Date: Mon, 1 Mar 2004 12:40:28 +0000 Reply-To: Kevin Kilgour Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kevin Kilgour Subject: restitution re: voidable preferences and transactions at an undervalue Mime-Version: 1.0 Content-Type: text/html

I am a student with an idea for a final year dissertation and would be= grateful if somebody could offer me thoughts or points of reference for = the following issue:

Do the restitutionary remedies to voidable preferences and transaction= s at an undervalue adequately deter attempts to execute these transaction= s?

I thought this might make an interesting review of s.238/s.239 UK Inso= lvency Act 1986 - my initial thought (based on an article by Adler - (199= 5) 62 U Chicago LR 575) was that even with the costs involved, where the = only punishment is transaction avoidance there will nearly always be an i= ncentive to enter into one of these transactions if you are a creditor. <= /P>

My second though was that perhaps there ought to be some kind of furth= er punishment (such as personally bankrupt parties may endure throug= h Bankruptcy Restriction Orders) to those that enter into these transacti= ons in bad faith and with a presumption of bad faith in tranasctions invo= lving closely connected persons.

I have yet to explore the topic fully, but I hope to show that such an= addition would achieve the aims of an economic analysis by deterring red= uction to the common pool of assets, and fit in with moral thought as it = requires bad faith (which would parallel good faith defences to an avoida= nce in s.241(2). The closely connected persons part of my suggestion was = aimed at overcoming the costs and difficulties of proving bad faith.

Thank you in advance to all who respond

Yours - Kevin Kilgour UCL Laws

K Kilgour

Stay in touch better and keep protec= ted online with MSN=92s NEW all-in-one Premium Services. Find out more here. ____________________________________________________________________ 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: Wed, 3 Mar 2004 13:42:01 +0000 Reply-To: =3D?iso-8859-1?q?Christopher=3D20Kirkbride?=3D Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: =3D?iso-8859-1?q?Christopher=3D20Kirkbride?=3D Subject: A very annoyed CA Comments: cc: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset=3Diso-8859-1 Content-Transfer-Encoding: 8bit Members of both lists might be interested to learn of the case of Yell Limited v David Garton [2004] EWCA Civ 87, where the Court of Appeal of England and Wales demonstrated the importance of reading cases. Possible mention of the case to students may head-off the negligence claims of the future. Apologies for cross-posting. CK. ___________________________________________________________ Yahoo! Messenger - Communicate instantly..."Ping" your friends today! Download Messenger Now http://uk.messenger.yahoo.com/download/index.html ____________________________________________________________________ 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: Wed, 3 Mar 2004 13:42:29 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: preference MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"------------020504010901050101030606" --------------020504010901050101030606 Content-Type: text/plain; charset=3Dus-ascii; format=3Dflowed Content-Transfer-Encoding: 7bit > > >> From: Kevin Kilgour >> > : > Do the restitutionary remedies to voidable preferences and >transactions at an undervalue adequately deter attempts to execute =3Dth= ese transactions? > > >> there ought to be some kind of further punishment >> >> I have yet to explore the topic fully, but I hope to show that such =3D= an addition would achieve the aims of an economic analysis by deterring =3D >>reduction to the common pool of assets, and fit in with moral thought = =3D >>as it requires bad faith (which would parallel good faith defences to a= n =3D >>avoidance in s.241(2). The closely connected persons part of my =3D >>suggestion was aimed at overcoming the costs and difficulties of provin= g =3D >>bad faith. >>=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= 3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D >> >> Aren't the two cases [preference, as v. transfer without sufficient consideration] quite different 'morally'? in the preference case the debtor does owe, and the creditor [even if closely connected] is entitled to, the money. If then on the eve of bankruptcy the debtor with insufficient assets would rather pay off his sister-in-law than the bank, that does frustrate equality of distribution, but is it 'bad faith' or 'immoral'? Deserves applause: but i have no sermon with respect to distributions to corporate insider creditors --------------020504010901050101030606 Content-Type: text/html; charset=3Dus-ascii Content-Transfer-Encoding: 7bit

  From: Kevin Kilgour

  :

  Do the restitutionary remedies to voidable preferences and

transactions at an undervalue adequately deter attempts to execute =3Dthe=

se transactions?

  there ought to be some kind of further punishment



  I have yet to explore the topic fully, but I hope to show that such =3D=

an addition would achieve the aims of an economic analysis by deterring =3D

reduction to the common pool of assets, and fit in with  moral thought =3D

as it requires bad faith (which would parallel good faith defences to an =

=3D

avoidance in s.241(2). The closely connected persons part of my =3D

suggestion was aimed at overcoming the costs and difficulties of proving =

=3D

bad faith.

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D

=3D=3D=3D=3D=3D=

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D

=3D=3D=3D=3D=3D=

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D

Aren't the two cases [preference, as v. t= ransfer without sufficient consideration] quite different 'morally'? in the preference c= ase the debtor does owe, and the creditor [even if closely connected] is ent= itled to, the money. If then on the eve of bankruptcy the debtor with insuffic= ient assets would rather pay off his sister-in-law than the bank, that does frustrate equality of distribution, but is it 'bad faith' or 'immoral'? Deserves applause: but i have no sermon with respect to dist= ributions to corporate insider creditors

--------------020504010901050101030606-- ____________________________________________________________________ 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, 4 Mar 2004 15:05:53 +0000 Reply-To: Kevin Kilgour Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kevin Kilgour Subject: retraction Mime-Version: 1.0 Content-Type: text/html

Thank you to those who responed to my recent posting on UK prefere= nce law. Since being informed about the nature of this discussion group, = I wish to retract my query and apologise for any misunderstanding - I was= not aware that the group was not a public forum and not intended for stu= dent participation.

Apologies once again

Kevin Kilgour UCL Laws

K Kilgour

Get a free connection, half-price mo= dem and one month FREE, when you sign up for BT Broadband today! ____________________________________________________________________ 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, 5 Mar 2004 20:10:37 +1100 Reply-To: Jonathon P Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon P Moore Subject: Re: retraction Comments: To: Kevin Kilgour MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----=3D_NextPart_000_0009_01C402ED.ECB731B0" This is a multi-part message in MIME format. ------=3D_NextPart_000_0009_01C402ED.ECB731B0 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable I am not sure if others have responded, but I am certain that Lionel =3D Smith, as administrator of this listserv, would recoil at the suggestion = =3D that this list is "not a public forum and not intended for student =3D participation". As I understand it, the list is open to any member of =3D the public, and most certainly students are welcome to participate. I think the only fault in the posting by Kevin Kilgour was that it did =3D not seem to directly raise an issue about restitution or unjust =3D enrichment. But even that may be doubted. I seem to recall a =3D discussion (was it Robert Stevens?) somewhere that a claim to recover an = =3D allegedly unfair preference payment resembled, or ought to be considered = =3D as resembling, a claim for restitution of unjust enrichment. Jonathon Moore ----- Original Message -----=3D20 From: Kevin Kilgour=3D20 To: ENRICHMENT@LISTS.MCGILL.CA=3D20 Sent: Friday, March 05, 2004 2:05 AM Subject: [RDG:] retraction Thank you to those who responed to my recent posting on UK preference =3D law. Since being informed about the nature of this discussion group, I =3D wish to retract my query and apologise for any misunderstanding - I was =3D not aware that the group was not a public forum and not intended for =3D student participation. Apologies once again Kevin Kilgour UCL Laws K Kilgour=3D20 -------------------------------------------------------------------------= =3D ----- Get a free connection, half-price modem and one month FREE, when you =3D sign up for BT Broadband today! =3D ____________________________________________________________________ =3D This message was delivered through the Restitution Discussion Group, an =3D international internet LISTSERV devoted to all aspects of the law of =3D unjust enrichment. To subscribe, send "subscribe enrichment" in the body = =3D of a message to . To unsubscribe, send "signoff enrichment" to the same =3D address. To make a posting to all group members, send to . The list is =3D run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ------=3D_NextPart_000_0009_01C402ED.ECB731B0 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable

I am not sure if others have respond= ed, =3D but I am=3D20 certain that Lionel Smith, as administrator of this listserv, would =3D recoil at=3D20 the suggestion that this list is "not a=3D20 public forum and not intended for student participation". As I =3D understand=3D20 it, the list is open to any member of the public, and most certainly =3D students=3D20 are welcome to participate.

