=============================================================== ========== Date: Sat, 2 Aug 2003 10:06:06 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: A little UE in the working world MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit See: http://www.cbc.ca/stories/2003/08/01/navypay030801 -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Tue, 5 Aug 2003 13:05:53 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Authorson Mime-Version: 1.0 (Apple Message framework v552) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit My apologies to everyone for once again trumpeting a decision which someone else had posted. This, I think, has not yet appeared - the multi-billion dollar claim in Authorson, by disabled veterans against the Canadian federal government for failure to pay interest on pension funds, has now been resolved against the plaintiffs. At trial and in the CA they won, both courts agreeing that there was a breach of fiduciary obligation, and that the Bill of Rights of 1960 (of which very little is heard since the Charter of Rights) made inoperative the retroactive legislation which Parliament passed to try to eliminate its liability. But the SCC has reversed. Authorson v. Canada (Attorney General), [2003] S.C.J. No. 40, July 17, 2003, is on Quicklaw and Canlii. http://www.canlii.org/ca/cas/scc/2003/2003scc39.html I am still not sure whether an award of interest is compensation or restitution. 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 . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Tue, 12 Aug 2003 09:17:44 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: The trustee's right to indemnity Comments: To: obligations@uwo.ca, lawaho@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset=3Dus-ascii Content-Transfer-Encoding: 7bit Dear Colleagues, Does anyone know of any Commonwealth caselaw or academic commentary dealing with the question of whether or not a trust deed can expressly exclude the trustee's right to an indemnity from the trust corpus? Sincerely, -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Sun, 12 Aug 0103 23:25:13 GMT Reply-To: jsdouglas@QLDBAR.ASN.AU Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: jsdouglas@QLDBAR.ASN.AU Subject: Re: The trustee's right to indemnity Comments: To: jneyers@uwo.ca Have a look at Kemtron Industries Pty Ltd v Commissioner of Stamp Duties = [1984] 1 Qd R 576 at 584-585 where McPherson J said: "So far I have spoken of the liabilities of the trust. But the trus= t in not an entity recognized by the law, and the current liabilities referred to in the balance sheet are= really liabilities of the trustee. The rule is that a trustee is personally responsible for liabil= ities including debts properly incurred by him in the course of administering trust property: see Octav= o Investments Pty. Ltd. v. Knight (1979) 144 C.L.R. 360, 367. A creditor has no direct claim or rem= edy against the trust assets, but must look to the trustee personally: Worrall v. Harford (180= 2) 8 Ves. Jun. 4, 8; 32 E.R. 250, 252; Re Evans (1887) 34 Ch.D. 597. The trustee in his turn has in r= espect of liabilities so incurred the right to be indemnified out of the trust assets. He also ha= s in general a right to be indemnified by the beneficiaries personally, including those beneficiarie= s who may have acquired their interest in the trust assets by assignment from another beneficiary= : Hardoon v. Belilios [1901] A.C. 118. The right to a personal indemnity of this kind is not r= elevant or relied on in this instance because here the trust instrument in cl. 18.3 expressly excludes= that right: cf. Hardoon v. Belilios [1901] A.C. 118, 127. The right of the trustee to indemnity from the assets is an incident = of the office of the trustee and is inseparable from it: see Worrall v. Harford (supra). For that re= ason it is probably incapable of being excluded. The Trust Act 1973 - 1981 now contains a statutory ex= pression of the right to such indemnity which is not capable of being excluded by the trust instru= ment: s. 65. In the exercise of his right of indemnity the trustee may resort to the trust as= sets for the purpose of discharging liabilities incurred but not paid, and also for the purpose o= f reimbursing himself in respect of liabilities paid by him out of his own funds: Jennings v. Mat= her [1901] 1 Q.B. 108; affd. [1902] 1 K.B. 1; Octavo Investments Pty. Ltd. v. Knight (1979) 144 C.L.R.= 360, 371. For that purpose he has a lien or right of retention over the trust assets pending= such payment or reimbursement: ibid." That approach was recently affirmed in the Supreme Court of New South Wal= es in JA Pty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691 at 706, 713-14 per Santow J at [87]. = See also Jessup v Queensland Housing Commission [2001] QCA 312 at [14]. The statutory regime in most Australian states other than Queensland supp= orts a power to limit the right to indemnity. See the following passage from Halsbury's Laws o= f Australia: "[430-3795] Provision in the trust instrument: Except in Queensland and S= outh Australia, the trust instrument may expressly provide that the trustee=92s right to indemnity = and reimbursement may be denied or reduced in specific circumstances, or generally. 1 In that such= a clause purports to oust a fundamental aspect of trusteeship, for the court to give effect to it t= he settlor=92s intention to exclude or restrict the trustee=92s right of indemnity must be stated in = clear terms. 2 In Queensland the statutory right of indemnity applies irrespective of anything to the = contrary in the trust instrument. 3 A similar outcome would appear to be the case in South Aust= ralia, where the trustee legislation does not make the right of indemnity subject to the trust ins= trument. 