============================================================= ============ Date: Tue, 8 Apr 2003 13:50:12 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: restitution for historical injustice MIME-version: 1.0 Content-type: text/html; charset=iso-8859-1 Content-transfer-encoding: quoted-printable I do not think that the case of Mack v Canada has been mentioned on the RDG yet. This is a potential class action arising out the of imposition, during the years 1885-1923, of a 'head tax' on immigrants to Canada from China. (During the period 1923-1947 Chinese immigrants were effectively excluded from Canada.)

The plaintiffs put forward three causes of action: (a) two violations of s. 15 of the Charter, which prohibits governmental discrimination; (b) a violation of customary international law; (c) unjust enrichment. The Ontario Supreme Court of Justice ((2001), 55 O.R. (3d) 113) and the Court of Appeal ((2002), 60 O.R. (3d) 373 (C.A.)) have struck out the statement of claim as disclosing no reasonable cause of action. Leave to appeal has been sought [2002] S.C.C.A. No. 476.

Some claims are based on argued present (or recent) injustices, particularly a form of discrimination in that the government has made reparations to Japanese Canadians interned during WWII but has not made any reparations in this case. The unjust enrichment claim, however, is based on the head tax payments.

I am giving a paper this weekend at a conference arising out of the litigation. My initial analysis of the unjust enrichment claim was that restitution was impossible unless the legislation could be shown to be invalid at the time the tax was paid, either due to inconsistency with some then-existing superior norm, or by the enactment of some later norm with retroactive effect. Both of these arguments were made, but they are very difficult. The former has to be based on international law, and the latter on the Charter. The SCC has held that s. 15 of the Charter, which came into effect in 1985, does not have retroactive effect: Benner v Canada (Secretary of State), [1997] 1 S.C.R. 358, 143 D.L.R. (4th) 577. It is clear that s. 15 cannot make governments liable for harm caused by pre-1985 discrimination.

However, Benner says that while s. 15 does not work retroactively, it operates against ongoing discrimination which continues in force after 1985, even if some of the crucial facts (in Benner's case, the circumstances of his birth) occurred before 1985. This has led me to consider the following argument. Normally an enrichment and corresponding deprivation are unjust only if the factors which make them so are present at the time of the transfer. However, there is clearly a qualification to this in the case of failure of basis. In that case, there is a kind of seed of injustice in place at the time of the transfer (a mutual understanding as to its basis), which germinates if the basis fails. See A. Burrows, The Law of Restitution, 2 ed., 332-333, commenting on this unusual feature. Following the pattern of failure of basis, I wonder whether it is possible to argue that a transfer based on discriminatory legislation might not be unjustified at the time it is made, but when subsequently a constitutional enactment is passed which forbids governmental discrimination (including by legislation), the seed of injustice germinates and the transfer becomes unjustified. This ends up actually following Benner, because you can say that you are not relying on a retroactive operation of s. 15, but only on a continuing state of affairs which is contrary to s. 15, namely the ongoing enrichment of the state, acquired through overtly discriminatory legislation. This would preserve the result that past harm caused by discrimination is not compensable due to the coming into force of s. 15, since we do not want to make conduct wrongful retroactively; but it would distinguish the case of unjust enrichment, which does not turn on wrongdoing. And just as in the case of failure of basis, an argument that the enrichment has been dissipated between the transfer and the completion of the injustice (or later) would be for the defendant to make (and would not anyway arise on a defendant's striking out motion). Again following the example of failure of basis, the limitation period would not start to run until 1985 (or maybe even from Benner in 1997 on a discoverability basis).

I thought this case might spark some discussion, and in any event I would be grateful for any thoughts on my ideas as outlined above.

The judgments, the legislation, and other related material including pleadings is available on the conference web site, http://www.law.utoronto.ca/conferences/reparations.<= a href=3D"http://www.law.utoronto.ca/conferences/reparations.html"= eudora=3D"autourl">html

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: Wed, 9 Apr 2003 18:38:31 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: restitution for historical injustice Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------2B60C2EBE3E1A77B1293D32A" --------------2B60C2EBE3E1A77B1293D32A Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Lionel, "Normally an enrichment and corresponding deprivation are unjust only if the factors which make them so are present at the time of the transfer. However, there is clearly a qualification to this in the case of failure of basis. In that case, there is a kind of seed of injustice in place at the time of the transfer (a mutual understanding as to its basis), which germinates if the basis fails." As an aside, does this potientially show that the reason for restitution in the failure of basis cases is not unjust enrichment but rather the breach of contract (followed by reliance/restitution damages) or an implied condition of the contract (if X not true we are not to be bound)? :) In regards to Mack, perhaps a possible line of attack might be based on the special nature of the government (i.e. as an entity which exists for the sole purpose of promoting the public good as embodied in the Constitution). The argument is as follows: Although there was a jurisitic reason for the enrichment at the time, it is not open to the government today to argue this juristic reason since to do so would force it to take a position (one can be discriminated on the basis of race) which is now consitutionally impermissible. Such a limitation would be similar to the argument in Jane Doe v. Metropolitan Police (1990 Div Ct.), Roncarelli v. Duplessis (1959 SCR) and City of Kamloops v. Neilsen (1984 SCC) that there are inherent/implicit limits on the exercise of state power such that some lines of defence are impermissible/irrational for the governement to take (in Jane Doe's case that women 'overreacted' to fears of sexual assault and thus did not have to be warned by police of rapists in the area). I think support for such a position can be found in the Idea of Private Law (see the discussion surrounding nonfeasance) and in the Weinribs' new article "Constitutional Values and Private Law in Canada" in Human Rights in Private Law (2001 Hart). What do you think? My initial analysis of the unjust enrichment claim was that restitution was impossible unless the legislation could be shown to be invalid at the time the tax was paid, either due to inconsistency with some then-existing superior norm, or by the enactment of some later norm with retroactive effect. Both of these arguments were made, but they are very difficult. The former has to be based on international law, and the latter on the Charter. The SCC has held that s. 15 of the Charter, which came into effect in 1985, does not have retroactive effect: Another argument that might be tried in relation to attacking the validity of the tax would be the implied "bill of rights" theory (i.e., there are certain actions which are ultra vires either level of government even without a Charter) which would count on as a "then-existing superior norm". If I remember correctly the implied "bill of rights" theory was superseded by the Bill of Rights and then the Charter but that does not mean that it could not be resurrected to deal with earlier cases. Just some thoughts. Jason Lionel Smith wrote: > I do not think that the case of Mack v Canada has been mentioned on > the RDG yet. This is a potential class action arising out the of > imposition, during the years 1885-1923, of a 'head tax' on immigrants > to Canada from China. (During the period 1923-1947 Chinese immigrants > were effectively excluded from Canada.) > > The plaintiffs put forward three causes of action: (a) two violations > of s. 15 of the Charter, which prohibits governmental discrimination; > (b) a violation of customary international law; (c) unjust enrichment. > The Ontario Supreme Court of Justice ((2001), 55 O.R. (3d) 113) and > the Court of Appeal ((2002), 60 O.R. (3d) 373 (C.A.)) have struck out > the statement of claim as disclosing no reasonable cause of action. > Leave to appeal has been sought [2002] S.C.C.A. No. 476. > > Some claims are based on argued present (or recent) injustices, > particularly a form of discrimination in that the government has made > reparations to Japanese Canadians interned during WWII but has not > made any reparations in this case. The unjust enrichment claim, > however, is based on the head tax payments. > > I am giving a paper this weekend at a conference arising out of the > litigation. My initial analysis of the unjust enrichment claim was > that restitution was impossible unless the legislation could be shown > to be invalid at the time the tax was paid, either due to > inconsistency with some then-existing superior norm, or by the > enactment of some later norm with retroactive effect. Both of these > arguments were made, but they are very difficult. The former has to be > based on international law, and the latter on the Charter. The SCC has > held that s. 15 of the Charter, which came into effect in 1985, does > not have retroactive effect: Benner v Canada (Secretary of State), > [1997] 1 S.C.R. 358, 143 D.L.R. (4th) 577. It is clear that s. 15 > cannot make governments liable for harm caused by pre-1985 > discrimination. > > However, Benner says that while s. 15 does not work retroactively, it > operates against ongoing discrimination which continues in force after > 1985, even if some of the crucial facts (in Benner's case, the > circumstances of his birth) occurred before 1985. This has led me to > consider the following argument. Normally an enrichment and > corresponding deprivation are unjust only if the factors which make > them so are present at the time of the transfer. However, there is > clearly a qualification to this in the case of failure of basis. In > that case, there is a kind of seed of injustice in place at the time > of the transfer (a mutual understanding as to its basis), which > germinates if the basis fails. See A. Burrows, The Law of Restitution, > 2 ed., 332-333, commenting on this unusual feature. Following the > pattern of failure of basis, I wonder whether it is possible to argue > that a transfer based on discriminatory legislation might not be > unjustified at the time it is made, but when subsequently a > constitutional enactment is passed which forbids governmental > discrimination (including by legislation), the seed of injustice > germinates and the transfer becomes unjustified. This ends up actually > following Benner, because you can say that you are not relying on a > retroactive operation of s. 15, but only on a continuing state of > affairs which is contrary to s. 15, namely the ongoing enrichment of > the state, acquired through overtly discriminatory legislation. This > would preserve the result that past harm caused by discrimination is > not compensable due to the coming into force of s. 15, since we do not > want to make conduct wrongful retroactively; but it would distinguish > the case of unjust enrichment, which does not turn on wrongdoing. And > just as in the case of failure of basis, an argument that the > enrichment has been dissipated between the transfer and the completion > of the injustice (or later) would be for the defendant to make (and > would not anyway arise on a defendant's striking out motion). Again > following the example of failure of basis, the limitation period would > not start to run until 1985 (or maybe even from Benner in 1997 on a > discoverability basis). > > I thought this case might spark some discussion, and in any event I > would be grateful for any thoughts on my ideas as outlined above. > > The judgments, the legislation, and other related material including > pleadings is available on the conference web site, > http://www.law.utoronto.ca/conferences/reparations.html > > 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 . -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------2B60C2EBE3E1A77B1293D32A Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Lionel,

"Normally an enrichment and corresponding deprivation are unjust only if
the factors which make them so are present at the time of the transfer. However, there is clearly a qualification to this in the
case of failure of basis. In that case, there is a kind of seed of injustice in place at the time of the transfer (a mutual
understanding as to its basis), which germinates if the basis fails."