I think the only fault in the postin= g =3D by Kevin=3D20 Kilgour was that it did not seem to directly raise an issue about=3D20 restitution or unjust enrichment. But even that may be =3D doubted. =3D20 I seem to recall a discussion (was it Robert Stevens?) somewhere that a =3D claim to=3D20 recover an allegedly unfair preference payment resembled, or ought to be = =3D considered as resembling, a claim for restitution of unjust=3D20 enrichment.

Jonathon Moore

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

From:=3D20 Kevin=3D20 Kilgour

To: ENRICHMENT@LISTS.M CGILL.CA=3D

Sent: Friday, March 05, 2004 =3D 2:05=3D20 AM

Subject: [RDG:] =3D retraction

Thank you to those who responed to my recent posting on UK =3D preference=3D20 law. Since being informed about the nature of this discussion group, I = =3D wish to=3D20 retract my query and apologise for any misunderstanding - I was not =3D aware that=3D20 the group was not a public forum and not intended for student=3D20 participation.

Apologies once again

Kevin Kilgour UCL Laws

K Kilgour=3D20

Get a free connection, half-price modem and one month FREE, when you =3D sign up=3D20 for BT Broadband = =3D today!=3D20 ____________________________________________________________________ =3D This=3D20 message was delivered through the Restitution Discussion Group, an=3D20 international internet LISTSERV devoted to all aspects of the law of =3D unjust=3D20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = =3D message=3D20 to . To unsubscribe, send "signoff =3D enrichment" to=3D20 the same address. To make a posting to all group members, send to=3D20 . The list is run by Lionel Smith of =3D McGill=3D20 University, tel. (+1) 514 398 6635, email=3D20 . ------=3D_NextPart_000_0009_01C402ED.ECB731B0-- ____________________________________________________________________ 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, 5 Mar 2004 10:03:59 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: retraction Comments: To: Jonathon P Moore In-Reply-To: <000c01c40291$b97da830$0200a8c0@FAMILY> Mime-Version: 1.0 (Apple Message framework v612) Content-Type: multipart/alternative; boundary=3DApple-Mail-1--739891946 --Apple-Mail-1--739891946 Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=3DISO-8859-1; format=3Dflowed I have indeed replied directly to Kevin to say that the list is not=3D20 private and is open to students. Lionel On 5 Mar 2004, at 04:10, Jonathon P Moore wrote: > I am not sure if others have responded, but I am certain that Lionel=3D= 20=3D > Smith, as administrator of this listserv, would recoil at the=3D20 > suggestion that this list is "not a public forum and not intended for=3D= 20=3D > student participation".=3DA0 As I understand it, the list is open to an= y=3D20=3D > member of the public, and most certainly students are welcome to=3D20 > participate. > =3DA0 > I think the only fault in the posting by Kevin Kilgour was that it did=3D= 20=3D > not seem to directly raise an issue about restitution=3DA0or unjust=3D2= 0 > enrichment.=3DA0 But even that may be doubted.=3DA0 I seem to recall a=3D= 20 > discussion (was it Robert Stevens?) somewhere that a claim to recover=3D= 20=3D > an allegedly unfair preference payment resembled, or ought to be=3D20 > considered as resembling, a claim for restitution of unjust=3D20 > enrichment. > =3DA0 > Jonathon Moore > =3DA0 > ----- Original Message ----- > From: Kevin Kilgour > To: ENRICHMENT@LISTS.MCGILL.CA > Sent: Friday, March 05, 2004 2:05 AM > Subject: [RDG:] retraction > > > > Thank you to those who responed to my recent posting on UK preference=3D= 20=3D > law. Since being informed about the nature of this discussion group, I=3D= 20=3D > wish to retract my query and apologise for any misunderstanding - I=3D2= 0 > was not aware that the group was not a public forum and not intended=3D= 20=3D > for student participation. > > Apologies once again > > Kevin Kilgour UCL Laws > > > > K Kilgour > > > Get a free connection, half-price modem and one month FREE, when you=3D= 20=3D > sign up for BT Broadband today!=3D20 > ____________________________________________________________________=3D = 20=3D > This message was delivered through the Restitution Discussion Group,=3D= 20=3D > an international internet LISTSERV devoted to all aspects of the law=3D= 20=3D > of unjust enrichment. To subscribe, send "subscribe enrichment" in the=3D= 20=3D > body of a message to . To unsubscribe, send "signoff enrichment" to=3D2= 0 > the same address. To make a posting to all group members, send to .=3D= 20=3D > The list is run by Lionel Smith of McGill University, tel. (+1) 514=3D2= 0 > 398 6635, email . --Apple-Mail-1--739891946 Content-Transfer-Encoding: quoted-printable Content-Type: text/enriched; charset=3DISO-8859-1 I have indeed replied directly to Kevin to say that the list is not private and is open to students. Lionel On 5 Mar 2004, at 04:10, Jonathon P Moore wrote: ArialI am not sure if others have responded, but I am certain that Lionel Smith, as administrator of this listserv, would recoil at the suggestion that this list is "Times New Romannot a public forum and not intended for student participation".=3DA0 As I understand it, the list is open to any member of the public, and most certainly students are welcome to participate. =3DA0 ArialI think the only fault in the posting by Kevin Kilgour was that it did not seem to directly raise an issue about restitution=3DA0or unjust enrichment.=3DA0 But even that may = be doubted.=3DA0 I seem to recall a discussion (was it Robert Stevens?) somewhere that a claim to recover an allegedly unfair preference payment resembled, or ought to be considered as resembling, a claim for restitution of unjust enrichment. =3DA0 ArialJonathon =3D Moore =3DA0 Arial----- Original Message ----- Arial =3D

From:

