=============================================================== ========== Date: Mon, 1 Dec 2003 15:25:43 +0000 Reply-To: Gerard.McMeel@BRISTOL.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerard McMeel Subject: Mistaken payments and the FInancial Ombudsman Service In-Reply-To: MIME-Version: 1.0 Content-Type: Text/Plain; CHARSET="ISO-8859-1" Content-Transfer-Encoding: quoted-printable I suspect that since the implementation of the Financial Services and=20 Markets Act 2000, and in particular since the broad dispute resolution=20 powers of the Financial Ombudsman Service (FOS) were introduced, the=20 vast majority of mistaken payment cases involving banks and other=20 financial services providers (the key context for this type of claim)=20 will go through the FOS rather than the High Court or County Court. Eligible complainants include not just individual consumers but also=20 small businesses and charities and the ceiling for awards is =A3100,000. The latest FOS newsletter (www reference below) outlines the=20 Ombudsman's approach to such cases. List readers may be interested in=20 the comments, especially on the approach taken to change of position.=20 The FOS must have regard to the law, but ultimately must decide what is fair and reasonable. So far it seems the FOS is taking a robust view=20 and is dismissing most complaints about bank's mistaken payments. http://www.financial-ombudsman.org.uk/publications/ombudsman-news/33/credit= s-33.htm ---------------------- Gerard McMeel Faculty of Law Univerisity of Bristol gerard.mcmeel@bristol.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 1 Dec 2003 23:50:52 +0800 Reply-To: NICHOLAS TAN CHOI CHUAN Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: NICHOLAS TAN CHOI CHUAN Subject: Constructive Trust: Knowing receipt & Knowing assistance Comments: cc: choichuan@hotmail.com MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit Again this is categorised under constitutional trust and it operates not accordance to the intention of the parties but it was constituted by the operation of law. Lord Selborne in an old case of Barnes v Addy affirmed it that one should be personally account for his 'dishonestly' receipt of profit which he is not supposed to take under the breach of trust. But the question is on what is the criteria to hold a person liable under this head of liability? Megarry VC in the case of Re Montagu's Settlement expressed that it should the same as liability for assistance but this view was rejected by ll subsequent cases and recently in the case of Bank of Credit and Commence (Overseas) Ltd v Akindale, in which the court held the the burden to prove under 'knowing receipt' should be ligher as compared with 'knowing assistance' because the former is a restituional-based, whereas the latter one is a fault-based. However, Megarry VC in the earlier case had made one thing very clear and true indeed, it says that the three requirements provided in the case of Reading v AG were not true because the liability of 'knowing reciept' is a personal claim and so the doctrine of tracing, which is a proprietary based shouls not be mixed into this head of liability. The primary question on this head of liability is what type of knowledge is required to hold a person liable for his reciept. The arguments were on whether it should be objective or subjetive test. However, in the recent case as mentioned earlier, Bank of Credit and Comence (Overseas) Ltd v Akindale, the court had done a very impressive thing which made the law develops in a better path. The court in this case adopted the approach used in the Canadian case of Citadel, where it says that the issue should be whether it is consciousable for the person to retain the profit he received under the breach of trust. The standard to decide this seems to be objective. The law in this area seems settled down and become easier. However, I don't think the law in 'knowing assistance' is settled (as i mentioned in the earlier article) even after the House of Lords case of Twinsectra v Yardley. There are two issues in this case, (a) whether the quistclose trust is established and (b) whether there should be dishonest one the part of the so called 'constructive trustee'. The first issue was settled in the case of Quistclose itself and this case had in fact reaffirmed the English position in this area but in relaiton to the second one, the law seems to be left open as expressed by Lord Millet. There are 2 approached to decide the liability of 'knowing assistance' as said by Lord Millet, and to which approach is taken, it depends on the judge who sit in that case and also look at the circumstances of each case. ---------------------------------------------------------------- This e-mail has been sent via JARING webmail at http://www.jaring.my ____________________________________________________________________ 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, 2 Dec 2003 06:33:31 -0500 Reply-To: Martin Laforet Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Martin Laforet Subject: Citadel, tracing and knowing receipt/assistance MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_001B_01C3B89E.3440A060" This is a multi-part message in MIME format. ------=_NextPart_000_001B_01C3B89E.3440A060 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I am interested in your reference to the Canadian case of the Citadel. = I would like to do some more research on this case. Would you be able to = direct me to some sources of reference for this case as well as the = doctrine of tracing?=20 Is precidence taking place based on this case regardless of "knowing = receipt" or "knowing assistance"? Thanks ------=_NextPart_000_001B_01C3B89E.3440A060 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
I am interested in your reference to the Canadian case of  the Citadel. I = would like=20 to do some more research on this case. Would you be able to direct me to = some=20 sources of reference for this case as well as the doctrine of=20 tracing? 
Is precidence taking place based on this case regardless of = "knowing=20 receipt" or "knowing assistance"?
 
