========================================================================= Date: Wed, 7 Nov 2001 13:38:26 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Etridge and the constitution Comments: To: ghall@mccarthy.ca MIME-version: 1.0 Content-type: text/html; charset="us-ascii" I have been trying to get through Etridge. Although I am not there yet, one thing has struck me.

In Kleinwort Benson there was some discussion of prospective overruling, but it was not really given serious consideration. This came up much more squarely in R. v. Governor of HM Prison Brockhill (27 July 2000). This is the case which confirmed the liability of the prison governor for wrongful imprisonment, when he calculated a release date in accordance with earlier case law, but later case law (after his calculation) overruled the earlier decisions and required an earlier release. The Lords considered prospective overruling but while they left it open as a possibility, they decided that such an option would not affect the case at bar.

In the light of this I am struck by some passages in the leading speech of Lord Nicholls in Etridge:

50. The principal area of controversy on these appeals concerns the steps a bank should take when it has been put on inquiry. In O'Brien Lord Browne-Wilkinson, at [1994] 1 AC 180, 196-197, said that a bank can reasonably be expected to take steps to bring home to the wife the risk she is running by standing as surety and to advise her to take independent advice. That test is applicable to past transactions. All the cases now before your Lordships' House fall into this category. For the future a bank satisfies these requirements if it insists that the wife attend a private meeting with a representative of the bank at which she is told of the extent of her liability as surety, warned of the risk she is running and urged to take independent legal advice. In exceptional cases the bank, to be safe, has to insist that the wife is separately advised.
[emphasis in original]

Here I think Lord Nicholls is summarizing what Lord B-W said in O'Brien. Later, after setting out his own procedures, Lord N says:

...

80. These steps will be applicable to future transactions. In respect of past transactions, the bank will ordinarily be regarded as having discharged its obligations if a solicitor who was acting for the wife in the transaction gave the bank confirmation to the effect that he had brought home to the wife the risks she was running by standing as surety.

This looks kind of legislative to me. Contrast Lord Hobhouse:

100. To the end that lenders, those advising parties and, indeed, judges should have clear statements of the law on which to base themselves, I will state at the outset that in this speech I shall agree with my noble and learned friend Lord Nicholls and, specifically, the guidance which he gives concerning the role of the burden of proof, the duties of solicitors towards their clients (paragraphs 64-68, and paragraph 74), and the steps which a lender which has been put on enquiry should take paragraph 79). I would stress that this guidance should not be treated as optional, to be watered down when it proves inconvenient (as may be thought to have been the fate of Lord Browne-Wilkinson's equally carefully crafted scheme). Nor should it be regarded as something which will only apply to future transactions; it has represented, and continues to represent, the reasonable response to being put on enquiry. ...


What do others think?

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 6635,email . ========================================================================= Date: Thu, 8 Nov 2001 18:37:04 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Fw: [RDG:] Etridge and the constitution MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0094_01C16884.5CF02BA0" This is a multi-part message in MIME format. ------=_NextPart_000_0094_01C16884.5CF02BA0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable -----Original Message----- From: Gordon Goldberg To: Lionel Smith Date: 08 November 2001 18:36 Subject: Re: [RDG:] Etridge and the constitution Although probably even less advanced than he through Etridge, I = respectfully share Lionel's view. Legislation (unless by an Act of = Parliament, agreed to by the Commons and the Crown, as well as by their = Lordships) is ultra vires the House of Lords - Beamish v. Beamish (1861) = 9 H.L.C. 274 (I.) at 338-339. Thus, in their judicial capacity their = Lordships are limited to the induction of the relevant principles from = the previous cases and the application of those principles to the facts = of the case before them, so as to deduce its resolution in favour of the = appellant or the respondent. To purport to lay down what will be = invariably satisfactory in the future (though properly continuing to let = past transactions depend on the facts of each case) goes far beyond = these limits. Yet that is what Lord Browne-Wilkinson did in O'Brien = [1994] A.C. 180, at 196; and so I have always taught that, being = pretended legislation, what Lord Hobhouse calls "Lord Browne-Wilkinson's = ... carefully crafted scheme" could not be part of the ratio decidendi = of O'Brien. I submit such pretensions should cause no surprise because = (as I tried to argue in [2000] R.L.R. at 200 n.65) the Practice = Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 is itself so tainted = and perhaps may be seen as the root of the evil.=20 -----Original Message----- From: Lionel Smith To: ENRICHMENT@LISTS.MCGILL.CA Date: 07 November 2001 19:22 Subject: [RDG:] Etridge and the constitution =20 =20 I have been trying to get through Etridge. Although I am not there = yet, one thing has struck me. =20 In Kleinwort Benson there was some discussion of prospective = overruling, but it was not really given serious consideration. This came = up much more squarely in R. v. Governor of HM Prison Brockhill (27 July = 2000). This is the case which confirmed the liability of the prison = governor for wrongful imprisonment, when he calculated a release date in = accordance with earlier case law, but later case law (after his = calculation) overruled the earlier decisions and required an earlier = release. The Lords considered prospective overruling but while they left = it open as a possibility, they decided that such an option would not = affect the case at bar. =20 In the light of this I am struck by some passages in the leading = speech of Lord Nicholls in Etridge: =20 50. The principal area of controversy on these appeals concerns the = steps a bank should take when it has been put on inquiry. In O'Brien = Lord Browne-Wilkinson, at [1994] 1 AC 180, 196-197, said that a bank can = reasonably be expected to take steps to bring home to the wife the risk = she is running by standing as surety and to advise her to take = independent advice. That test is applicable to past transactions. All = the cases now before your Lordships' House fall into this category. For = the future a bank satisfies these requirements if it insists that the = wife attend a private meeting with a representative of the bank at which = she is told of the extent of her liability as surety, warned of the risk = she is running and urged to take independent legal advice. In = exceptional cases the bank, to be safe, has to insist that the wife is = separately advised. [emphasis in original] =20 Here I think Lord Nicholls is summarizing what Lord B-W said in = O'Brien. Later, after setting out his own procedures, Lord N says: =20 ... =20 80. These steps will be applicable to future transactions. In = respect of past transactions, the bank will ordinarily be regarded as = having discharged its obligations if a solicitor who was acting for the = wife in the transaction gave the bank confirmation to the effect that he = had brought home to the wife the risks she was running by standing as = surety. =20 This looks kind of legislative to me. Contrast Lord Hobhouse: =20 100. To the end that lenders, those advising parties and, indeed, = judges should have clear statements of the law on which to base = themselves, I will state at the outset that in this speech I shall agree = with my noble and learned friend Lord Nicholls and, specifically, the = guidance which he gives concerning the role of the burden of proof, the = duties of solicitors towards their clients (paragraphs 64-68, and = paragraph 74), and the steps which a lender which has been put on = enquiry should take paragraph 79). I would stress that this guidance = should not be treated as optional, to be watered down when it proves = inconvenient (as may be thought to have been the fate of Lord = Browne-Wilkinson's equally carefully crafted scheme). Nor should it be = regarded as something which will only apply to future transactions; it = has represented, and continues to represent, the reasonable response to = being put on enquiry. ... =20 =20 What do others think? =20 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 6635,email . = ------=_NextPart_000_0094_01C16884.5CF02BA0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
 
-----Original = Message-----
From:=20 Gordon Goldberg <gordon.goldberg@buckingh= am.ac.uk>
To:=20 Lionel Smith <lionel.smith@MCGILL.CA>
= Date:=20 08 November 2001 18:36
Subject: Re: [RDG:] Etridge and the = constitution

Although probably even less advanced = than he=20 through Etridge, I respectfully share Lionel's view. = Legislation=20 (unless by an Act of Parliament, agreed to by the Commons and the Crown, = as well=20 as by their Lordships) is ultra vires the House of Lords -=20 Beamish v. Beamish (1861) 9 H.L.C. 274 (I.) at 338-339. = Thus, in=20 their judicial capacity their Lordships are limited to the induction of = the=20 relevant principles from the previous cases and the application of those = principles to the facts of the case before them, so as to deduce its = resolution=20 in favour of the appellant or the respondent. To purport to lay down = what will=20 be invariably satisfactory in the future (though properly continuing to = let past=20 transactions depend on the facts of each case) goes far beyond these = limits. Yet=20 that is what Lord Browne-Wilkinson did in O'Brien [1994] A.C. = 180, at=20 196; and so I have always taught that, being pretended = legislation,=20 what Lord Hobhouse calls "Lord Browne-Wilkinson's ... carefully = crafted=20 scheme" could not be part of the ratio decidendi of=20 O'Brien. I submit such pretensions should cause no surprise = because (as I=20 tried to argue in [2000] R.L.R. at 200 n.65) the Practice Statement=20 (Judicial Precedent) [1966] 1 W.L.R. 1234 is itself so = tainted and=20 perhaps may be seen as the root of the evil.
-----Original = Message-----
From:=20 Lionel Smith <lionel.smith@MCGILL.CA>
= To:=20 ENRICHMENT@LISTS.MCGILL.CA= =20 <ENRICHMENT@LISTS.MCGILL.CA= >
Date:=20 07 November 2001 19:22
Subject: [RDG:] Etridge and the = constitution

I have been trying to get through = Etridge.=20 Although I am not there yet, one thing has struck me.

In = Kleinwort=20 Benson there was some discussion of prospective overruling, but it = was not=20 really given serious consideration. This came up much more squarely = in R. v.=20 Governor of HM Prison Brockhill (27 July 2000). This is the case = which=20 confirmed the liability of the prison governor for wrongful = imprisonment,=20 when he calculated a release date in accordance with earlier case = law, but=20 later case law (after his calculation) overruled the earlier = decisions and=20 required an earlier release. The Lords considered prospective = overruling but=20 while they left it open as a possibility, they decided that such an = option=20 would not affect the case at bar.

In the light of this I am = struck by=20 some passages in the leading speech of Lord Nicholls in = Etridge:

50.=20 The principal area of controversy on these appeals concerns the = steps a bank=20 should take when it has been put on inquiry. In O'Brien Lord=20 Browne-Wilkinson, at [1994] 1 AC 180, 196-197, said that a bank can=20 reasonably be expected to take steps to bring home to the wife the = risk she=20 is running by standing as surety and to advise her to take = independent=20 advice. That test is applicable to past transactions. All the = cases=20 now before your Lordships' House fall into this category. For the=20 future a bank satisfies these requirements if it insists that = the=20 wife attend a private meeting with a representative of the bank at = which she=20 is told of the extent of her liability as surety, warned of the risk = she is=20 running and urged to take independent legal advice. In exceptional = cases the=20 bank, to be safe, has to insist that the wife is separately=20 advised.
[emphasis in original]

Here I think Lord Nicholls = is=20 summarizing what Lord B-W said in O'Brien. Later, after setting out = his own=20 procedures, Lord N says:

...

80. These steps will be=20 applicable to future transactions. In respect of past transactions, = the bank=20 will ordinarily be regarded as having discharged its obligations if = a=20 solicitor who was acting for the wife in the transaction gave the = bank=20 confirmation to the effect that he had brought home to the wife the = risks=20 she was running by standing as surety.