4 Notes 1. This is supported by both case authority and the trustee legislati= on. As to the former see McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 640-1; 9 AC= LR 926 per Young J; RWG Management Ltd v Cmr for Corporate Affairs [1985] VR 385 at 395 per= Brooking J. But see JA Pty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691 at 706, 714 per San= tow J. The trustee legislation in the Australian Capital Territory, the Northern= Territory, New South Wales and Tasmania provides that the statutory right of indemnity applies =91wi= thout prejudice=92 to the terms of the trust instrument: (ACT) Trustee Act 1925 (NSW) s 59(3) (NT) Trustee Act 1893 (SA) s 26 (NSW) Trustee Act 1925 s 59(3) (TAS) Trustee Act 1898 s 27(1). The Victorian and Western Australian statutes each contain a general prov= ision to the effect that the powers conferred by those statutes apply if and only if a contrary in= tention is not expressed in the trust instrument: (VIC) Trustee Act 1958 s 2(3) (WA) Trustees Act 1962 s 5(2), 5(3). Strictly speaking, trustees do not exercise a power of indemnity, but rat= her a right. Compare RWG Management Ltd v Cmr for Corporate Affairs [1985] VR 385 at 395 per Brook= ing J (his Honour treated the indemnity as a power for the present purposes). 2. JA Pty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691 at 714 per = Santow J. 3. (QLD) Trusts Act 1973 s 65. See also Kemtron Industries Pty Lt= d v Cmr of Stamp Duties (Qld) [1984] 1 Qd R 576 at 585 per McPherson J, SC(QLD), Full Court; JA P= ty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691 at 706, 713-14 per Santow J. 4. (SA) Trustee Act 1936 s 35(2)." Regards, James Douglas > Dear Colleagues, > > Does anyone know of any Commonwealth caselaw or academic commentary > dealing with the question of whether or not a trust deed can expressly > exclude the trustee's right to an indemnity from the trust corpus? > > Sincerely, > > -- > Jason Neyers > Assistant Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, emai= l > . > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Fri, 15 Aug 2003 17:28:15 +0100 Reply-To: Simon Macdonald Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simon Macdonald Subject: Illegality as a defence to restitutionary claims MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----_=3D_NextPart_001_01C3634A.3A19B980" This is a multi-part message in MIME format. ------_=3D_NextPart_001_01C3634A.3A19B980 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Colleagues I believe the present state of the law (in spite of law comm. =3D recommendations) to be that illegality stands as a defence to a =3D restitutionary claim except where the parties are non in pari delicto. This would seem to bite in relation to benefits conferred under the =3D illegal contract. I wonder whether the benefit in the following =3D scenario has been so conferred, or whether the unjust enrichment, though = =3D causally linked to the illegal contract, is remote enough to allow =3D restitution? 1. A confers a benefit on B under an illegal contract of =3DA3x plus VAT.= =3D B accounts to customs for the VAT. A reclaims the VAT. 2. Following official discovery of the illegality, A is required by =3D customs, for whatever reason, to repay to customs the VAT reclaimed by =3D it. 3. customs then offsets that VAT against entirely separate VAT =3D liabilities owed by B. B is, surely, unjustly enriched at the expense =3D of A, since A has effectively paid part of B's VAT bill. So, the VAT element of A's initial payment doesn't represent a benefit =3D for B (as the payment simply goes round in a circle back to A). The =3D benefit only arises when customs intervenes as if to reverse the cyclic =3D transfer, but stops halfway. =3D20 So was the benefit which unjustly enriches B transferred under the =3D illegal contract? Presumably if the answer is no, there is nothing to =3D stop A seeking restitution against B. Alternatively and even if the =3D answer is yes, what public policy objective is achieved by not allowing =3D restitution. Say in the above scenario both A and B have paid heavy =3D fines vis a vis the illegality. Public policy would be better served by = =3D a status quo re the VAT and both with their fingers burnt re the illegal = =3D purpose surely? As it stands, B is not only enriched to A's detriment, =3D but the hardship intended by the fines he pays to the state is =3D undermined. I would be very interested in any thoughts. A fine weekend to you all Simon MacDonald ___________________________________________________________________ Oury Clark Solicitors, PO Box 2222, Herschel House, 58, Herschel Street, Slough, Berkshire, SL1 1QG T: +44 (0) 1753 551800 - F: +44 (0) 1753 551300 - W: www.ouryclark.com A list of partner's names may be inspected at this address. This email =3D is intended=3D20 solely for the above-mentioned recipient and it may contain confidential = =3D or=3D20 privileged information. If you have received it in error, please notify = =3D us by telephone immediately and delete the email. You must not copy, =3D distribute, disclose or take any action in reliance on it. =3D20 This email and any attachments to it may contain viruses, which could =3D damage=3D20 your own computer system. While the firm has taken every reasonable =3D precaution to minimise this risk, we cannot accept liability for any damage which =3D you sustain as a result of software viruses. You should carry out your own virus =3D checks before opening the attachment.=3D20 Any views expressed by an individual within this e-mail which do not =3D constitute or record legal advice do not necessarily reflect the views of the =3D firm. Oury Clark Solicitors reserve the right to monitor all email =3D communications through their internal and external networks. ------_=3D_NextPart_001_01C3634A.3A19B980 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Illegality as a defence to restitutionary claims

