Date: Wed, 16 Oct 2002 14:20:19 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Solle v. Butcher bites the dust Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Great Peace Shipping v. Tsavliris Court of Appeal, 14 October 2002 http://www.law.cam.ac.uk/restitution/archive/englcases/great_peace_2.htm The court of appeal holds that there is no distinct equitable doctrine of common mistake. The true, common law doctrine is as follows: "(i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible. " (para 76) This doctrine is closely analogous to the doctrine of frustration, and "Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows." (para 162). Sundry observations on the scope of equity, circumstances when the court of appeal may depart from its own decisions, and other matters. Enjoy, Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : +44 1223 334931 www.stevehedley.com fax : +44 1223 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, 17 Oct 2002 09:30:44 +0100 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Solle v. Butcher bites the dust Comments: To: Steve Hedley In-Reply-To: <3.0.6.32.20021016142019.01135d30@pop.hermes.cam.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Dear all, On the, I suspect, reasonable assumption that legislation will not be forthcoming in the near future, this is something that really must go further up to the House of Lords. I don't think we can just take the Court of Appeal's word for it. After 50 years and several Court of Appeal decisions (Nutt v Reed, Magee v Pennine Insurance, William Sindall v Cambridgeshire County Council) accepting Solle v Butcher, you have to wonder whether they are not being over-bold. That said, they cannot be faulted, on my first reading at least, for not developing their argument properly, whatever you may think of its merits. Basically in a nutshell they argue that the circumstances in which a court of chancery would permit rescission of a contract for mistake was not clear in the C19. They take the example of Cooper v Phibbs and say that although the claimant probably thought he had no chance in a court of law, because his mistake was as to existence of his equitable rights, that Bell v Lever Bros confined its effect, and those of other C19 cases to situation where the contract was void at law, para 118. They go on to claim that we have never satisfactorily defined fundamental mistake in equity as anything different to at law, para 131, 153, and that if we want to give relief in more cases than we do at law at present that is a question for the relaxation of the common law rules, para 156. Effectively the CA argue that Denning LJ in Solle was trying to overrule the House of Lords! What he did was say that relief ought to be given in more cases than you are prepared to give it, but I'm going to instead. While I take the point about the definition of the equitable jurisdiction being somewhat mysterious (I don't know what fundamental means either), you could say much the same about the common law test. Treitel has a neat test to do with the identity, as opposed to attributes of an object, but that like most tests doesn't seem to help. I don't know what it means at common law either. Not knowing what it means is a reason for finding a test that defines the ambit for relief satisfactorily, not abolishing equitable relief altogether. After all it does not seem obviously absurd to have some very very very serious mistakes making a contract void, merely serious mistakes making it voidable, and everything else just being a mess up you have to deal with. There are very good reasons why you might not wish to expand the ambit of complete avoidance and nullity, but rather make a contract voidable. Protection of third parties springs immediately to mind. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Steve Hedley > Sent: Wednesday, October 16, 2002 2:20 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Solle v. Butcher bites the dust > > > Great Peace Shipping v. Tsavliris > Court of Appeal, 14 October 2002 > > http://www.law.cam.ac.uk/restitution/archive/englcases/great_peace_2.htm > > The court of appeal holds that there is no distinct equitable doctrine of > common mistake. > > The true, common law doctrine is as follows: > > "(i) there must be a common assumption as to the existence of a state of > affairs; (ii) there must be no warranty by either party that that state of > affairs exists; (iii) the non-existence of the state of affairs > must not be > attributable to the fault of either party; (iv) the non-existence of the > state of affairs must render performance of the contract impossible; (v) > the state of affairs may be the existence, or a vital attribute, of the > consideration to be provided or circumstances which must subsist if > performance of the contractual adventure is to be possible. " (para 76) > > This doctrine is closely analogous to the doctrine of frustration, and > "Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to > temper the effect of the common law doctrine of frustration, so there is > scope for legislation to give greater flexibility to our law of mistake > than the common law allows." (para 162). > > Sundry observations on the scope of equity, circumstances when > the court of > appeal may depart from its own decisions, and other matters. > > > > Enjoy, > > > > Steve Hedley > > ============================================= > FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE > > e-mail : steve.hedley@law.cam.ac.uk > ansaphone : +44 1223 334931 > www.stevehedley.com > fax : +44 1223 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 > . > ____________________________________________________________________ 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, 17 Oct 2002 04:44:07 -0500 Reply-To: mgergen@mail.law.utexas.edu Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gergen Subject: Re: Solle v. Butcher bites the dust MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: quoted-printable Ironically, I was using Amalgamated Investment & Property v. John Walker (A= I&P) to teach the English law of frustration the day Great Peace Shipping= (GPS) was decided. The judges in AI&P drew a sharp, if somewhat arbitra= ry, distinction between mistake and frustration. The one going to an exi= sting fact, the other to a future event. The error was whether a propert= y would be listed, which reduced its value from 1,710,000 to 200,000 poun= ds. At the time of the contract it was inevitable that the property woul= d be listed -- a low-level official had set the ball in motion -- but it = had not been officially done. On the surface the case is difficult to di= stinguish from Solle, where the mistake went