This looks kind of = legislative=20 to me. Contrast Lord Hobhouse:

100. To the end that lenders, = those=20 advising parties and, indeed, judges should have clear statements of = the law=20 on which to base themselves, I will state at the outset that in this = speech=20 I shall agree with my noble and learned friend Lord Nicholls and,=20 specifically, the guidance which he gives concerning the role of the = burden=20 of proof, the duties of solicitors towards their clients (paragraphs = 64-68,=20 and paragraph 74), and the steps which a lender which has been put = on=20 enquiry should take paragraph 79). I would stress that this guidance = should=20 not be treated as optional, to be watered down when it proves = inconvenient=20 (as may be thought to have been the fate of Lord Browne-Wilkinson's = equally=20 carefully crafted scheme). Nor should it be regarded as something = which will=20 only apply to future transactions; it has represented, and continues = to=20 represent, the reasonable response to being put on enquiry.=20 ...


What do others think?

Lionel=20 ____________________________________________________________________ = This=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in = the body=20 of a message to . To unsubscribe, send=20 "signoff enrichment" to the same address. To make a = posting to all=20 group members, send to . The list is run = by=20 Lionel Smith of McGill University, tel. (+1) 514 398=20 6635,email . ------=_NextPart_000_0094_01C16884.5CF02BA0-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 9 Nov 2001 10:32:42 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Etridge and the constitution Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" >Legislation (unless by an Act of Parliament, >agreed to by the Commons and the Crown, >as well as by their Lordships) is ultra vires >the House of Lords - Beamish v. Beamish >(1861) 9 H.L.C. 274 (I.) at 338-339. Lionel and Gordon both seem to me to be running together the question whether the Lords can act "prospectively" with the question whether they can act "legislatively". But these are very different issues. Or where is it laid down that prospective decision-taking should be confined to legislatures? >Thus, in their judicial capacity their Lordships >are limited to the induction of the relevant >principles from the previous cases and the >application of those principles to the facts >of the case before them, so as to deduce its >resolution in favour of the appellant or the >respondent. A rather narrow view of the lords' function! Surely most "leading cases" go further, and are "leading" for precisely that reason. Was Kleinwort Benson merely an exercise in induction? Was Woolwich? >To purport to lay down what will be invariably >satisfactory in the future (though properly >continuing to let past transactions depend on >the facts of each case) goes far beyond >these limits. Yet that is what Lord Browne- >Wilkinson did in O'Brien [1994] A.C. 180, at >196; and so I have always taught that, being >pretended legislation, what Lord Hobhouse >calls "Lord Browne-Wilkinson's ... carefully >crafted scheme" could not be part of the ratio >decidendi of O'Brien. I would imagine that both lords knew perfectly well that what they were saying was not ratio. Indeed, they may only have been happy to speak in such specific terms BECAUSE they knew the detail would not bind lower courts. This seems more plausible than calling B-W's opinions "pretended legislation". >I submit such pretensions should cause no >surprise because (as I tried to argue in [2000] >R.L.R. at 200 n.65) the Practice Statement >(Judicial Precedent) [1966] 1 W.L.R. 1234 is >itself so tainted and perhaps may be seen >as the root of the evil. The root of which evil? Of giving pronouncements of the house of lords too much weight, or too little? 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 6635,email . ========================================================================= Date: Fri, 9 Nov 2001 16:07:01 +0000 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: New article MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Just out: Francesco Giglio, Restitition for Wrongs: a Comparative Analysis (2001) Oxford University Comparative Law Forum 6 OUCLF is located at: http://ouclf.iuscomp.org You can discuss the same article at: http://ouclf.iuscomp.org/cgi-bin/dcforum/dcboard.cgi?az=list&forum=DCForumID37 OUCLF runs a free subscription service at: http://ouclf.iuscomp.org/subscribe.htm Gerhard Dannemann ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 9 Nov 2001 16:15:16 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Etridge and the Constitution MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_014A_01C16939.B82D3F70" This is a multi-part message in MIME format. ------=_NextPart_000_014A_01C16939.B82D3F70 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable -----Original Message----- From: Steve Hedley To: ENRICHMENT@LISTS.MCGILL.CA Date: 09 November 2001 11:11 Subject: [RDG:] Etridge and the constitution 1. Legislation (unless by an Act of Parliament, agreed to by the = Commons and the Crown, as well as by their Lordships) is ultra vires the = House of Lords - Beamish v. Beamish (1861) 9 H.L.C. 274 (I.) at 338-339. Lionel and Gordon both seem to me to be running together the question = whether the Lords can act "prospectively" with the question whether they = can act "legislatively". But these are very different issues. Or where = is it laid down that prospective decision-taking should be confined to = legislatures? 2. Thus, in their judicial capacity their Lordships are limited to the = induction of the relevant principles from the previous cases and the = application of those principles to the facts of the case before them, so = as to deduce its resolution in favour of the appellant or the = respondent. A rather narrow view of the lords' function! Surely most "leading = cases" go further, and are "leading" for precisely that reason. Was Kleinwort Benson merely an exercise in induction? Was Woolwich? >To purport to lay down what will be invariably >satisfactory in the future (though properly >continuing to let past transactions depend on >the facts of each case) goes far beyond >these limits. Yet that is what Lord Browne- >Wilkinson did in O'Brien [1994] A.C. 180, at >196; and so I have always taught that, being >pretended legislation, what Lord Hobhouse >calls "Lord Browne-Wilkinson's ... carefully >crafted scheme" could not be part of the ratio >decidendi of O'Brien. I would imagine that both lords knew perfectly well that what they were saying was not ratio. Indeed, they may only have been happy to speak in such specific terms BECAUSE they knew the detail would not bind lower courts. This seems more plausible than calling B-W's opinions "pretended legislation". >I submit such pretensions should cause no >surprise because (as I tried to argue in [2000] >R.L.R. at 200 n.65) the Practice Statement >(Judicial Precedent) [1966] 1 W.L.R. 1234 is >itself so tainted and perhaps may be seen >as the root of the evil. The root of which evil? Of giving pronouncements of the house of lords = too much weight, or too little? Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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 6635,email . ------=_NextPart_000_014A_01C16939.B82D3F70 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
-----Original Message-----
From: = Steve Hedley=20 <swh10@CAM.AC.UK>
To: ENRICHMENT@LISTS.MCGILL.CA= <ENRICHMENT@LISTS.MCGILL.CA= >
Date: 09 November 2001 = 11:11
Subject: [RDG:]=20 Etridge and the constitution
 
1.
Legislation = (unless=20 by an Act of Parliament, agreed to by the Commons and the Crown, as = well as=20 by their Lordships) is ultra vires the House of Lords - = Beamish=20 v. Beamish (1861) 9 H.L.C. 274 (I.) at = 338-339.
Lionel and Gordon both seem to me to = be running=20 together the question whether the Lords can act = "prospectively" with=20 the question whether they can act "legislatively".  But = these are=20 very different issues.  Or where is it laid down that prospective=20 decision-taking should be confined to legislatures?

2.
Thus, in = their=20 judicial capacity their Lordships are limited to the induction of = the=20 relevant principles from the previous cases and the application of = those=20 principles to the facts of the case before them, so as to deduce its = resolution in favour of the appellant or the = respondent.
A rather narrow view of the lords'=20 function!  Surely most "leading cases"
go further, and = are=20 "leading" for precisely that reason.  Was = Kleinwort
Benson=20 merely an exercise in induction?  Was Woolwich?

>To = purport to=20 lay down what will be invariably
>satisfactory in the future = (though=20 properly
>continuing to let past transactions depend on
>the = facts=20 of each case) goes far beyond
>these limits. Yet that is what Lord = Browne-
>Wilkinson did in O'Brien [1994] A.C. 180, at
>196; = and so I=20 have always taught that, being
>pretended legislation, what Lord=20 Hobhouse
>calls "Lord Browne-Wilkinson's ... = carefully
>crafted=20 scheme" could not be part of the ratio
>decidendi of=20 O'Brien.

I would imagine that both lords knew perfectly well that = what=20 they were
saying was not ratio.  Indeed, they may only have been = happy=20 to speak in
such specific terms BECAUSE they knew the detail would = not bind=20 lower
courts. This seems more plausible than calling B-W's opinions=20 "pretended
legislation".

>I submit such = pretensions=20 should cause no
>surprise because (as I tried to argue in=20 [2000]
>R.L.R. at 200 n.65) the Practice = Statement
>(Judicial=20 Precedent) [1966] 1 W.L.R. 1234 is
>itself so tainted and perhaps = may be=20 seen
>as the root of the evil.

The root of which = evil?  Of=20 giving pronouncements of the house of lords too
much weight, or too=20 little?


         =             &= nbsp;           &n= bsp;    =20 Steve=20 Hedley

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D

FACULTY=20 OF LAW, UNIVERSITY OF CAMBRIDGE

telephone and answering machine : = (01223)=20 334931
e-mail :   steve.hedley@law.cam.ac.uk=
messages=20 : (01223) 334900
fax : (01223) 334967

Christ's=20 College     Cambridge CB2=20 3BU

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= 3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D

__________________________________________________= __________________
This=20 message was delivered through the Restitution Discussion Group,
an=20 international internet LISTSERV devoted to all aspects of the law
of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" = in
the body=20 of a message to <listserv@lists.mcgill.ca>= . To=20 unsubscribe,
send "signoff enrichment" to the same address. = To make=20 a posting to
all group members, send to <enrichment@lists.mcgill.ca= >. The=20 list is
run by Lionel Smith of McGill University, tel. (+1) 514 398=20 6635,email
<lionel.smith@mcgill.ca>.
 