As an aside, does this potientially show that the reason for restitution in the failure of basis cases is not unjust enrichment but rather the breach of contract (followed by reliance/restitution damages) or an implied condition of the contract (if X not true we are not to be bound)? :)

In regards to Mack, perhaps a possible line of attack might be based on the special nature of the government (i.e. as an entity which exists for the sole purpose of promoting the public good as embodied in the Constitution). The argument is as follows: Although there was a jurisitic reason for the enrichment at the time, it is not open to the government today to argue this juristic reason since to do so would force it to take a position (one can be discriminated on the basis of race) which is now consitutionally impermissible. Such a limitation would be similar to the argument in Jane Doe v. Metropolitan Police (1990 Div Ct.), Roncarelli v. Duplessis (1959 SCR) and City of Kamloops v. Neilsen (1984 SCC) that there are inherent/implicit limits on the exercise of state power such that some lines of defence are impermissible/irrational for the governement to take (in Jane Doe's case that women 'overreacted' to fears of sexual assault and thus did not have to be warned by police of rapists in the area). I think support for such a position can be found in the Idea of Private Law (see the discussion surrounding nonfeasance) and in the Weinribs' new article "Constitutional Values and Private Law in Canada" in Human Rights in Private Law (2001 Hart).

What do you think?

My initial analysis of the unjust enrichment claim
was that restitution was impossible unless the legislation could be shown to be invalid at the time the tax was paid, either due to
inconsistency with some then-existing superior norm, or by the enactment of some later norm with retroactive effect. Both of
these arguments were made, but they are very difficult. The former has to be based on international law, and the latter on the
Charter. The SCC has held that s. 15 of the Charter, which came into effect in 1985, does not have retroactive effect:

Another argument that might be tried in relation to attacking the validity of the tax would be the implied "bill of rights" theory (i.e., there are certain actions which are ultra vires either level of government even without a Charter) which would count on as a "then-existing superior norm".  If I remember correctly the implied "bill of rights"  theory was superseded by the Bill of Rights and then the Charter but that does not mean that it could not be resurrected to deal with earlier cases.

Just some thoughts.

Jason
 

Lionel Smith wrote:

 I do not think that the case of Mack v Canada has been mentioned on the RDG yet. This is a potential class action arising out the of imposition, during the years 1885-1923, of a 'head tax' on immigrants to Canada from China. (During the period 1923-1947 Chinese immigrants were effectively excluded from Canada.)

The plaintiffs put forward three causes of action: (a) two violations of s. 15 of the Charter, which prohibits governmental discrimination; (b) a violation of customary international law; (c) unjust enrichment. The Ontario Supreme Court of Justice ((2001), 55 O.R. (3d) 113) and the Court of Appeal ((2002), 60 O.R. (3d) 373 (C.A.)) have struck out the statement of claim as disclosing no reasonable cause of action. Leave to appeal has been sought [2002] S.C.C.A. No. 476.

Some claims are based on argued present (or recent) injustices, particularly a form of discrimination in that the government has made reparations to Japanese Canadians interned during WWII but has not made any reparations in this case. The unjust enrichment claim, however, is based on the head tax payments.

I am giving a paper this weekend at a conference arising out of the litigation. My initial analysis of the unjust enrichment claim was that restitution was impossible unless the legislation could be shown to be invalid at the time the tax was paid, either due to inconsistency with some then-existing superior norm, or by the enactment of some later norm with retroactive effect. Both of these arguments were made, but they are very difficult. The former has to be based on international law, and the latter on the Charter. The SCC has held that s. 15 of the Charter, which came into effect in 1985, does not have retroactive effect: Benner v Canada (Secretary of State), [1997] 1 S.C.R. 358, 143 D.L.R. (4th) 577. It is clear that s. 15 cannot make governments liable for harm caused by pre-1985 discrimination.

However, Benner says that while s. 15 does not work retroactively, it operates against ongoing discrimination which continues in force after 1985, even if some of the crucial facts (in Benner's case, the circumstances of his birth) occurred before 1985. This has led me to consider the following argument. Normally an enrichment and corresponding deprivation are unjust only if the factors which make them so are present at the time of the transfer. However, there is clearly a qualification to this in the case of failure of basis. In that case, there is a kind of seed of injustice in place at the time of the transfer (a mutual understanding as to its basis), which germinates if the basis fails. See A. Burrows, The Law of Restitution, 2 ed., 332-333, commenting on this unusual feature. Following the pattern of failure of basis, I wonder whether it is possible to argue that a transfer based on discriminatory legislation might not be unjustified at the time it is made, but when subsequently a constitutional enactment is passed which forbids governmental discrimination (including by legislation), the seed of injustice germinates and the transfer becomes unjustified. This ends up actually following Benner, because you can say that you are not relying on a retroactive operation of s. 15, but only on a continuing state of affairs which is contrary to s. 15, namely the ongoing enrichment of the state, acquired through overtly discriminatory legislation. This would preserve the result that past harm caused by discrimination is not compensable due to the coming into force of s. 15, since we do not want to make conduct wrongful retroactively; but it would distinguish the case of unjust enrichment, which does not turn on wrongdoing. And just as in the case of failure of basis, an argument that the enrichment has been dissipated between the transfer and the completion of the injustice (or later) would be for the defendant to make (and would not anyway arise on a defendant's striking out motion). Again following the example of failure of basis, the limitation period would not start to run until 1985 (or maybe even from Benner in 1997 on a discoverability basis).

I thought this case might spark some discussion, and in any event I would be grateful for any thoughts on my ideas as outlined above.

The judgments, the legislation, and other related material including pleadings is available on the conference web site, http://www.law.utoronto.ca/conferences/reparations.html

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 .

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
  --------------2B60C2EBE3E1A77B1293D32A-- ____________________________________________________________________ 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, 11 Apr 2003 08:19:30 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Actionstrength Limited MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------95D013DDB93DC15211D86A7C" --------------95D013DDB93DC15211D86A7C Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Dear Colleagues, Over in the ODG we have been discussing Actionstrength Limited, a new the HL case dealing with estoppel, see http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldjudgmt/jd= 030403/action-1.htm. In our discussions Paul MacMahon, raised a very interesting point about UE which I thought merited discussion on the RDG. So with his permission, here is the issue. The alleged facts of the case were as follows: Actionstrength (the sub-contractor) agreed with Inglen (the main contractor) to provide construction staff for use in connection with the construction of a factory for St-Gobain. When it became apparent that Inglen would fail to pay the sums due to Actionstrength, Actionstrength contemplated rescinding the contract. In order to keep the construction moving along, St-Gobain promised to if Actionstrength would keeping supplying their services, St-Gobain would pay any amounts that Inglen owed to Actionstrength. After completing the factory and being unable to obtain payment, Actionstrength sued St-Gobain on the guarantee. The courts found that the guarantee was unenforceable since it violated the statute of frauds. At issue in the HL was whether Actionstrength could use estoppel to enforce the guarantee. Their Lordships unanimously deciding that estoppel could not be used. In response to these facts Paul questioned: I wonder whether there is any possibility of a claim in unjust enrichment succeeding on these facts. Actionstrength continued to help build a factory for St-Gobain. That looks like an enrichment to me. It did so under the mistaken belief (induced by St-Gobain) that St-Gobain was under a liability to guarantee payment by the main contractor. The obvious response to such an attempt at 'leapfrogging' is to say that the subcontractor cannot be allowed to evade the risk of the main contractor's insolvency (a risk which, in this case, eventuated). But could such an argument succeed when St-Gobain had assured Actionstrength (albeit orally) that they would assume the risk of Inglen's insolvency? This may be a bit far-fetched - I look forward to someone demolishing the possibility of such a claim. I would be interested to hear if people thought that UE was a viable option on the facts of Actionstrength or in other words =93Abolish away=94= ! -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------95D013DDB93DC15211D86A7C Content-Type: text/html; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Dear Colleagues,

    Over in the ODG we have been discussing Actionst= rength Limited, a  new the HL case dealing with estoppel, see http://www.parliament.the-stationery-office.co.uk/p= a/ld200203/ldjudgmt/jd030403/action-1.htm. In our discussions Paul MacMahon, raised a very interesting point about UE which I thought merited discussion on the RDG. So with his permission,= here is the issue.