to whether property under le= ase was rent controlled. I left the point hanging telling the students t= hat English law seems to take a more generous approach to mistake than fr= ustration. In the United States, people usually collapse mistake, impossibility/imprac= ticability, and frustration. If you come at it from the perspective of c= ontract law this is easy to do for the questionin every case is whether = to discharge someone from his bargain because the world was not as he and= the other expected. I was happy with this until I began to study the la= w of restitution where I learned that there is a sharp divide between mis= take of existing fact and mistakes regarding the future. Outside contrac= t (and in the case of mistaken performance of a contract), relief from th= e former is almost automatic while relief from the latter is rare. I'm n= ot quite sure what to make of this. =20 Back to contract. Once you get beyond some obvious questions -- to determi= ne whether a person bears a risk you ask whether it is assigned by the co= ntract, whether it is assigned by a background rule of law (e.g, the rule= on destruction of identified goods), and whether the risk was foreshadow= ed when the contract was made -- the law is a muddle in the US and in En= gland. The so-called principles or tests in Trietal and Anson (Beatson) = merely say that a contract will be relieved only if a change in the world= has a great impact on the cost or value of performance, they do not say = precisely how great nor why sometimes the law will not relieve someone fr= om a great and unexpected loss. This said it is easy to explain the result in most cases. In AI&P the risk= was foreseeable and there may be a per se rule on sales of real estate b= ecause of the interest in finality. In GPS the real mistake may have bee= n that the defendant was unaware one of its own ships was near the damage= d vessel. He continued the charter after learning the plaintiff's vessel= was further than they had thought, cancelling it only when his own vesse= l showed up on the scene. =20 -----Original Message----- From: Duncan Sheehan To: ENRICHMENT@LISTS.MCGILL.CA Date: Thu, 17 Oct 2002 09:30:44 +0100 Subject: Re: [RDG:] Solle v. Butcher bites the dust Dear all, On the, I suspect, reasonable assumption that legislation will not be forthcoming in the near future, this is something that really must go further up to the House of Lords. I don't think we can just take the Court of Appeal's word for it. After 50 years and several Court of Appeal decisions (Nutt v Reed, Magee v Pennine Insurance, William Sindall v Cambridgeshire County Council) accepting Solle v Butcher, you have to wonde= r whether they are not being over-bold. That said, they cannot be faulted, on my first reading at least, for not developing their argument properly, whatever you may think of its merits. Basically in a nutshell they argue that the circumstances in which a court of chancery would permit rescission of a contract for mistake was not clear in the C19. They take the example of Cooper v Phibbs and say that although the claimant probably thought he had no chance in a court of law, because his mistake was as to existence of his equitable rights, that Bell v Lever Bros confined its effect, and those of other C19 cases to situation where the contract was void at law, para 118. They go on to claim that we have never satisfactorily defined fundamental mistake in equity as anything different to at law, para 131, 153, and that if we want to give relief in more cases than we do at law at present that is a question for the relaxation of the common law rules, para 156. Effectively the CA argue that Denning LJ in Solle was trying to overrule the House of Lords! What he did was say that relief ought to be given in more cases than you are prepared t= o give it, but I'm going to instead. While I take the point about the definition of the equitable jurisdiction being somewhat mysterious (I don't know what fundamental means either), you could say much the same about the common law test. Treitel has a neat test to do with the identity, as opposed to attributes of an object, but that like most tests doesn't seem to help. I don't know what it means at common law either. Not knowing what it means is a reason for finding a test that defines the ambit for relief satisfactorily, not abolishing equitable relie= f altogether. After all it does not seem obviously absurd to have some very very very serious mistakes making a contract void, merely serious mistakes making it voidable, and everything else just being a mess up you have to deal with. There are very good reasons why you might not wish to expand the ambit of complete avoidance and nullity, but rather make a contract voidable. Protection of third parties springs immediately to mind. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Steve Hedley > Sent: Wednesday, October 16, 2002 2:20 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Solle v. Butcher bites the dust > > > Great Peace Shipping v. Tsavliris > Court of Appeal, 14 October 2002 > > http://www.law.cam.ac.uk/restitution/archive/englcases/great_peace_2.htm > > The court of appeal holds that there is no distinct equitable doctrine of > common mistake. > > The true, common law doctrine is as follows: > > "(i) there must be a common assumption as to the existence of a state of > affairs; (ii) there must be no warranty by either party that that state o= f > affairs exists; (iii) the non-existence of the state of affairs > must not be > attributable to the fault of either party; (iv) the non-existence of the > state of affairs must render performance of the contract impossible; (v) > the state of affairs may be the existence, or a vital attribute, of the > consideration to be provided or circumstances which must subsist if > performance of the contractual adventure is to be possible. " (para 76) > > This doctrine is closely analogous to the doctrine of frustration, and > "Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to > temper the effect of the common law doctrine of frustration, so there is > scope for legislation to give greater flexibility to our law of mistake > than the common law allows." (para 162). > > Sundry observations on the scope of equity, circumstances when > the court of > appeal may depart from its own decisions, and other matters. > > > > Enjoy, > > > > 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 > FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE > > e-mail : steve.hedley@law.cam.ac.uk > ansaphone : +44 1223 334931 > www.stevehedley.com > fax : +44 1223 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 > > ____________________________________________________________________ > 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 . ____________________________________________________________________ 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, 17 Oct 2002 11:53:47 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Great Peace MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Solle v Butcher and Magee v Penine Insurance are not the only decisions of Lord Denning that Great Peace is departing from. In Miliangos v George Franks the Court of Appeal (with the leading judgment from Lord Denning) held that a Court of Appeal decision which is inconsistent with a preceding House of Lords decision is still binding upon the Court of Appeal. We now have conflicting Court of Appeal decisions on this point (see also Noble v Southern Railway). Where Court of Appeal decisions conflict the Court of Appeal in a subsequent case is generally thought to be able to choose which to follow. Unfortunately, unlike most legal rules this confusion cannot be settled by the House of Lords as any statement in the House on this issue will necessarily be obiter (eg Lord Simon's approval of the view of Lord Denning in the HL in Miliangos). Whilst as a matter of principle I would agree that Solle v Butcher is wrong I wonder whether the court should have been so bold. Even if Solle v Butcher is accepted, this was not an appropriate case for the exercise of the court's discretion, as Toulson J demonstrated in his superb judgment. ____________________________________________________________________ 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, 17 Oct 2002 14:26:05 +0100 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Solle v. Butcher bites the dust Comments: To: mgergen@mail.law.utexas.edu In-Reply-To: <1034847847.c1954b40MGergen@mail.law.utexas.edu> MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: 7bit Dear all, I wonder whether the answer to Mark Gergen's half question on mispredictions is not something like this. I do offer this very tentatively in the expectation that there may be a big hole somewhere in the theory. In the case of a mistaken payment you have a belief in something that at the time you make the payment is not the case. Your intention is flawed or vitiated, call it what you will, and therefore you can recover. However, a misprediction applies to something that was not independently falsifiable at the time you acted, but only subsequently. You have done what you set out to do and it later turns out to be a bad idea, and as we see from Clarion v National Provident Institution that type of 'mistake' does not count in contract cases either. In a contractual case where you make a mistake you make the contract believing simething to be true that isn't. You have to protect other parties' expectations, but subject to how we do that relief is availalable, at least sometimes. Where frustration operates you make the contract and it later turns out to be more onerous than you thought in such a way that the contract is terminated de futuro, you are still performing it. The, at least tacit, misprediction that you made when you enter the contract that these events would not happen does affect the performance in the same way as a mistake does. To that extent when the Court of Appeal in Great Peace Shipping v Tsavliris drew the doctrines of mistake and frustration closer together they were right to do so, and the US position makes sense. A misprediction where the contract is completely executed will not count, or at least I cannot immediately think when it might. It will certainly be as rare as mispredictions counting in restitution. It will be rare for the same reason; in both cases you have completed what you wanted; the misprediction does not affect your actions. I think what this amounts to is saying that frustration in contract represents a special type of misprediction that works, but does not affect the general rule that mispredictions do not count. If you think you can shoot this one down, please do. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Gergen > Sent: Thursday, October 17, 2002 10:44 AM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: [RDG:] Solle v. Butcher bites the dust > > > Ironically, I was using Amalgamated Investment & Property v. John > Walker (AI&P) to teach the English law of frustration the day > Great Peace Shipping (GPS) was decided. The judges in AI&P drew > a sharp, if somewhat arbitrary, distinction between mistake and > frustration. The one going to an existing fact, the other to a > future event. The error was whether a property would be listed, > which reduced its value from 1,710,000 to 200,000 pounds. At the > time of the contract it was inevitable that the property would be > listed -- a low-level official had set the ball in motion -- but > it had not been officially done. On the surface the case is > difficult to distinguish from Solle, where the mistake went to > whether property under lease was rent controlled. I left the > point hanging telling the students that English law seems to take > a more generous approach to mistake than frustration. > > In the United States, people usually collapse mistake, > impossibility/impracticability, and frustration. If you come at > it from the perspective of contract law this is easy to do for > the questionin every case is whether to discharge someone from > his bargain because the world was not as he and the other > expected. I was happy with this until I began to study the law > of restitution where I learned that there is a sharp divide > between mistake of existing fact and mistakes regarding the > future. Outside contract (and in the case of mistaken > performance of a contract), relief from the former is almost > automatic while relief from the latter is rare. I'm not quite > sure what to make of this. > > Back to contract. Once you get beyond some obvious questions -- > to determine whether a person bears a risk you ask whether it is > assigned by the contract, whether it is assigned by a background > rule of law (e.g, the rule on destruction of identified goods), > and whether the risk was foreshadowed when the contract was made > -- the law is a muddle in the US and in England. The so-called > principles or tests in Trietal and Anson (Beatson) merely say > that a contract will be relieved only if a change in the world > has a great impact on the cost or value of performance, they do > not say precisely how great nor why sometimes the law will not > relieve someone from a great and unexpected loss. > > This said it is easy to explain the result in most cases. In > AI&P the risk was foreseeable and there may be a per se rule on > sales of real estate because of the interest in