute "mentioned in paragraph (a) or (b) of section > 402(1); > >and > > > > (b) in paragraph (b) omit "which the Secretary of State has power to > >prosecute under this Act". > > > ________________________________________________________________________ > > 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 > . ____________________________________________________________________ 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, 30 Mar 2001 19:24:41 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Re: Just when you thought it was safe to go back to the list... Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Dear all, Allan Axelrod wrote, further to my message on In re Cahill, in which the recipient under a will of property which was omitted from a deed was deemed to hold the property on constructive trust for the beneficiary of the deed, that in US law, >1. the same result would have been effected through the court's reforming >the instrument to include the inadvertantly omitted property [a reformation >effective against the testator's successor who was not a purchaser for value] > >2. if reformation had been the theory of decision, it might have been >noted that the deed was being reformed up--ie to include more property than >the original writing. >US cases have held 'reforming up' is improper as to land because of the >Statute of frauds For what it's worth, such reformation or rectification would also have been available in England and Ireland, and would have provided a much sounder justification than the remedial constructive trust for the result in In re Cahill. For example, in Lister v Hodgson (1867) LR 4 Eq 30, where the donor intended to make a gift of =A3300 by deed to the claimant, but in fact made it to the defendant, and subsequently died, Lord Romilly MR held that the deed could be rectified on the application of the claimant. Again, in the Irish case of McMechan v Warburton [1896] 1 IR 435 (Chatterton VC); aff=92d [1896] 1 IR 441 (Ir CA), the donor intended to settle certain shares upon the claimant, but the solicitor in error omitted this from the deed; after the donor=92s death, the claimant successfully sought rectification of the deed. In Craddock Brothers v Hunt [1923] 2 Ch 136 (CA) the Court of Appeal that, where a conveyance was intended by vendor and purchaser to convey property to the purchaser but, because of mistake shared by both parties in reducing the oral agreement to writing and drawing up the conveyance, it was instead conveyed to the defendant, the purchaser could have the deed rectified. Craddock was followed in Ireland in Lac Minerals v Chevron Mineral Corporation of Ireland and Ivernia [1995] 1 ILRM 161 (Ir HC; Murphy J). Craddock in particular shows that no point has been taken that rectifying up is improper as to land because of the Statute of frauds. Conversely, although many US cases do in fact take the reformation (rectifcation) route, they also take the constructive trust route. In In re the Estate of Tolin 622 So 2d 988 (1993) the testator had destroyed a copy of a codicil to his will, in the mistaken belief that it was the original codicil, intending to revoke it. The Supreme Court of Florida held that this was insufficient to revoke the codicil, but held that the beneficiary under the codicil was unjustly enriched at the expense of the intended beneficiary under the will. Best, 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 .