0000,0000,EEEEKevin Kilgour

=3D

=3D ArialTo:Arial =3D 0000,0000,EEEEENRICHME= N=3D T@LISTS.MCGILL.CA

=3D

=3D ArialSent:<= /=3D fontfamily>Arial Friday, March 05, 2004 2:05 AM =3D ArialSubject:Arial [RDG:] retraction Thank you to those who responed to my recent posting on UK preference law. Since being informed about the nature of this discussion group, I wish to retract my query and apologise for any misunderstanding - I was not aware that the group was not a public forum and not intended for student participation. Apologies once again Kevin Kilgour UCL Laws K Kilgour Get a free connection, half-price modem and one month FREE, when you sign up for 0000,0000,EEEEBT Broadband today! =3D ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =3D --Apple-Mail-1--739891946-- ____________________________________________________________________ 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, 12 Mar 2004 08:07:09 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Comparative Law Comments: To: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit My apologies for the double post to RDG and ODG members: For those interested in comparative law there are some interesting articles on global jurist: see "The Canadian Constructive Trust and the French Negotiorum Gestio: Two Institutions Serving one Same Legal Concept ?" at http://www.bepress.com/gj/advances/vol3/iss3/art3; and "The Protection of the Weak Contractual Party in Italy vs. United States Doctrine of Unconscionability. A Comparative Analysis" at http://www.bepress.com/gj/advances/vol3/iss3/art2. The House of Lords has also recently released a decision dealing with the Scottish law of trusts in relation to claims in bankruptcy and the "unjust enrichment" that this might cause, see Burnett's Trustee (Respondent) v. Grainger and another (Appellants) http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040304/bur net-1.htm. The facts were as follows: A, the owner, sells her flat to B and C. B and C pay the price to A and, in return, she delivers the relevant title documents to them. B and C take possession of the flat, but do not record their title in the register. A goes bankrupt and, on the basis that the flat remains part of her estate at the date of the bankruptcy, the trustee, who knows of the disposition to B and C, records a notice of title to the flat in the register. B and C then record their title. The House of Lords held that the trustee's title is to be preferred and that he can evict B and C from the flat without repaying the price since time of registry is the criteria of true ownership. Should there be some sort of remedy for B and C? Would there be a claim in the English or Canadian version of unjust enrichment? Cheers, -- 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: Fri, 12 Mar 2004 10:15:38 -0700 Reply-To: Rob Chambers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Rob Chambers Subject: Comparative Law In-Reply-To: <4051B5FD.91C46294@uwo.ca> Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; delsp=yes; format=flowed Content-Transfer-Encoding: 7bit Thanks very much for your posting, Jason. To answer your question below about remedies for B and C, in English law, B and C would be the beneficial owners of the flat under a constructive trust, but this has nothing to do with unjust enrichment. It is what Elias called a "perfectionary" constructive trust, which arises to perfect an imperfectly realised intention to benefit another person. There are two events that could produce this trust in the facts you related: (1) a specifically enforceable contract of sale and (2) B and C have the transfer documents and the power to obtain legal title without A's help (Re Rose). In common law Canada, they may be out of luck on (1) thanks to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should succeed on (2). With best wishes, Rob Chambers University of Alberta On 12 Mar 2004, at 6:07 am, Jason Neyers wrote: > My apologies for the double post to RDG and ODG members: > > For those interested in comparative law there are some interesting > articles on global jurist: see "The Canadian Constructive Trust and the > French Negotiorum Gestio: Two Institutions Serving one Same Legal > Concept ?" at http://www.bepress.com/gj/advances/vol3/iss3/art3; and > "The > Protection of the Weak Contractual Party in Italy vs. United States > Doctrine of Unconscionability. A Comparative Analysis" at > http://www.bepress.com/gj/advances/vol3/iss3/art2. > > The House of Lords has also recently released a decision dealing with > the Scottish law of trusts in relation to claims in bankruptcy and the > "unjust enrichment" that this might cause, see Burnett's Trustee > (Respondent) v. Grainger and another (Appellants) > http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040304/ > burnet-1.htm. > > The facts were as follows: A, the owner, sells her flat to B and C. B > and C pay the price to A and, in return, she delivers the relevant > title > documents to them. B and C take possession of the flat, but do not > record their title in the register. A goes bankrupt and, on the basis > that the flat remains part of her estate at the date of the bankruptcy, > the trustee, who knows of the disposition to B and C, records a notice > of title to the flat in the register. B and C then record their title. > The House of Lords held that the trustee's title is to be preferred and > that he can evict B and C from the flat without repaying the price > since > time of registry is the criteria of true ownership. > > Should there be some sort of remedy for B and C? Would there be a claim > in the English or Canadian version of unjust enrichment? > > Cheers, > > -- > 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: Fri, 12 Mar 2004 15:10:48 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: Re: ODG: Comparative Law Comments: To: jneyers@uwo.ca Comments: cc: obligations@uwo.ca MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------070800070204080601090802" --------------070800070204080601090802 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit Jason Neyers wrote: > >The House of Lords has also recently released a decision dealing with >the Scottish law of trusts in relation to claims in bankruptcy and the >"unjust enrichment" that this might cause, see Burnett's Trustee >(Respondent) v. Grainger and another (Appellants) >http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040304/bu rnet-1.htm. > >The facts were as follows: A, the owner, sells her flat to B and C. B >and C pay the price to A and, in return, she delivers the relevant title >documents to them. B and C take possession of the flat, but do not >record their title in the register. A goes bankrupt and, on the basis >that the flat remains part of her estate at the date of the bankruptcy, >the trustee, who knows of the disposition to B and C, records a notice >of title to the flat in the register. B and C then record their title. >The House of Lords held that the trustee's title is to be preferred and >that he can evict B and C from the flat without repaying the price since >time of registry is the criteria of true ownership. > >Should there be some sort of remedy for B and C? > against whom?? perhaps the house of lords?? --------------070800070204080601090802 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit

Jason Neyers wrote:




The House of Lords has also recently released a decision dealing with

the Scottish law of trusts in relation to claims in bankruptcy and the

"unjust enrichment" that this might cause, see Burnett's Trustee

(Respondent) v. Grainger and another (Appellants)

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040

304/burnet-1.htm.



The facts were as follows:  A, the owner, sells her flat to B and C. B

and C pay the price to A and, in return, she delivers the relevant 

title

documents to them. B and C take possession of the flat, but do not

record their title in the register. A goes bankrupt and, on the basis

that the flat remains part of her estate at the date of the bankruptcy,

the trustee, who knows of the disposition to B and C, records a notice

of title to the flat in the register. B and C then record their title.

The House of Lords held that the trustee's title is to be preferred and

that he can evict B and C from the flat without repaying the price 

since

time of registry is the criteria of true ownership.



Should there be some sort of remedy for B and C?

against whom??  perhaps  the house 

of  lords??