The alleged facts of the case were as follows: Actionstrength (the sub= -contractor) agreed with Inglen (the main contractor) to provide construction staff for use in connection with the construction of a factory for St-Gobain. When it became apparent that Inglen would fail to pay the sums due to Act= ionstrength, Actionstrength contemplated rescinding the contract. In order to keep the= construction moving along, St-Gobain promised to if Actionstrength would keeping supplying their services, St-Gobain would pay any amounts that Inglen owed to Actionstrength. After completing the factory and being una= ble to obtain payment, Actionstrength sued St-Gobain on the guarantee. The courts found that the guarantee was unenforceable since it violated the statute of frauds.
At issue in the HL was whether Actionstrength could use estoppel to enforce the guarantee. Their Lordships unanimously deciding that estoppel= could not be used.

In response to these facts Paul questioned:
 

I wonder whether there is any possibility of a claim in unjust enrichment succeeding on these facts. Actionstrength continued to help build a factory for St-Gobain. That looks like an enric= hment to me. It did so under the mistaken belief (induced by St-Gobain) that St-Gobain was under a liability to guarantee payment by the main contract= or. The obvious response to such an attempt at 'leapfrogging' is to say that the subcontractor cannot be allowed to evade the risk of the main contrac= tor's insolvency (a risk which, in this case, eventuated). But could such an argument succeed when St-Gobain had assured Actionstrength (albeit orally= ) that they would assume the risk of Inglen's insolvency? This may be a bit= far-fetched - I look forward to someone demolishing the possibility of such a claim.


I would be interested to hear if people thought that UE was a viab= le option on the facts of Actionstrength or in other words =93Abolish away=94= !

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
  --------------95D013DDB93DC15211D86A7C-- ____________________________________________________________________ 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, 11 Apr 2003 08:57:19 -0500 Reply-To: Mark Gergen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mark Gergen Subject: Actionstrength Ltd. Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_2823342==_.ALT" --=====================_2823342==_.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable I would appreciate advice from those knowledgeable in Canadian law about=20 how an UE claim would fare following Atlas Cabinets & Furniture Ltd. v.=20 National Trust Co. The following proposed section in the Restatement (Third) Restitution and=20 Unjust Enrichment speaks to this sort of claim: =A727. Expectation of benefit from property. A person who makes an expenditure to improve or maintain property= =20 has a claim in restitution against another who ultimately benefits from=20 such expenditure, as necessary to prevent unjust enrichment, if (a) the claimant acts on the basis of justifiable assumptions=20 about the claimant=92s own legal or beneficial interest, existing or=20 reasonably anticipated, in the property in question; (b) the claimant=92s expectation of ownership is subsequently=20 frustrated, with the result that the defendant becomes an unintended=20 beneficiary of the claimant=92s expenditure; (c) the claimant is not deemed to have assumed the risk that the=20 expenditure in question would ultimately benefit someone else; and (d) the circumstances of the transaction justify the claimant=92s= =20 decision to act without prior agreement for payment or reimbursement. The sticking point is the requirement in (a) that the claimant have an=20 expectation of a proprietary interest in the product of his work. The=20 comments to R3RUE do not explain the reason or basis for that=20 requirement. I attribute it to the fact that most of the cases that are=20 authority for the rule come out of the law on constructive trusts and=20 equitable liens, which required that the claimant be able to point to=20 property in the defendant's hands (but not that the claimant establish an=20 expectation of a proprietary interest in that property). The requirement=20 does serve the useful purpose of cabining the rule so it doesn't reach=20 cases like Atlas Cabinets and Actionstrength. My sense in reading the opinions in Actionstrength is that the Lords did=20 not believe the sub's allegations that it had a guarantee from the=20 owner. Or, to put it a bit differently, the Lords were skeptical enough=20 about those allegations that it seemed an appropriate case to apply the=20 statute of frauds. For obvious reasons, it is difficult to justify denying= =20 an estoppel or UE claim on what are essentially factual grounds. The 2nd= =20 Restatement of Contracts (=A7 139) is fairly candid in stating that the=20 degree to which the reliance (or performance) is evidence of the making of= =20 the alleged oral promise is a factor to be considered in deciding whether=20 an oral promise should be enforced notwithstanding the bar of the statute=20 of frauds. As a general matter, performance by a sub of its contract with= =20 a general is not much evidence of a guarantee of payment from the person=20 who hired the general. I would prefer that we talk about what makes a=20 meritorious restitution claim in similarly candid terms when a person who= =20 performs under an alleged contested informal agreement seeks to recover the= =20 cost or value of their performance. A final note, Doug Rendleman reports in at article at 79 Tex. L. Rev. 2055= =20 that US courts generally allow the sub to collect payment from the owner=20 for work done when the general defaults, without the trappings of an=20 alleged oral guarantee, if not to do so would leave the owner with the=20 benefit of work for which he has not paid. For cases see notes 81 (at=20 2073) and 83 (at 2074). --=====================_2823342==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I would appreciate advice from those knowledgeable in Canadian law about how an UE claim would fare following Atlas Cabinets &= ; Furniture Ltd. v. National Trust Co.

The following proposed section in the Restatement (Third) Restitution and Unjust Enrichment speaks to this sort of claim:

=A727.      Expectation of benefit from property.

        A person who makes an expenditure to improve or maintain property has a claim in restitution against another who ultimately benefits from such expenditure, as necessary to prevent unjust enrichment, if
        (a) the claimant acts on the basis of justifiable assumptions about the claimant=92s own legal or beneficial interest, existing or reasonably anticipated, in the property in question;=20
        (b) the claimant=92s expectation of ownership is subsequently frustrated, with the result that the defendant becomes an unintended beneficiary of the claimant=92s expenditure;=20
        (c) the claimant is not deemed to have assumed the risk that the expenditure in question would ultimately benefit someone else; and=20
        (d)  the circumstances of the transaction justify the claimant=92s decision to act without prior agreement for payment or reimbursement.
The sticking point is the requirement in (a) that the claimant have an expectation of a proprietary interest in the product of his work.  The comments to R3RUE do not explain the reason or basis for that requirement.  I attribute it to the fact that most of the cases that are authority for the rule come out of the law on constructive trusts and equitable liens, which required that the claimant be able to point to property in the defendant's hands (but not that the claimant establish an expectation of a proprietary interest in that property).  The requirement does serve the useful purpose of cabining the rule so it doesn't reach cases like Atlas Cabinets and Actionstrength.

My sense in reading the opinions in Actionstrength is that the Lords did not believe the sub's allegations that it had a guarantee from the owner.  Or, to put it a bit differently, the Lords were skeptical enough about those allegations that it seemed an appropriate case to apply the statute of frauds.  For obvious reasons, it is difficult to justify denying an estoppel or UE claim on what are essentially factual grounds.   The 2nd Restatement of Contracts (=A7 139) is fairly candid in stating that the degree to which the reliance (or performance) is evidence of the making of the alleged oral promise is a factor to be considered in deciding whether an oral promise should be enforced notwithstanding the bar of the statute of frauds.  As a general matter, performance by a sub of its contract with a general is not much evidence of a guarantee of payment from the person who hired the general.  I would prefer that we talk about what makes a meritorious restitution claim  in similarly candid terms when a person who performs under an alleged contested informal agreement seeks to recover the cost or value of their performance.

A final note, Doug Rendleman reports in at article at 79 Tex. L. Rev. 2055 that US courts generally allow the sub to collect payment from the owner for work done when the general defaults, without the trappings of an alleged oral guarantee, if not to do so would leave the owner with the benefit of work for which he has not paid.  For cases see notes 81 (at 2073) and 83 (at 2074). --=====================_2823342==_.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, 11 Apr 2003 10:16:09 -0400 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Re: Actionstrength Limited Comments: To: jneyers@uwo.ca Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=_5708F259.7D1CE6D4" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --=_5708F259.7D1CE6D4 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit Jason. An article I wrote entitled "Quantum Meruit for the Subcontractor" deals with the issues you mention and maintains that, under limited circumstances, the court should let the subcontractor recover restitution. Published in June 2001, the article is found in 79 Texas Law Review 2055; it is available through Westlaw and Lexis. Always pleased to find a reader, I have a few actual paper reprints left and will be pleased to send one. Let me know what you think. Cheers Doug Rendleman rendlemand@wlu.edu >>> Jason Neyers 04/11/03 08:19AM >>> Dear Colleagues, Over in the ODG we have been discussing Actionstrength Limited, a new the HL case dealing with estoppel, see http://www.parliament.the-stationery- office.co.uk/pa/ld200203/ldjudgmt/jd030403/action-1.htm. In our discussions Paul MacMahon, raised a very interesting point about UE which I thought merited discussion on the RDG. So with his permission, here is the issue. The alleged facts of the case were as follows: Actionstrength (the sub-contractor) agreed with Inglen (the main contractor) to provide construction staff for use in connection with the construction of a factory for St-Gobain. When it became apparent that Inglen would fail to pay the sums due to Actionstrength, Actionstrength contemplated rescinding the contract. In order to keep the construction moving along, St-Gobain promised to if Actionstrength would keeping supplying their services, St-Gobain would pay any amounts that Inglen owed to Actionstrength. After completing the factory and being unable to obtain payment, Actionstrength sued St-Gobain on the guarantee. The courts found that the guarantee was unenforceable since it violated the statute of frauds. At issue in the HL was whether Actionstrength could use estoppel to enforce the guarantee. Their Lordships unanimously deciding that estoppel could not be used. In response to these facts Paul questioned: I wonder whether there is any possibility of a claim in unjust enrichment succeeding on these facts. Actionstrength continued to help build a factory for St-Gobain. That looks like an enrichment to me. It did so under the mistaken belief (induced by St-Gobain) that St-Gobain was under a liability to guarantee payment by the main contractor. The obvious response to such an attempt at 'leapfrogging' is to say that the subcontractor cannot be allowed to evade the risk of the main contractor's insolvency (a risk which, in this case, eventuated). But could such an argument succeed when St-Gobain had assured Actionstrength (albeit orally) that they would assume the risk of Inglen's insolvency? This may be a bit far-fetched - I look forward to someone demolishing the possibility of such a claim. I would be interested to hear if people thought that UE was a viable option on the facts of Actionstrength or in other words "Abolish away"! -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --=_5708F259.7D1CE6D4 Content-Type: text/html; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit
Jason.
 An article I wrote entitled "Quantum Meruit for the Subcontractor" deals with the issues you mention and maintains that, under limited circumstances, the court should let the subcontractor recover restitution. 
 Published in June 2001, the article is found in 79 Texas Law Review 2055; it is available through Westlaw and Lexis.  Always pleased to find a reader, I have a few actual paper reprints left and will be pleased to send one. 
 Let me know what you think.
Cheers
Doug Rendleman
rendlemand@wlu.edu