Dear Colleagues

I believe the present state of the law (= in =3D spite of law comm. recommendations) to be that illegality st= ands =3D as a defence to a restitutionary claim ex= cept =3D where the parties are non in pari delicto.

This would seem to bite in relation to =3D benefits conferred u= nder =3D the illegal contract.  I =3D wonder whether the benefit in the following scenario= =3D has been so conferred, or whether =3D the unjust enrichme= nt, =3D though causally linked to the illegal contract, is remote enough to =3D allow restitution?

1. A confers a benefit on B = under =3D an illegal contract of =3DA3x plus VAT.  B accounts to customs for =3D the VAT.  A reclaims the VAT.

2. Fol= lowing =3D official discovery of the illegality, =3D A is required by =3D customs, for whatever reason, to repay t= o =3D customs the VAT reclaimed b= y =3D it.

3. customs then offsets that VAT =3D against entirely separate VAT liabilities owed by =3D B.  B is, surely, unjustly enriched at the = =3D expense of A, since A has =3D effectively p= aid =3D part of B’s VAT bill.

So, the VAT element of A&#= 8217;s =3D initial payment doesn’t represent a benefit for = B (as =3D the payment simply goes r= ound in =3D a circle back to A).  The benefit =3D only arises when =3D customs intervenes as if to reverse the cyclic transf= er, =3D but stops halfway. 

So was the benefit which unjustly enriches B transferred= =3D under the illegal contract?  Presumably if the = =3D answer is no, there is nothing to stop A seeking restitution against =3D B.  Alternatively =3D and =3D even if the answer is yes, what p= ublic =3D policy objective is achieved by not allowing =3D restitution.  Say in the above scenario both A and = B =3D have paid heavy fines vis a vis the illegality.  P= ublic =3D policy would be better served by a status quo re the VAT and both with =3D their fingers burnt re the illegal purpose =3D surely?  As it stands, B is not only enriched to =3D A’s detriment, but the hardship intended =3D by the fines he pays to the state is =3D undermined.

I would be very interested in any =3D thoughts.

