========================================================================= Date: Tue, 7 Jan 2003 10:19:28 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: New article on mistake Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I am delighted to be able to open the new year with an excellent new contribution to an ongoing debate, which the author has asked me to include on the restitution website (www.law.cam.ac.uk/restitution). "Mistake and mispredictions", linked from the articles page. Happy 2003, 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: Tue, 14 Jan 2003 14:30:31 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Burrows on Restitution, 2ed MIME-version: 1.0 Content-type: multipart/alternative; boundary="=====================_20407337==_.ALT" --=====================_20407337==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Published last month was the eagerly-awaited second edition of Prof. Burrows excellent Law of Restitution. http://rimer.butterworths.co.uk/webcat/enquiry/product/product_detail.asp?ProdID=2075 Many congratulations to him! LDS --=====================_20407337==_.ALT Content-Type: text/html; charset="us-ascii" Published last month was the eagerly-awaited second edition of Prof. Burrows excellent Law of Restitution.

http://rimer.butterworths.co.uk/webcat/enquiry/product/product_detail.asp?ProdID=2075

Many congratulations to him!

LDS --=====================_20407337==_.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: Fri, 24 Jan 2003 18:52:46 -0000 Reply-To: Simon Macdonald Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simon Macdonald Subject: Contribution - Civil Liability (Contributions) Act -v- Common Law MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C2C3D9.C8EF7110" This is a multi-part message in MIME format. ------_=_NextPart_001_01C2C3D9.C8EF7110 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear all I have recently inherited a case which raises, at least for me, an = interesting question about the relationship between contribution as an = equitable and contribution as a statutory remedy. I raise the issue = both as I imagine it may be of general interest, and also I confess in = the hope that any received observations may assist me to achieve the = desired result at a forthcoming hearing. A Ltd. entered a lease agreement with B Ltd. A Ltd. entered a guarantee = and indemnity agreement with C and D, directors of B Ltd. under which C = and D (1) hereby guarantee the payment to you on demand of all sums that = become payable to you by the B Ltd. under the agreement and the due = performance and observance by B Ltd. of all the terms and conditions of = the agreement (2) hereby indemnify you against any failure by B Ltd. to observe and = perform B Ltd.'s obligations set out in the agreement and agree to pay = you on demand any sums which B Ltd. has agreed to pay under the = agreement and any sums which become payable to you as a consequence of B = Ltd.'s said failure. B Ltd. subsequently went into liquidation. A Ltd. sought to recover = against C and D. As no one could find C and effect service, D fought on = alone, but ultimately in vain, and A Ltd. were awarded judgment. = Generously, the judgment was subsequently set aside by consent, = substituting in full and final settlement a considerably lower sum. Some 2 =BD years later, a claim is issued against C, by D, for a 50% = contribution of the F&F settlement sum. C initially states "you're time barred, under the CL(C)A you have two = years to bring a claim for contribution". D however retorts "but see = Hampton -v- Minns, the CL(C)A doesn't cover claims for contribution = where the original judgment sounds in debt, i.e. where the guarantee in = question falls within Lord Reid's first category of guarantor = obligations in Lep Air Services -v- Rolloswin Investments Ltd [1973] AC = 331 Therefore I had 6 years to bring my claim." So it seems that whether the claim is time barred depends on whether = upon true construction, the guarantee entered by C and D guarantees to = either (a) perform B Ltd.'s contractual obligations (Lord Reid's second = category), or (b) pay B Ltd.'s debts to A Ltd. (Lord Reid's first = category). If the answer is both, Hyundai -v- Papadopolous [1980] 2 All = ER 29 assists D. My interpretation of the Guarantee puts clause 1 within Lord Reid's = second category and clause 2 within Lord Reid's first category, and = hence provides D with a right to claim contribution within 6 years. I would greatly appreciate any thoughts on this generally, and in = particular whether clause 2 of the guarantee can on any construction be = squeezed within Lord Reid's second category. Also, in relation to the = rationale of the distinction, why should so much rest on the = damages/debt divide? If I am right, the distinction leaves contribution = pursuant to half of the above guarantee time barred, while allowing a = claim in relation to the other half. =20 Any thoughts? Simon MacDonald p.s. a quick hello to Charles Mitchell and Donal Nolan who introduced me = to Restitution at King's! ------_=_NextPart_001_01C2C3D9.C8EF7110 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Contribution - Civil Liability (Contributions) Act -v- Common Law =

Dear all

I have recently inherited a case which = raises, at least for me, an interesting = question about the = relationship between contribution as an equitable and contribution as a = statutory remedy.  I raise the issue = both as I imagine it may be of general interest, and = also I confess in the hope that any received = observations may assist me to achieve the desired result = at a forthcoming hearing.