>>> Jason Neyers <jneyers@uwo.ca> 04/11/03 08:19AM >>>
Dear Colleagues,

    Over in the ODG we have been discussing Actionstrength Limited, a  new the HL case dealing with estoppel, see http://www.parliament.the-stationery- office.co.uk/pa/ld200203/ldjudgmt/jd030403/action-1.htm. In our discussions Paul MacMahon, raised a very interesting point about UE which I thought merited discussion on the RDG. So with his permission, here is the issue.

The alleged facts of the case were as follows: Actionstrength (the sub-contractor) agreed with Inglen (the main contractor) to provide construction staff for use in connection with the construction of a factory for St-Gobain. When it became apparent that Inglen would fail to pay the sums due to Actionstrength, Actionstrength contemplated rescinding the contract. In order to keep the construction moving along, St-Gobain promised to if Actionstrength would keeping supplying their services, St-Gobain would pay any amounts that Inglen owed to Actionstrength. After completing the factory and being unable to obtain payment, Actionstrength sued St-Gobain on the guarantee. The courts found that the guarantee was unenforceable since it violated the statute of frauds.
At issue in the HL was whether Actionstrength could use estoppel to enforce the guarantee. Their Lordships unanimously deciding that estoppel could not be used.

In response to these facts Paul questioned:
 

I wonder whether there is any possibility of a claim in unjust enrichment succeeding on these facts. Actionstrength continued to help build a factory for St-Gobain. That looks like an enrichment to me. It did so under the mistaken belief (induced by St-Gobain) that St-Gobain was under a liability to guarantee payment by the main contractor. The obvious response to such an attempt at 'leapfrogging' is to say that the subcontractor cannot be allowed to evade the risk of the main contractor's insolvency (a risk which, in this case, eventuated). But could such an argument succeed when St-Gobain had assured Actionstrength (albeit orally) that they would assume the risk of Inglen's insolvency? This may be a bit far-fetched - I look forward to someone demolishing the possibility of such a claim.


I would be interested to hear if people thought that UE was a viable option on the facts of Actionstrength or in other words "Abolish away"!

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
 

--=_5708F259.7D1CE6D4-- ____________________________________________________________________ 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, 11 Apr 2003 11:20:53 -0400 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: ODG: Re: Estoppel in the HL Comments: cc: Obligations List MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit 1. with respect to the part of the discussion about the function of 'estoppel', getting rid of 'estoppel' in re contracts which lack formal requirements seems easy enough via a formulation which probably fits a lot of cases: the non-conforming contract is to be given no effect therefore if the transaction is wholly executory, neither party may enforce but if something of value has changed hands, its amount is awarded to the supplier ==[called 'restitution', after the discussion group of the same name] and if the contract is entirely executed, it is in repose =========== however, a large problem with a formulation so reeking of the common law is that it rejects a plausible premise that the consequence of non-compliance with a statute ought to be determined from the statute rather than common law deductions: the language then of the particular form statute ought to be consulted [that it will probably point in no direction at all does not mean it shouldn't be given primacy if articulate] at least in american law, there have been determinations with respect to particular form statutes [particularly one requiring a writing for a listing with a real-estate broker] that the legislative intent behind the formal requirement is so serious that non- compliance precludes either enforcement or restitution. 2. often, large legal ideas like 'estoppel' are used to explain results reachable by narrower concepts: there was a spectacular article around the beginning of the 20th century called 'waiver distributed', in which 'waiver' was shown to be the name of a lot of other things, such as 'estoppel' ____________________________________________________________________ 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, 22 Apr 2003 14:04:24 -0500 Reply-To: THOMAS W MITCHELL Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: THOMAS W MITCHELL Subject: Tracing Into Proceeds of Illegal Investments MIME-version: 1.0 Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT This is Thomas Mitchell from the University of Wisconsin Law School. I am a third-year assistant professor teaching Remedies (amongst other subjects) I have a question regarding constructive trusts. I have not received a definitive answer to this question from a number of people I have asked. Most had no idea. I also could find no case on point. Here goes: A plaintiff who is granted a constructive trust usually has the option to trace into investments the wrongdoer has made. Of course, such a plaintiff will often do this when the investments have appreciated in value. A student asked me if a plaintiff in these cases can trace into the proceeds of an illegal investment that the defendant has made. For example, I can imagine a case where the defendant is a cocaine dealer. He steals cash from the plaintiff to purchase several kilos of cocaine at a wholesale price that he then sells at a huge markup on the retail market. For this question, there is no limitation due to unclean hands (in other, we are dealing with an innocent plaintff as opposed to a plaintiff is really an employee of the defendant cocaine dealer because allowing such a plaintiff to trace into the illegal proceeds would be a great way to launder the proceeds). For this question, please assume that the plaintiff is not the government. So this is not a seizure/forfeiture case. Any guidance would be much appreciated. Thank you, Thomas Thomas W. Mitchell Assistant Professor University of Wisconsin Law School 975 Bascom Mall Madison, WI 53706-1399 (608) 263-0331 phone (608) 262-5485 fax tmitchell@facstaff.wisc.edu http://www.law.wisc.edu Faculty Fellow, 2002-2003 Academic Year University of Chicago's Center for the Study of Race, Politics and Culture 5733 S. University Ave. Chicago, IL 60637 773 834-8734 (telephone) 773 834-2000 (fax) ____________________________________________________________________ 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, 22 Apr 2003 19:14:58 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Second Remedies Discussion Forum Mime-Version: 1.0 Content-Type: text/html; charset="us-ascii" The Second Remedies Discussion Forum, on Restitution, took place in Spring 2002. The papers are now published as a special issue of the Loyola of Los Angeles Law Review. The abstracts are listed below.

Individual copies may be ordered by mail (Loyola of Los Angeles Law Review, Attention: Executive Editor, 919 South Albany Street, Los Angeles, California 90015), phone (+ 1 213-736-1125) or email (llr@lls.edu). The price for an individual issue is US$15.

Lionel




W I N T E R  2 0 0 3    V O L U M E  3 6        N U M B E R  2

TABLE OF CONTENTS

SECOND REMEDIES DISCUSSION FORUM: RESTITUTION

INTRODUCTION
by David F. Partlett and Russell L. Weaver      777


MR. GARLAND GOES TO OTTAWA: COMMENTS ON RESTITUTION IN CANADA THROUGH THE LENS OF GARLAND V. CONSUMERS' GAS
by Jeff Berryman        779
The consequences of illegality in contract law have been a notoriously difficult problem.  In some situations, the common law has allowed an action in restitution to recover any payments made to the defendant through his wrongdoing.  In this Article, Professor Jeff Berryman points out the difficulty experienced by the Ontario Court of Appeal in handling a restitution action based on illegality where the defendant, a regulated industry, had been authorized by the regulator to impose a fee that ultimately violated of Canada's Criminal Code.  He suggests that a too early abandonment of orthodox classifications of restitution-based actions in favor of an all-encompassing unjust enrichment principle threatens important nuances concerning the appropriateness of restitution following illegal action.


CHANGE OF POSITION: THE VIEW FROM ENGLAND
by Andrew Burrows       803
Change of position, as a defense to restitutionary claims founded on unjust enrichment, was only recently accepted as a viable defense in England by the House of Lords in the 1991 case, Lipkin Gorman v. Karpnale Ltd.  In this Article, Professor Andrew Burrows examines the slow but steady case law development of the change of position defense in England.  Professor Burrows first compares two alternate views of change of position, and then analyzes important issues and relevant case law, which have been instrumental in the on-going definition of the defense.  Issues discussed in this Article include the applicability of the defense, the standard of proof to be used, the relevance of fault, and the relationship between change of position and estoppel.  Finally, Professor Burrows suggests that these and other issues must be clarified and answered so as to ensure the usefulness and predictability of change of position as a defense.