A fine weekend to you all

Simon MacDonald

______________________________________________________ __= __=3D _________

Oury Clark Solicitors, PO Box 2222, Herschel House, 58, = =3D Herschel

 Street, Slough, Berkshire, SL1 =3D 1QG

T: +44 (0) 1753 551800 - F: +44 (0) 1753 551300  - = =3D W: www.ouryclark.com

A list of partner’s names may be inspected at this= =3D address.  This email is intended

solely for the above-mentioned recipient and it may =3D contain confidential or

privileged information.  If you have received it in= =3D error, please notify us by

telephone immediately and delete the email.  You =3D must not copy, distribute,

disclose or take any action in reliance on it.  =3D

This email and any attachments to it may contain viruses= , =3D which could damage

your own computer system.  While the firm has taken= =3D every reasonable precaution

to minimise this risk, we cannot accept liability for an= y =3D damage which you sustain

as a result of software viruses.  You should carry = =3D out your own virus checks

before opening the attachment.

Any views expressed by an individual within this e-mail = =3D which do not constitute
 or record legal advice do not necessarily reflect the views of the = =3D firm.

Oury Clark Solicitors reserve the right to monitor all =3D email communications

through their internal and external  =3D networks.

------_=3D_NextPart_001_01C3634A.3A19B980-- ____________________________________________________________________ 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 . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Mon, 18 Aug 2003 09:51:03 +0100 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Illegality as a defence to restitutionary claims Comments: To: Simon Macdonald In-Reply-To: <16A623635C63774A9233A34E69F0C0CF64BDD2@w2kserver1.ouryclar= k.com> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----=3D_NextPart_000_0017_01C3656E.3C99B4A0" This is a multi-part message in MIME format. ------=3D_NextPart_000_0017_01C3656E.3C99B4A0 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: 8bit Illegality as a defence to restitutionary claimsDear all, My initial thought is that the answer is no. The benefit is not conferred under the contract. A confers a benefit on B of =A3X + VAT. If we stop th= ere B is enriched at the expense of A (fairly obviously). That's B's VAT liabil= ity which he pays. If we stop there, I wonder whether that is a disenriching change of position. B is no longer enriched by the VAT money because he h= as paid it over to Customs in pursuance of his liability. It is not that B w= as not enriched. He was. We are concerned here with value received, subject = to defences. At that point therefore B can only be liable in unjust enrichme= nt to the tune of =A3x. A recovers the VAT. As Simon McDonald says the payme= nt loops round in a big circle and ends back at A. Whether B is enriched or = not ceases to be an issue, because any enrichment is not at the expense of A. A is required to repay the VAT to customs. That in essence puts us back i= n the position where A never reclaimed the VAT. But at that point I do not = see how A can reclaim the VAT money from B. Certainly he may (or may not) hav= e a claim against B for the =A3x, but B can claim he has changed his position= by accounting for the VAT liability to Customs & Excise. Customs sets off the VAT against B's other VAT liabilities. I agree that = B is now enriched at the expense of A because A has effectively paid B's VA= T liability, or some of it. I don't think that can be an enrichment conferr= ed under the contract. Initially yes it was. That enrichment was "rubbed out= " if you will and now a separate enrichment has arisen. We could then say t= hat A has effectively paid another's debt, and deal with the matter according= ly. I am not. however, as sanguine as Simon McDonald that A must be able to recover. If the demand for the repayment of the VAT reclaim by A is linke= d to the illegality (and punishment therefor) could we not argue that it defeats the point of the Customs claim against A to allow A to get the mo= ney back from B? If the Customs claim is wholly unrelated to the illegality t= hen yes I can see no reason not to allow recovery. Dr Duncan Sheehan Postgraduate Admissions Officer Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Simon Macdonald Sent: Friday, August 15, 2003 5:28 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Illegality as a defence to restitutionary claims Dear Colleagues I believe the present state of the law (in spite of law comm. recommendations) to be that illegality stands as a defence to a restitutionary claim except where the parties are non in pari delicto. This would seem to bite in relation to benefits conferred under the illegal contract. I wonder whether the benefit in the following scenario has been so conferred, or whether the unjust enrichment, though causally linked to the illegal contract, is remote enough to allow restitution? 1. A confers a benefit on B under an illegal contract of =A3x plus VAT.= B accounts to customs for the VAT. A reclaims the VAT. 2. Following official discovery of the illegality, A is required by customs, for whatever reason, to repay to customs the VAT reclaimed by it. 3. customs then offsets that VAT against entirely separate VAT liabilit= ies owed by B. B is, surely, unjustly enriched at the expense of A, since A = has effectively paid part of B=92s VAT bill. So, the VAT element of A=92s initial payment doesn=92t represent a bene= fit for B (as the payment simply goes round in a circle back to A). The benefit only arises when customs intervenes as if to reverse the cyclic transfer, but stops halfway. So was the benefit which unjustly enriches B transferred under the ille= gal contract? Presumably if the answer is no, there is nothing to stop A seeking restitution against B. Alternatively and even if the answer is y= es, what public policy objective is achieved by not allowing restitution. Sa= y in the above scenario both A and B have paid heavy fines vis a vis the illegality. Public policy would be better served by a status quo re the = VAT and both with their fingers burnt re the illegal purpose surely? As it stands, B is not only enriched to A=92s detriment, but the hardship inten= ded by the fines he pays to the state is undermined. I would be very interested in any thoughts. A fine weekend to you all Simon MacDonald ___________________________________________________________________ Oury Clark Solicitors, PO Box 2222, Herschel House, 58, Herschel Street, Slough, Berkshire, SL1 1QG T: +44 (0) 1753 551800 - F: +44 (0) 1753 551300 - W: www.ouryclark.com A list of partner=92s names may be inspected at this address. This ema= il is intended solely for the above-mentioned recipient and it may contain confidentia= l or privileged information. If you have received it in error, please notif= y us by telephone immediately and delete the email. You must not copy, distribute, disclose or take any action in reliance on it. This email and any attachments to it may contain viruses, which could damage your own computer system. While the firm has taken every reasonable precaution to minimise this risk, we cannot accept liability for any damage which = you sustain as a result of software viruses. You should carry out your own virus checks before opening the attachment. Any views expressed by an individual within this e-mail which do not constitute or record legal advice do not necessarily reflect the views of the fir= m. Oury Clark Solicitors reserve the right to monitor all email communications through their internal and external networks. ------=3D_NextPart_000_0017_01C3656E.3C99B4A0 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Illegality as a defence to restitutionary =3D claims
Dear=3D20 all,
 