------=_NextPart_000_014A_01C16939.B82D3F70-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 9 Nov 2001 11:44:29 -0500 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: Etridge and the Constitution Comments: To: Gordon Goldberg Comments: cc: swh10@CAM.AC.UK MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------3A190B2EB2C1B7BD46086AC6" --------------3A190B2EB2C1B7BD46086AC6 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit under the usual terminology any dictum [statement of law unnecessary for the decision of the particular case] is non-judicial: prospective overrulings are egregious as it is the legislature which is authorized to lay down rules for future behavior. a considered dictum is an attempted usurpation, and if later respected would be judicial legislation however, because legislating is beyond the court's authority, the dictum does not have the force of law, and under the usual ideas of stare decisis, a later court is not bound by the dicta of an earlier i wouldn't get a lot of comfort from that if the later court happens to have the very judges who enthusiastically 'legislated' in the prior case so although legitimate judical holding and illegtimate dicta differ in respectability for later courts: they are, from the gutter perspective of clients, the same in that each will have whatever effect a later court in fact gives it.. > > Gordon Goldberg wrote: > -----Original Message----- > From: Steve Hedley > To: ENRICHMENT@LISTS.MCGILL.CA > Date: 09 November 2001 > 11:11 > Subject: [RDG:] Etridge and the constitution 1. > > Legislation (unless by an Act of > Parliament, agreed to by the Commons and > the Crown, as well as by their Lordships) > is ultra vires the House of Lords - > Beamish v. Beamish (1861) 9 H.L.C. 274 > (I.) at 338-339. > > Lionel and Gordon both seem to me to be running > together the question whether the Lords can act > "prospectively" with the question whether they can > act "legislatively". But these are very different > issues. Or where is it laid down that prospective > decision-taking should be confined to legislatures? > > 2. > > Thus, in their judicial capacity their > Lordships are limited to the induction of > the relevant principles from the previous > cases and the application of those > principles to the facts of the case before > them, so as to deduce its resolution in > favour of the appellant or the respondent. > > A rather narrow view of the lords' function! Surely > most "leading cases" > go further, and are "leading" for precisely that > reason. Was Kleinwort > Benson merely an exercise in induction? Was > Woolwich? > > >To purport to lay down what will be invariably > >satisfactory in the future (though properly > >continuing to let past transactions depend on > >the facts of each case) goes far beyond > >these limits. Yet that is what Lord Browne- > >Wilkinson did in O'Brien [1994] A.C. 180, at > >196; and so I have always taught that, being > >pretended legislation, what Lord Hobhouse > >calls "Lord Browne-Wilkinson's ... carefully > >crafted scheme" could not be part of the ratio > >decidendi of O'Brien. > > I would imagine that both lords knew perfectly well > that what they were > saying was not ratio. Indeed, they may only have > been happy to speak in > such specific terms BECAUSE they knew the detail > would not bind lower > courts. This seems more plausible than calling B-W's > opinions "pretended > legislation". > > >I submit such pretensions should cause no > >surprise because (as I tried to argue in [2000] > >R.L.R. at 200 n.65) the Practice Statement > >(Judicial Precedent) [1966] 1 W.L.R. 1234 is > >itself so tainted and perhaps may be seen > >as the root of the evil. > > The root of which evil? Of giving pronouncements of > the house of lords too > much weight, or too little? > > > 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 6635,email > . --------------3A190B2EB2C1B7BD46086AC6 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit  
under the usual terminology any dictum [statement of law unnecessary for the
decision of the particular case] is non-judicial:  prospective overrulings are egregious

as it is the legislature which is authorized to lay down rules for future behavior. a considered dictum is an  attempted usurpation, and if later respected would be judicial legislation

however,  because legislating is beyond the court's authority,
the dictum does not have the force of law, and under
 the usual ideas of stare decisis, a later court is not bound by the dicta of an earlier

i wouldn't get a lot of comfort from that  if the later court happens to have the very judges who enthusiastically 'legislated'   in the prior case

so although legitimate judical holding and illegtimate dicta differ in respectability for later courts:    they are, from the gutter perspective of clients,  the same in that each will have whatever effect a later court in fact gives it..
 

>
>
 

Gordon Goldberg wrote:

 -----Original Message-----
From: Steve Hedley <swh10@CAM.AC.UK>
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>Date: 09 November 2001 11:11
Subject: [RDG:] Etridge and the constitution 1.
Legislation (unless by an Act of Parliament, agreed to by the Commons and the Crown, as well as by their Lordships) is ultra vires the House of Lords - Beamish v. Beamish (1861) 9 H.L.C. 274 (I.) at 338-339.
Lionel and Gordon both seem to me to be running together the question whether the Lords can act "prospectively" with the question whether they can act "legislatively".  But these are very different issues.  Or where is it laid down that prospective decision-taking should be confined to legislatures? 
2.
Thus, in their judicial capacity their Lordships are limited to the induction of the relevant principles from the previous cases and the application of those principles to the facts of the case before them, so as to deduce its resolution in favour of the appellant or the respondent.
A rather narrow view of the lords' function!  Surely most "leading cases"
go further, and are "leading" for precisely that reason.  Was Kleinwort
Benson merely an exercise in induction?  Was Woolwich?

>To purport to lay down what will be invariably
>satisfactory in the future (though properly
>continuing to let past transactions depend on
>the facts of each case) goes far beyond
>these limits. Yet that is what Lord Browne-
>Wilkinson did in O'Brien [1994] A.C. 180, at
>196; and so I have always taught that, being
>pretended legislation, what Lord Hobhouse
>calls "Lord Browne-Wilkinson's ... carefully
>crafted scheme" could not be part of the ratio
>decidendi of O'Brien.

I would imagine that both lords knew perfectly well that what they were
saying was not ratio.  Indeed, they may only have been happy to speak in
such specific terms BECAUSE they knew the detail would not bind lower
courts. This seems more plausible than calling B-W's opinions "pretended
legislation".

>I submit such pretensions should cause no
>surprise because (as I tried to argue in [2000]
>R.L.R. at 200 n.65) the Practice Statement
>(Judicial Precedent) [1966] 1 W.L.R. 1234 is
>itself so tainted and perhaps may be seen
>as the root of the evil.

The root of which evil?  Of giving pronouncements of the house of lords too
much weight, or too little?
 

              & nbsp;               ;          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 <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, tel. (+1) 514 398 6635,email
<lionel.smith@mcgill.ca>. 

--------------3A190B2EB2C1B7BD46086AC6-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Sun, 11 Nov 2001 15:13:32 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Etridge and the constitution In-Reply-To: <3BEC07EC.BFFA7510@email.andromeda.rutgers.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" >under the usual terminology any dictum [statement of >law unnecessary for the decision of the particular >case] is non-judicial: Are dicta "non-judicial"? Certainly there is no duty on later courts to follow them. But it seems to me that we are in danger of confusing whether a statement of law is binding (ratio/dictum) with the very different question whether the judge has stepped outside his/her proper role (judicial/non-judicial). I don't doubt that B-W's statement was dictum, but why on earth shouldn't he have made it? >prospective overrulings are egregious A matter of opinion, not to be resolved simply by arbitrary definitions. For an interesting survey of US and UK attitudes to prospective overrulings see: "Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility" Roger J. Traynor (1999) 50 Hastings Law Journal (April) 771 on the web at: http://www.uchastings.edu/hlj/articles/Traynor_50-4.pdf >so although legitimate judical holding and illegtimate >dicta differ in respectability for later courts: they are, >from the gutter perspective of clients, the same in that >each will have whatever effect a later court in fact >gives it. Nothing wrong with the view from the gutter. As Oscar Wilde said, "We are all in the gutter, but some of us are looking at the stars." 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 6635,email . ========================================================================= Date: Mon, 12 Nov 2001 12:27:22 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Etridge and the Constitution Comments: To: Steve Hedley MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0030_01C16B75.6123B400" This is a multi-part message in MIME format. ------=_NextPart_000_0030_01C16B75.6123B400 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable In my respectful submission Lord Browne-Wilkinson should not have made = it, because (as reported in [1994] 1 A.C. at 196G-197A) the words of his = statement were: "As to past transactions, it will depend on the facts of each case = whether the steps taken by the creditor satisfy this test. However for = the future in my judgment a creditor will have satisfied these = requirements if it insists that the wife attend a private meeting (in = the absence of the husband) with a representative of the creditor at = which she is told of the extent of her liability as surety, warned of = the risk she is running and urged to take independent advice. If these = steps are taken in my judgment the creditor will have taken such = reasonable steps as are necessary to preclude a subsequent claim that it = had constructive notice of the wife's rights." If, instead, his Lordship had said, "It must depend on the facts of each case whether the steps taken by = the creditor satisfy this test. However, as at present advised, I expect = generally a creditor to satisfy these requirements ... independent = advice", and stopped there, I may have respectfully doubted his confidence, but I = could not have complained of his seeming (if not real) arrogation. ----- Extract from Original Message----- From: Steve Hedley To: ENRICHMENT@LISTS.MCGILL.CA Date: 12 November 2001 11:22 Subject: [RDG:] Etridge and the constitution under the usual terminology any dictum [statement of law unnecessary = for the decision of the particular case] is non-judicial: Are dicta "non-judicial"? Certainly there is no duty on later courts = tofollow them. But it seems to me that we are in danger of confusing = whether a statement of law is binding (ratio/dictum) with the very = different question whether the judge has stepped outside his/her proper role = (judicial/non-judicial). I don't doubt that B-W's statement was dictum, = but why on earth shouldn't he have made it? ------=_NextPart_000_0030_01C16B75.6123B400 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
In my respectful submission Lord=20 Browne-Wilkinson should not have made it, because (as reported in [1994] = 1 A.C.=20 at 196G-197A) the words of his statement were:
"As to past=20 transactions, it will depend on the facts of each case whether the = steps=20 taken by the creditor satisfy this test. However for the future in = my=20 judgment a creditor will have satisfied these requirements if it = insists=20 that the wife attend a private meeting (in the absence of the = husband) with=20 a representative of the creditor at which she is told of the extent = of her=20 liability as surety, warned of the risk she is running and urged to = take=20 independent advice. If these steps are taken in my judgment the = creditor=20 will have taken such reasonable steps as are necessary to preclude a = subsequent claim that it had constructive notice of the wife's=20 rights."
If, instead, his Lordship had said,
"It must depend on the facts of each = case=20 whether the steps taken by the creditor satisfy this test. However, = as at=20 present advised, I expect generally a creditor to satisfy these = requirements=20 ... independent advice",
and stopped there, I may have respectfully doubted = his=20 confidence, but I could not have complained of his = seeming (if not real) arrogation.
 
----- Extract from Original = Message-----
From:=20 Steve Hedley <swh10@CAM.AC.UK>
To:=20 ENRICHMENT@LISTS.MCGILL.CA= =20 <ENRICHMENT@LISTS.MCGILL.CA= >
Date:=20 12 November 2001 11:22
Subject: [RDG:] Etridge and the=20 constitution

under the usual terminology any dictum [statement of law=20 unnecessary for the decision of the particular case] is=20 non-judicial:
Are dicta "non-judicial"?  Certainly there is no = duty on=20 later courts tofollow them. But it seems to me that we are in danger of=20 confusing whether a statement of law is binding (ratio/dictum) with the = very=20 different
question whether the judge has stepped outside his/her = proper role=20 (judicial/non-judicial). I don't doubt that B-W's statement was dictum, = but why=20 on earth shouldn't he have made it?