finality. In GPS > the real mistake may have been that the defendant was unaware one > of its own ships was near the damaged vessel. He continued the > charter after learning the plaintiff's vessel was further than > they had thought, cancelling it only when his own vessel showed > up on the scene. > > ____________________________________________________________________ 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, 17 Oct 2002 16:16:55 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Solle v. Butcher bites the dust Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Duncan Sheehan wrote:- >I think what this amounts to is >saying that frustration in contract >represents a special type of >misprediction that works, but >does not affect the general rule >that mispredictions do not count. ... which in turn suggests that, if there is a principled basis for combining the restitution and the contract doctrines, it isn't to be found in the mistake/misprediction distinction - unless of course there is a principled reason why one particular type of misprediction is treated differently from all the others. If we ask rather about the basis of the transaction (or "the parties' common assumptions", if you prefer), the similarities are more straightforward. It is enough that the parties' agreement embodied an assumption, which turned out to be inaccurate. Whether the mistake could in principle have been discovered before the payment or not is beside the point. This leaves us with the problem of saying which types of assumption are fundamental enough to matter, but I think we have that problem anyway. Of course, most of the cases will in practice involve mistakes - the argument is that it is not convenient or analytically correct to base them on that. Indeed, as we know, the same principles have been applied where one party was not mistaken at all, but nonetheless their transaction embodies a false assumption - as where money is demanded and paid on the basis that it is due, the payor already realising that it is not in fact due (Woolwich, the last 5 overpayments in Nurdin). The question is not, ultimately, what the parties expected or predicted, but what sort of circumstances their agreement provides for. All of this, of course, suggests a very narrow ambit for the doctrine of frustration, as well as "mistake". Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : +44 1223 334931 www.stevehedley.com fax : +44 1223 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, 18 Oct 2002 08:24:18 +1300 Reply-To: Paul Michalik Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Paul Michalik Subject: Re: Solle v. Butcher bites the dust MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" This argument has been rendered moot for New Zealand Lawyers by statutory reforms of the 1970's. The Contractual Mistakes Act 1977 sets out when a mistake will operate to vitiate a contract. (Although I wasn't a lawyer then :-) and so I stand to be corrected ) I understand that the Act was regarded as codifying the Common Law of the time as to what amounted to an operative mistake, sufficient to justify the intervention of the Courts. The Court was then granted wide discretion to craft a remedy appropriate to the circumstances. Section 6(1)(b) seems to be the codifier's attempt to articulate the answer to what Steve sets out as the remaining problem: which types of assumption are "fundamental" enough to matter? The answer is that a mistake is fundamental where it either results in a substantially unequal exchanges of value, or results in a benefit or burden being conferred or imposed that is disproportionate to the consideration given or received in return. The text of section 6 of the Act sets out the tests: 6 Relief may be granted where mistake by one party is known to opposing party or is common or mutual (1) A Court may in the course of any proceedings or on application made for the purpose grant relief under section 7 of this Act to any party to a contract- (a) If in entering into that contract- (i) That party was influenced in his decision to enter into the contract by a mistake that was material to him, and the existence of the mistake was known to the other party or one or more of the other parties to the contract (not being a party or parties having substantially the same interest under the contract as the party seeking relief); or (ii) All the parties to the contract were influenced in their respective decisions to enter into the contract by the same mistake; or (iii) That party and at least one other party (not being a party having substantially the same interest under the contract as the party seeking relief) were each influenced in their respective decisions to enter into the contract by a different mistake about the same matter of fact or of law; and (b) The mistake or mistakes, as the case may be, resulted at the time of the contract- (i) In a substantially unequal exchange of values; or (ii) In the conferment of a benefit, or in the imposition or inclusion of an obligation, which was, in all the circumstances, a benefit or obligation substantially disproportionate to the consideration therefor; and (c) Where the contract expressly or by implication makes provision for the risk of mistakes, the party seeking relief or the party through or under whom relief is sought, as the case may require, is not obliged by a term of the contract to assume the risk that his belief about the matter in question might be mistaken. (2) For the purposes of an application for relief under section 7 of this Act in respect of any contract,- (a) A mistake, in relation to that contract, does not include a mistake in its interpretation: (b) The decision of a party to that contract to enter into it is not made under the influence of a mistake if, before he enters into it and at a time when he can elect not to enter into it, he becomes aware of the mistake but elects to enter into the contract notwithstanding the mistake. _______________________________________________________ Paul Michalik work Morrison Kent ph 04 - 495 8927 PO Box 10-035 fax 04 - 495 8937 Wellington New Zealand mob 027 - 233 2003 -----Original Message----- From: Steve Hedley [mailto:swh10@CAM.AC.UK] Sent: Friday, 18 October 2002 04:17 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Solle v. Butcher bites the dust Duncan Sheehan wrote:- >I think what this amounts to is >saying that frustration in contract >represents a special type of >misprediction that works, but >does not affect the general rule >that mispredictions do not count. ... which in turn suggests that, if there is a principled basis for combining the restitution and the contract doctrines, it isn't to be found in the mistake/misprediction