A Ltd. entered a lease agreement with B = Ltd.  A Ltd. entered a guarantee and indemnity = agreement with C and D, directors of B Ltd. under = which C and D
(1)  hereby guarantee the payment to you on demand of all sums that = become payable to you by the B Ltd. under = the agreement and the due performance and observance = by B Ltd. of all the terms = and conditions of the agreement

(2)  hereby indemnify = you against any failure = by B Ltd. to observe and = perform B Ltd.’s obligations set out = in the agreement and agree to pay you on demand any sums which B Ltd. = has agreed to pay under the agreement and any sums which become = payable to you as a consequence of B = Ltd.’s said failure.

B Ltd. subsequently went into liquidation.  A = Ltd. sought to recover against C and D.  As no one could = find C and effect service, D fought = on alone, but ultimately in vain, and A Ltd. were awarded = judgment.  Generously, the judgment was subsequently = set aside by consent, substituting in full and = final settlement a considerably lower = sum.

Some 2 =BD years later, a claim = is issued against C, by D, for a 50% contribution of the F&F = settlement sum.

C initially states = “you’re time barred, under the CL(C)A you have = two years to bring a claim for contribution”.  D however = retorts “but see Hampton –v- = Minns, the CL(C)A doesn’t cover claims for contribution = where the original judgment sounds in debt, = i.e. where the guarantee in question falls = within Lord Reid’s first = category of guarantor obligations in Lep = Air Services –v- Rolloswin Investments Ltd [1973] AC = 331  Therefore I had 6 years to bring my = claim.”

So it seems that whether the claim is time barred depends = on whether upon true construction, the guarantee entered by C and = D guarantees to either (a) perform = B Ltd.’s contractual obligations (Lord = Reid’s second category), or (b) pay B = Ltd.’s debts to A Ltd. (Lord Reid’s first = category).  If the answer is both, Hyundai –v- Papadopolous = [1980] 2 All ER 29  assists = D.

My interpretation of the Guarantee puts clause 1 within = Lord Reid’s second category and clause 2 = within Lord Reid’s first category, and hence provides D with a = right to claim contribution within 6 years.

I would greatly appreciate any thoughts on this = generally, and in particular whether = clause 2 of = the guarantee can on any construction be = squeezed within Lord Reid’s second category.  = Also, in relation to the rationale of the = distinction, why should so much rest on = the damages/debt divide?  If I am right, the = distinction leaves contribution pursuant = to half of the above guarantee time barred, while = allowing a claim in relation to the other = half. 

Any thoughts?

Simon MacDonald

p.s. a quick hello to Charles Mitchell and Donal Nolan = who introduced me to Restitution at = King’s!

------_=_NextPart_001_01C2C3D9.C8EF7110-- ____________________________________________________________________ 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, 28 Jan 2003 12:54:21 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Congratulations MIME-version: 1.0 Content-type: multipart/alternative; boundary="=====================_14339560==_.ALT" --=====================_14339560==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Double congratulations to RDG denizen Charles Mitchell, who is not only a newly-minted Reader at King's College London, but who has also just published The Law of Contribution and Reimbursement in OUP's practitioner series. Congratulations also to Jason Neyers, who organized an excellent symposium on "Understanding Unjust Enrichment" this past weekend at the University of Western Ontario. Watch for the book from Hart Publishing. Lionel --=====================_14339560==_.ALT Content-Type: text/html; charset="us-ascii" Double congratulations to RDG denizen Charles Mitchell, who is not only a newly-minted Reader at King's College London, but who has also just published The Law of Contribution and Reimbursement in OUP's practitioner series.

Congratulations also to Jason Neyers, who organized an excellent symposium on "Understanding Unjust Enrichment" this past weekend at the University of Western Ontario. Watch for the book from Hart Publishing.

Lionel --=====================_14339560==_.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 .