Thanks
 
 
------=_NextPart_000_001B_01C3B89E.3440A060-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 8 Dec 2003 12:14:37 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: animal rights Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_12107203==.ALT" --=====================_12107203==.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Idly glancing through the Sunday Telegraph yesterday, I noticed an article on the Battersea Dogs' Home in London. Large numbers of stray pooches are handed in by the police & others. If the owners can be found, they are told they can have their animals back, but only if they pay a fee for their keep and vaccination. Does anyone have any idea what the basis of this charge is - or does the Home simply hope that owners will do the decent thing and not sue? Andrew Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Cellphone: 07729-266200 / +44-7729-266200 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [School homepage: http://www.ex.ac.uk/law/ ] [My homepage: http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_12107203==.ALT Content-Type: text/html; charset="us-ascii"

Idly glancing through the Sunday Telegraph yesterday, I noticed an article on the Battersea Dogs' Home in London. Large numbers of stray pooches are handed in by the police & others. If the owners can be found, they are told they can have their animals back, but only if they pay a fee for their keep and vaccination.

Does anyone have any idea what the basis of this charge is - or does the Home simply hope that owners will do the decent thing and not sue?


Andrew


Andrew Tettenborn MA LLB
Bracton Professor of Law


Tel:           &nb sp;     01392-263189   /   +44-392-263189 (international)
Cellphone:             07729-266200   /   +44-7729-266200 (international)
Fax:           &nb sp;    01392-263196    /   +44-392-263196 (international)

Snailmail:    School of Law,
                    University of Exeter,
                    Amory Building,
                    Rennes Drive,
                    Exeter EX4 4RJ
                    England

                    [School homepage: http://www.ex.ac.uk/law/ ]
                    [My homepage:
                      http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_12107203==.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: Mon, 8 Dec 2003 12:58:41 -0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: animal rights Comments: To: Andrew Tettenborn MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0037_01C3BD8B.0185B6F0" This is a multi-part message in MIME format. ------=_NextPart_000_0037_01C3BD8B.0185B6F0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Local authorities are obliged to seize stray dogs. This duty may be = delegated. Owners are only entitled to the return of dogs if they pay = all the expenses incurred by reason of the detention. I assume, but = don't know, that the local authority has delegated the function of = seizure to the dogs home (which is a charity). see Environmental Protection Act 1990 section 149(5) Robert Stevens ----- Original Message -----=20 From: Andrew Tettenborn=20 To: ENRICHMENT@LISTS.MCGILL.CA=20 Sent: Monday, December 08, 2003 12:14 PM Subject: [RDG:] animal rights Idly glancing through the Sunday Telegraph yesterday, I noticed an = article on the Battersea Dogs' Home in London. Large numbers of stray = pooches are handed in by the police & others. If the owners can be = found, they are told they can have their animals back, but only if they = pay a fee for their keep and vaccination.=20 Does anyone have any idea what the basis of this charge is - or does = the Home simply hope that owners will do the decent thing and not sue?=20 Andrew=20 Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Cellphone: 07729-266200 / +44-7729-266200 = (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [School homepage: http://www.ex.ac.uk/law/ ] [My homepage:=20 = http://www.ex.ac.uk/law/staff/tettenborn/index.html].=20 ------=_NextPart_000_0037_01C3BD8B.0185B6F0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

Local authorities are obliged to seize = stray dogs.=20 This duty may be delegated. Owners are only entitled to the return of = dogs if=20 they pay all the expenses incurred by reason of the detention. I assume, = but=20 don't know, that the local authority has delegated the function of = seizure to=20 the dogs home (which is a charity).
see Environmental Protection Act 1990 = section=20 149(5)
Robert Stevens
----- Original Message -----
From:=20 Andrew Tettenborn =
Sent: Monday, December 08, 2003 = 12:14=20 PM
Subject: [RDG:] animal = rights


Idly glancing through the Sunday Telegraph yesterday, I = noticed=20 an article on the Battersea Dogs' Home in London. Large numbers of = stray=20 pooches are handed in by the police & others. If the owners can be = found,=20 they are told they can have their animals back, but only if they = pay a fee=20 for their keep and vaccination.

Does anyone have any idea = what the=20 basis of this charge is - or does the Home simply hope that owners = will do the=20 decent thing and not sue?