distinction - unless of course there is a principled reason why one particular type of misprediction is treated differently from all the others. If we ask rather about the basis of the transaction (or "the parties' common assumptions", if you prefer), the similarities are more straightforward. It is enough that the parties' agreement embodied an assumption, which turned out to be inaccurate. Whether the mistake could in principle have been discovered before the payment or not is beside the point. This leaves us with the problem of saying which types of assumption are fundamental enough to matter, but I think we have that problem anyway. Of course, most of the cases will in practice involve mistakes - the argument is that it is not convenient or analytically correct to base them on that. Indeed, as we know, the same principles have been applied where one party was not mistaken at all, but nonetheless their transaction embodies a false assumption - as where money is demanded and paid on the basis that it is due, the payor already realising that it is not in fact due (Woolwich, the last 5 overpayments in Nurdin). The question is not, ultimately, what the parties expected or predicted, but what sort of circumstances their agreement provides for. All of this, of course, suggests a very narrow ambit for the doctrine of frustration, as well as "mistake". Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : +44 1223 334931 www.stevehedley.com fax : +44 1223 334967 Christ's College Cambridge CB2 3BU ============================================= This electronic message together with any attachments or the contents thereof is confidential and may be legally privileged or comprise inside information under the securities laws. Use of it or any part of it for other than the intended purposes or in amended form without our written approval is at the sole risk of the user. If you are not the intended recipient, please notify us immediately and erase the original message and attachments received. Except for that purpose, you must not read, use, copy or disclose any of the information to others. ____________________________________________________________________ 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, 18 Oct 2002 17:41:06 +0100 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Solle v. Butcher bites the dust Comments: To: Steve Hedley In-Reply-To: <3.0.6.32.20021017161655.0113e3f0@pop.hermes.cam.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Dear all, I think my response to Steve is yes, but also no. Perhaps a pithy exposition of how I see mispredictions would help A misprediction which becomes apparent, because the belief becomes falsifiable, when the transaction/contract is still executory or partially executed will count. That is I think why frustration operates, as a misprediction that bites when the contract is partially executed. If the prediction became falsifiable only after full execution there would be no relief, and most cases of misprediction on restitution fall into this category. May be I am just repeating myself from my earlier email, but this is the principled reason for treating some mispredictions differently. If the contract is partially executed the misprediction affects what you actually do. If it is fully executed it does not. If Steve is implying there is no principled basis, as I think he is, I must disagree The part with which I do agree is where Steve says "The question is not, ultimately, what the parties expected or predicted, but what sort of circumstances their agreement provides for." True, up to a point. If we take the risk of being mistaken we can have no relief, and Great Peace Shipping confirms this for us. I do not think we have to abandon mistake though. We need a cause of action, and I do not think not having provided for the eventuality provides one. Taking the risk, or providing for the occurrence may bar relief, but we still need the mistake to justify relief in the first place. That said it won't be very often, certainly not if Solle v Butcher really has gone, and we take a rather bold Court of Appeal's word for it. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Steve Hedley > Sent: Thursday, October 17, 2002 4:17 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] Solle v. Butcher bites the dust > > > Duncan Sheehan wrote:- > > >I think what this amounts to is > >saying that frustration in contract > >represents a special type of > >misprediction that works, but > >does not affect the general rule > >that mispredictions do not count. > > ... which in turn suggests that, if there is a principled basis for > combining the restitution and the contract doctrines, it isn't to be found > in the mistake/misprediction distinction - unless of course there is a > principled reason why one particular type of misprediction is treated > differently from all the others. > > If we ask rather about the basis of the transaction (or "the parties' > common assumptions", if you prefer), the similarities are more > straightforward. It is enough that the parties' agreement embodied an > assumption, which turned out to be inaccurate. Whether the mistake could > in principle have been discovered before the payment or not is beside the > point. This leaves us with the problem of saying which types of > assumption > are fundamental enough to matter, but I think we have that problem anyway. > > Of course, most of the cases will in practice involve mistakes - the > argument is that it is not convenient or analytically correct to base them > on that. Indeed, as we know, the same principles have been applied where > one party was not mistaken at all, but nonetheless their transaction > embodies a false assumption - as where money is demanded and paid on the > basis that it is due, the payor already realising that it is not in fact > due (Woolwich, the last 5 overpayments in Nurdin). The question is not, > ultimately, what the parties expected or predicted, but what sort of > circumstances their agreement provides for. > > All of this, of course, suggests a very narrow ambit for the doctrine of > frustration, as well as "mistake". > > Steve Hedley > > ============================================= > FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE > > e-mail : steve.hedley@law.cam.ac.uk > ansaphone : +44 1223 334931 > www.stevehedley.com > fax : +44 1223 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 > . > ____________________________________________________________________ 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, 19 Oct 2002 09:50:25 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Solle v. Butcher bites the dust In-Reply-To: <000501c276c5$275d0e40$5498de8b@lawpc02> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Well, we are stumbling towards a principled distinction, I think. This is between transactions which are fully executed on the same occasion as they are agreed (such as payment of a debt, or a purchase in a supermarket), and transactions which remain executory for a significant period (such as a hire-purchase contract, or an interest rate swap). It is only in the latter case that Duncan's special category of "actionable mispredictions" arises. (Plainly, this cuts across the "contract"/"no contract" distinction.) The difficulty is that Duncan keeps using language which refers to a single person's mental state ("mistake" and "misprediction"), whereas it is elementary contract law that rights depend on what was agreed, rather than on what one party thought they were agreeing to. So, for example, if Duncan were describing the Fibrosa case, he has to say that the parties "mistakenly believed" that war would not break out, or "mispredicted" peace - both of which seem factually doubtful. In fact, we don't care what the parties actually thought about the likelihood of war. The point is that their agreement is only intelligible if we presuppose peace-time conditions, and so may be said to embody an assumption that there would be no war. If harmony can be attained between the cases involving contracts and the cases which don't, it can only be by using the same concepts for each. "Mistake" doesn't cut it, because we then slide between mistakes made by individuals, and mistaken assumptions implicit in contractual wording. Whereas talk about the "common assumption" their transaction embodies works in both contexts - we can talk of payment of a debt as embodying the assumption that the money was due, without making any unprovable statements about what was going through the parties' minds. At 17:41 18/10/02 +0100, Duncan Sheehan wrote: >Dear all, > >I think my response to Steve is yes, but also no. Perhaps a pithy exposition >of how I see mispredictions would help > >A misprediction which becomes apparent, because the belief becomes >falsifiable, when the transaction/contract is still executory or partially >executed will count. That is I think why frustration operates, as a >misprediction that bites when the contract is partially executed. If the >prediction became falsifiable only after full execution there would be no >relief, and most cases of misprediction on restitution fall into this >category. May be I am just repeating myself from my earlier email, but this >is the principled reason for treating some mispredictions differently. If >the contract is partially executed the misprediction affects what you >actually do. If it is fully executed it does not. If Steve is implying there >is no principled basis, as I think he is, I must disagree > >The part with which I do agree is where Steve says "The question is not, >ultimately, what the parties expected or predicted, but what sort of >circumstances their agreement provides for." > >True, up to a point. If we take the risk of being mistaken we can have no >relief, and Great Peace Shipping confirms this for us. I do not think we >have to abandon mistake though. We need a cause of action, and I do not >think not having provided for the eventuality provides one. Taking the risk, >or providing for the occurrence may bar relief, but we still need the >mistake to justify relief in the first place. That said it won't be very >often, certainly not if Solle v Butcher really has gone, and we take a >rather bold Court of Appeal's word for it. Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : +44 1223 334931 www.stevehedley.com fax : +44 1223 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: Sun, 20 Oct 2002 15:06:20 +1300 Reply-To: Richard Sutton Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Richard Sutton Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="============_-1177042910==_ma============" --============_-1177042910==_ma============ Content-Type: text/plain; charset="us-ascii" ; format="flowed" Dear everyone I have enjoyed the useful exchanges over the Great Peace case, and am looking forward to reading the case more closely. I'd like to add a few points, mostly by way of agreement with what others have said. But some consequences worry me, and I'd be interested to know whether they worry others too.. I agree the notion of "equitable mistake" - though it had justifiable policy aims - was always something of a muddle from a strictly jurisdictional point of view. There are so many parallels between frustration and mistake, that it seems odd that equity can intervene in the one case but not the other. The consequences of that view, as expressed in para 76, seem to me to be quite disastrous, but that is another matter. So I am happy to follow Steve Hedley's path a certain distance. "Mistake" and Frustration" perform similar functions, the one relating to events existing at the time of the contract, the other relating to events occurring after that time. A useful example is the contract for construction of a tunnel. Suppose the contractors unexpectedly strike rock where they thought there would be clay. It's much too expensive to shift at the agreed contract price. You could deal with this either as an existing event (the state of the ground) or a future one (what they would encounter along the way). Without suggesting there is any right answer to the example, it has always seemed to me to make little sense if you get a different result, depending solely on whether you appeal to the law of frustration or the law of mistake. But I am not so sure about Steve's comments about the way it all depends on the fact that "the parties' agreement embodied an assumption". This harks back to a very old (and in my view rather finickity) debate, about whether mistake is simply a matter of contract interpretation. The practical side is, of course, that no court would think of holding in favour of mistake or frustration, without a most anxious consideration of the terms of the contract. But what if the court is left genuinely in doubt, about whether there was a "embodied assumption" over a state of affairs X (existing or future), which, almost by definition, neither side has focussed their minds on? Or suppose, though both parties independently thought X when Y was true, they never discussed it so that it wasn't present in the "matrix" of fact common to their negotiation? In either event there is, I suspect, no "embodied assumption" yet a court would - and I think should - intervene once it becomes apparent that the contract will work out much worse than the parties had expected. The "common assumption" and "mistake" themes are thus