--------------070800070204080601090802-- ____________________________________________________________________ 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, 12 Mar 2004 15:36:24 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Comparative Law In-Reply-To: Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit I would add a third possibility to Rob's list: if and to the extent that the purchaser has paid the purchase price to the vendor, this also makes a kind of perfectionary constructive trust. This principle does not depend on specific enforceability or title documents. And unlike the trust arising from specific enforceability, it requires that income from the land be accounted for to the purchaser. Lionel On 12 Mar 2004, at 12:15, Rob Chambers wrote: > Thanks very much for your posting, Jason. To answer your question below > about remedies for B and C, in English law, B and C would be the > beneficial owners of the flat under a constructive trust, but this has > nothing to do with unjust enrichment. It is what Elias called a > "perfectionary" constructive trust, which arises to perfect an > imperfectly realised intention to benefit another person. There are two > events that could produce this trust in the facts you related: (1) a > specifically enforceable contract of sale and (2) B and C have the > transfer documents and the power to obtain legal title without A's help > (Re Rose). In common law Canada, they may be out of luck on (1) thanks > to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should > succeed on (2). > > With best wishes, > Rob Chambers > University of Alberta > > On 12 Mar 2004, at 6:07 am, Jason Neyers wrote: ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ======================================================================= == Date: Sat, 13 Mar 2004 09:53:24 -0700 Reply-To: Rob Chambers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Rob Chambers Subject: Comparative Law In-Reply-To: Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit Perhaps this discussion should be continued outside the RDG, but I have one further question. I appreciate that the relationship changes once the purchase price has been paid in full (or perhaps tendered) and the purchasers are in a position to call for conveyance of legal title, but would payment of the purchase price generate a constructive trust if the contract was not otherwise specifically enforceable? With best wishes, Rob On 12 Mar 2004, at 1:36 pm, Lionel Smith wrote: > I would add a third possibility to Rob's list: if and to the extent > that the purchaser has paid the purchase price to the vendor, this also > makes a kind of perfectionary constructive trust. This principle does > not depend on specific enforceability or title documents. And unlike > the trust arising from specific enforceability, it requires that income > from the land be accounted for to the purchaser. > Lionel > > > On 12 Mar 2004, at 12:15, Rob Chambers wrote: > >> Thanks very much for your posting, Jason. To answer your question >> below >> about remedies for B and C, in English law, B and C would be the >> beneficial owners of the flat under a constructive trust, but this has >> nothing to do with unjust enrichment. It is what Elias called a >> "perfectionary" constructive trust, which arises to perfect an >> imperfectly realised intention to benefit another person. There are >> two >> events that could produce this trust in the facts you related: (1) a >> specifically enforceable contract of sale and (2) B and C have the >> transfer documents and the power to obtain legal title without A's >> help >> (Re Rose). In common law Canada, they may be out of luck on (1) thanks >> to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should >> succeed on (2). >> >> With best wishes, >> Rob Chambers >> University of Alberta ____________________________________________________________________ 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, 15 Mar 2004 11:03:02 -0000 Reply-To: "Mee, John" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Mee, John" Subject: Re: Comparative Law MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" On Rob's question, perhaps the Irish case of Re Barrett Apartments [1985] IR 350 is of some relevance. The case is seen as establishing that a purchaser of land gets an equitable lien to secure the return of purchase money paid if the contract is unenforceable through no fault of his own. This gives the purchaser priority as a secured creditor if the vendor is insolvent. However, the Sup Ct did not give the same favourable treatment to an intending purchaser who had paid a booking deposit to the developer of a housing estate to reserve a house. The Supreme Court required a "legally enforceable" contract but not a specifically enforceable contract. On a different point, I was interested by Lionel's comment that the beneficial interest passes "if and to the extent that the purchaser has paid the purchase price to the vendor". If this refers to the traditional category of vendor as (modified form of) constructive trustee, then, on my understanding, this represents Irish law (Tempany v Hynes [1976] IR 101; a much criticised decision of the Irish Supreme Court) but not English law. Under English law, the beneficial interest is regarded as passing prior to the payment of the purchase price (with some debate as to whether it passes at the date of the contract or at the time at which the contract is shown to be specifically enforceable by the vendor showing good title or the purchaser agreeing to accept what title the vendor can show; if the latter is the case, then the constructive trust is seen as retrospective to the date of the contract, thus reducing the significance of the distinction between the two options). Was Lionel addressing a different situation (perhaps the one to which Rob's question refers) - or is the effect of the dicta in Semelhago v Paramadevan [1996] 2 SCR 415 (mentioned by Rob) to suggest that Canadian law differs from English law (and is along the lines of Irish law) on the vendor-as-constructive-trustee point? Regards John -----Original Message----- From: Rob Chambers [mailto:rnc@UALBERTA.CA] Sent: 13 March 2004 16:53 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Comparative Law Perhaps this discussion should be continued outside the RDG, but I have one further question. I appreciate that the relationship changes once the purchase price has been paid in full (or perhaps tendered) and the purchasers are in a position to call for conveyance of legal title, but would payment of the purchase price generate a constructive trust if the contract was not otherwise specifically enforceable? With best wishes, Rob On 12 Mar 2004, at 1:36 pm, Lionel Smith wrote: > I would add a third possibility to Rob's list: if and to the extent > that the purchaser has paid the purchase price to the vendor, this also > makes a kind of perfectionary constructive trust. This principle does > not depend on specific enforceability or title documents. And unlike > the trust arising from specific enforceability, it requires that income > from the land be accounted for to the purchaser. > Lionel > > > On 12 Mar 2004, at 12:15, Rob Chambers wrote: > >> Thanks very much for your posting, Jason. To answer your question >> below >> about remedies for B and C, in English law, B and C would be the >> beneficial owners of the flat under a constructive trust, but this has >> nothing to do with unjust enrichment. It is what Elias called a >> "perfectionary" constructive trust, which arises to perfect an >> imperfectly realised intention to benefit another person. There are >> two >> events that could produce this trust in the facts you related: (1) a >> specifically enforceable contract of sale and (2) B and C have the >> transfer documents and the power to obtain legal title without A's >> help >> (Re Rose). In common law Canada, they may be out of luck on (1) thanks >> to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should >> succeed on (2). >> >> With best wishes, >> Rob Chambers >> University of Alberta ____________________________________________________________________ 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: Mon, 15 Mar 2004 12:13:42 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: Re: Fw: [RDG:] Comparative Law MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------020609060907090802080708" --------------020609060907090802080708 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit > was the grantor's title on a trust after the conveyance which the >grantees failed to register, and were the creditors subject to that trust? >this question was considered by the court under scottish [or is it scotch] >law, and, as best i understand the language, it was held that the trust >argument was unavailable > > the only connection between this case and unjust enrichment comes from one >of the opinions. his lordship, disliking the result as unjust, accordingly >finds that the creditors' win is an unjust enrichment. such a conception >could expand our field considerably > > only regrettable legislative processes can generate a registration statute so inexplicit about the consequences, vis-a-vis creditors, of non-resgistration as to license common law talk from the bench about trust or unjust enrichment or whatever >----- Original Message ----- >From: "Rob Chambers" >To: >Sent: Saturday, March 13, 2004 11:53 AM >Subject: [RDG:] Comparative Law > > > > >>Perhaps this discussion should be continued outside the RDG, but I have >>one further question. I appreciate that the relationship changes once >>the purchase price has been paid in full (or perhaps tendered) and the >>purchasers are in a position to call for conveyance of legal title, but >>would payment of the purchase price generate a constructive trust if >>the contract was not otherwise specifically enforceable? >> >>With best wishes, >>Rob >> >>On 12 Mar 2004, at 1:36 pm, Lionel Smith wrote: >> >> >> >>>I would add a third possibility to Rob's list: if and to the extent >>>that the purchaser has paid the purchase price to the vendor, this also >>>makes a kind of perfectionary constructive trust. This principle does >>>not depend on specific enforceability or title documents. And unlike >>>the trust arising from specific enforceability, it requires that income >>>from the land be accounted for to the purchaser. >>>Lionel >>> >>> >>>On 12 Mar 2004, at 12:15, Rob Chambers wrote: >>> >>> >>> >>>>Thanks very much for your posting, Jason. To answer your question >>>>below >>>>about remedies for B and C, in English law, B and C would be the >>>>beneficial owners of the flat under a constructive trust, but this has >>>>nothing to do with unjust enrichment. It is what Elias called a >>>>"perfectionary" constructive trust, which arises to perfect an >>>>imperfectly realised intention to benefit another person. There are >>>>two >>>>events that could produce this trust in the facts you related: (1) a >>>>specifically enforceable contract of sale and (2) B and C have the >>>>transfer documents and the power to obtain legal title without A's >>>>help >>>>(Re Rose). In common law Canada, they may be out of luck on (1) thanks >>>>to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should >>>>succeed on (2). >>>> >>>>With best wishes, >>>>Rob Chambers >>>>University of Alberta >>>> >>>> >>____________________________________________________________________ >> 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 >> . >> >> > > > --------------020609060907090802080708 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit


        was the grantor's title on a trust after the conveyance which 

the

grantees failed to register, and were the creditors subject to that 

trust?

this question was considered by the court under scottish [or is it  

scotch]

law, and, as best i understand the language,  it was held that the 

trust

argument was unavailable



        the only connection between this case and unjust enrichment  

comes from one

of the opinions.  his lordship, disliking the result as unjust, 

accordingly

finds that the creditors' win is an unjust enrichment.  such a 

conception

could expand our field considerably

only regrettable legislative processes can generate a registration statute so inexplicit about the consequences, vis-a-vis creditors, of non-resgistration as to license common law talk from the bench about trust or unjust enrichment or whatever


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

From: "Rob Chambers" <rnc@UALBERTA.CA>

To: <ENRICHMENT@LISTS.MCGILL.CA

>

Sent: Saturday, March 13, 2004 11:53 AM

Subject: [RDG:] Comparative Law

Perhaps this discussion should be continued outside 

the RDG, but I have

one further question. I appreciate that the relationship changes once

the purchase price has been paid in full (or perhaps tendered) and the

purchasers are in a position to call for conveyance of legal title, but

would payment of the purchase price generate a constructive trust if

the contract was not otherwise specifically enforceable?



With best wishes,

Rob



On 12 Mar 2004, at 1:36 pm, Lionel Smith wrote:

I would add a third possibility to Rob's list: if 

and to the extent

that the purchaser has paid the purchase price to the vendor, this also

makes a kind of perfectionary constructive trust. This principle does

not depend on specific enforceability or title documents. And unlike

the trust arising from specific enforceability, it requires that income

from the land be accounted for to the purchaser.

Lionel





On 12 Mar 2004, at 12:15, Rob Chambers wrote:

Thanks very much for your posting, Jason. To 

answer your question

below

about remedies for B and C, in English law, B and C would be the

beneficial owners of the flat under a constructive trust, but this has

nothing to do with unjust enrichment. It is what Elias called a

"perfectionary" constructive trust, which arises to perfect an

imperfectly realised intention to benefit another person. There are

two

events that could produce this trust in the facts you related: (1) a

specifically enforceable contract of sale and (2) B and C have the

transfer documents and the power to obtain legal title without A's

help

(Re Rose). In common law Canada, they may be out of luck on (1) thanks

to dicta in Semelhago v Paramadevan [1996] 2 SCR 415, but should

succeed on (2).



With best wishes,

Rob Chambers

University of Alberta

_______________________________________________________________

_____

 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>

.