Andrew


Andrew = Tettenborn MA=20 LLB
Bracton Professor of=20 = Law


Tel:        &n bsp;=        =20 01392-263189   /   +44-392-263189=20 = (international)
Cellphone:      <= /X-TAB>      =20 07729-266200   /   +44-7729-266200=20 = (international)
Fax:        &n= bsp;      =20 01392-263196    /   +44-392-263196=20 (international)

Snailmail:    School of=20 = Law,
          &nb sp= ;       =20 University of=20 = Exeter,
          & n= bsp;       =20 Amory=20 = Building,
           =         =20 Rennes=20 = Drive,
          &n b= sp;       =20 Exeter EX4=20 = 4RJ
          &nbs p;=        =20 = England

         & nbs= p;        =20 [School homepage: http://www.ex.ac.uk/law/=20 = ]
           & n= bsp;      =20 [My homepage:=20 =
           & nb= sp;        =20 http://www.ex.ac.uk/law/staff/tettenborn/index.html].=20

------=_NextPart_000_0037_01C3BD8B.0185B6F0-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 8 Dec 2003 11:08:07 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: animal rights MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------000404070302060503050601" --------------000404070302060503050601 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit in US law generally, there would be a common law finder's lien for reasonable expenses in preservation of the thing found Robert Stevens wrote: > Local authorities are obliged to seize stray dogs. This duty may be > delegated. Owners are only entitled to the return of dogs if they pay > all the expenses incurred by reason of the detention. I assume, but > don't know, that the local authority has delegated the function of > seizure to the dogs home (which is a charity). > see Environmental Protection Act 1990 section 149(5) > Robert Stevens > > ----- Original Message ----- > From: Andrew Tettenborn > To: ENRICHMENT@LISTS.MCGILL.CA > Sent: Monday, December 08, 2003 12:14 PM > Subject: [RDG:] animal rights > > > Idly glancing through the Sunday Telegraph yesterday, I noticed an > article on the Battersea Dogs' Home in London. Large numbers of > stray pooches are handed in by the police & others. If the owners > can be found, they are told they can have their animals back, but > only if they pay a fee for their keep and vaccination. > > Does anyone have any idea what the basis of this charge is - or > does the Home simply hope that owners will do the decent thing and > not sue? > > > Andrew > --------------000404070302060503050601 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit in US law generally, there would be a common law finder's lien for reasonable expenses in preservation of the thing found

Robert Stevens wrote:
Local authorities are obliged to seize stray dogs. This duty may be delegated. Owners are only entitled to the return of dogs if they pay all the expenses incurred by reason of the detention. I assume, but don't know, that the local authority has delegated the function of seizure to the dogs home (which is a charity).
see Environmental Protection Act 1990 section 149(5)
Robert Stevens
----- Original Message -----
Sent: Monday, December 08, 2003 12:14 PM
Subject: [RDG:] animal rights


Idly glancing through the Sunday Telegraph yesterday, I noticed an article on the Battersea Dogs' Home in London. Large numbers of stray pooches are handed in by the police & others. If the owners can be found, they are told they can have their animals back, but only if they pay a fee for their keep and vaccination.

Does anyone have any idea what the basis of this charge is - or does the Home simply hope that owners will do the decent thing and not sue?