complementary approaches, rather than theoretical alternatives. So it seems to me that writers and judges use symbols - the ideas of "mistake" and "impossibility" - which provide a starting point from "outside" the four corners of the contract. If we discover that both parties have made the same mistake or prediction, or simply haven't thought about it at all (even though - objectively speaking - it needed attention) then that is a start. Then we look at the contract. If it is totally silent on the point, and after we have considered the basic objectives of the contract, we still think the point is "fundamental" to the parties' aspirations for their contract, then we can say it's likely that the Court will grant relief. I may be wrong, and the point I am making looks like a precious one. But it seems to me that it can make a difference, so that neither doctrine is confined to a "narrow ambit" - I don't like that at all! Paul Michalik was kind enough to inject NZ's Contractual Mistakes Act 1977 into the discussion. I am still prepared to admit some responsibility for what the Act contains, and to defend it in its moments of peril. In section 6(1), it follows the philosophy I have described. To me, though, the key thing about the Act is the much more flexible remedies it provides in section 7. They are more varied than those available even under the Solle v Butcher ruling. I think I can say that the hope was that courts would be more open to giving relief, once they could use the remedial provisions to alleviate any hardship that might be suffered by the party insisting on the contract. Unfortunately, the Law Reform Committee that drafted the legislation could not be prevailed upon to specify the principles on which that remedial discretion would be exercised. Had it done so, that might have clarified the scope of the discretion, and helped with subsequent difficulties over the interpretation of section 6 as well. Could I conclude with a brief additional comment on the vexed problem of "misprediction"? I agree with Steve that it seems unprincipled, in the present context, to raise a distinction between mistake and misprediction. Nor is it useful to ask whether the mistake related to something whose truth or otherwise could have been discovered at the time of the contract. And also, with him, I don't think all this means that the law of restitution and the law of contract are irreconcilable, but I suspect my reasons for thinking this may differ from his. The problem, it seems to me, lies the use of the "misprediction" doctrine as a bar to recovery in the law of mistaken payments. Let us take as an example the case of A, who receives a bill from B Co , and he is not sure whether it is really due. He rings up B Co, and they tell him, "We believe this bill is correct, but unfortunately our computers have been out for week and there's no way of checking your query at the moment". A, who is a meticulous about paying his bills on the 20th of the month, says to himself, "I'll pay this now and if there's anything wrong, I'm sure they'll give me a credit on next month's bill." And, when it turns out that there's been a mistake, they do. But surely it can't be right to say B Co could have kept A's money if it wanted? It is just not true to say that A has "taken a risk", or "done what he set out to do", when he has acted on a bill which would not have been issued if the true facts had been known. In this case (with Steve) I think "common assumption" analysis works better than Duncan Sheehan's "mistake vs misprediction" analysis. Nor can I see how Duncan's latest suggestion (that there's a difference between completed and uncompleted transactions) gets around this problem, because on its face the payment is complete when A makes it. But (unlike Steve) I think the notion of "mistake" should be widened to cover this type of situation too. My worry is that if the misprediction doctrine is implausible in the contract setting, it is just as likely not to work in the mistaken payment setting either, as I think my example shows. In both cases the doctrine substitutes a purely temporal criterion, for a much more complex inquiry into policy and principle. The Clarion case is one such example - it didn't, on my reading , turn simply on the question of misprediction, but rather on the fact that the mistake was about the effect of the agreement the parties were making (cf NZ's CMA, s 6(2)(a)). And the recent judicial - and august - support for the misprediction doctrine in the Dextra case was unnecessary for the decision, and doesn't, unfortunately, make the doctrine any the more workable. I have my own views on this which I hope will soon appear in print, but I'd be interested in whether others think it might be an open question. Sorry this has turned out so long-winded! Richard Sutton -- ***************************************** Richard Sutton Professor Faculty of Law University of Otago PO Box 56 Dunedin New Zealand phone: ++(64) (03) 479 8845. fax:(03) 479 8855 hm phone: ++ (64) (03) 4672-874 hm e-mail: kandr.sutton@xtra.co.nz --============_-1177042910==_ma============ Content-Type: text/html; charset="us-ascii"
Dear everyone

I have enjoyed the useful exchanges over the Great Peace case, and am looking forward to reading the case more closely.  I'd like to add a few points, mostly by way of agreement with what others have said.  But some consequences worry me, and I'd be interested to know whether they worry others too..

I agree the notion of "equitable mistake" - though it had justifiable policy aims - was always something of a muddle from a strictly jurisdictional point of view.  There are so many parallels between frustration and mistake, that it seems odd that equity can intervene in the one case but not the other.  The consequences of that view, as expressed in  para 76, seem to me to be quite disastrous, but that is another matter.

So I am happy to follow Steve Hedley's path a certain distance.  "Mistake" and Frustration" perform similar functions, the one relating to events existing at the time of the contract, the other relating to events occurring after that time.  A useful example is the contract for construction of a tunnel. Suppose the contractors unexpectedly strike rock where they thought there would be clay.   It's much too expensive to shift at the agreed  contract price. You could deal with this either as an existing event (the state of the ground) or a future one (what they would encounter along the way).  Without suggesting there is any right answer to the example, it has always seemed to me to make little sense if you get a different result, depending solely on whether you appeal to the law of frustration or the law of mistake.