My=3D20 initial thought is that the answer is no. The benefit is not conferred =3D under the=3D20 contract. A confers a benefit on B of =3DA3X + VAT. If we stop there B is= =3D enriched=3D20 at the expense of A (fairly obviously). That's B's VAT liability which =3D he pays.=3D20 If we stop there, I wonder whether that is a disenriching change of = =3D position. B is no longer enriched by the VAT money because he has paid =3D it over=3D20 to Customs in pursuance of his liability. It is not that B was not =3D enriched. He=3D20 was. We are concerned here with value received, subject to defences. At =3D that=3D20 point therefore B can only be liable in unjust enrichment to the =3D tune of=3D20 =3DA3x. A recovers the VAT. As Simon McDonald says the payment loops roun= d =3D in a big=3D20 circle and ends back at A. Whether B is enriched or not ceases to be an =3D issue,=3D20 because any enrichment is not at the expense of A.
 
A is=3D20 required to repay the VAT to customs. That in essence puts us back =3D in the=3D20 position where A never reclaimed the VAT. But at that point I do not see = =3D how A=3D20 can reclaim the VAT money from B. Certainly he may (or may not) have a =3D claim=3D20 against B for the =3DA3x, but B can claim he has changed his position by = =3D accounting=3D20 for the VAT liability to Customs & Excise.
 
Customs sets off the VAT against B's other=3D= 20 VAT liabilities. I agree that B is now enriched at the expense of A = =3D because=3D20 A has effectively paid B's VAT liability, or some of it. I don't think =3D that can=3D20 be an enrichment conferred under the contract. Initially yes it was. =3D That=3D20 enrichment was "rubbed out" if you will and now a separate enrichment =3D has=3D20 arisen. We could then say that A has effectively paid another's debt, =3D and deal=3D20 with the matter accordingly. I am not. however, as sanguine as Simon =3D McDonald=3D20 that A must be able to recover. If the demand for the repayment of the =3D VAT=3D20 reclaim by A is linked to the illegality (and punishment therefor) could = =3D we not=3D20 argue that it defeats the point of the Customs claim against A to allow =3D A to get=3D20 the money back from B? If the Customs claim is wholly unrelated to the=3D= 20 illegality then yes I can see no reason not to allow recovery.=3D20