UNJUST ENRICHMENT, PURSUANCE OF SELF-INTEREST, AND THE LIMITS OF FREE RIDING
by Daniel Friedmann     831
This Article examines, from a comparative point of view, the difficulties inherent in the principle that grounds restitution on unjust enrichment and some of the problems that arise in its application.  These difficulties had, on occasion, led to a rejection of this very principle, while in other instances they led to the imposition of various limitations upon its availability.  The Article points out that certain limitations derive from the notion that many benefits are to be attributed to the very existence of society, rather than to the individual who facilitated their gain, and further discusses the rule under which a person who acts in pursuance of self-interest is not entitled to restitution for the incidental benefits conferred upon others.  Also discussed are the exceptions to this rule and the grounds upon which these exceptions are based.


CIVILIZING PUNITIVE DAMAGES: LESSONS FROM RESTITUTION
by Gail Heriot  869
The punitive damages defendant is in a difficult position.  He is accorded neither the procedural safeguards ordinarily associated with criminal defendants nor those that ordinarily protect civil defendants.  This Article will suggest that punitive damages should be "civilized" (in the sense of making them a better fit into the civil law and its traditions) by equating them with restitution.


IT'S NOT MY JOB!
by Michael B. Kelly     887
This Article reacts to concern that many students emerge from law school without an adequate understanding of the cause of action for unjust enrichment (or restitution).  Professor Michael B. Kelly proposes that Contracts professors cover unjust enrichment during the first year, rather than relying on upper class electives such as Remedies or Restitution.  Contracts will expose more students to this cause of action.  In addition, unjust enrichment will enhance the students' grasp of Contracts.  Professor Kelly catalogues topics where unjust enrichment seems a natural part of the Contracts material, either as an alternative when contracts are unenforceable (e.g., defenses) or as an essential component of understanding the problems contract law addresses (e.g., material breach).


RESTITUTION IN PUBLIC CONCERN CASES
by Candace Saari Kovacic-Fleischer      901
This Article compares the use of restitution in Securities Act cases with its use in cases involving dangerous products.  Recommendations include bringing some of the analysis from the securities cases into common law restitution and retaining restitution's breadth to provide a remedy of disgorging unjust enrichment to respond to societal change.


THE SOURCE OF LIABILITY IN INDEMNITY AND CONTRIBUTION
by Andrew Kull  927
Indemnity and contribution-shifting or splitting between A and B an obligation to a third person, C-enforce a substantive obligation of B to A.  Professor Andrew Kull's Article addresses the source of that obligation.  B's liability to A may derive from a contract between them; from a breach of B's "independent duty" to A; or from the unjust enrichment that arises when A discharges B's liability to C.  But A's payment to C confers no benefit on B if B had no enforceable liability to C.  This gap in the traditional reach of indemnity and contribution conflicts with the modern impulse to allocate liability according to fault.  The result in some cases has been the imposition of a liability that has no basis among the accepted grounds of civil obligation in our legal system.


DISGORGEMENT FOR BREACH OF CONTRACT: A COMPARATIVE PERSPECTIVE
by John D. McCamus      943
Professor John D. McCamus examines the availability of the remedy of disgorgement of profits secured through breach to a victim of breach of contract.  The Article discusses the parameters of English law's recent recognition of the availability of disgorgement relief in breach of contract cases in Attorney General v. Blake.  Professor McCamus suggests that the disgorgement remedy should and likely will be available to the victim of a contract breach that constitutes wrongful conduct, pursuant to the principle that a wrongdoer shall not profit from his wrongdoing.  Professor McCamus generally concludes that the disgorgement remedy will likely play a peripheral role in contract law, at the margins of more clearly recognized forms of disgorgement liability.


RESTITUTION: ANCIENT WISDOM
by David F. Partlett and Russell L. Weaver      975
Using allegory involving J.R.R. Tolkein's Lord of the Rings, this Article argues that the "ancient wisdom" of restitution has been lost among U.S. scholars.  The Article discusses some of the reasons why the "wisdom" has been lost, as well as the fact that it has been kept alive by scholars in other countries.  Finally, the authors argue for a more prominent place in the curriculum for restitution and restitutionary principles.


WHEN IS ENRICHMENT UNJUST?  RESTITUTION VISITS AN ONYX BATHROOM
by Doug Rendleman       991
When may a plaintiff recover "freestanding" restitution even though she cannot locate the defendant's enrichment in a recognized category?  Courts' and scholars' responses fall into two camps:  broad restitution, "yes" and narrow restitution, "no."  Professor Doug Rendleman proposes a new frame of reference, one that employs common law reasoning and focuses on the way granting restitution will affect related doctrines that would deny recovery.  Viewing a court's decision in a nettlesome freestanding restitution dispute as a series of questions, he asks lawyers to be open-minded and to accept the unavoidable process, ambiguity, and diverse decisions.


NONMATERIAL MISREPRESENTATION: DAMAGES, RESCISSION, AND THE POSSIBILITY OF EFFICIENT FRAUD
by Emily Sherwin        1017
Damage remedies for intentional misrepresentation require materiality; rescission does not.  This Article questions the variance in standards for damages and rescission and suggests several reasons why a materiality requirement may have practical benefits.


SPINNING RESTITUTION: FROM CAULIFLOWER TO COCONUT
by Elaine W. Shoben     1027
Teaching restitution is a challenge at many levels, but the first problem is getting students to take the course.  This Article presents a tongue-in-cheek method for advertising the subject to students in order to convince them of the value of learning restitution theory while still in school.  It is a humorous commentary on the problem in legal education of making a dull and difficult subject like restitution appealing to modern students.


THE STRUCTURE OF UNJUST ENRICHMENT LAW: IS RESTITUTION A RIGHT OR A REMEDY?
by Stephen A. Smith     1037
In this Article, Professor Stephen A. Smith provides a model for distinguishing between court orders that directly enforce primary duties (e.g., to not trespass) and court orders that require defendants to repair the harm caused by failing to perform a primary duty (e.g., to pay compensatory damages), and then applies the model to the case of restitutionary orders (e.g., a court order that the recipient of a mistaken payment pay an equivalent sum to the payor).  Drawing upon, on the one hand, theoretical arguments about the nature of law and the moral foundations of duties to repair, and, on the other hand, the nature of restitutionary orders, Professor Smith concludes that restitutionary orders can be either direct enforcement orders or orders to repair-sometimes they are the former, sometimes the latter.


JUSTICE SCALIA REINVENTS RESTITUTION
by Tracy A. Thomas      1063
This Article criticizes the Supreme Court's split decision in Great-West Life v. Knudson for its reliance upon historical equity to interpret the language of a modern statute authorizing "equitable relief" to preclude a claim for restitution.  First, the Article asserts that the Court distorted history and equity to reach its result, limiting the availability of equitable restitution.  It demonstrates how the dearth of understanding of equity permits the courts, like the Supreme Court in Great-West Life, to issue decisions unguided by accurate knowledge, yet insulated from knowing challenge.  The Article then suggests that a preferred way to interpret statutory language distinguishing equitable from legal remedies is by reference to the remedy's purpose rather than its history.

____________________________________________________________________ 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, 22 Apr 2003 19:16:46 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: Tracing Into Proceeds of Illegal Investments Comments: To: THOMAS W MITCHELL MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------37678B1395B4566F37FF8141" --------------37678B1395B4566F37FF8141 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Thomas, Although I can think of no case directly on point, I would suggest that the plaintiff in your fact pattern would be unable to recover the proceeds of crime for the same reason that a tort plaintiff is disbarred from recovering them as compensatory damages (for example, a bookie's lost wages): namely, to allow recovery would be to introduce an inconsistency in the law. As McLachlin J stated for the SCC in Hall v. Hebert [1993] 2 S.C.R. 159, (1993) 101 D.L.R. (4th) 129 at para 17: A more satisfactory explanation for these [illegality] cases, I would venture, is that to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which -- contract, tort, the criminal law -- must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to "create an intolerable fissure in the law's conceptually seamless web": Weinrib, supra, at p. 42 [Weinrib, Ernest J. "Illegality as a Tort Defence" (1976), 26 U.T.L.J. 28]. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. THOMAS W MITCHELL wrote: > This is Thomas Mitchell from the University of > Wisconsin Law School. I am a third-year assistant > professor teaching Remedies (amongst other subjects) > > I have a question regarding constructive trusts. > I have not received a definitive answer to this > question from a number of people I have asked. Most > had no idea. I also could find no case on point. > > Here goes: > > A plaintiff who is granted a constructive trust > usually has the option to trace into investments the > wrongdoer > has made. Of course, such a plaintiff will often do > this > when the investments have appreciated in value. > > A student asked me if a plaintiff in these cases can > trace into the proceeds of an illegal investment > that the defendant has made. For example, I can > imagine a case where the defendant is a cocaine > dealer. He steals cash from the plaintiff to > purchase several kilos of cocaine at a wholesale > price that he then sells at a huge markup on the > retail market. For this question, there is no > limitation due to unclean hands (in other, we are > dealing with an innocent plaintff as opposed to a > plaintiff is really an employee of the defendant > cocaine dealer because allowing such a plaintiff to > trace into the illegal proceeds would be a great way > to launder the proceeds). > > For this question, please assume that the plaintiff > is not the government. So this is not a > seizure/forfeiture case. Any guidance would be much > appreciated. > > Thank you, > Thomas > > Thomas W. Mitchell > Assistant Professor > University of Wisconsin Law School > 975 Bascom Mall > Madison, WI 53706-1399 > (608) 263-0331 phone > (608) 262-5485 fax > tmitchell@facstaff.wisc.edu > http://www.law.wisc.edu > > Faculty Fellow, 2002-2003 Academic Year > University of Chicago's > Center for the Study of Race, Politics and Culture > 5733 S. University Ave. > Chicago, IL 60637 > 773 834-8734 (telephone) > 773 834-2000 (fax) > > ____________________________________________________________________ > 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 > . -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------37678B1395B4566F37FF8141 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Thomas,

Although I can think of no case directly on point, I would suggest that the plaintiff in your fact pattern would be unable to recover the proceeds of crime for the same reason that a tort plaintiff is disbarred from recovering them as compensatory damages (for example, a bookie's lost wages): namely, to allow recovery would be to introduce an inconsistency in the law.