 
------=_NextPart_000_0030_01C16B75.6123B400-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Sat, 10 Nov 2001 16:48:42 -0000 Reply-To: Gordon Goldberg Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gordon Goldberg Subject: Etridge and the Constitution Comments: To: Steve Hedley , Allan Axelrod MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0018_01C16A07.8DDDE750" This is a multi-part message in MIME format. ------=_NextPart_000_0018_01C16A07.8DDDE750 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I beg the pardon of members of the list for my despatch, which = immediately and accidentally preceded this and was premature. The = numbered paragraphs herein are my replies to Steve's answers to my = propositions which he has reproduced in the "Earlier Original Message" = appearing below. The numbers correspond to the bold figures which I have = inserted in that message. 1.. Prospective decision making is avowedly to change the law. A = change in the law can be made only by an Act of Parliament, not by the = House of Lords acting alone, whether judicially or otherwise - Beamish = v. Beamish (1861) 9 H.L.C. 274 (I.), 338-339.=20 2.. In [2000] R.L.R. at 200 n.65 I have argued that the decision in = Kleinwort Benson is unconstitutional. In my e-missive =20 To: Hector MacQueen Cc: = restitution@maillist.ox.ac.uk Date: 15 August 1999 17:54 Subject: Re: Payments under Protest =20 I suggested a traditional reason for the decision in Woolwich.=20 =20 3.. I respectively concur with what Allan has wrtten in the "Later = Original Message" appearing below.=20 4.. The evil is of giving pronouncements of the House of Lords = weight: both too little, in allowing them without restriction to be = overruled by the House's later decisions; and too much, in allowing the = later pronouncements to change the law authoritatively laid down by the = House's prior decisions and so to enact legislation. After all, quite = apart from the Practice Statement, the Lords Spiritual and Temporal in = the Queen's Court of Parliament assembled (like one of H.M. courts of = justice, insofar as it is not bound by statute or by the decision of a = tribunal higher in the hierarchy) are free to correct the mistakes of = themselves or their predecessors (Midland Silicones v. Scruttons [1962] = A.C. 446, 476-7), but not simply to give effect to mere changes or = differences of opinion (Beamish v. Beamish above; Farrell v Alexander = [1976] Q.B. 345, 369). Mistakes may consist of the overlooking of = established principles (Midland Silicones, above, at 477-8) or of = authorities, whether statutes (London Street Tramways v L.C.C. [1898] = A.C. 375, 380-1) or cases (Nicholas v Penny [1950] 2 KB 466). Cf. "per = incuriam" in Young v Bristol Aeroplane Co [1944] KB 718 and "Dormitat = Homer" in Horace's Ars Poetica 359, translated in Farrell, above. -----Later Original Message----- From: Allan Axelrod To: Gordon Goldberg Cc: ENRICHMENT@LISTS.MCGILL.CA ; = swh10@CAM.AC.UK Date: 09 November 2001 16:51 Subject: Re: [RDG:] Etridge and the Constitution under the usual terminology any dictum [statement of law unnecessary for = the decision of the particular case] is non-judicial: prospective = overrulings are egregious=20 as it is the legislature which is authorized to lay down rules for = future behavior. a considered dictum is an attempted usurpation, and if = later respected would be judicial legislation=20 however, because legislating is beyond the court's authority, the = dictum does not have the force of law, and under=20 the usual ideas of stare decisis, a later court is not bound by the = dicta of an earlier i wouldn't get a lot of comfort from that if the = later court happens to have the very judges who enthusiastically = 'legislated' in the prior case=20 so although legitimate judical holding and illegtimate dicta differ in = respectability for later courts: they are, from the gutter = perspective of clients, the same in that each will have whatever effect = a later court in fact gives it..=20 -----Earlier Original Message----- From: Steve Hedley To: ENRICHMENT@LISTS.MCGILL.CA Date: 09 November 2001 11:11 Subject: [RDG:] Etridge and the constitution =20 1. Legislation (unless by an Act of Parliament, agreed to by the = Commons and the Crown, as well as by their Lordships) is ultra vires the = House of Lords - Beamish v. Beamish (1861) 9 H.L.C. 274 (I.) at 338-339. Lionel and Gordon both seem to me to be running together the question = whether the Lords can act "prospectively" with the question whether they = can act "legislatively". But these are very different issues. Or where = is it laid down that prospective decision-taking should be confined to = legislatures? 2. Thus, in their judicial capacity their Lordships are limited to the = induction of the relevant principles from the previous cases and the = application of those principles to the facts of the case before them, so = as to deduce its resolution in favour of the appellant or the = respondent. A rather narrow view of the lords' function! Surely most "leading = cases" go further, and are "leading" for precisely that reason. Was = Kleinwort Benson merely an exercise in induction? Was Woolwich? =20 3. To purport to lay down what will be invariably satisfactory in the = future (though properly continuing to let past transactions depend on = the facts of each case) goes far beyond these limits. Yet that is what = Lord Browne-Wilkinson did in O'Brien [1994] A.C. 180, at 196; and so I = have always taught that, being pretended legislation, what Lord Hobhouse = calls "Lord Browne-Wilkinson's ... carefully crafted scheme" could not = be part of the ratio decidendi of O'Brien. I would imagine that both lords knew perfectly well that what they were = saying was not ratio. Indeed, they may only have been happy to speak in = such specific terms BECAUSE they knew the detail would not bind lower = courts. This seems more plausible than calling B-W's opinions "pretended = legislation". 4. I submit such pretensions should cause no surprise because (as I = tried to argue in [2000] R.L.R. at 200 n.65) the Practice Statement = (Judicial Precedent) [1966] 1 W.L.R. 1234 is itself so tainted and = perhaps may be seen as the root of the evil. The root of which evil? Of giving pronouncements of the house of lords = too much weight, or too little? Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe 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 6635,email . ------=_NextPart_000_0018_01C16A07.8DDDE750 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
I beg the pardon of = members of the=20 list for my despatch, which immediately and accidentally preceded this = and was=20 premature. = The numbered=20 paragraphs herein are my replies to Steve's answers to my propositions = which he=20 has reproduced in the "Earlier Original Message" appearing = below.=20 The numbers = correspond to the=20 bold figures which I have inserted in that message.
  1. Prospective=20 decision making is avowedly to change the law. A change in the law = can be=20 made only by an Act of Parliament, not by the House of Lords acting = alone,=20 whether judicially or otherwise - Beamish v. Beamish (1861) = 9=20 H.L.C. 274 (I.), 338-339.
  2. In [2000] = R.L.R. at 200=20 n.65 I have argued that the decision in Kleinwort Benson is = unconstitutional. In my e-missive =20
    To: Hector MacQueen <eusl07@srv0.law.ed.ac.uk>= Cc:=20 restitution@maillist.ox.ac.= uk=20 <restitution@maillist.ox.ac.= uk>
    Date:=20 15 August 1999 17:54 Subject: Re: Payments under=20 Protest
     I suggested a traditional reason for = the=20 decision in Woolwich.
  3. I respectively concur with what Allan has wrtten = in the=20 "Later Original Message" appearing below.=20
  4. The evil is = of giving=20 pronouncements of the House of Lords weight: both too little, in = allowing=20 them without restriction to be overruled by the House's later = decisions; and=20 too much, in allowing the later pronouncements to change the law=20 authoritatively laid down by the House's prior decisions and so to = enact=20 legislation. After all, quite apart from the Practice Statement, the = Lords=20 Spiritual and Temporal in the Queen's Court of Parliament assembled = (like=20 one of H.M. courts of justice, insofar as it is not bound by statute = or by=20 the decision of a tribunal higher in the hierarchy) are free to = correct the=20 mistakes of themselves or their predecessors (Midland = Silicones v.=20 Scruttons [1962] A.C. 446, 476-7), but not simply to give = effect to=20 mere changes or differences of opinion (Beamish v. Beamish=20 above; Farrell v Alexander [1976] Q.B. 345, = 369).=20 Mistakes may consist of the overlooking of established principles=20 (Midland Silicones, above, at 477-8) or of authorities, = whether=20 statutes (London=20 Street Tramways v = L.C.C.=20 [1898] A.C. 375, 380-1) or cases (Nicholas v = Penny=20 [1950] 2 KB 466). Cf. "per incuriam" = in=20 Young v = Bristol=20 Aeroplane Co [1944] KB 718 = and "Dormitat Homer" = in=20 Horace's Ars Poetica 359, translated in Farrell,=20 above.
-----Later Original = Message-----
From: Allan Axelrod <axelrod@andromeda.rutgers.e= du>
To:=20 Gordon Goldberg <gordon.goldberg@BUCKINGH= AM.AC.UK>
Cc:=20 ENRICHMENT@LISTS.MCGILL.CA= =20 <ENRICHMENT@LISTS.MCGILL.CA= >; swh10@CAM.AC.UK <swh10@CAM.AC.UK>
Date: = 09=20 November 2001 16:51
Subject: Re: [RDG:] Etridge and the=20 Constitution

under the usual terminology any dictum = [statement of law=20 unnecessary for the decision of the particular case] is = non-judicial: =20 prospective overrulings are egregious

as it is the legislature which is authorized to lay = down rules=20 for future behavior. a considered dictum is an  attempted = usurpation, and=20 if later respected would be judicial legislation

however,  because legislating is beyond the = court's=20 authority, the dictum does not have the force of law, and under =
 the=20 usual ideas of stare decisis, a later court is not bound by the dicta of = an=20 earlier i wouldn't get a lot of comfort from = that  if=20 the later court happens to have the very judges who enthusiastically=20 'legislated'   in the prior case

so although legitimate judical holding and illegtimate = dicta=20 differ in respectability for later courts:    they are, = from the=20 gutter perspective of clients,  the same in that each will have = whatever=20 effect a later court in fact gives it..

-----Earlier Original=20 Message-----
From: Steve Hedley <swh10@CAM.AC.UK>
To: ENRICHMENT@LISTS.MCGILL.CA= <ENRICHMENT@LISTS.MCGILL.CA= >
Date: 09 November 2001 = 11:11
Subject:=20 [RDG:] Etridge and the constitution
 
1.
Legislation=20 (unless by an Act of Parliament, agreed to by the Commons and the = Crown, as=20 well as by their Lordships) is ultra vires the House of = Lords -=20 Beamish v. Beamish (1861) 9 H.L.C. 274 (I.) at=20 338-339.
Lionel and Gordon both seem to = me to be=20 running together the question whether the Lords can act=20 "prospectively" with the question whether they can act=20 "legislatively".  But these are very different = issues.  Or=20 where is it laid down that prospective decision-taking should be = confined to=20 legislatures?

2.
Thus, = in their=20 judicial capacity their Lordships are limited to the induction of = the=20 relevant principles from the previous cases and the application of = those=20 principles to the facts of the case before them, so as to deduce its = resolution in favour of the appellant or the = respondent.
A rather narrow view of the lords' function!  = Surely most=20 "leading cases" go further, and are "leading" for = precisely=20 that reason.  Was Kleinwort Benson merely an exercise in = induction? =20 Was Woolwich?
 
3.
To = purport to=20 lay down what will be invariably satisfactory in the future (though = properly=20 continuing to let past transactions depend on the facts of each = case) goes=20 far beyond these limits. Yet that is what Lord Browne-Wilkinson did = in=20 O'Brien [1994] A.C. 180, at 196; and so I have always taught that, = being=20 pretended legislation, what Lord Hobhouse calls "Lord=20 Browne-Wilkinson's ... carefully crafted scheme" could not be = part of=20 the ratio decidendi of O'Brien.
I would imagine that both = lords knew=20 perfectly well that what they were saying was not ratio.  Indeed, = they may=20 only have been happy to speak in such specific terms BECAUSE they knew = the=20 detail would not bind lower courts. This seems more plausible than = calling B-W's=20 opinions "pretended legislation".

4.
I = submit such=20 pretensions should cause no surprise because (as I tried to argue in = [2000]=20 R.L.R. at 200 n.65) the Practice Statement (Judicial Precedent) = [1966] 1=20 W.L.R. 1234 is itself so tainted and perhaps may be seen as the root = of the=20 evil.
The root of which evil?  = Of giving=20 pronouncements of the house of lords too much weight, or too=20 little?