Andrew

--------------000404070302060503050601-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 8 Dec 2003 16:42:40 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: animal rights Comments: To: axelrod Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 In England it is assumed that there would be no such lien: Nicholson v. Chapman (1793), 2 H. Bl. 254; 126 ER 536. Generally speaking, it is also assumed than necessitous interveners don't have a free standing claim to recover the expenses incurred. The Dogs' Home won't have a claim against an owner who is glad to see the back of the mutt. Personally, I am attracted to the view that where a duty to intervene exists (section 149(1) Environmental Protection Act) so should a right to compensation for expenses incurred (section 149(5)). RS > in US law generally, there would be a common law finder's lien for > reasonable expenses in preservation of the thing found > > Robert Stevens wrote: > > > Local authorities are obliged to seize stray dogs. This duty may be > > delegated. Owners are only entitled to the return of dogs if they pay > > all the expenses incurred by reason of the detention. I assume, but > > don't know, that the local authority has delegated the function of > > seizure to the dogs home (which is a charity). > > see Environmental Protection Act 1990 section 149(5) > > Robert Stevens > > > > ----- Original Message ----- > > From: Andrew Tettenborn > > To: ENRICHMENT@LISTS.MCGILL.CA > > Sent: Monday, December 08, 2003 12:14 PM > > Subject: [RDG:] animal rights > > > > > > Idly glancing through the Sunday Telegraph yesterday, I noticed an > > article on the Battersea Dogs' Home in London. Large numbers of > > stray pooches are handed in by the police & others. If the owners > > can be found, they are told they can have their animals back, but > > only if they pay a fee for their keep and vaccination. > > > > Does anyone have any idea what the basis of this charge is - or > > does the Home simply hope that owners will do the decent thing and > > not sue? > > > > > > Andrew > > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 8 Dec 2003 11:56:35 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: Re: animal rights Comments: To: Robert Stevens MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------000801070007000303020908" --------------000801070007000303020908 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit agree that common law abandonment would preclude any lien: as to the owner getting back the animal without paying, i imagine that in the current US mood of sensitivity or sentimentality to animals, the finder would be given a medal as well as a lien rather than characterized as a mere interloper Robert Stevens wrote: >In England it is assumed that there would be no such lien: Nicholson v. Chapman (1793), 2 H. Bl. 254; 126 ER 536. >Generally speaking, it is also assumed than necessitous interveners don't have a free standing claim to recover the expenses incurred. The Dogs' Home won't have a claim against an owner who is glad to see the back of the mutt. >Personally, I am attracted to the view that where a duty to intervene exists (section 149(1) Environmental Protection Act) so should a right to compensation for expenses incurred (section 149(5)). >RS > > > >> in US law generally, there would be a common law finder's lien for >>reasonable expenses in preservation of the thing found >> >>Robert Stevens wrote: >> >> >> >>>Local authorities are obliged to seize stray dogs. This duty may be >>>delegated. Owners are only entitled to the return of dogs if they pay >>>all the expenses incurred by reason of the detention. I assume, but >>>don't know, that the local authority has delegated the function of >>>seizure to the dogs home (which is a charity). >>>see Environmental Protection Act 1990 section 149(5) >>>Robert Stevens >>> >>> ----- Original Message ----- >>> From: Andrew Tettenborn >>> To: ENRICHMENT@LISTS.MCGILL.CA >>> Sent: Monday, December 08, 2003 12:14 PM >>> Subject: [RDG:] animal rights >>> >>> >>> Idly glancing through the Sunday Telegraph yesterday, I noticed an >>> article on the Battersea Dogs' Home in London. Large numbers of >>> stray pooches are handed in by the police & others. If the owners >>> can be found, they are told they can have their animals back, but >>> only if they pay a fee for their keep and vaccination. >>> >>> Does anyone have any idea what the basis of this charge is - or >>> does the Home simply hope that owners will do the decent thing and >>> not sue? >>> >>> >>> Andrew >>> >>> >>> > >____________________________________________________________________ > 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 > . > > --------------000801070007000303020908 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit agree that common law abandonment  would preclude any lien:  as to the owner getting back the animal without paying,  i  imagine that in the current US mood of sensitivity or sentimentality to animals,  the finder would be given a medal as well as a lien rather than characterized as a mere interloper

Robert Stevens wrote:
In England it is assumed that there would be no such lien: Nicholson v. 

Chapman (1793), 2 H. Bl. 254; 126 ER 536.

Generally speaking, it is also assumed than necessitous interveners don't have a free 

standing claim to recover the expenses incurred. The Dogs' Home won't have a claim 

against an owner who is glad to see the back of the mutt.

Personally, I am attracted to the view that where a duty to intervene exists (section 149(1) 

Environmental Protection Act) so should a right to compensation for expenses incurred 

(section 149(5)).

RS



  
  in US law generally, there would be a common law finder's lien for

reasonable expenses in preservation of the thing found



Robert Stevens wrote:



    
Local authorities are obliged to seize stray dogs. This duty may be

delegated. Owners are only entitled to the return of dogs if they pay

all the expenses incurred by reason of the detention. I assume, but

don't know, that the local authority has delegated the function of

seizure to the dogs home (which is a charity).

see Environmental Protection Act 1990 section 149(5)

Robert Stevens



    ----- Original Message -----

    From: Andrew Tettenborn 

    To: ENRICHMENT@LISTS.MCGIL

L.CA 

    Sent: Monday, December 08, 2003 12:14 PM

    Subject: [RDG:] animal rights





    Idly glancing through the Sunday Telegraph yesterday, I noticed an

    article on the Battersea Dogs' Home in London. Large numbers of

    stray pooches are handed in by the police & others. If the owners

    can be found, they are told they can have their animals back, but

    only if they pay a fee for their keep and vaccination.



    Does anyone have any idea what the basis of this charge is - or

    does the Home simply hope that owners will do the decent thing and

    not sue?





    Andrew



      


____________________________________________________________________

 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

 .