--------------020609060907090802080708-- ____________________________________________________________________ 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, 15 Mar 2004 16:19:03 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: From Martin Hogg: Burnett's Trustee v Grainger Mime-Version: 1.0 (Apple Message framework v612) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed From Martin Hogg: > Perhaps I may be permitted to make a comment on the recent > discussions in this group concerning the House of Lords' decision in > Burnett's Trustee v Grainger. The comments posted to date appear all > to have come from Common Lawyers. As a Scots Private Law > academic perhaps I may be permitted to add my tuppence. > > The decision in this case appears to have produced a lot of hand > wringing and anguished cries from Common lawyers. In Scotland, the > decision has been welcomed by property lawyers (and indeed other > private lawyers) with a sigh of relief. The decision represents a > firmly hammered nail in the coffin of the prior, and much lamented, > decision of the House of Lords in Sharp v Thomson 1997 SC (HL) 66, > which came dangerously close to fatally undermining the well > accepted unified notion of ownership in Scots property law, and the > integrity of the property register. It has always been a basic > principle > of the Scots legal system that one either is, or isn't, the owner of > something. There is nothing in between. In particular there is no > concept of "beneficial ownership" in Scots law - this is a Common Law > concept wholly alien to Scots Law. Sharp v Thomson undermined the > long accepted orthodoxy, and came perilously close to intruding > beneficial ownership into our law. It was rightly lamented by Scottish > property academics. Burnett's Trustee v Grainger has restricted the > application of Sharp. One hopes that such restriction will continue in > future decisions, and that (one day) their Lordships will recognise > Sharp as having been wrongly decided. Burnett's Trustee helps to > restore the notion of the sanctity of the property register: ownership > proceeds from registration. > > The decision of the Lords in Burnett's Trustee was NOT about > unjustified enrichment. It was an orthodox application of Scots > property law. The only judge to raise concerns about unjustified > enrichment was one of the English judges hearing the appeal, Lord > Hoffmann. Neither of the two Scottish judges who gave leading > opinions in the case saw the appeal as pled as raising any matter of > unjustified enrichment. Indeed, as one of them, Lord Rodger, a former > President of the Court of Session (Scotland's highest civil court), > notes in his speech, questions of unjust enrichment were "not argued > in the appeal". > > No doubt one may feel a great deal of sympathy for the appellants, > the Graingers. It may be that there ought to be some remedy available > to them (and indeed, I think there may, see below). But many Scots > lawyers are thankful that this was not achieved by attacking the > integrity of the property Register, and continuing the prior attack > begun in Sharp on the principles of Scots Property Law. I should also > add that the English concept of a constructive trust is, like > beneficial ownership, a device of the Common Law, and a solution in > Scotland to any perceived injustice in a case like this would not > properly lie through utilisation of this device. > > Given what I have said above, it may be superfluous to add that I > disagree with a previous poster who talked of the regrettable > consequences of "a registration statute so inexplicit about the > consequences, vis-a-vis creditors, of non-registration". In my > opinion, there is no need for the relevant statutes concerning land > registration to deal with the question raised in Burnett's Trustee. If > there is an injustice which needs resolving, then it is one which > might perhaps be addressed in the relevant bankruptcy laws. > However, a simpler solution suggests itself. A solicitor who fails to > take immediate steps to register a disposition of heritable property, > and thus imperils his client's ownership of the relevant property, > seems to me to be (arguably) negligent. I would have thought that in a > case such as this the best solution would be for the person who finds > themselves short- changed by events (in this case the Graingers) to > sue their solicitor for negligence. If, as was the case in Burnett's > Trustee, there were ongoing negotiations about a transfer of garden > ground, the solicitor ought either to have refused to settle with the > client's money on the settlement date, or have insisted on registering > the disposition leaving open the possibility of amending conveyancing > following on later. In some cases, of course, prescription may prove > problematic in a case against the solcitiors, or bankruptcy of the firm > of solicitiors involved, but my gut-feeling is that this is an > 'injustice' > which we have to live with. > > Unjust enrichment is really a red herring so far as I can see in > relation to this case. The trustee in sequestration, from what I can > see, acted wholly in accordance with his powers, and by quite properly > exercising his duties as trustee he cannot be said to be > "unjustifiedly" enriched. Enrichment perhaps, but quite in accordance > with the law and thus not unjustified. > > I hope this adds something to the ongoing debate, especially for those > members of the group who may be unfamiliar with Scots law. > > Martin Hogg > University of Edinburgh Law School > > > ------- End of forwarded message ------- > > ---------------------------------------------------------- > Martin A Hogg LLB, LLM, NP, FRSA > Convener of Undergraduate Studies > The School of Law > University of Edinburgh > Old College > South Bridge > Edinburgh EH8 9YL > Scotland > > Reply email may be addressed to: > Martin.Hogg@ed.ac.uk > > Office (+44) (0)131 650 2071 > Fax (+44) (0)131 662 0724 > > **The University is on Easter vacation from 13th March until > 11th April 2004. Summer Term beings on Monday 12th April. > > > ____________________________________________________________________ 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 Mar 2004 08:41:44 +1100 Reply-To: Jonathon Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon Moore Subject: Re: From Martin Hogg: Burnett's Trustee v Grainger MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit I am very grateful for Martin's posting, for I was quite unfamiliar with Scots Law. A concluding comment (which was not the substance of Martin's positing) related to unjustified enrichment. Martin said: "Enrichment perhaps, but quite in accordance with the law and thus not unjustified". At present, I have no firm view as to whether, in the circumstances being discussed, a claim in unjust enrichment ought to have been advanced. But I wonder whether it is correct to say that an enrichment cannot be unjustified whenever it is achieved 'in accordance with the law'. Could there be a subsequent absence of basis (that is, a failure of basis) for the enrichment if, though the purchase money was paid, the failure to register the purchaser's interest defeated the purchaser's ability to claim ownership? Regards Jonathon =================== JONATHON MOORE Barrister, Victorian Bar jpmoore@vicbar.com.au Phone: 03 - 9225 8946 Fax: 03 - 9225 6221 Mobile: 0401 712 737 Clerk and Mail: C/- Clerk Dever 205 William Street Melbourne, Victoria, 3000 DX 96, Melbourne Clerk's phone: 03 - 9225 7999 ----- Original Message ----- From: "Lionel Smith" To: Sent: Tuesday, March 16, 2004 8:19 AM Subject: [RDG:] From Martin Hogg: Burnett's Trustee v Grainger > From Martin Hogg: > > > Perhaps I may be permitted to make a comment on the recent > > discussions in this group concerning the House of Lords' decision in > > Burnett's Trustee v Grainger. The comments posted to date appear all > > to have come from Common Lawyers. As a Scots Private Law > > academic perhaps I may be permitted to add my tuppence. > > > > The decision in this case appears to have produced a lot of hand > > wringing and anguished cries from Common lawyers. In Scotland, the > > decision has been welcomed by property lawyers (and indeed other > > private lawyers) with a sigh of relief. The decision represents a > > firmly hammered nail in the coffin of the prior, and much lamented, > > decision of the House of Lords in Sharp v Thomson 1997 SC (HL) 66, > > which came dangerously close to fatally undermining the well > > accepted unified notion of ownership in Scots property law, and the > > integrity of the property register. It has always been a basic > > principle > > of the Scots legal system that one either is, or isn't, the owner of > > something. There is nothing in between. In particular there is no > > concept of "beneficial ownership" in Scots law - this is a Common Law > > concept wholly alien to Scots Law. Sharp v Thomson undermined the > > long accepted orthodoxy, and came perilously close to intruding > > beneficial ownership into our law. It was rightly lamented by Scottish > > property academics. Burnett's Trustee v Grainger has restricted the > > application of Sharp. One hopes that such restriction will continue in > > future decisions, and that (one day) their Lordships will recognise > > Sharp as having been wrongly decided. Burnett's Trustee helps to > > restore the notion of the sanctity of the property register: ownership > > proceeds from registration. > > > > The decision of the Lords in Burnett's Trustee was NOT about > > unjustified enrichment. It was an orthodox application of Scots > > property law. The only judge to raise concerns about unjustified > > enrichment was one of the English judges hearing the appeal, Lord > > Hoffmann. Neither of the two Scottish judges who gave leading > > opinions in the case saw the appeal as pled as raising any matter of > > unjustified enrichment. Indeed, as one of them, Lord Rodger, a former > > President of the Court of Session (Scotland's highest civil court), > > notes in his speech, questions of unjust enrichment were "not argued > > in the appeal". > > > > No doubt one may feel a great deal of sympathy for the appellants, > > the Graingers. It may be that there ought to be some remedy available > > to them (and indeed, I think there may, see below). But many Scots > > lawyers are thankful that this was not achieved by attacking the > > integrity of the property Register, and continuing the prior attack > > begun in Sharp on the principles of Scots Property Law. I should also > > add that the English concept of a constructive trust is, like > > beneficial ownership, a device of the Common Law, and a solution in > > Scotland to any perceived injustice in a case like this would not > > properly lie through utilisation of this device. > > > > Given what I have said above, it may be superfluous to add that I > > disagree with a previous poster who talked of the regrettable > > consequences of "a registration statute so inexplicit about the > > consequences, vis-a-vis creditors, of non-registration". In my > > opinion, there is no need for the relevant statutes concerning land > > registration to deal with the question raised in Burnett's Trustee. If > > there is an injustice which needs resolving, then it is one which > > might perhaps be addressed in the relevant bankruptcy laws. > > However, a simpler solution suggests itself. A solicitor who fails to > > take immediate steps to register a disposition of heritable property, > > and thus imperils his client's ownership of the relevant property, > > seems to me to be (arguably) negligent. I would have thought that in a > > case such as this the best solution would be for the person who finds > > themselves short- changed by events (in this case the Graingers) to > > sue their solicitor for negligence. If, as was the case in Burnett's > > Trustee, there were ongoing negotiations about a transfer of garden > > ground, the solicitor ought either to have refused to settle with the > > client's money on the settlement date, or have insisted on registering > > the disposition leaving open the possibility of amending conveyancing > > following on later. In