As McLachlin J stated for the SCC in Hall v. Hebert [1993] 2 S.C.R. 159,  (1993)  101 D.L.R. (4th) 129 at para 17:

A more satisfactory explanation for these [illegality] cases, I would venture, is that to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal.  It would, in short, introduce an inconsistency in the law.  It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which -- contract, tort, the criminal law -- must be in essential harmony.  For the courts to punish conduct with the one hand while rewarding it with the other, would be to "create an intolerable fissure in the law's conceptually seamless web": Weinrib, supra, at p. 42 [Weinrib, Ernest J.  "Illegality as a Tort Defence" (1976), 26 U.T.L.J. 28].   We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.


THOMAS W MITCHELL wrote:

This is Thomas Mitchell from the University of
Wisconsin Law School.  I am a third-year assistant
professor teaching Remedies (amongst other subjects)

I have a question regarding constructive trusts.
I have not received a definitive answer to this
question from a number of people I have asked.  Most
had no idea.  I also could find no case on point.

Here goes:

A plaintiff who is granted a constructive trust
usually has the option to trace into investments the
wrongdoer
has made.  Of course, such a plaintiff will often do
this
when the investments have appreciated in value.

A student asked me if a plaintiff in these cases can
trace into the proceeds of an illegal investment
that the defendant has made.  For example, I can
imagine a case where the defendant is a cocaine
dealer.  He steals cash from the plaintiff to
purchase several kilos of cocaine at a wholesale
price that he then sells at a huge markup on the
retail market.  For this question, there is no
limitation due to unclean hands (in other, we are
dealing with an innocent plaintff as opposed to a
plaintiff is really an employee of the defendant
cocaine dealer because allowing such a plaintiff to
trace into the illegal proceeds would be a great way
to launder the proceeds).

For this question, please assume that the plaintiff
is not the government.  So this is not a
seizure/forfeiture case.  Any guidance would be much
appreciated.

Thank you,
Thomas

Thomas W. Mitchell
Assistant Professor
University of Wisconsin Law School
975 Bascom Mall
Madison, WI  53706-1399
(608) 263-0331 phone
(608) 262-5485 fax
tmitchell@facstaff.wisc.edu
http://www.law.wisc.edu

Faculty Fellow, 2002-2003 Academic Year
University of Chicago's
Center for the Study of Race, Politics and Culture
5733 S. University Ave.
Chicago, IL  60637
773 834-8734 (telephone)
773 834-2000 (fax)

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 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>.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
  --------------37678B1395B4566F37FF8141-- ____________________________________________________________________ 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, 22 Apr 2003 19:41:43 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Tracing Into Proceeds of Illegal Investments In-Reply-To: <406842405792.405792406842@wiscmail.wisc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed So long as the plaintiff only succeeds to whatever rights the defendant has, I am not sure there would be any difficulty, or any inconsistency in the law. Eg if the defendant's rights are subject to forfeiture to the state, so too would be the plaintiff's once the trust was established. Or if a victim of the crime could recover from the defendant, presumably he could recover from the plaintiff as well. Such a plaintiff does not have the status of a bona fide purchaser for value without notice. Lionel At 02:04 PM 4/22/2003 -0500, THOMAS W MITCHELL wrote: >This is Thomas Mitchell from the University of >Wisconsin Law School. I am a third-year assistant >professor teaching Remedies (amongst other subjects) > >I have a question regarding constructive trusts. >I have not received a definitive answer to this >question from a number of people I have asked. Most >had no idea. I also could find no case on point. > >Here goes: > >A plaintiff who is granted a constructive trust >usually has the option to trace into investments the >wrongdoer >has made. Of course, such a plaintiff will often do >this >when the investments have appreciated in value. > >A student asked me if a plaintiff in these cases can >trace into the proceeds of an illegal investment >that the defendant has made. For example, I can >imagine a case where the defendant is a cocaine >dealer. He steals cash from the plaintiff to >purchase several kilos of cocaine at a wholesale >price that he then sells at a huge markup on the >retail market. For this question, there is no >limitation due to unclean hands (in other, we are >dealing with an innocent plaintff as opposed to a >plaintiff is really an employee of the defendant >cocaine dealer because allowing such a plaintiff to >trace into the illegal proceeds would be a great way >to launder the proceeds). > >For this question, please assume that the plaintiff >is not the government. So this is not a >seizure/forfeiture case. Any guidance would be much >appreciated. > >Thank you, >Thomas > > >Thomas W. Mitchell >Assistant Professor >University of Wisconsin Law School >975 Bascom Mall >Madison, WI 53706-1399 >(608) 263-0331 phone >(608) 262-5485 fax >tmitchell@facstaff.wisc.edu >http://www.law.wisc.edu > >Faculty Fellow, 2002-2003 Academic Year >University of Chicago's >Center for the Study of Race, Politics and Culture >5733 S. University Ave. >Chicago, IL 60637 >773 834-8734 (telephone) >773 834-2000 (fax) > >____________________________________________________________________ > 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, 23 Apr 2003 15:01:13 +0200 Reply-To: Daniel Friedmann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Daniel Friedmann Subject: Re: Tracing Into Proceeds of Illegal Investments Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Lionel Smith is right. Where the plaintiff is entitled to recover in restitution the defendant's profits, his right of recovery includes the defendant's ill-gotten gains. The fact that the defendant acted illegally will not shield him from liability provided of course that the plaintiff was not involved in the illegality. See e.g. Reading v. Att-Gen. Another example is discussed in 80 Columbia L. Rev. 504, 555-56. The same approach should apply in the context of tracing. Daniel Friedmann ----- Original Message ----- From: "Lionel Smith" To: Sent: Wednesday, April 23, 2003 1:41 AM Subject: Re: [RDG:] Tracing Into Proceeds of Illegal Investments > So long as the plaintiff only succeeds to whatever rights the defendant > has, I am not sure there would be any difficulty, or any inconsistency in > the law. > > Eg if the defendant's rights are subject to forfeiture to the state, so too > would be the plaintiff's once the trust was established. Or if a victim of > the crime could recover from the defendant, presumably he could recover > from the plaintiff as well. Such a plaintiff does not have the status of a > bona fide purchaser for value without notice. > > Lionel > > > At 02:04 PM 4/22/2003 -0500, THOMAS W MITCHELL wrote: > >This is Thomas Mitchell from the University of > >Wisconsin Law School. I am a third-year assistant > >professor teaching Remedies (amongst other subjects) > > > >I have a question regarding constructive trusts. > >I have not received a definitive answer to this > >question from a number of people I have asked. Most > >had no idea. I also could find no case on point. > > > >Here goes: > > > >A plaintiff who is granted a constructive trust > >usually has the option to trace into investments the > >wrongdoer > >has made. Of course, such a plaintiff will often do > >this > >when the investments have appreciated in value. > > > >A student asked me if a plaintiff in these cases can > >trace into the proceeds of an illegal investment > >that the defendant has made. For example, I can > >imagine a case where the defendant is a cocaine > >dealer. He steals cash from the plaintiff to > >purchase several kilos of cocaine at a wholesale > >price that he then sells at a huge markup on the > >retail market. For this question, there is no > >limitation due to unclean hands (in other, we are > >dealing with an innocent plaintff as opposed to a > >plaintiff is really an employee of the defendant > >cocaine dealer because allowing such a plaintiff to > >trace into the illegal proceeds would be a great way > >to launder the proceeds). > > > >For this question, please assume that the plaintiff > >is not the government. So this is not a > >seizure/forfeiture case. Any guidance would be much > >appreciated. > > > >Thank you, > >Thomas > > > > > >Thomas W. Mitchell > >Assistant Professor > >University of Wisconsin Law School > >975 Bascom Mall > >Madison, WI 53706-1399 > >(608) 263-0331 phone > >(608) 262-5485 fax > >tmitchell@facstaff.wisc.edu > >http://www.law.wisc.edu > > > >Faculty Fellow, 2002-2003 Academic Year > >University of Chicago's > >Center for the Study of Race, Politics and Culture > >5733 S. University Ave. > >Chicago, IL 60637 > >773 834-8734 (telephone) > >773 834-2000 (fax) > > > >____________________________________________________________________ > > 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: Wed, 23 Apr 2003 10:36:18 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: Tracing Into Proceeds of Illegal Investments Comments: To: Daniel Friedmann Comments: cc: Lionel Smith MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------81C7D5F2BC459500B628317D" --------------81C7D5F2BC459500B628317D Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I have been waffling on this since I wrote the e-mail yesterday and I see the great force in Lionel's and Daniel's explanations. With that said, does it not still seem that there is an inconsistency in the cocaine situation--by allowing recovery, the court is saying that my right to property (money or whatever) includes the right to make a profit by deploying it in an illegal manner. Is this not the same inconsistency that worried the court in Hall v. Hebert? If Lionel is right there would be no inconsistency if the tortfeasor was forced to pay lost wages to the bookie, so long as those damages were recognized to have disabilities ( i.e.. being subject to confiscation by the government in a separate action). If it is just complicity in the wrong that distinguishes the situations of tort and restitution, thinking aloud, why could one not say that I become complicit in the wrong by accepting the profits from it, especially in a situation where everyone is disbarred from using property in that way? In response to Daniel, could not a difference between the Reading v. Att-Gen. situation and the cocaine situation be that in Reading, the plaintiff could sell the right to allow officers to travel around (it was not illegal for them to use their property in that way) but that in the cocaine situation it would have been illegal for both the plaintiff and the defendant to sell the cocaine? Hence, no inconsistency in one, but an inconsistency in the other; recovery in one, no recovery in another. I more I think about it, the less sure I am. Jason Just trying to wrap my head around some of the issues. Daniel Friedmann wrote: > Lionel Smith is right. Where the plaintiff is entitled to recover in > restitution the defendant's profits, his right of recovery includes the > defendant's ill-gotten gains. The fact that the defendant acted illegally > will not shield him from liability provided of course that the plaintiff was > not involved in the illegality. See e.g. Reading v. Att-Gen. Another > example is discussed in 80 Columbia L. Rev. 504, 555-56. The same approach > should apply in the context of tracing. > > Daniel Friedmann > ----- Original Message ----- > From: "Lionel Smith" > To: > Sent: Wednesday, April 23, 2003 1:41 AM > Subject: Re: [RDG:] Tracing Into Proceeds of Illegal Investments > > > So long as the plaintiff only succeeds to whatever rights the defendant > > has, I am not sure there would be any difficulty, or any inconsistency in > > the law. > > > > Eg if the defendant's rights are subject to forfeiture to the state, so > too > > would be the plaintiff's once the trust was established. Or if a victim of > > the crime could recover from the defendant, presumably he could recover > > from the plaintiff as well. Such a plaintiff does not have the status of a > > bona fide purchaser for value without notice. > > > > Lionel > > > > > > At 02:04 PM 4/22/2003 -0500, THOMAS W MITCHELL wrote: > > >This is Thomas Mitchell from the University of > > >Wisconsin Law School. I am a third-year assistant > > >professor teaching Remedies (amongst other subjects) > > > > > >I have a question regarding constructive trusts. > > >I have not received a definitive answer to this > > >question from a number of people I have asked. Most > > >had no idea. I also could find no case on point. > > > > > >Here goes: > > > > > >A plaintiff who is granted a constructive trust > > >usually has the option to trace into investments the > > >wrongdoer > > >has made. Of course, such a plaintiff will often do > > >this > > >when the investments have appreciated in value. > > > > > >A student asked me if a plaintiff in these cases can > > >trace into the proceeds of an illegal investment > > >that the defendant has made. For example, I can > > >imagine a case where the defendant is a cocaine > > >dealer. He steals cash from the plaintiff to > > >purchase several kilos of cocaine at a wholesale > > >price that he then sells at a huge markup on the > > >retail market. For this question, there is no > > >limitation due to unclean hands (in other, we are > > >dealing with an innocent plaintff as opposed to a > > >plaintiff is really an employee of the defendant > > >cocaine dealer because allowing such a plaintiff to > > >trace into the illegal proceeds would be a great way > > >to launder the proceeds). > > > > > >For this question, please assume that the plaintiff > > >is not the government. So this is not a > > >seizure/forfeiture case. Any guidance would be much > > >appreciated. > > > > > >Thank you, > > >Thomas > > > > > > > > >Thomas W. Mitchell > > >Assistant Professor > > >University of Wisconsin Law School > > >975 Bascom Mall > > >Madison, WI 53706-1399 > > >(608) 263-0331 phone > > >(608) 262-5485 fax > > >tmitchell@facstaff.wisc.edu > > >http://www.law.wisc.edu > > > > > >Faculty Fellow, 2002-2003 Academic Year > > >University of Chicago's > > >Center for the Study of Race, Politics and Culture > > >5733 S. University Ave. > > >Chicago, IL 60637 > > >773 834-8734 (telephone) > > >773 834-2000 (fax) > > > > > >____________________________________________________________________ > > > 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 > . -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------81C7D5F2BC459500B628317D Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit I have been waffling on this since I wrote the e-mail yesterday and I see the great force in Lionel's and
Daniel's explanations. With that said, does it not still seem that there is an inconsistency in the cocaine
situation--by allowing recovery, the court is saying that my right to property (money or whatever)
includes the right to make a profit by deploying it in an illegal manner. Is this not the same inconsistency that worried the court in Hall v. Hebert?