--------------000801070007000303020908-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 8 Dec 2003 13:14:53 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: animal rights In-Reply-To: <3FD4AD43.8000007@andromeda.rutgers.edu> Content-Type: multipart/alternative; boundary=Apple-Mail-6-258296987 Mime-Version: 1.0 (Apple Message framework v553) --Apple-Mail-6-258296987 Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=ISO-8859-1; format=flowed And it is not just a current mood in the US ... let us not forget Great=20= Northern Ry v Swaffield (1872) LR 9 Exch 132, where a duty like that=20 described by Robert was probably essential to the result, along with=20 "ordinary feelings of humanity" ... the question of a lien was left=20 open but the railway successfully sued the owner for the cost of care.=20= It is usually understood as resting in part on the fact that it was a=20 voluntary bailment by the defendant to the plaintiff. But Pollock B's=20 words are apposite in the case of any duty to care for the animal: "...=20= if there were that duty without the correlative right, it would be a=20 manifest injustice." A legal duty on the plaintiff controls=20 officiousness problems. Lionel On Monday, December 8, 2003, at 11:56 AM, axelrod wrote: > agree that common law abandonment =A0would preclude any lien: =A0as to = the=20 > owner getting back the animal without paying, =A0i =A0imagine that in = the=20 > current US mood of sensitivity or sentimentality to animals, =A0the=20 > finder would be given a medal as well as a lien rather than=20 > characterized as a mere interloper > > Robert Stevens wrote: > > In England it is assumed that there would be no such lien: Nicholson=20= > v. Chapman (1793), 2 H. Bl. 254; 126 ER 536. > Generally speaking, it is also assumed than necessitous interveners=20 > don't have a free standing claim to recover the expenses incurred. The=20= > Dogs' Home won't have a claim against an owner who is glad to see the=20= > back of the mutt. > Personally, I am attracted to the view that where a duty to intervene=20= > exists (section 149(1) Environmental Protection Act) so should a right=20= > to compensation for expenses incurred (section 149(5)). > RS > > > > in US law generally, there would be a common law finder's lien for > reasonable expenses in preservation of the thing found > > Robert Stevens wrote: > > > > Local authorities are obliged to seize stray dogs. This duty may be > delegated. Owners are only entitled to the return of dogs if they pay > all the expenses incurred by reason of the detention. I assume, but > don't know, that the local authority has delegated the function of > seizure to the dogs home (which is a charity). > see Environmental Protection Act 1990 section 149(5) > Robert Stevens > > ----- Original Message ----- > From: Andrew Tettenborn > To: ENRICHMENT@LISTS.MCGILL.CA > Sent: Monday, December 08, 2003 12:14 PM > Subject: [RDG:] animal rights > > > Idly glancing through the Sunday Telegraph yesterday, I noticed an > article on the Battersea Dogs' Home in London. Large numbers of > stray pooches are handed in by the police & others. If the owners > can be found, they are told they can have their animals back, but > only if they pay a fee for their keep and vaccination. > > Does anyone have any idea what the basis of this charge is - or > does the Home simply hope that owners will do the decent thing and > not sue? > > > Andrew > > > > > ____________________________________________________________________ > 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,=20 > email > . > > > --Apple-Mail-6-258296987 Content-Transfer-Encoding: quoted-printable Content-Type: text/enriched; charset=ISO-8859-1 And it is not just a current mood in the US ... let us not forget Great Northern Ry v Swaffield (1872) LR 9 Exch 132, where a duty like that described by Robert was probably essential to the result, along with "ordinary feelings of humanity" ... the question of a lien was left open but the railway successfully sued the owner for the cost of care. It is usually understood as resting in part on the fact that it was a voluntary bailment by the defendant to the plaintiff. But Pollock B's words are apposite in the case of any duty to care for the animal: Times New Roman"... if there were that duty without the correlative right, it would be a manifest injustice." A legal duty on the plaintiff controls officiousness problems. Lionel On Monday, December 8, 2003, at 11:56 AM, axelrod wrote: agree that common law abandonment =A0would preclude any lien: =A0as to the owner getting back the animal without paying, =A0i =A0imagine= that in the current US mood of sensitivity or sentimentality to animals, =A0the finder would be given a medal as well as a lien rather than characterized as a mere interloper Robert Stevens wrote: In England it is assumed that there would be no such lien: Nicholson v. Chapman (1793), 2 H. Bl. 254; 126 ER 536. Generally speaking, it is also assumed than necessitous interveners don't have