         =             &= nbsp;           &n= bsp;    =20 Steve=20 Hedley

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D

FACULTY=20 OF LAW, UNIVERSITY OF CAMBRIDGE

telephone and answering machine : = (01223)=20 334931
e-mail :   steve.hedley@law.cam.ac.uk=
messages=20 : (01223) 334900
fax : (01223) 334967

Christ's=20 College     Cambridge CB2=20 3BU

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= 3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D

__________________________________________________= __________________
This=20 message was delivered through the Restitution Discussion Group,
an=20 international internet LISTSERV devoted to all aspects of the law
of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" = in
the body=20 of a message to <listserv@lists.mcgill.ca>= . To=20 unsubscribe,
send "signoff enrichment" to the same address. = To make=20 a posting to
all group members, send to <enrichment@lists.mcgill.ca= >. The=20 list is
run by Lionel Smith of McGill University, tel. (+1) 514 398=20 6635,email
<lionel.smith@mcgill.ca>.
 
------=_NextPart_000_0018_01C16A07.8DDDE750-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 27 Nov 2001 11:16:52 -0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Organization: Magdalen College, Oxford Subject: Restitutionary Damages and Causation MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit J S Bloor (Measham) Ltd v Calcott - Chancery Division - Hart J - 23.11.01. What follows is an abridged summary from the NLO headnote. In July 1997 Bloor completed a contract to purchase thirty-eight acres of agricultural land in Leicestershire with vacant possession and planning permission for development. When Bloor went onto the site it emerged that the defendant, C, was claiming a tenancy of the land protected under the provisions of the Agricultural Holdings Act 1986. C took proceedings in the county court claiming damages for trespass and an injunction restraining Bloor from entering the land. The judge held that there was a tenancy so that C was entitled to damages for trespass for crop damage caused by Bloor's contractors but that C was not entitled to an injunction because he had deceived the landlord into not taking steps to bring the tenancy to an end. The judge refused to rescind the tenancy. The Court of Appeal refused C permission to appeal. In October 1997 Bloor issued proceedings seeking a declaration that it was entitled to occupy the land and proceed with its development and that any tenancy which C might have was unenforceable against Bloor by reason of proprietary estoppel based on C's deceitful conduct. C counterclaimed for damages for breach of the covenant for quiet enjoyment and for trespass. C argued that Bloor's claim to an equity was barred by issue estoppel or inconsistent with the provisions of the Agricultural Holdings Act 1986. If not it was conceded that C's conduct justified the equity claimed. In relation to the issue of restitutionary damages, Hart J held that he was bound by Ministry of Defence v Ashman (1993) 25 HLR 513 and Ministry of Defence v Thompson (1993) 25 HLR 552 to hold that a claimant in a trespass action was able to elect to claim damages either on the basis of the loss suffered by him or on the basis of the value to the defendant of his wrong. However, as a matter of causation the ability of Bloor to develop the land without having to pay a consideration for the surrender of the tenancy was not a benefit obtained by reason of the trespass. The reason why Bloor enjoyed that benefit was not its wrongful entrance on the land but because the court would not restrain Bloor from proceeding with the development on account of C's unconscionable conduct. Jamie ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 09:15:29 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Profit from breach of contract Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Esso Petroleum v. Niad 22/11/2001 Morritt V-C On my website (www.law.cam.ac.uk/restitution) and elsewhere. Solus agreement on petrol filling station, by which Niad ran the station under Esso's banners. Introduction of new "Pricewatch" scheme, under which retailers such as Niad would inform Esso of prices charged by local competitors, and Esso would order price reductions by retailers as appropriate, to keep their prices competitive. Breach, inasmuch as Niad did not make price reductions when ordered by Esso. Esso were pursuing alternative measures of damage because of the difficulty of proving loss. The V-C held that they were entitled to: "(a) .. damages, or (b) an account of profits for breach of contract, or (c) to restore the amount by which the pump prices it charged its customers exceeded the recommended prices...". The latter two measures were treated as distinct. The passages relating to them are as follows: "63. In my judgment the remedy of an account of profits should be available for breaches of contract such as these. First, damages is an inadequate remedy. It is almost impossible to attribute lost sales to a breach by one out of several hundred dealers who operated Pricewatch. Second, the obligation to implement and maintain the recommended pump prices was fundamental to Pricewatch. Failure to observe it gives the lie to the advertising campaign by which it was publicised and therefore undermines the effectiveness of Pricewatch in achieving the benefits intended for both Esso and all its dealers within Pricewatch. Third, complaint was made of Niad on four occasions. On all of them Niad appeared to comply without demur. It now appears that the breaches of its obligation were much more extensive than Esso at first thought. Fourth, Esso undoubtedly has a legitimate interest in preventing Niad from profiting from its breach of obligation. "64. I turn then to the restitutionary remedy. It is undoubted that Niad obtained a benefit, in the form of the price support, to which it was only entitled if it complied with its obligation to implement and maintain the recommended pump prices to be supported. In these circumstances it can hardly be denied that Niad was enriched to the extent that it charged pump prices in excess of the recommended prices. The enrichment was unjust because it was obtained in breach of contract. It was obtained at the expense of Esso because Esso was providing price support for a lower price than that charged by Niad. I can see no reason why this remedy should be unavailable to Esso if it wishes to pursue it. Indeed it appears to me to be the most appropriate remedy in that it matches most closely the reality of the case, namely that Niad took an extra benefit to which it was not entitled. It is just that it should be made to restore it to its effective source. " Various comments occur to me. 1/ The V-C was deeply unimpressed with counsel for Niad, who had wasted the court's time with utterly hopeless arguments on liability. 2/ As para 63 shows, a rather lax view of the Blake requirements is being taken. As in Blake itself, we see random bits of doctrine (eg 'damages is an inadequate remedy') combined with denigration of the defendant, with no firm rule being even hinted at. 3/ The third measure proposed, discussed in para 64, seems rather generous to Esso: the amount by which customers who actually bought petrol from Niad were "overcharged" in the relevant period. But surely if the "Pricewatch" scheme had any effect at all, Niad's conduct lost them customers. As a measure of Niad's profit, this is surely an overestimate: if they had implemented the price reductions, they would have made less profit per customer but presumably they would have had more customers. 4/ Combining points 2/ and 3/, I think we have yet another example of how the Blake remedy in practice fades into the award of exemplary damages. Calculation of profit is a tricky business if done properly; in practice the courts are not inclined to be so careful. The defendants in these cases are not worth the effort. In practice, therefore, the line that "we will remove profits but no more" cannot be held; the choice is between compensatory damages only, or compensatory damages plus exemplary damages. 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 09:19:14 -0000 Reply-To: Andrew.Dickinson@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew.Dickinson@CLIFFORDCHANCE.COM Subject: Change of position and anticipatory reliance Just to note, although I may not be the first to do so, that the Privy Council (including Lord Goff) has decided that expenditure in anticipation of receipt of money can support the defence of change of position and that the concept of relative fault should not be introduced into this area of the common law (see Dextra Bank and Trust -v- Bank of Jamaica (26 November 2001). Andrew ******* This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 11:47:35 -0000 Reply-To: Ralph Cunnington Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Ralph Cunnington Organization: Durham University Law Department Subject: Esso Petroleum v Niad It seems to me that Esso Petroleum v Niad is another example of a 'bad decision' to get a 'bad defendant'. The 'useful guide' declared by Lord Nicholls in Blake was ambiguous in the extreme. The legitimate interest requirement is open to extremely wide interpretation contrary to Lord Nicholls's assertions that an account of profits remedy should only be 'exceptionally' available. I doubt that facts such as Esso Petroleum v Niad were in the mind of Lord Nicholls when devising his 'useful guide'. Morritt V-C presented a number of circumstances which supported an account of profits including: inadequacy of damages, fundamental nature of obligation, previous complaints of Esso. However, once again no coherent framework for awarding an account of profits was etsablished. More worryingly, Morritt V-C returned to speaking about Niad doing the 'very thing it contracted not to do' (a test rejected by the HL in Blake). The law concerning profits for breach of contract lacks coherency or consistency. Steve Hedley's suggestion that the Blake remedy in practice fades into an award of exemplary damages is correct. However, the uncertainty caused by this in a commercial context should not be accepted. It is essential that a coherent framework is established for awarding account of profits for breach of contract. __________________________________________________________ Mr Ralph Cunnington Department of Law University of Durham 50 North Bailey Durham DH1 3ET Tel +44 (0)191 374 1667 Fax +44 (0)191 374 2044 __________________________________________________________ ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 10:07:28 -0500 Reply-To: Hanoch Dagan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hanoch Dagan Subject: Profit from breach of contract: reconsidering Blake Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Like Steve Hedley, I think that Esso Petroleum v. Niad should serve as an opportunity to reconsider the Blake opinions. I prefer the view of Lord Steyn that succeeded in striking a very delicate line between Lord Nicholls' opinion that is -- I agree again with Steve Hedley -- too open-ended, and the dissent's view, which I find unnecessarily rigid. I believe that the restitutionary remedy should be very exceptional in contractual settings. (see my Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory 1 Theoretical Inquiries in Law 115 (2000)). But I think that the Blake outcome is correct. If I read Lord Steyn's opinion correctly, the gist of his argument is that although technically not a fiduciary, Blake was "in a very similar position to a fiduciary. The reason of the rule applying to fiduciaries applies to [Blake]." This analysis uses law's underlying justifications in order to both reach the just outcome (allowing the Crown's claim) and preserve the sound policies of the law (disallowing in most cases claims of restitutionary damages for the breach of contract). Put differently, Lord Steyn's opinion can be read as adapting the scope of fiduciary law to the underlying principles of this area without upsetting the sound traditional reluctance of the common law towards restitutionary damages for breach of contract. Hanoch Dagan Affiliated Overseas Professor University of Michigan School of Law 625 South State Street Ann Arbor, MI 48109-1215 (734) 647-7352 (o) (734) 764-8309 (fax) hdagan@umich.edu ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 18:55:41 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Profit from breach of contract: reconsidering Blake In-Reply-To: <4.3.2.7.2.20011128100653.00b14370@h.imap.itd.umich.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Hanoch Dagan, while agreeing that awards of profits in this context should be the exception not the rule, nonetheless argues: >But I think that the Blake outcome is correct. If I read >Lord Steyn's opinion correctly, the gist of his argument >is that although technically not a fiduciary, Blake was >"in a very similar position to a fiduciary. The reason of >the rule applying to fiduciaries applies to [Blake]." .... > >Put differently, Lord Steyn's opinion can be read as >adapting the scope of fiduciary law to the underlying >principles of this area without upsetting the sound >traditional reluctance of the common law towards >restitutionary damages for breach of contract. I have great difficulty with this. It suggests (indeed, Steyn actually asserts) that only *technical* reasons prevent us from classifying Blake as a fiduciary. So he suggests that while a pedant or nit-picker might deny that Blake was a fiduciary, any rational person would see that he should be treated like one. But how can this be so? While Blake was employed by the British secret services, he was clearly a fiduciary. However, equally clearly, that fiduciary relationship was terminated when it was discovered that he was working for the Soviets. The British government reposed no confidence in him after that time. (Indeed, it is hard to think of anyone in whom the British government reposed *less* confidence.) By the time he made the profit, then, he had long ceased to be a fiduciary - and not on a technical ground, but a plain factual ground. A possible argument is that fiduciaries such as Blake owe "life-long" duties, which survive termination of the fiduciary relationship. A related argument is that information obtained by fiduciaries is still protected after termination. But these arguments were thoroughly shredded at first instance and on appeal - and were not raised again on further appeal to the house of lords. If Steyn had answers to the objections raised by the lower courts, he didn't mention them. A vague statement that Blake's position was "similar" to that of a fiduciary really doesn't cut the mustard. In what respect, therefore, was Blake in a "very similar position to a fiduciary"? I am mystified. Steyn's remark does not seem to me to survive analysis. 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 18:55:09 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Profit from breach of contract: reconsidering Blake Comments: To: Hanoch Dagan Content-Type: text/plain Mime-Version: 1.0 I have some difficulty in defining accurately the category of 'fiduciaries', although it can be done. How are we to define the category 'nearly a fiducriay'? Surely this approach substitutes an impossible question to answer(who is a quasi-fiduciary?) for a merely difficult one (when should a party in breach be stripped of the gain made?) Indeed I suspect that the courts will simply deem a party to be a quasi-fiduciary when they want to reach the result that the gain must be given up. RS In message <4.3.2.7.2.20011128100653.00b14370@h.imap.itd.umich.edu> Hanoch Dagan writes: > Like Steve Hedley, I think that Esso Petroleum v. Niad should serve as an > opportunity to reconsider the Blake opinions. I prefer the view of Lord > Steyn that succeeded in striking a very delicate line between Lord > Nicholls' opinion that is -- I agree again with Steve Hedley -- too > open-ended, and the dissent's view, which I find unnecessarily rigid. > > I believe that the restitutionary remedy should be very exceptional in > contractual settings. (see my Restitutionary Damages for Breach of > Contract: An Exercise in Private Law Theory 1 Theoretical Inquiries in Law > 115 (2000)). But I think that the Blake outcome is correct. If I read > Lord Steyn's opinion correctly, the gist of his argument is that although > technically not a fiduciary, Blake was "in a very similar position to a > fiduciary. The reason of the rule applying to fiduciaries applies to > [Blake]." This analysis uses law's underlying justifications in order to > both reach the just outcome (allowing the Crown's claim) and preserve the > sound policies of the law (disallowing in most cases claims of > restitutionary damages for the breach of contract). Put differently, Lord > Steyn's opinion can be read as adapting the scope of fiduciary law to the > underlying principles of this area without upsetting the sound traditional > reluctance of the common law towards restitutionary damages for breach of > contract. > Hanoch Dagan > Affiliated Overseas Professor > University of Michigan School of Law > 625 South State Street > Ann Arbor, MI 48109-1215 > (734) 647-7352 (o) > (734) 764-8309 (fax) > hdagan@umich.edu > > ____________________________________________________________________ > 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 6635,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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 15:56:26 -0500 Reply-To: Hanoch Dagan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hanoch Dagan Subject: Re: Profit from breach of contract: reconsidering Blake In-Reply-To: <3.0.6.32.20011128185541.014af210@pop.hermes.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Robert Stevens states that he has some difficulty in defining accurately the category of fiduciaries and suspects that because the category "nearly a fiduciary" is impossible to define "the courts will simply deem a party to be a quasi-fiduciary when they want to reach the result that the gain must be given up." I wasn't suggesting that we need to create a category of "quasi-fiduciary." Rather, as Steve Hedley surmises, I can't understand -- unless I am missing something (which may well be the case: I'm far from being an expert on English law and didn't follow closely the Blake litigation) -- what nontechnical reason can justify the view that information obtained by fiduciaries is not protected after termination. While I concede that a vague statement that Blake is like a fiduciary isn't sufficient to address objections to the survival of some of the fiduciary duties post-termination (and potentially for life), it is hard for me to figure out any principled defense of their termination. I tend to think of a fiduciary relationship (and here I also try to complete my response to Robert Stevens) in the way suggested by Ernest Weinrib, namely: as a relationship in which one person's interests are subject to another discretion. It is this core feature of the fiduciary relationship that makes the duty of loyalty (as well as certain ancillary duties) a necessary incident of this relationship. If we believe that fiduciaries should be deterred from breaching this duty, we should apply a remedy that takes the bite out of their breach, namely: a profits-based recovery. (Here I merely summarize and somewhat simplify my argument in The Distributive Foundation of Corrective Justice, 98 Michigan L. Rev. 138, 157-162 (1999) in connection to the US Sup Ct Snepp case regarding agents as unauthorized authors.) If this is the reason why we provide this type of remedy during the pendency of the service of secret agents (and other fiduciaries), it is difficult for me to understand how (that is: why) the analysis changes once their service is terminated insofar, of course, as the information they secured while in service is concerned. Hanoch Dagan Affiliated Overseas Professor University of Michigan School of Law 625 South State Street Ann Arbor, MI 48109-1215 (734) 647-7352 (o) (734) 764-8309 (fax) hdagan@umich.edu ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 15:56:04 -0600 Reply-To: Mark Gergen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mark Gergen Subject: Profits from breach (Esso v. Niad) Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_26859502==_.ALT" --=====================_26859502==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed If one wants to make sense out of Blake the following passage seems to me a starting point though it only takes us so far. The passage is: "A useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit." This idea covers the uncontroversial cases that require one who violates a covenant not to compete to disgorge the profits he made from the violation. Of course, these cases could as well be explained on the reasoning that the defendant's profits from the improper competition are the best measure of the plaintiff's loss. One attraction to using this idea as a starting point is that it is consistent with requiring the trespasser or converter to disgorge his profit from infringing upon the owner's property when that profit exceeds the owner's loss. The owner of property is entitled to whatever profits can be derived from its use. Disgorgement by the unfaithful fiduciary also can be explained in these terms. A fiduciary undertakes to put his own interests aside to serve exclusively the interests of his principal. The principal has a "legitimate interest in preventing" the fiduciary's self-profiting activity. A difficulty with transporting this idea from the law of trespass, conversion, and fiduciaries into Contract is that you quickly run into the idea that generally when A contracts with B for the performance of act x A's interest is in the value to himself from the performance of x. If B defaults on x, the measure of damages is A's loss from the non-occurrence of x and not B's gain from x's non-occurrence. If a contractor abandons a job to take a much higher paying job and the first employer can hire a substitute who is just as good and only slightly more expensive we are satisfied with an award of the modest additional cost of cover. In the terminology of Blake, the problem is determining when A has a legitimate interest in preventing B from profiting from breach of contract. The easiest case is where A predictably suffers a significant but immeasurable loss on breach that may well exceed B's profit from breach, which is measurable. Here a profits-based remedy is justified on ordinary deterrence (or efficiency) grounds. Maybe Snepp and Blake can be explained along these lines. I don't think of a profits-based remedy as being particularly punitive in this case. A profits-based remedy begins to seem more punitive if we generalize the principle to cover any willful defaulter who hoped to find a profit in the plaintiff's uncompensated loss. For an argument that disgorgement of profits is appropriate to deter and punish opportunistic breach see Andrew Kull, Disgorgement for Breach, the 'Restitution Interest,' and the Restatement of Contracts, 79 Texas L. Rev. 2021, 2049-2052 (2001). The City of New Orleans case is famous example of a case where disgorgement should have been the remedy (it was not). Defendant promised to supply a certain level of fire protection service. They did not to cut costs. Happily, no loss was suffered. I would require Defendant to disgorge its savings from the cut in services reasoning that had a fire requiring the additional services occurred they never could have stood by the loss. "Opportunistic breach" is not much of a solving concept. What it adds to the question "Did A have a legitimate interest in preventing B from profiting from breach of contract" is some sense that we are concerned with the immorality of the defendant's conduct. Reading Esso v. Niad (putting these cases on the web is an enormous service) it seems to me that the defendant's "throw-away" arguments about intent to affect legal relations, indefiniteness, consideration, duress and the like become very much to the point along with Esso's ample extra-legal remedies. --=====================_26859502==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable If one wants to make sense out of Blake the following passage seems to me a starting point though it only takes us so far.  The passage is: "A useful  general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit."  This idea covers the uncontroversial cases that require one who violates a covenant not to compete to disgorge the profits he made from the violation.  Of course, these cases could as well be explained on the reasoning that the defendant's profits from the improper competition are the best measure of the plaintiff's loss.