If Lionel is right there would be no inconsistency if the tortfeasor was forced to pay lost wages to the
bookie, so long as those damages were recognized to have disabilities ( i.e.. being subject to
confiscation by the government in a separate action). If it is just complicity in the wrong that
distinguishes the situations of tort and restitution, thinking aloud, why could one not say that I become
complicit in the wrong by accepting the profits from it, especially in a situation where everyone is
disbarred from using property in that way?

In response to Daniel, could not a difference between the Reading v. Att-Gen. situation and the
cocaine situation be that in Reading, the plaintiff could sell the right to allow officers to travel around  (it was not illegal for them to use their property in that way) but that in the cocaine situation it would have been illegal for both the plaintiff and the defendant to sell the cocaine? Hence, no inconsistency in one, but an inconsistency in the other; recovery in one, no recovery in another.

I more I think about it, the less sure I am.

Jason
 
 

Just trying to wrap my head around some of the issues.

Daniel Friedmann wrote:

Lionel Smith is right. Where the plaintiff is entitled to recover in
restitution the defendant's profits, his right of recovery includes the
defendant's ill-gotten gains. The fact that the defendant acted illegally
will not shield him from liability provided of course that the plaintiff was
not involved in the illegality. See e.g.  Reading v. Att-Gen. Another
example is discussed in 80 Columbia L. Rev. 504, 555-56. The same approach
should apply in the context of tracing.

Daniel Friedmann
----- Original Message -----
From: "Lionel Smith" <lionel.smith@MCGILL.CA>
To: <ENRICHMENT@LISTS.MCGILL.CA>
Sent: Wednesday, April 23, 2003 1:41 AM
Subject: Re: [RDG:] Tracing Into Proceeds of Illegal Investments

> So long as the plaintiff only succeeds to whatever rights the defendant
> has, I am not sure there would be any difficulty, or any inconsistency in
> the law.
>
> Eg if the defendant's rights are subject to forfeiture to the state, so
too
> would be the plaintiff's once the trust was established. Or if a victim of
> the crime could recover from the defendant, presumably he could recover
> from the plaintiff as well. Such a plaintiff does not have the status of a
> bona fide purchaser for value without notice.
>
> Lionel
>
>
> At 02:04 PM 4/22/2003 -0500, THOMAS W MITCHELL wrote:
> >This is Thomas Mitchell from the University of
> >Wisconsin Law School.  I am a third-year assistant
> >professor teaching Remedies (amongst other subjects)
> >
> >I have a question regarding constructive trusts.
> >I have not received a definitive answer to this
> >question from a number of people I have asked.  Most
> >had no idea.  I also could find no case on point.
> >
> >Here goes:
> >
> >A plaintiff who is granted a constructive trust
> >usually has the option to trace into investments the
> >wrongdoer
> >has made.  Of course, such a plaintiff will often do
> >this
> >when the investments have appreciated in value.
> >
> >A student asked me if a plaintiff in these cases can
> >trace into the proceeds of an illegal investment
> >that the defendant has made.  For example, I can
> >imagine a case where the defendant is a cocaine
> >dealer.  He steals cash from the plaintiff to
> >purchase several kilos of cocaine at a wholesale
> >price that he then sells at a huge markup on the
> >retail market.  For this question, there is no
> >limitation due to unclean hands (in other, we are
> >dealing with an innocent plaintff as opposed to a
> >plaintiff is really an employee of the defendant
> >cocaine dealer because allowing such a plaintiff to
> >trace into the illegal proceeds would be a great way
> >to launder the proceeds).
> >
> >For this question, please assume that the plaintiff
> >is not the government.  So this is not a
> >seizure/forfeiture case.  Any guidance would be much
> >appreciated.
> >
> >Thank you,
> >Thomas
> >
> >
> >Thomas W. Mitchell
> >Assistant Professor
> >University of Wisconsin Law School
> >975 Bascom Mall
> >Madison, WI  53706-1399
> >(608) 263-0331 phone
> >(608) 262-5485 fax
> >tmitchell@facstaff.wisc.edu
> >http://www.law.wisc.edu
> >
> >Faculty Fellow, 2002-2003 Academic Year
> >University of Chicago's
> >Center for the Study of Race, Politics and Culture
> >5733 S. University Ave.
> >Chicago, IL  60637
> >773 834-8734 (telephone)
> >773 834-2000 (fax)
> >
> >____________________________________________________________________
> >  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>.
>
> ____________________________________________________________________
>  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>.