a free standing claim to recover the expenses incurred. The Dogs' Home won't have a claim against an owner who is glad to see the back of the mutt. Personally, I am attracted to the view that where a duty to intervene exists (section 149(1) Environmental Protection Act) so should a right to compensation for expenses incurred (section 149(5)). RS in US law generally, there would be a common law finder's lien for reasonable expenses in preservation of the thing found Robert Stevens wrote: Local authorities are obliged to seize stray dogs. This duty may be delegated. Owners are only entitled to the return of dogs if they pay all the expenses incurred by reason of the detention. I assume, but don't know, that the local authority has delegated the function of seizure to the dogs home (which is a charity). see Environmental Protection Act 1990 section 149(5) Robert Stevens ----- Original Message ----- From: Andrew Tettenborn = 1999,1999,FFFF< To: = 1999,1999,FFFFENRICHMENT@LISTS.MCGIL L.CA<= /color> = 1999,1999,FFFF< Sent: Monday, December 08, 2003 12:14 PM Subject: [RDG:] animal rights Idly glancing through the Sunday Telegraph yesterday, I noticed an article on the Battersea Dogs' Home in London. Large numbers of stray pooches are handed in by the police & others. If the owners can be found, they are told they can have their animals back, but only if they pay a fee for their keep and vaccination. Does anyone have any idea what the basis of this charge is - or does the Home simply hope that owners will do the decent thing and not sue? Andrew ____________________________________________________________________ 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 = 1999,1999,FFFF<= . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to = 1999,1999,FFFF<. The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email = 1999,1999,FFFF<. = --Apple-Mail-6-258296987-- ____________________________________________________________________ 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, 9 Dec 2003 09:47:48 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: 2003 RLR Mime-Version: 1.0 (Apple Message framework v553) Content-Type: text/plain; charset=WINDOWS-1252; format=flowed Content-Transfer-Encoding: quoted-printable The contents of [2003] RLR which is about to appear: Articles: Reversible Transfers=97The Two Categories: Professor Daniel Friedmann Alternative and Cumulative Remedies: What is the Difference?: Dr=20 Stephen Watterson Vitiation of Contracts for Mistake and Misrepresentation of Law: Dr=20 Duncan Sheehan Cutter v Powell and the Pleading of Claims of Unjust Enrichment: Warren=20= Swain Tracing Misconceptions in Foskett v McKeown: Dr Craig Rotherham Comment Combining Money Awards for Patent Infringement (Spring Form v Toy=20 Brokers): Professor Lionel Bentley and Dr Charles Mitchell Re-writing the Law of Mistake (The Great Peace): John Cartwright Change of Position, Reliance and the Reasonable Banker (Niru v=20 Milestone): Professor Andrew Tettenborn Attorney-General v Blake Revisited (Experience Hendrix v PPX=20 Enterprises; Esso v Niad): Dr James Edelman Drawing Lines in the Sand? Duress, Undue Influence and=20 Unconscionability Revisited (Attorney-General of England and Wales v=20 R): Professor Andrew Phang and Associate Professor Hans Tjio Review Article The Law of Restitution, 2nd ed by Andrew Burrows: Professor Peter Jaffey plus Regional Digests and book reviews To order, please contact Francis Rose . 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: Tue, 9 Dec 2003 15:15:49 -0000 Reply-To: Michael Harakis Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Harakis Subject: Quantum of restitution MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C3BE67.53F91E90" This is a multi-part message in MIME format. ------_=_NextPart_001_01C3BE67.53F91E90 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable =20 Measure of restitution. I would be grateful for any thoughts people may = have as to the proper measure of restitution that should be claimed in = the following factual scenario: =20 A Ltd has a contract with B Ltd, where A Ltd is to supply B Ltd with = certain services. In fact B Ltd does not exist, but would have been a = subsidiary to C Ltd and C Ltd is the person for whose benefit B Ltd = would have contracted. =20 =20 Without knowing that B Ltd did not exist, A Ltd supplied the services = under the contract. C Ltd received the services and indeed profits from = them by being able to discharge its obligations to D Ltd. =20 Presuming that A has a right against C for the benefit rendered to it, = what is the extent of the benefit recoverable? =20 Is it the contract price for which the services would have been rendered = to B? Is it the market value of the services? Is it the profit derrived by C from its contract with D? =20 =20 I would be pleased to hear from people with their thoughts.=20 =20 Kind regards, Michael Harakis=20 ------_=_NextPart_001_01C3BE67.53F91E90 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