One attraction to using this idea as a starting point is that it is consistent with requiring the trespasser or converter to disgorge his profit from infringing upon the owner's property when that profit exceeds the owner's loss.  The owner of property is entitled to whatever profits can be derived from its use.   Disgorgement by the unfaithful fiduciary also can be explained in these terms.  A fiduciary undertakes to put his own interests aside to serve exclusively the interests of his principal.     The principal has a "legitimate interest in preventing" the fiduciary's self-profiting activity.

A difficulty with transporting this idea from the law of trespass, conversion, and fiduciaries into Contract is that you quickly run into the idea that generally when A contracts with B for the performance of act x A's interest is in the value to himself from the performance of x.   If B defaults on x, the measure of damages is A's loss from the non-occurrence of x and not B's gain from x's non-occurrence.    If a contractor abandons a job to take a much higher paying job and the first employer can hire a substitute who is just as good and only slightly more expensive we are satisfied with an award of the modest additional cost of cover.

In the terminology of Blake, the problem is determining when A has a legitimate interest in preventing B from profiting from breach of contract.  The easiest case is where A predictably suffers a significant but immeasurable loss on breach that may well exceed B's profit from breach, which is measurable.   Here a profits-based remedy is justified on ordinary deterrence (or efficiency) grounds. Maybe Snepp and Blake can be explained along these lines.    I don't think of a profits-based remedy as being particularly punitive in this case.  A profits-based remedy begins to seem more punitive if we generalize the principle to cover any willful defaulter who hoped to find a profit in the plaintiff's uncompensated loss.  For an argument that disgorgement of profits is appropriate to deter and punish opportunistic breach see Andrew Kull, Disgorgement for Breach, the 'Restitution Interest,' and the Restatement of Contracts, 79 Texas L. Rev. 2021, 2049-2052 (2001).  The City of New Orleans case is famous example of a case where disgorgement should have been the remedy (it was not).  Defendant promised to supply a certain level of fire protection service.  They did not to cut costs.  Happily, no loss was suffered.  I would require Defendant to disgorge its savings from the cut in services reasoning that had a fire requiring the additional services occurred they never could have stood by the loss.

"Opportunistic breach" is not much of a solving concept.  What it adds to the question "Did A have a legitimate interest in preventing B from profiting from breach of contract" is some sense that we are concerned with the immorality of the defendant's conduct.  Reading Esso v. Niad (putting these cases on the web is an enormous service) it seems to me that the defendant's "throw-away" arguments about intent to affect legal relations, indefiniteness, consideration, duress and the like become very much to the point along with Esso's ample extra-legal remedies.