some cases, of course, prescription may prove > > problematic in a case against the solcitiors, or bankruptcy of the firm > > of solicitiors involved, but my gut-feeling is that this is an > > 'injustice' > > which we have to live with. > > > > Unjust enrichment is really a red herring so far as I can see in > > relation to this case. The trustee in sequestration, from what I can > > see, acted wholly in accordance with his powers, and by quite properly > > exercising his duties as trustee he cannot be said to be > > "unjustifiedly" enriched. Enrichment perhaps, but quite in accordance > > with the law and thus not unjustified. > > > > I hope this adds something to the ongoing debate, especially for those > > members of the group who may be unfamiliar with Scots law. > > > > Martin Hogg > > University of Edinburgh Law School > > > > > > ------- End of forwarded message ------- > > > > ---------------------------------------------------------- > > Martin A Hogg LLB, LLM, NP, FRSA > > Convener of Undergraduate Studies > > The School of Law > > University of Edinburgh > > Old College > > South Bridge > > Edinburgh EH8 9YL > > Scotland > > > > Reply email may be addressed to: > > Martin.Hogg@ed.ac.uk > > > > Office (+44) (0)131 650 2071 > > Fax (+44) (0)131 662 0724 > > > > **The University is on Easter vacation from 13th March until > > 11th April 2004. Summer Term beings on Monday 12th April. > > > > > > > > ____________________________________________________________________ > 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: Mon, 15 Mar 2004 18:47:15 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: From Martin Hogg: Burnett's Trustee v Grainger MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Martin: I am curious how Scots law accommodates the express trust (which is mentioned in the judgments of the Scottish Law Lords as a possibility, though one not actuated on the facts of Grainger) if ownership is ownership. Is it done in a fashion similar to that of the Quebec Civil Law with a separate fiduciary patrimony or by other means? I apologize if this is too off topic. Sincerely, -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 Lionel Smith wrote: > From Martin Hogg: > > > Perhaps I may be permitted to make a comment on the recent > > discussions in this group concerning the House of Lords' decision in > > Burnett's Trustee v Grainger. The comments posted to date appear all > > to have come from Common Lawyers. As a Scots Private Law > > academic perhaps I may be permitted to add my tuppence. > > > > The decision in this case appears to have produced a lot of hand > > wringing and anguished cries from Common lawyers. In Scotland, the > > decision has been welcomed by property lawyers (and indeed other > > private lawyers) with a sigh of relief. The decision represents a > > firmly hammered nail in the coffin of the prior, and much lamented, > > decision of the House of Lords in Sharp v Thomson 1997 SC (HL) 66, > > which came dangerously close to fatally undermining the well > > accepted unified notion of ownership in Scots property law, and the > > integrity of the property register. It has always been a basic > > principle > > of the Scots legal system that one either is, or isn't, the owner of > > something. There is nothing in between. In particular there is no > > concept of "beneficial ownership" in Scots law - this is a Common Law > > concept wholly alien to Scots Law. Sharp v Thomson undermined the > > long accepted orthodoxy, and came perilously close to intruding > > beneficial ownership into our law. It was rightly lamented by Scottish > > property academics. Burnett's Trustee v Grainger has restricted the > > application of Sharp. One hopes that such restriction will continue in > > future decisions, and that (one day) their Lordships will recognise > > Sharp as having been wrongly decided. Burnett's Trustee helps to > > restore the notion of the sanctity of the property register: ownership > > proceeds from registration. > > > > The decision of the Lords in Burnett's Trustee was NOT about > > unjustified enrichment. It was an orthodox application of Scots > > property law. The only judge to raise concerns about unjustified > > enrichment was one of the English judges hearing the appeal, Lord > > Hoffmann. Neither of the two Scottish judges who gave leading > > opinions in the case saw the appeal as pled as raising any matter of > > unjustified enrichment. Indeed, as one of them, Lord Rodger, a former > > President of the Court of Session (Scotland's highest civil court), > > notes in his speech, questions of unjust enrichment were "not argued > > in the appeal". > > > > No doubt one may feel a great deal of sympathy for the appellants, > > the Graingers. It may be that there ought to be some remedy available > > to them (and indeed, I think there may, see below). But many Scots > > lawyers are thankful that this was not achieved by attacking the > > integrity of the property Register, and continuing the prior attack > > begun in Sharp on the principles of Scots Property Law. I should also > > add that the English concept of a constructive trust is, like > > beneficial ownership, a device of the Common Law, and a solution in > > Scotland to any perceived injustice in a case like this would not > > properly lie through utilisation of this device. > > > > Given what I have said above, it may be superfluous to add that I > > disagree with a previous poster who talked of the regrettable > > consequences of "a registration statute so inexplicit about the > > consequences, vis-a-vis creditors, of non-registration". In my > > opinion, there is no need for the relevant statutes concerning land > > registration to deal with the question raised in Burnett's Trustee. If > > there is an injustice which needs resolving, then it is one which > > might perhaps be addressed in the relevant bankruptcy laws. > > However, a simpler solution suggests itself. A solicitor who fails to > > take immediate steps to register a disposition of heritable property, > > and thus imperils his client's ownership of the relevant property, > > seems to me to be (arguably) negligent. I would have thought that in a > > case such as this the best solution would be for the person who finds > > themselves short- changed by events (in this case the Graingers) to > > sue their solicitor for negligence. If, as was the case in Burnett's > > Trustee, there were ongoing negotiations about a transfer of garden > > ground, the solicitor ought either to have refused to settle with the > > client's money on the settlement date, or have insisted on registering > > the disposition leaving open the possibility of amending conveyancing > > following on later. In some cases, of course, prescription may prove > > problematic in a case against the solcitiors, or bankruptcy of the firm > > of solicitiors involved, but my gut-feeling is that this is an > > 'injustice' > > which we have to live with. > > > > Unjust enrichment is really a red herring so far as I can see in > > relation to this case. The trustee in sequestration, from what I can > > see, acted wholly in accordance with his powers, and by quite properly > > exercising his duties as trustee he cannot be said to be > > "unjustifiedly" enriched. Enrichment perhaps, but quite in accordance > > with the law and thus not unjustified. > > > > I hope this adds something to the ongoing debate, especially for those > > members of the group who may be unfamiliar with Scots law. > > > > Martin Hogg > > University of Edinburgh Law School > > > > > > ------- End of forwarded message ------- > > > > ---------------------------------------------------------- > > Martin A Hogg LLB, LLM, NP, FRSA > > Convener of Undergraduate Studies > > The School of Law > > University of Edinburgh > > Old College > > South Bridge > > Edinburgh EH8 9YL > > Scotland > > > > Reply email may be addressed to: > > Martin.Hogg@ed.ac.uk > > > > Office (+44) (0)131 650 2071 > > Fax (+44) (0)131 662 0724 > > > > **The University is on Easter vacation from 13th March until > > 11th April 2004. Summer Term beings on Monday 12th April. > > > > > > > > ____________________________________________________________________ > 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: Tue, 16 Mar 2004 17:32:29 +1100 Reply-To: Simone Degeling Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simone Degeling Subject: Fusion Conference MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear all (apologies for cross posting) This is a preliminary announcement of an international conference to be hosted by the Faculty of Law, The University of New South Wales in Sydney Australia from 16-18 December 2004. The title of the conference is "Fusion: The Interaction of Common Law and Equity in Commercial Law" (www.fusion.unsw.edu.au). As the title suggests, the conference will explore the extent and manner of the interaction between common law and equity. =20 The conference will be held in the salubrious setting of New South Wales Parliament House with the conference dinner (Friday 17 December) to be held in the dining room at Parliament House. The sessions on Saturday 18 December will be held in the Banco Court in the Supreme Court of New South Wales. =20 The speakers (who are amongst the finest minds in this area, drawn from legal practice, the academy and from the highest levels of the judiciary) are diversely spread from Australia, England, Ireland, Canada and New Zealand. There will be many different perspectives offered on the issue and topics include examination of highly contemporary issues in the field including: * Tracing=20 * Specific performance * Fusion * The equitable basis of unjust enrichment * Misdirected transfers and recipient liability * Set-off * Mitigation in equity * Taxonomies and legal order * Punitive damages in equity=20 A discount rate for the conference will be offered to full-time academics but bookings should be made soon to ensure a place. The conference website is www.fusion.unsw.edu.au With very best wishes Simone Degeling and James Edelman UNSW CRICOS Provider No: 00098G ____________________________________________________________________ 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 Mar 2004 07:43:19 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: Burnett's Trustee v Grainger MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I post this on behalf of Martin Hogg: Your question about trusts is a good one. I think I can do no better than quote from the leading Scots book on Property Law (The Law of Property in Scotland, by Kenneth Reid, who is a Scottish Law Commissioner):- "On at least one view of the English law of trusts, ownership is divided between trustee and beneficiary, the former holding the legal ownership of the trust property and the latter the beneficial or equitable ownership. However, while English law has been an important influence on the development of the law of trusts in Scotland, the idea of divided ownership has not been adopted. The position in Scots law is that full and undivided ownership of trust property is held by the trustee or trustees, and that the right of the beneficiary is simply a personal right to acquire implementation of the purposes of the trust." (para 40) I hope that answers your query. I could perhaps add that for a robust defence against a role for the 'constructive trust' in Scots law, my colleague Prof George Gretton has an excellent 2 part article in the Edinburgh Law Review - (1997) 1 ELR 281 and 408. Regards, Martin ____________________________________________________________________ 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 Mar 2004 09:31:29 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Burnett's Trustee v Grainger In-Reply-To: <004601c40ad6$4fc47250$3568a8c0@moorejp> Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit There are cases in every system where an enrichment may be in accordance with the law, in a sense at least, and still be unjustified. There is nothing unlawful about receiving a mistaken payment. But if the law goes beyond accepting that the enrichment was lawful, and stipulates that it is justified, no claim lies. Jonathan is clearly correct that the plaintiffs