_________________________________________________________________ ___
 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>.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
  --------------81C7D5F2BC459500B628317D-- ____________________________________________________________________ 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, 23 Apr 2003 11:50:33 -0400 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: tracing MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit If, racked with remorse, the bad guy settled with the plaintiff by turning over the known proceeds of illegality, i expect the plaintiff would do better consulting a criminal defense lawyer than the RDG ____________________________________________________________________ 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, 23 Apr 2003 17:49:51 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Tracing Into Proceeds of Illegal Investments In-Reply-To: <3EA6A4E2.5044E428@uwo.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 10:36 23/04/2003 -0400, Jason Neyers wrote: >... does it not still seem that there is >an inconsistency in the cocaine >situation-- by allowing recovery, the >court is saying that my right to >property (money or whatever) >includes the right to make a profit >by deploying it in an illegal manner. >Is this not the same inconsistency >that worried the court in Hall v. >Hebert? Yes indeed - or (what may be the same point put another way) someone who accepts that the defendant must lose the money might nonetheless be puzzled at the suggestion that it must go to the claimant, via a tracing remedy. If the defendant isn't allowed to profit from wrongdoing, why is the claimant? The point was (so far as I know) first made by Len Sealy in relation to Reading, though it is equally good in relation to the cocaine example, or for that matter the (very wonderful) Blake case. If the law's attitude is that the cocaine transaction (or whatever) should never have been made, how come the claimant is entitled to the benefit of it? Sealy's view of Reading was (still is?) that while it was argued as a private law case, the result is only convincing because the state was involved. A soldier who gets smugglers through a check-point with his uniform is one thing; but if we imagine purely private law facts (Sealy's example was of a tabloid reporter obtaining benefits through misuse of his press pass) we can't imagine the court being quite so enthusiastic about allowing the employer a remedy. As to the detail of the cocaine example, rather a lot might depend on why the claimant wanted to trace. If the claimant has lost the money entirely unless tracing is available, I can imagine a court being sympathetic. If however (as the precise terms of the question suggest) the claimant had an alternative remedy but wanted to reap the reward of a fantastically profitable coke deal, that might be another thing ..... 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: Wed, 23 Apr 2003 18:30:06 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: [RDG:] Tracing Into Proceeds of Illegal Investments Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit Isn't one answer to Steve this: the policy against allowing me to benefit from my own sin is (or should be) stronger than that against allowing me to benefit from someone else's? I know most confiscation legislation doesn't accept this & says that no-one is allowed to possess property that they know has ever been involved in illegality by anyone: but instinctively there's a good deal to be said for the distinction. For instance, we often say criminals shouldn't be allowed to cash in by writing books about their misdoings: but presumably we don't say the same about crime writers. If so, it begins to look a good deal less odd that I should have a claim against the coke-dealer for his ill-gotten gains. Andrew >===== Original Message From Steve Hedley ===== At 10:36 23/04/2003 -0400, Jason Neyers wrote: >... does it not still seem that there is >an inconsistency in the cocaine >situation-- by allowing recovery, the >court is saying that my right to >property (money or whatever) >includes the right to make a profit >by deploying it in an illegal manner. >Is this not the same inconsistency >that worried the court in Hall v. >Hebert? Yes indeed - or (what may be the same point put another way) someone who accepts that the defendant must lose the money might nonetheless be puzzled at the suggestion that it must go to the claimant, via a tracing remedy. If the defendant isn't allowed to profit from wrongdoing, why is the claimant? The point was (so far as I know) first made by Len Sealy in relation to Reading, though it is equally good in relation to the cocaine example, or for that matter the (very wonderful) Blake case. If the law's attitude is that the cocaine transaction (or whatever) should never have been made, how come the claimant is entitled to the benefit of it? Sealy's view of Reading was (still is?) that while it was argued as a private law case, the result is only convincing because the state was involved. A soldier who gets smugglers through a check-point with his uniform is one thing; but if we imagine purely private law facts (Sealy's example was of a tabloid reporter obtaining benefits through misuse of his press pass) we can't imagine the court being quite so enthusiastic about allowing the employer a remedy. As to the detail of the cocaine example, rather a lot might depend on why the claimant wanted to trace. If the claimant has lost the money entirely unless tracing is available, I can imagine a court being sympathetic. If however (as the precise terms of the question suggest) the claimant had an alternative remedy but wanted to reap the reward of a fantastically profitable coke deal, that might be another thing ..... 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 . Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Mobile: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England *************************************** Aug - Sep 2002, Visiting Professor at Law School University of Connecticut Hartford CT 06105-2290 Tel: [001] 860 570 5383 Fax: [001] 860 570 5242 email: atettenb@law.uconn.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, 23 Apr 2003 19:25:27 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Tracing Into Proceeds of Illegal Investments In-Reply-To: <3EAB654B@minerva.ex.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 18:30 23/04/2003 +0100, Andrew Tettenborn wrote: >Isn't one answer to Steve this: the policy against allowing me to benefit from >my own sin is (or should be) stronger than that against allowing me to benefit >from someone else's? I know most confiscation legislation doesn't accept this >& says that no-one is allowed to possess property that they know has ever been >involved in illegality by anyone: but instinctively there's a good deal to be >said for the distinction. For instance, we often say criminals shouldn't be >allowed to cash in by writing books about their misdoings: but presumably we >don't say the same about crime writers. If so, it begins to look a good deal >less odd that I should have a claim against the coke-dealer for his ill-gotten >gains. Well, this has nothing to do with the point I raised -- My point was rather the lack of a positive reason why the claimant should be able to get the money. It doesn't matter how badly the defendant deserves to lose it, if there is no reason why the claimant should get it. Public policy only comes into the matter once we have established some such reason. But it's an interesting question anyway, of who we regard as "profiting from the crime of another". Insurance companies, police officers, criminal barristers, and crime writers all make their money from the crime of others -- if there were no crime, they would all have to take up quite different jobs. Yet we don't regard them as "profiting from the crime of another" for legal purposes, whereas (say) the recipient of a gift from a career criminal probably would be. This distinction is intuitively appealing, but I'm finding it hard to put into words, and Andrew's formulation certainly doesn't explain it. How would someone else put 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: Wed, 23 Apr 2003 16:39:05 -0400 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: tracing MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Steve Hedley wrote: > But it's an interesting question anyway, of who we regard as "profiting > from the crime of another". Insurance companies, police officers, > criminal barristers, and crime writers all make their money from the crime > of others -- if there were no crime, they would all have to take up quite > different jobs. Yet we don't regard them as "profiting from the crime of > another" for legal purposes, whereas (say) the recipient of a gift from a > career criminal probably would be. This distinction is intuitively > appealing, but I'm finding it hard to put into words, and Andrew's > formulation certainly doesn't explain it. How would someone else put it? > > S teve Hedley > > ===== writers cops and lawyers perform a useful social function with respect to the crime??? ____________________________________________________________________ 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, 24 Apr 2003 13:13:33 +1000 Reply-To: Jonathon P Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon P Moore Subject: Recipient liability in the NSW CA MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit A recent case bristling with unjust enrichment issues that will be of interest to many members of the list: ROBINS & ORS v INCENTIVE DYNAMICS PTY LTD (in liq) & ANOR [2003] NSWCA 71 CATCHWORDS: Corporations - directors - breach of fiduciary duties - Corporations Law, s232(6)-Corporations Act 2001, s182 - money transferred to company in which directors had an interest - knowing receipt within Barnes v Addy (1864) LR 9 Ch App 244 - personal and proprietary remedies - remedial constructive trust - whether rescission necessary Jonathon Moore Barrister Melbourne, Australia ____________________________________________________________________ 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, 24 Apr 2003 16:38:41 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Prof AS Burrows QC MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii RDG member Andrew Burrows was made Queen's Counsel (honoris causa) last week: the press release from the Lord Chancellor may be seen at: http://www.gnn.gov.uk/gnn/national.nsf/LC/DF2B58D51C8A2A2880256D0B002D4 E7E Congratulations to Andrew, who is expected to bring his new wig to the next restitution symposium! 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: Wed, 30 Apr 2003 16:06:29 -0400 Reply-To: jberrym@UWINDSOR.CA Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jeff Berryman Subject: Conference - Reparations: Theory, Practice and Legal education MIME-Version: 1.0 Content-type: multipart/mixed; Boundary="0__=0ABBE78BDFFDA7718f9e8a93df938690918c0ABBE78BDFFDA 771" --0__=0ABBE78BDFFDA7718f9e8a93df938690918c0ABBE78BDFFDA771 Content-type: text/plain; charset=us-ascii Could you please place on the Restitution list serve the following announcement concerning an upcoming conference sponsored by the University of Windsor and the Commonwealth Legal Education Association on Reparations: Theory, Practice and Legal Education (See attached file: CLEA Reparations Conference - poster.doc) Regards, Jeff Berryman Professor Jeff Berryman Faculty of Law University of Windsor Windsor, Ontario Canada N9B 3P4 519-253-3000 ext. 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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 .