 



--=====================_26859502==_.ALT-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 28 Nov 2001 17:28:37 -0500 Reply-To: Hanoch Dagan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hanoch Dagan Subject: Re: Profits from breach (Esso v. Niad) In-Reply-To: <4.3.2.7.2.20011128142712.00db2100@mail.law.utexas.edu> Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_29322186==_.ALT" --=====================_29322186==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed I agree that Blake & Snepp are analogous to the trespass cases in the sense highlighted by Mark Gergen: In these cases -- as well as in the City of New Orleans type of case -- plaintiff has a legitimate interest in preventing the defendant's activity. (Although, as he also implies, the specific interest may differ from one type of case to the other; in my view, however, none of these legitimate interests has anything to do with under-compensation and therefore I am not particularly bothered by the difficulty he raises.) Thus, in all these cases, law is justified in according a profits-based recovery which is the ex-post equivalent to an injunction. This recovery is merely a useful means for deterring the activity at issue -- thus vindicating the plaintiff's interest -- and has no punitive component. Mark Gergen is also correct, in my view, in cautioning against providing restitutionary damages for breach of contract for other profitmaking breaches. But this is not because this would be punitive, but rather because it may unduly deter. In other words: unlike punitive damages, restitutionary damages for breach of contract do not confiscate any value from the promisee's estate; but this measure of recovery may still be undesirable if it generates an allocation of entitlements that is (at least in commercial settings) undesirable. (By the way, I also agree with Mark Gergen that the concept of "opportunistic breach" can't be a solving concept; that is, unless we read it in its [very] narrow economic meaning as dealing strictly with contexts of sequential performances). At 03:56 PM 11/28/01 -0600, Mark Gergen wrote: >If one wants to make sense out of Blake the following passage seems to me >a starting point though it only takes us so far. The passage is: "A >useful general guide, although not exhaustive, is whether the plaintiff >had a legitimate interest in preventing the defendant's profit-making >activity and, hence, in depriving him of his profit." This idea covers >the uncontroversial cases that require one who violates a covenant not to >compete to disgorge the profits he made from the violation. Of course, >these cases could as well be explained on the reasoning that the >defendant's profits from the improper competition are the best measure of >the plaintiff's loss. > >One attraction to using this idea as a starting point is that it is >consistent with requiring the trespasser or converter to disgorge his >profit from infringing upon the owner's property when that profit exceeds >the owner's loss. The owner of property is entitled to whatever profits >can be derived from its use. Disgorgement by the unfaithful fiduciary >also can be explained in these terms. A fiduciary undertakes to put his >own interests aside to serve exclusively the interests of his >principal. The principal has a "legitimate interest in preventing" the >fiduciary's self-profiting activity. > >A difficulty with transporting this idea from the law of trespass, >conversion, and fiduciaries into Contract is that you quickly run into the >idea that generally when A contracts with B for the performance of act x >A's interest is in the value to himself from the performance of x. If B >defaults on x, the measure of damages is A's loss from the non-occurrence >of x and not B's gain from x's non-occurrence. If a contractor abandons >a job to take a much higher paying job and the first employer can hire a >substitute who is just as good and only slightly more expensive we are >satisfied with an award of the modest additional cost of cover. > >In the terminology of Blake, the problem is determining when A has a >legitimate interest in preventing B from profiting from breach of >contract. The easiest case is where A predictably suffers a significant >but immeasurable loss on breach that may well exceed B's profit from >breach, which is measurable. Here a profits-based remedy is justified on >ordinary deterrence (or efficiency) grounds. Maybe Snepp and Blake can be >explained along these lines. I don't think of a profits-based remedy as >being particularly punitive in this case. A profits-based remedy begins >to seem more punitive if we generalize the principle to cover any willful >defaulter who hoped to find a profit in the plaintiff's uncompensated >loss. For an argument that disgorgement of profits is appropriate to >deter and punish opportunistic breach see Andrew Kull, Disgorgement for >Breach, the 'Restitution Interest,' and the Restatement of Contracts, 79 >Texas L. Rev. 2021, 2049-2052 (2001). The City of New Orleans case is >famous example of a case where disgorgement should have been the remedy >(it was not). Defendant promised to supply a certain level of fire >protection service. They did not to cut costs. Happily, no loss was >suffered. I would require Defendant to disgorge its savings from the cut >in services reasoning that had a fire requiring the additional services >occurred they never could have stood by the loss. > >"Opportunistic breach" is not much of a solving concept. What it adds to >the question "Did A have a legitimate interest in preventing B from >profiting from breach of contract" is some sense that we are concerned >with the immorality of the defendant's conduct. Reading Esso v. Niad >(putting these cases on the web is an enormous service) it seems to me >that the defendant's "throw-away" arguments about intent to affect legal >relations, indefiniteness, consideration, duress and the like become very >much to the point along with Esso's ample extra-legal remedies. > > > > Hanoch Dagan Affiliated Overseas Professor University of Michigan School of Law 625 South State Street Ann Arbor, MI 48109-1215 (734) 647-7352 (o) (734) 764-8309 (fax) hdagan@umich.edu --=====================_29322186==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I agree that Blake & Snepp are analogous to the trespass cases in the sense highlighted by Mark Gergen: In these cases -- as well as in the City of New Orleans type of case -- plaintiff has a legitimate interest in preventing the defendant's activity.  (Although, as he also implies, the specific interest may differ from one type of case to the other; in my view, however, none of these legitimate interests has anything to do with under-compensation and therefore I am not particularly bothered by the difficulty he raises.)  Thus, in all these cases, law is justified in according a profits-based recovery which is the ex-post equivalent to an injunction.  This recovery is merely a useful means for deterring the activity at issue -- thus vindicating the plaintiff's interest -- and has no punitive component.

Mark Gergen is also correct, in my view, in cautioning against providing restitutionary damages for breach of contract for other profitmaking breaches.  But this is not because this would be punitive, but rather because it may unduly deter.  In other words: unlike punitive damages, restitutionary damages for breach of contract do not confiscate any value from the promisee's estate; but this measure of recovery may still be undesirable if it generates an allocation of entitlements that is (at least in commercial settings) undesirable.  (By the way, I also agree with Mark Gergen that the concept of "opportunistic breach" can't be a solving concept; that is, unless we read it in its [very] narrow economic meaning as dealing strictly with contexts of sequential performances).


At 03:56 PM 11/28/01 -0600, Mark Gergen wrote:
If one wants to make sense out of Blake the following passage seems to me a starting point though it only takes us= so far.  The passage is: "A useful  general guide, although= not exhaustive, is whether the plaintiff had a legitimate interest in= preventing the defendant's profit-making activity and, hence, in depriving= him of his profit."  This idea covers the uncontroversial cases= that require one who violates a covenant not to compete to disgorge the= profits he made from the violation.  Of course, these cases could as= well be explained on the reasoning that the defendant's profits from the= improper competition are the best measure of the plaintiff's loss.

One attraction to using this idea as a starting point is that it is= consistent with requiring the trespasser or converter to disgorge his= profit from infringing upon the owner's property when that profit exceeds= the owner's loss.  The owner of property is entitled to whatever= profits can be derived from its use.   Disgorgement by the= unfaithful fiduciary also can be explained in these terms.  A= fiduciary undertakes to put his own interests aside to serve exclusively= the interests of his principal.     The principal has a= "legitimate interest in preventing" the fiduciary's= self-profiting activity.

A difficulty with transporting this idea from the law of trespass,= conversion, and fiduciaries into Contract is that you quickly run into the= idea that generally when A contracts with B for the= performance of act x A's interest is in the value to himself= from the performance of x.   If B defaults on= x, the measure of damages is A's loss from the non-occurrence= of x and not B's gain from x's= non-occurrence.    If a contractor abandons a job to take a= much higher paying job and the first employer can hire a substitute who is= just as good and only slightly more expensive we are satisfied with an= award of the modest additional cost of cover.

In the terminology of Blake, the problem is determining when A= has a legitimate interest in preventing B from profiting from breach= of contract.  The easiest case is where A predictably suffers a= significant but immeasurable loss on breach that may well exceed B's profit= from breach, which is measurable.   Here a profits-based remedy= is justified on ordinary deterrence (or efficiency) grounds. Maybe= Snepp and Blake can be explained along these= lines.    I don't think of a profits-based remedy as being= particularly punitive in this case.  A profits-based remedy begins to= seem more punitive if we generalize the principle to cover any willful= defaulter who hoped to find a profit in the plaintiff's uncompensated= loss.  For an argument that disgorgement of profits is appropriate to= deter and punish opportunistic breach see Andrew Kull, Disgorgement for= Breach, the 'Restitution Interest,' and the Restatement of Contracts, 79= Texas L. Rev. 2021, 2049-2052 (2001).  The City of New Orleans case is= famous example of a case where disgorgement should have been the remedy (it= was not).  Defendant promised to supply a certain level of fire= protection service.  They did not to cut costs.  Happily, no loss= was suffered.  I would require Defendant to disgorge its savings from= the cut in services reasoning that had a fire requiring the additional= services occurred they never could have stood by the loss.

"Opportunistic breach" is not much of a solving concept. = What it adds to the question "Did A have a legitimate interest in= preventing B from profiting from breach of contract" is some sense= that we are concerned with the immorality of the defendant's conduct. = Reading Esso v. Niad (putting these cases on the web is an enormous= service) it seems to me that the defendant's "throw-away"= arguments about intent to affect legal relations, indefiniteness,= consideration, duress and the like become very much to the point along with= Esso's ample extra-legal remedies.

 