 

Measure of restitution.=A0 I would be grateful for any = thoughts people may have as to the proper measure of restitution that should be claimed = in the following factual scenario:

 

A Ltd has a contract with B = Ltd, where A Ltd is to supply B Ltd with certain services. =A0In fact B Ltd does not exist, but = would have been a subsidiary to C Ltd and C Ltd is the person for whose benefit B = Ltd would have contracted.=A0 =

 

Without knowing that B Ltd = did not exist, A Ltd supplied the services under the contract.=A0 C Ltd received the services and = indeed profits from them by being able to discharge its obligations to D = Ltd.

 

Presuming that A has a right = against C for the benefit rendered to it, what is the extent of the benefit recoverable?

 

Is it the contract price for = which the services would have been rendered to B?

Is it the market value of the services?

Is it the profit derrived by = C from its contract with D?

 

 

I would be pleased to hear = from people with their thoughts.

 

Kind = regards,

Michael = Harakis

------_=_NextPart_001_01C3BE67.53F91E90-- ____________________________________________________________________ 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, 9 Dec 2003 17:25:52 -0000 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Quantum of restitution Comments: To: Michael Harakis In-Reply-To: MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0006_01C3BE79.7E9B40D0" This is a multi-part message in MIME format. ------=_NextPart_000_0006_01C3BE79.7E9B40D0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit My initial reaction - somewhat tentative is this. When A Ltd "contracts" with B Ltd that contract is void under Cundy v Lindsay (still alive after its narrow escape in Shogun Finance v Hudson). However, A still supplies the goods to C Ltd. C Ltd presumably knows that A believes themselves to be contracting with B. The third option is a non-starter I think. A has no reason to know anything about D, or care for that matter. If there were a contract we would not strip C of its extra gain, so why strip it of the gain now. If it is a claim in autonomous unjust enrichment C's gain from D is not subtractive from A. C has received a benefit insofar as it has saved the expense inherent in meeting its obligations itself. That is beside the point - A has provided a benefit X; what C does with that benefit is of no interest to A. The first and second options are where the battle lies. If a free acceptance occurs where the recipient knows a benefit is offered non-gratuitously and where he elects to accept where he could have rejected, C has freely accepted. C could have rejected. It would not have mattered to A - there is no contract of which he would have been in breach. That being the case, the claim is for C's benefit - we may say that is the market value, subject to any subjective devaluation. A can, however, defeat any subjective devaluation by arguing that it was freely accepted. Without more I would say that A gets the market value, subject to a contract price ceiling (A cannot be allowed to improve his position because it was an invalid bad bargain). If C knew about the contract price, maybe we could say C accepted on the basis of the contract price. Duncan 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 Michael Harakis Sent: Tuesday, December 09, 2003 3:16 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Quantum of restitution Measure of restitution. I would be grateful for any thoughts people may have as to the proper measure of restitution that should be claimed in the following factual scenario: A Ltd has a contract with B Ltd, where A Ltd is to supply B Ltd with certain services. In fact B Ltd does not exist, but would have been a subsidiary to C Ltd and C Ltd is the person for whose benefit B Ltd would have contracted. Without knowing that B Ltd did not exist, A Ltd supplied the services under the contract. C Ltd received the services and indeed profits from them by being able to discharge its obligations to D Ltd. Presuming that A has a right against C for the benefit rendered to it, what is the extent of the benefit recoverable? Is it the contract price for which the services would have been rendered to B? Is it the market value of the services? Is it the profit derrived by C from its contract with D? I would be pleased to hear from people with their thoughts. Kind regards, Michael Harakis ------=_NextPart_000_0006_01C3BE79.7E9B40D0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
My=20 initial reaction - somewhat tentative is this.
 
When A=20 Ltd "contracts" with B Ltd that contract is void under Cundy v Lindsay = (still=20 alive after its narrow escape in Shogun Finance v Hudson). However, A = still=20 supplies the goods to C Ltd. C Ltd presumably knows that A believes = themselves=20 to be contracting with B.
 
The third option is a = non-starter I think.=20 A has no reason to know anything about D, or care for that matter. If = there were=20 a contract we would not strip C of its extra gain, so why strip it = of the=20 gain now. If it is a claim in autonomous unjust enrichment C's gain from = D is=20 not subtractive from A. C has received a benefit insofar as it has saved = the=20 expense inherent in meeting its obligations itself. That is beside the = point - A=20 has provided a benefit X; what C does with that benefit is of no = interest to A.=20
 
The=20 first and second options are where the battle lies. If a free acceptance = occurs=20 where the recipient knows a benefit is offered non-gratuitously and = where he=20 elects to accept where he could have rejected, C has freely accepted. C = could=20 have rejected. It would not have mattered to A - there is no contract of = which=20 he would have been in breach. That being the case, the claim is for C's = benefit=20 - we may say that is the market value, subject to any subjective = devaluation. A=20 can, however, defeat any subjective devaluation by arguing that it was = freely=20 accepted. Without more I would say that A gets the market value, subject = to a=20 contract price ceiling (A cannot be allowed to improve his position = because it=20 was an invalid bad bargain). If C knew about the contract price, maybe = we could=20 say C accepted on the basis of the contract price.
 