Dr Duncan Sheehan
Postgraduate Admissions =3D Officer
Norwich=3D20 Law School
University of East Anglia
Norwich NR4 7TJ
United=3D20 Kingdom

 
-----Original Message-----
From: Enrichment - =3D Restitution=3D20 & Unjust Enrichment Legal Issues =3D [mailto:ENRICHMENT@LISTS.MCGILL.CA]On=3D20 Behalf Of Simon Macdonald
Sent: Friday, August 15, 2003 =3D 5:28=3D20 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:]=3D= 20 Illegality as a defence to restitutionary =3D claims

Dear=3D20 Colleagues

I believe=3D20 the present state of the law (in spite of law comm. recommendations) to be= that =3D illegality stands=3D20 as a defence to a restitutionary claim except where the parties are non in =3D pari=3D20 delicto.

This=3D20 would seem to bite in relation to benefits conferred under the=3D20 illegal =3D contract. = ; I=3D20 wonder whether the benefit in the following scenario has been so =3D conferred, or=3D20 whether the unjust enrichment, though causally linked to the illegal= =3D contract,=3D20 is remote enough to allow restitution?

1. A confers a benefit on B under an illegal contract of =3DA3x= =3D plus=3D20 VAT.  B accounts to customs for the VAT.  =3D A reclaims the =3D VAT.

2. Following official discovery of the =3D illegality, A is = =3D required by customs,=3D20 for whatever reason, to repay to customs the V= AT=3D20 reclaimed=3D20 by it.

3.=3D20 customs then offsets that VAT against =3D entirely separate VAT =3D liabilities owed by=3D20 B.  B is, surely, unjustly enriched at the expense of A, sinc= e A=3D20 has effectively paid part of B’s VAT =3D bill.

So, the=3D20 VAT element of A’s initial payment = =3D doesn’t represent a benefit for B (as the payment=3D= 20 simply goes round in a circle back to A).  The benefit =3D only arises when=3D= 20 customs intervenes as if to reverse the cyclic transfer, but stops=3D= 20 halfway. 

So was=3D20 the benefit which unjustly enriches B transferred under the illegal=3D2= 0 contract?  Presumably if the answer is no, there is nothing to =3D stop A=3D20 seeking restitution against B.  =3D Alternatively and =3D even if th= e =3D answer is yes,=3D20 what public policy objective is achieved by not allowing=3D20 restitution.  Say in the above scenario both A and B have paid =3D heavy fines=3D20 vis a vis the illegality.  Public policy would be bett= er =3D served by a=3D20 status quo re the VAT and both with their fingers burnt re the illegal = =3D purpose=3D20 surely?  As it stands, B is not only enriched to =3D A’= ;s =3D detriment, but the=3D20 hardship intended by the fines he pays to the state is=3D20 undermined.

I would=3D20 be very interested in any thoughts.

A fine=3D20 weekend to you all

Simon=3D20 MacDonald

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------=3D_NextPart_000_0017_01C3656E.3C99B4A0-- ____________________________________________________________________ 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 . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D Date: Thu, 21 Aug 2003 13:38:17 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: publications ... Mime-Version: 1.0 (Apple Message framework v552) Content-Type: text/plain; charset=3DUS-ASCII; format=3Dflowed Content-Transfer-Encoding: 7bit Stephen Waddams has recently published "Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning" (CUP 2003). It deals with unjust enrichment, among many other things. Some recent articles: Peter B.H. Birks (2003) "A Letter to America: The New Restatement of Restitution", Global Jurist Frontiers: Vol. 3: No. 2, Article 2. Online at http://www.bepress.com/gj/frontiers/vol3/iss2/art2 ABSTRACT: The aim of this paper is to advocate the taking of three steps which the American Law Institute's successor to the 1937 Restatement of Restitution seems at the moment rather unlikely to take. ... S. Hedley, "Unjust Enrichment: A Middle Course?" (2002) Oxford University Commonwealth Law Journal 181 A. Kull, "Restitution's Outlaws" (2003) 78 Chicago-Kent LR 17 L. Smith, "Restitution" in P. Cane and M. Tushnet, eds., Oxford Handbook of Legal Studies (OUP 2003). 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 .