But I am not so sure about Steve's comments about the way it all depends on the fact that "the parties' agreement embodied an assumption".  This  harks back to a very old (and in my view rather finickity) debate, about whether mistake is simply a matter of contract interpretation.  The practical side is, of course, that no court would think of holding in favour of mistake or frustration, without a most anxious consideration of the terms of the contract.  But what if the court is left genuinely in doubt, about whether there was a "embodied assumption" over a state of affairs X (existing or future),  which, almost by definition, neither side has focussed their minds on?  Or suppose, though both parties independently thought X when Y was true, they never discussed it so that it wasn't present in the "matrix" of fact common to their negotiation? In either  event there is, I suspect, no "embodied assumption" yet a court would - and I think should - intervene once it becomes apparent that the contract will work out much worse than the parties had expected. 

The "common assumption" and "mistake" themes are thus complementary approaches, rather than theoretical alternatives. So it seems to me that writers and judges use symbols - the ideas of "mistake" and "impossibility" - which provide a starting point from "outside" the four corners of the contract.  If we discover that both parties have made the same mistake or prediction, or simply haven't thought about it at all (even though - objectively speaking - it needed attention) then that is a start.   Then we look at the contract. If it is totally silent on the point, and after we have considered the basic objectives of the contract, we still think the point is "fundamental" to the parties'  aspirations for their contract, then we can say it's likely that the Court will grant relief.   I may be wrong, and the point I am making looks like  a precious one. But it seems to me that it can make a difference, so that neither doctrine is confined to a "narrow ambit" - I don't like that at all!

Paul Michalik was kind enough to inject NZ's Contractual Mistakes Act 1977 into the discussion.  I am still prepared to admit some responsibility for what the Act contains, and to defend it in its moments of peril. In section 6(1), it follows the philosophy I have described.  To me, though, the key thing about the Act is the much more flexible remedies it provides in section 7. They are more varied than those available even under the Solle v Butcher ruling.   I think I can say that the hope was that courts would be more open to giving relief, once they could use the remedial provisions to alleviate any hardship that might be suffered by the party insisting on the contract.  Unfortunately, the Law Reform Committee that drafted the legislation could not be prevailed upon to specify the principles on which that remedial discretion would be exercised.  Had it done so, that might have clarified the scope of the discretion, and helped with subsequent difficulties over the interpretation of section 6 as well.

Could I conclude with a brief additional comment on the vexed problem of "misprediction"? I agree with Steve that it seems unprincipled, in the present context, to raise a distinction between mistake and misprediction.  Nor is it useful to ask whether the mistake related to something whose truth or otherwise could have been discovered at the time of the contract.  And also, with him, I don't think all this means that the law of restitution and the law of contract are irreconcilable, but I suspect my  reasons for thinking this may differ from his.

The problem, it seems to me, lies the use of the "misprediction" doctrine as a bar to recovery in the law of mistaken payments.  Let us take as an example the case of A, who receives a bill from B Co , and he is not sure whether it is really due.  He rings up B Co, and they tell him, "We believe this bill is correct, but unfortunately our computers have been out for week and there's no way of  checking your query at the moment".  A, who is a meticulous about paying his bills on the 20th of the month, says to himself, "I'll pay this now and if there's anything wrong, I'm sure they'll give me a credit on next month's bill."  And, when it turns out that there's been a mistake, they do.  But surely it can't be right to say B Co could have kept A's money if it wanted? It is just not true to say that A has "taken a risk", or "done what he set out to do", when he has acted on a bill which would not have been issued if the true facts had been known.  In this case (with Steve) I think  "common assumption" analysis works better than Duncan Sheehan's "mistake vs misprediction" analysis.   Nor can I see how Duncan's latest suggestion (that there's a difference between completed and uncompleted transactions) gets around this problem, because on its face the payment is complete when A makes it.  But (unlike Steve) I think the notion of "mistake" should be widened to cover this type of situation too.

My worry is that if the misprediction doctrine is implausible in the contract setting, it is just as likely not to work in the mistaken payment setting either, as I think my example shows. In both cases the doctrine substitutes a purely temporal criterion, for a much more complex inquiry into  policy and principle.  The Clarion case is one such example - it didn't, on my reading , turn simply on the question of misprediction, but rather on the fact that the mistake was about the effect of  the agreement the parties were making (cf NZ's CMA, s 6(2)(a)).  And the recent judicial - and august -  support for the misprediction doctrine in the Dextra case was unnecessary for the decision, and doesn't, unfortunately, make the doctrine any the more workable. I have my own views on this which I hope will soon appear in print, but I'd be interested in whether others think it might be an open question.

Sorry this has turned out so long-winded!


Richard Sutton
--
*****************************************
Richard Sutton
Professor
Faculty of Law
University of Otago
PO Box 56
Dunedin
New Zealand
phone: ++(64) (03) 479 8845.  fax:(03) 479 8855
hm phone: ++ (64) (03) 4672-874
hm e-mail: kandr.sutton@xtra.co.nz


--============_-1177042910==_ma============-- ____________________________________________________________________ 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 .