Hanoch Dagan
Affiliated Overseas Professor
University of Michigan School of Law
625 South State Street
Ann Arbor, MI 48109-1215
(734) 647-7352 (o)
(734) 764-8309 (fax)
hdagan@umich.edu --=====================_29322186==_.ALT-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 08:39:43 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Profit from breach of contract: reconsidering Blake In-Reply-To: <4.3.2.7.2.20011128151015.00b0e6c0@h.imap.itd.umich.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 15:56 28/11/01 -0500, Hanoch Dagan wrote: > If this is the reason why we provide this type of remedy >during the pendency of the service of secret agents (and >other fiduciaries), it is difficult for me to understand how >(that is: why) the analysis changes once their service is >terminated insofar, of course, as the information they >secured while in service is concerned. But there is a line to be drawn. It is wrong to say that Blake is free of all obligation. But equally it is wrong to apply the same rules as if he were still a trusted employee, when manifestly he is not. The problem with Steyn's dictum is that it pretends there isn't a difficulty as to which side of the line Blake's case falls. Hanoch's suggestion is that, even though the fiduciary duty is terminated, it should still apply to "information they secured while in service". But this can't work. It is a regular problem in employment law *which* "information secured in service" fiduciaries are allowed to take with them when they change jobs. Obviously fiduciaries are allowed to keep information which relates generally to doing their job, and obviously they are not allowed to steal lists of clients; but where to place the line between is not always obvious. Applying this to spies, it would be surprising if ex-spies were absolutely forbidden from acting as security consultants, even though this has to involve items of information acquired in service. It would also be surprising if David Cornwell ("John le Carre"), a writer whose imagination draws extensively on his brief period as a spy, were to be treated as an errant fiduciary, and thus stands to lose his livelihood unless he writes about something else. The lower court judgments, then, are concerned precisely with defining whether the information Blake had revealed was of the sort that his former employers still had a legitimate interest in. The clincher, for the trial judge, was that "in the present case there is no allegation that the information disclosed by Mr Blake ever was secret or confidential. But, more important, it is not contended that the information was, at the time of disclosure, either of these things. It is not alleged in the statement of claim, nor is there any evidence that the disclosure of the information contained in the book might, or in the event did, cause any damage to the national interest." In the light of that, it is hard to see why Blake's case falls on the prohibited side of the line. Steyn addresses every point except the one actually in issue. As to the (rather well-worn) deterrence argument: If George Blake was not deterred from treachery by the shame, the expense and the sheer bloody inconvenience of a conviction under the Official Secrets Act, then the additional impact of a threat to confiscate his royalties if he published his memoirs in the UK rather than abroad seems minimal. 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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 09:12:04 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Profit from breach of contract: reconsidering Blake Comments: To: Hanoch Dagan Content-Type: text/plain Mime-Version: 1.0 Hanoch Dagan wrote > > I tend to think of a fiduciary relationship (and here I also try to > complete my response to Robert Stevens) in the way suggested by Ernest > Weinrib, namely: as a relationship in which one person's interests are > subject to another discretion. I don't think that this alone can be enough. If my employer has an option whether to terminate my contract of employment that does not make them a fiduciary. If a broad definition is found to be at all useful I would say that a fiduciary is a person who is under an obligation to subordinate his interests to another. I could probably find a hole in that if I thought long enough about it. It is this core feature of the fiduciary > relationship that makes the duty of loyalty (as well as certain ancillary > duties) a necessary incident of this relationship. > If we believe that fiduciaries should be deterred from breaching this > duty, we should apply a remedy that takes the bite out of their breach, > namely: a profits-based recovery. (Here I merely summarize and somewhat > simplify my argument in The Distributive Foundation of Corrective Justice, > 98 Michigan L. Rev. 138, 157-162 (1999) in connection to the US Sup Ct > Snepp case regarding agents as unauthorized authors.) > If this is the reason why we provide this type of remedy during the > pendency of the service of secret agents (and other fiduciaries), it is > difficult for me to understand how (that is: why) the analysis changes once > their service is terminated insofar, of course, as the information they > secured while in service is concerned. > The answer is, surely, simply that they no longer owed any fiduciary duty. It seems to me that you are really arguing that Blake was wrong to have decided (in the CA and at first instance) that the fiduciary relationship had come to an end and that information obtained prior to the ending of the relationship was not protected. Your position was not the one adopted by Lord Steyn. R ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 12:25:36 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Dextra v BOJ Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Andrew Dickinson rightly points up Dextra v BoJ on the change of position point. Less obviously, however, the case also seems to blow out of the water the HL decision in Jones v Waring & Gillow. In both cases the essential scenario is the same: A is duped by B into drawing a cheque in favour of C, for which C gives value. Jones allows A to recover from C on the basis that he has paid C by mistake, and that C, not being a holder in due course, has no defence. But, as Dextra points out, this can't be right. Even if C wasn't a holder in due course, he was a holder for value and could have sued A on the cheque if it hadn't been met, and you can't use restitution to get back sums you were bound to pay the defendant in the first place. Dextra, I suggest, must be correct on this point and Jones wrong. The only puzzle is why this argument was thought only to be relevant if Dextra relied on the payment of the cheque, rather than its acquisition by BoJ, as giving Dextra a cause of action. I would have thought that once BoJ had *acquired* the cheque for value, they had a right to sue on it from that moment, and hence that Dextra were out of court anyway. Or am I missing something? Andrew Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Mobile: 07813-478102 Fax: 01392-263196 / +44-392-263196 (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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 15:28:54 +0000 Reply-To: David Sandy Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: David Sandy Subject: Esso v Niad : Unjust Enrichment by Breach of Contract Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=_520F6554.92F3975D" --=_520F6554.92F3975D Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Please note: This e-mail is confidential and may also be privileged. = Please notify us immediately if you are not the intended recipient. You = should not copy it, forward it or use it for any purpose or disclose the = contents to any person. ----------------------------------------------------------- Can I focus attention on what appears to me to be an extraordinary = statement by Morritt V-C in paragraph 64 that : "The enrichment was unjust because it was obtained in breach of contract." The contract in question had not been terminated for breach or otherwise. = There is, surely, no English authority to support the proposition that a = party breaching a subsisting contract has been "unjustly enriched" (using = that term, as it seems Morritt V-C did, as a term of art) by the breach. = Having broken the contract, the wrongdoer comes under a concomitant = obligation to compensate the other in damages. Any so-called "enrichment" = is therefore removed. There is no concurrent cause of action in unjust = enrichment where the contract subsists. Even if Morritt is right, is he not confused as to the remedy? Even if a = straightforward breach of contract were to constitute the unjust enrichment= of the contract breaker, the measure of damages surely remains the loss = (expense) to the innocent party, not the gain to the enriched party?=20 On the different issue of gain-based remedies for breach of contract, as a = practitioner, I would question the whole issue of the applicability of = Blake in a purely commercial context. If Esso wanted the right to reclaim = their discount from the defendant, it should have contracted for it. Why = should the Court effectively rewrite the contract to protect Esso?=20 Further, why relieve Esso from the problem of quantifying its loss? I = suspect Esso was reluctant to undertake this task because it was probably = losing money on its petrol sales. It is therefore not surprising that = Esso should have prayed in aid the Blake decision since this effectively = shifted the burden of assessing damages to the defendant. But why should = the principles in Blake be manipulated simply to give Esso the protection = for which it had not contracted and to which, on ordinary contractual = principles, it would not be entitled?=20 Enlightenment would be welcomed. David Sandy ------------------------------------------------------------ Simmons & Simmons CityPoint One Ropemaker Street London=20 EC2Y 9SS Tel +44 (0)20 7628 2020 Fax +44 (0)20 7628 2070 DX 12 London/Chancery Ln For details of our international offices please visit www.simmons-simmons.c= om A list of partners may be inspected at each office www.elexica.com is the award winning online legal resource powered by = knowledge from Simmons & Simmons. --=_520F6554.92F3975D Content-Type: text/html; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable
Can I focus attention on what appears to me to be = an=20 extraordinary statement by Morritt V-C in paragraph 64 that :
 
"The enrichment was unjust because it was obtained in = breach=20 of contract."
 
The contract in question had not been terminated for = breach or=20 otherwise.  There is, surely, no English authority to support the=20 proposition that the contract-breaker has been "unjustly enriched" (using = that=20 term, as did Morritt V-C, as a term of art) by the breach.  = Having=20 broken the contract, the wrongdoer comes under concomitant obligation = to=20 compensate the other in damages.  Any so-called "enrichment" is = therefore=20 removed.
 
Even if Morritt is right, is he not confused as to = the=20 remedy?  Even if a straightforward breach of contract were to = constitute=20 the unjust enrichment of the wrongdoer, the measure of damages is surely = the=20 loss (expense) to the innocent party, not the gain to the enriched=20 party?
 
As a practitioner, I have also questioned the whole = issue of=20 the applicability of Blake to a purely commercial context.  If Esso = wanted=20 the right to reclaim their discount from the Defendant, it should have=20 contracted for it.  Why should the Court effective rewrite the = contract to=20 protect Esso?  Further, why relieve Esso from the problem of = quantifying=20 its loss?  I suspect Esso was reluctant to undertake this task = because it=20 was probably losing money on its downstream petrol sales.  It is = therefore=20 not surprising that Esso should have prayed in aid the Blake decision = since this=20 effectively shifted the burden of the premium damages to the Defendant.&nbs= p;=20 But why should the principles in Blake be manipulated simply to give Esso = the=20 protection for which it had not contracted and to which, on ordinary = contractual=20 principles, it would not be entitled?
 
David Sandy
--=_520F6554.92F3975D-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 15:59:37 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Dextra v BOJ Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 29 Nov 2001 12:25:36 +0000 To: ENRICHMENT@LISTS.MCGILL.CA From: Andrew Tettenborn Subject: Dextra v BOJ Andrew Dickinson rightly points up Dextra v BoJ on the change of position point. Less obviously, however, the case also seems to blow out of the water the HL decision in Jones v Waring & Gillow. In both cases the essential scenario is the same: A is duped by B into drawing a cheque in favour of C, for which C gives value. Jones allows A to recover from C on the basis that he has paid C by mistake, and that C, not being a holder in due course, has no defence. But, as Dextra points out, this can't be right. Even if C wasn't a holder in due course, he was a holder for value and could have sued A on the cheque if it hadn't been met, and you can't use restitution to get back sums you were bound to pay the defendant in the first place. Dextra, I suggest, must be correct on this point and Jones wrong. The only puzzle is why this argument was thought only to be relevant if Dextra relied on the payment of the cheque, rather than its acquisition by BoJ, as giving Dextra a cause of action. I would have thought that once BoJ had *acquired* the cheque for value, they had a right to sue on it from that moment, and hence that Dextra were out of court anyway. Or am I missing something? Andrew Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Mobile: 07813-478102 Fax: 01392-263196 / +44-392-263196 (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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 18:24:17 +0200 Reply-To: Daniel Friedmann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Daniel Friedmann Subject: Profits from breach (Esso v. Niad) MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit The right to recover gains derived from breach of contract is part of a long process of expanding the protection granted to contractual rights and that of narrowing the gap between property and contractual rights. Earlier stages in this development include the possibility of transferring (assigning) contractual rights and their protection against third parties (Lumley v. Gye). This process reflects the importance of contractual rights and is therefore likely to continue. The great diversity of contractual rights makes generalization difficult. The relevant factors regarding the question whether to allow restitution of gains derived from the breach include: 1) the nature and importance of the plaintiff’s right; 2) the reprehensibility of the defendant’s conduct; 3) the question whether the defendant sold to a third party the very performance that he promised to the plaintiff (contrast the following cases: a) A an opera singer undertakes to perform in B’s opera house but in breach of the contract accepts a better offer from C to sing in a competing opera house; b) A who is employed by B as a clerk, accepts a much better offer to act in a film produced by C) and 4) the nature of the defendant’s contribution to the gain and its social utility (in Esso Petroleum v. Niad it seems to have consisted simply of charging higher prices). Finally, restitution does not necessarily mean recovery of all gains made by the defendant. The factors enumerated above are relevant also to the measure of recovery. Where the defendant made a substantial contribution, to which the plaintiff was not entitled, it is conceivable that the plaintiff will only recover the value of that which was taken from him or that profits will be apportioned (cf. Sheldon v. MGM Pictures) or that the defendant will receive quantum meruit for his contribution (cf. Boardman v. Phipps). ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 29 Nov 2001 20:51:57 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Esso v Niad : Unjust Enrichment by Breach of Contract In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 15:28 29/11/01, David Sandy wrote: > If Esso wanted the right to reclaim their discount >from the Defendant, it should have contracted >for it. Why should the Court effective rewrite the >contract to protect Esso? Further, why relieve >Esso from the problem of quantifying its loss? >... > >... why should the principles in Blake be >manipulated simply to give Esso the protection >for which it had not contracted and to which, on >ordinary contractual principles, it would not be >entitled? Exactly right. Whatever we think of Niad, Esso are not the sort of vulnerable contractor who need careful protection from the court. The funny thing is that if Esso HAD provided for disgorgement explicitly, it would most likely have been thought a penalty clause. Indeed, the Blake remedy is in many situations suspiciously like a penalty for contractual misbehaviour. 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 6635,email .