 
Duncan=20

Dr Duncan Sheehan
Postgraduate Admissions = Officer
Norwich=20 Law School
University of East Anglia
Norwich NR4 7TJ
United=20 Kingdom

 
-----Original Message-----
From: Enrichment - = Restitution=20 & Unjust Enrichment Legal Issues = [mailto:ENRICHMENT@LISTS.MCGILL.CA]On=20 Behalf Of Michael Harakis
Sent: Tuesday, December 09, = 2003 3:16=20 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] = Quantum=20 of restitution

 

Measure of=20 restitution.  I would be = grateful=20 for any thoughts people may have as to the proper measure of = restitution that=20 should be claimed in the following factual=20 scenario:

 

A Ltd = has a=20 contract with B Ltd, where A Ltd is to supply B Ltd with certain = services.=20  In fact B Ltd does not = exist, but=20 would have been a subsidiary to C Ltd and C Ltd is the person for = whose=20 benefit B Ltd would have contracted. =20

 

Without knowing=20 that B Ltd did not exist, A Ltd supplied the services under the = contract.  C Ltd received the services = and indeed=20 profits from them by being able to discharge its obligations to D=20 Ltd.

 

Presuming that=20 A has a right against C for the benefit rendered to it, what is the = extent of=20 the benefit recoverable?

 

Is it = the=20 contract price for which the services would have been rendered to=20 B?

Is it = the=20 market value of the services?

Is it = the=20 profit derrived by C from its contract with = D?

 

 

I = would be=20 pleased to hear from people with their thoughts. =

 

Kind=20 regards,

Michael=20 Harakis=20

------=_NextPart_000_0006_01C3BE79.7E9B40D0-- ____________________________________________________________________ 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, 16 Dec 2003 17:22:05 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: A Question Comments: To: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Colleagues, Does anyone know of any authority which might support the following contention: "the charitable purpose trust is a juridical institution recognized around the world as one of the distinctive inventions of English law." I have been poking around for a while but have found nothing especially helpful beyond the famous Maitland quote dealing with trusts in general. Any suggestions would be greatly appreciated. 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 . =============================================================== ========== Date: Thu, 18 Dec 2003 20:27:53 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: insurance contribution Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Contribution buffs have something substantial to chew on over Xmas in the CA decision in Drake Insurance plc v Provident Insurance plc [2003] EWCA CIV 1834, decided a couple of days ago on appeal from Moore-Bick J. [2003] All ER (Comm) 759. K drove badly and injured B to the tune of a cool =A3 million plus a tad more. K was insured in her own right by Drake and also under her husband=92s policy with Provident. Both policies had rateable clauses. Drake intimated that if they paid they would be looking for contribution from Provident. Provident said they were unamenable to contribution because they had the right to avoid as against K and her husband for non-disclosure, and proceeded to get an arbitration ruling against K's husband to that effect. Drake paid B. Moore-Bick said, no contribution. Provident weren=92t liable to K because of the non-disclosure: and even if they were Drake, however praiseworthy, were volunteers in so far as they paid over 50% owing to the effects of the rateable clause: see Legal & Gen v Drake [1992] 1 All E.R. 283. So far so good. In the CA it is then decided that the arbitrator got it wrong and Provident were liable after all (though of course K is now barred from suing them by res judicata). So it is a case of double (valid) insurance with a rateable clause on both sides. So Drake lose under Legal and General v Drake [1992] 1 All E.R. 283? Well, no. They=92re not volunteers. Why? Rix and Pill LJ: because they paid with good reason, to protect the good name of the insurance industry, etc. Clarke: despite the terms of the Drake policy, K would have been entitled to wave the arbitration award in Provident=92s favour at Drake and recover a full indemnity from them (!). The majority decision looks rum to me, in that even though I=92ve read Rix & Pill twice & fairly carefully I can=92t see any valid distinction between this and the earlier Drake case - there too the plaintiffs paid to preserve the decent name of insurance companies, such as it was, and there they were held to be volunteers. The suggestion that the Privy Council somehow introduced a general right of contribution between rateable insurers under Eagle Star v Provincial [1993] 1 All E.R. 1 seems particularly unsupported, since that case dealt with two insurers who were *not* liable to their respective insureds (and who only paid under the Road Traffic Act provisions), and not two insurers who were. Or does it simply mean that the requirement in contribution cases for compelled payment is being watered down, if only by stealth (as it already has been with statutory contribution under s.1(4) of the 1978 Act? Happy holidays Andrew Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ 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 .