had a claim in unjust enrichment against their contractual counterparties; they probably had a claim in breach of contract too; but the counterparties were bankrupt. The civil law tradition will sometimes recognize that if A has a claim in unjust enrichment against B, and B has made a donative transfer of the substance of the enrichment to C, A can claim against C. See Civil Code of Quebec, art. 1496; BGB art. 816(1) sentence 2. The difference between the common law and civil traditions is whether this logic can work against creditors of B. The common law tradition came rather late to this conclusion. It required two steps. First, that trust claims worked against creditors of the trustee. In some contexts at least, this was still controversial in the C18. Modern civil law systems which recognize a trust also contemplate that the trustee's personal creditors do not have access to the trust property. Secondly, that a trust may arise by operation of law and still impose the same logic of creditor priority. Even in the common law tradition, this second step remains controversial (AG Hong Kong v Reid). So the difference is essentially in whether unjust enrichment can make a trust that will have this effect. Civil law systems that recognize a trust are generally not interested in trusts arising by operation of law. Martin Hogg has already referred to George Gretton's study of constructive trusts in Scots law. Both sides of this debate are tenable, as the controversy about Reid shows. Creditors of a bankrupt trustee are not quite like donative transferees. In most cases they have given value. The decision that a transaction (like an abortive land purchase) makes a constructive trust is often a decision on that very point, whether creditors can have the property or not. The answer cannot be found in the bilateral corrective justice relationship between the payor and the bankrupt payee. The required tools are more like those which lead us to say that if I make wine out of your grapes, the wine belongs to me (and is accessible to my creditors), even if I am personally liable to you. Lionel On 15 Mar 2004, at 16:41, Jonathon Moore wrote: > I am very grateful for Martin's posting, for I was quite unfamiliar > with > Scots Law. > > A concluding comment (which was not the substance of Martin's positing) > related to unjustified enrichment. Martin said: > > "Enrichment perhaps, but quite in accordance with the law and thus > not > unjustified". > > At present, I have no firm view as to whether, in the circumstances > being > discussed, a claim in unjust enrichment ought to have been advanced. > But I > wonder whether it is correct to say that an enrichment cannot be > unjustified > whenever it is achieved 'in accordance with the law'. Could there be a > subsequent absence of basis (that is, a failure of basis) for the > enrichment > if, though the purchase money was paid, the failure to register the > purchaser's interest defeated the purchaser's ability to claim > ownership? > > Regards > > Jonathon > > =================== > JONATHON MOORE > Barrister, Victorian Bar > jpmoore@vicbar.com.au > > Phone: 03 - 9225 8946 > Fax: 03 - 9225 6221 > Mobile: 0401 712 737 > > Clerk and Mail: > C/- Clerk Dever > 205 William Street > Melbourne, Victoria, 3000 > > DX 96, Melbourne > > Clerk's phone: 03 - 9225 7999 > > > ----- Original Message ----- > From: "Lionel Smith" > To: > Sent: Tuesday, March 16, 2004 8:19 AM > Subject: [RDG:] From Martin Hogg: Burnett's Trustee v Grainger > > >> From Martin Hogg: >> >>> Perhaps I may be permitted to make a comment on the recent >>> discussions in this group concerning the House of Lords' decision in >>> Burnett's Trustee v Grainger. The comments posted to date appear all >>> to have come from Common Lawyers. As a Scots Private Law >>> academic perhaps I may be permitted to add my tuppence. >>> >>> The decision in this case appears to have produced a lot of hand >>> wringing and anguished cries from Common lawyers. In Scotland, the >>> decision has been welcomed by property lawyers (and indeed other >>> private lawyers) with a sigh of relief. The decision represents a >>> firmly hammered nail in the coffin of the prior, and much lamented, >>> decision of the House of Lords in Sharp v Thomson 1997 SC (HL) 66, >>> which came dangerously close to fatally undermining the well >>> accepted unified notion of ownership in Scots property law, and the >>> integrity of the property register. It has always been a basic >>> principle >>> of the Scots legal system that one either is, or isn't, the owner of >>> something. There is nothing in between. In particular there is no >>> concept of "beneficial ownership" in Scots law - this is a Common Law >>> concept wholly alien to Scots Law. Sharp v Thomson undermined the >>> long accepted orthodoxy, and came perilously close to intruding >>> beneficial ownership into our law. It was rightly lamented by >>> Scottish >>> property academics. Burnett's Trustee v Grainger has restricted the >>> application of Sharp. One hopes that such restriction will continue >>> in >>> future decisions, and that (one day) their Lordships will recognise >>> Sharp as having been wrongly decided. Burnett's Trustee helps to >>> restore the notion of the sanctity of the property register: >>> ownership >>> proceeds from registration. >>> >>> The decision of the Lords in Burnett's Trustee was NOT about >>> unjustified enrichment. It was an orthodox application of Scots >>> property law. The only judge to raise concerns about unjustified >>> enrichment was one of the English judges hearing the appeal, Lord >>> Hoffmann. Neither of the two Scottish judges who gave leading >>> opinions in the case saw the appeal as pled as raising any matter of >>> unjustified enrichment. Indeed, as one of them, Lord Rodger, a former >>> President of the Court of Session (Scotland's highest civil court), >>> notes in his speech, questions of unjust enrichment were "not argued >>> in the appeal". >>> >>> No doubt one may feel a great deal of sympathy for the appellants, >>> the Graingers. It may be that there ought to be some remedy available >>> to them (and indeed, I think there may, see below). But many Scots >>> lawyers are thankful that this was not achieved by attacking the >>> integrity of the property Register, and continuing the prior attack >>> begun in Sharp on the principles of Scots Property Law. I should also >>> add that the English concept of a constructive trust is, like >>> beneficial ownership, a device of the Common Law, and a solution in >>> Scotland to any perceived injustice in a case like this would not >>> properly lie through utilisation of this device. >>> >>> Given what I have said above, it may be superfluous to add that I >>> disagree with a previous poster who talked of the regrettable >>> consequences of "a registration statute so inexplicit about the >>> consequences, vis-a-vis creditors, of non-registration". In my >>> opinion, there is no need for the relevant statutes concerning land >>> registration to deal with the question raised in Burnett's Trustee. >>> If >>> there is an injustice which needs resolving, then it is one which >>> might perhaps be addressed in the relevant bankruptcy laws. >>> However, a simpler solution suggests itself. A solicitor who fails >>> to >>> take immediate steps to register a disposition of heritable property, >>> and thus imperils his client's ownership of the relevant property, >>> seems to me to be (arguably) negligent. I would have thought that in >>> a >>> case such as this the best solution would be for the person who finds >>> themselves short- changed by events (in this case the Graingers) to >>> sue their solicitor for negligence. If, as was the case in Burnett's >>> Trustee, there were ongoing negotiations about a transfer of garden >>> ground, the solicitor ought either to have refused to settle with the >>> client's money on the settlement date, or have insisted on >>> registering >>> the disposition leaving open the possibility of amending conveyancing >>> following on later. In some cases, of course, prescription may prove >>> problematic in a case against the solcitiors, or bankruptcy of the >>> firm >>> of solicitiors involved, but my gut-feeling is that this is an >>> 'injustice' >>> which we have to live with. >>> >>> Unjust enrichment is really a red herring so far as I can see in >>> relation to this case. The trustee in sequestration, from what I can >>> see, acted wholly in accordance with his powers, and by quite >>> properly >>> exercising his duties as trustee he cannot be said to be >>> "unjustifiedly" enriched. Enrichment perhaps, but quite in accordance >>> with the law and thus not unjustified. >>> >>> I hope this adds something to the ongoing debate, especially for >>> those >>> members of the group who may be unfamiliar with Scots law. >>> >>> Martin Hogg >>> University of Edinburgh Law School >>> >>> >>> ------- End of forwarded message ------- >>> >>> ---------------------------------------------------------- >>> Martin A Hogg LLB, LLM, NP, FRSA >>> Convener of Undergraduate Studies >>> The School of Law >>> University of Edinburgh >>> Old College >>> South Bridge >>> Edinburgh EH8 9YL >>> Scotland >>> >>> Reply email may be addressed to: >>> Martin.Hogg@ed.ac.uk >>> >>> Office (+44) (0)131 650 2071 >>> Fax (+44) (0)131 662 0724 >>> >>> **The University is on Easter vacation from 13th March until >>> 11th April 2004. Summer Term beings on Monday 12th April. >>> >>> >>> >> >> ____________________________________________________________________ >> 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: Fri, 19 Mar 2004 09:27:01 -0000 Reply-To: James Shirley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Shirley Subject: Auckland Harbour Board, Change of Position MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Just a quick question - does anybody know of any Commonwealth authority to the effect that a defendant can rely on change of position as a defence to an Auckland Harbour Board claim? I can find only local authority cases where the defence has succeeded (Eastbourne v. Foster for example) but a central government case would be helpful. thanks, James Shirley ____________________________________________________________________ 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, 19 Mar 2004 12:06:46 -0500 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Subject: rdg; burnett's trustee MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------090209060203050007020405" --------------090209060203050007020405 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit > Lionel Smith wrote: > There are cases in every system where an enrichment may be in > accordance with the law, in a sense at least, and still be unjustified. > There is nothing unlawful about receiving a mistaken payment. But if > the law goes beyond accepting that the enrichment was lawful, and > stipulates that it is justified, no claim lies. > ======================= > a lay-person receives some money and, stating the circumstances, > asks us professionals > whether she can keep it? > 'No' is the answer, 'you must give it back' > 'you mean it's unlawful for me to keep it?' > 'it was lawful for you to have received the money, but unjust for you > to retain it' > 'but is it a rule of law which requires me to give it back?' > "yes' > 'do you mind if i tell my husband that i have to give it back because > it's against the law for me to keep it?' > 'yes, so long as you're careful and don't say it's unlawful' > > > there are circumstnces where there is liability on the legal > ground that the recipient did not get title, and there are cases > where there is liability on the legal ground of 'unjust enrichment'. > in each case iit is a rule of law that mandates the result and in > each case most of us [and the laity] would characterize the retention > as 'unjust' > it would be useful i think for us to eschew the expression > 'unjust' except as referring to behaviour so characterized in the > substantive law of UE---certainly avoiding the term as a way of > expressing subjective dissatisfaction with a result --------------090209060203050007020405 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit

Lionel Smith wrote:
There are cases in every system where an enrichment may be in
accordance with the law, in a sense at least, and still be unjustified.
There is nothing unlawful about receiving a mistaken payment. But if
the law goes beyond accepting that the enrichment was lawful, and
stipulates that it is justified, no claim lies.
=======================
    a lay-person receives some money and, stating the circumstances, asks us professionals
whether she can keep it?
'No' is the answer, 'you must give it back'
'you mean it's unlawful for me to keep it?'
'it was lawful for you to have received the money, but unjust for you to retain it'
'but is it a rule of law which requires me to give it back?'
"yes'
'do you mind if i tell my husband that i have to give it back because it's against the law for me to keep it?'
'yes, so long as you're careful and don't say it's unlawful'

      there are circumstnces where there is liability on the legal ground that the recipient did not get title, and there are cases where there is liability on the legal ground of 'unjust enrichment'. in each case iit is a rule of law that mandates the result and in each case most of us [and the laity] would characterize the retention as 'unjust'
    it would be useful i think for us to eschew the expression 'unjust' except as referring to behaviour so characterized in the substantive law of UE---certainly avoiding the term as a way of expressing subjective dissatisfaction with a result

--------------090209060203050007020405-- ____________________________________________________________________ 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, 19 Mar 2004 12:20:11 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Unjust enrichment Mime-Version: 1.0 (Apple Message framework v612) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed Here is a very interesting story which Rob Chambers sent me. http://www.sundayherald.com/40592 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: Fri, 19 Mar 2004 18:24:57 -0000 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Burnett's trustee and "unjust enrichment" MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C40DDF.7B944840" This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. ------_=_NextPart_001_01C40DDF.7B944840 Content-Type: text/plain; charset="iso-8859-1" Allan Axelrod wrote: >it would be useful i think for us to eschew >the expression 'unjust' except as referring >to behaviour so characterized in the >substantive law of UE---certainly avoiding >the term as a way of expressing subjective >dissatisfaction with a result I think you will have considerable difficulty in persuading either lawyers or anyone else that "unjust" does not mean "contrary to justice". Neither are they likely to accept that controversies over what is "unjust" should lead to abandonment of that sense of the word. As to whether this ordinary (and almost universal) sense of the word is "subjective", I would point out that there is considerable controversy about the scope of "unjust enrichment", the role of "injustice" within it, and the ways in which "injustice" should be described and analyzed. So it is far from obvious that your preferred meaning meaning is any less subjective. Steve Hedley Faculty of Law, University College, Cork ------_=_NextPart_001_01C40DDF.7B944840 Content-Type: text/html; charset="iso-8859-1"

Allan Axelrod wrote:

>it would be useful i think for us to eschew

>the expression 'unjust' except as referring

>to behaviour so characterized in the

>substantive law of UE--- certainly avoiding

>the term as a way of expressing subjective

>dissatisfaction with a result

I think you will have considerable difficulty in persuading either lawyers or anyone else that "unjust" does not mean "contrary to justice". Neither are they likely to accept that controversies over what is "unjust" should lead to abandonment of that sense of the word.

As to whether this ordinary (and almost universal) sense of the word is "subjective", I would point out that there is considerable controversy about the scope of "unjust enrichment", the role of "injustice" within it, and the ways in which "injustice" should be described and analyzed. So it is far from obvious that your preferred meaning meaning is any less subjective.

Steve Hedley
Faculty of Law, University College, Cork

------_=_NextPart_001_01C40DDF.7B944840-- ____________________________________________________________________ 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, 25 Mar 2004 10:49:15 +1100 Reply-To: lss@alphalink.com.au Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lisa Spagnolo Slater Subject: Re: Unjust enrichment Comments: To: Lionel Smith In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit That is quite extraordinary. Please keep us posted on the outcome. Are the claims by the government against former prisoners being set up as common law restitutionary actions, or under statutory provisions? I have been following the discussions on RDG for a few years now, but this is my first contribution. Regards Lisa Spagnolo Slater -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith Sent: Saturday, 20 March 2004 4:20 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Unjust enrichment Here is a very interesting story which Rob Chambers sent me. http://www.sundayherald.com/40592 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 . ____________________________________________________________________ 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, 25 Mar 2004 09:41:15 -0000 Reply-To: "Mee, John" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Mee, John" Subject: Re: claims against prisoners MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" I was wondering also about the context of such claims, which didn't seem totally clear from the newspaper article. It would seem amazing if a person were released on the basis that there had been a miscarriage of justice and then simply presented with a bill for accommodation and food during their incarceration. I wonder whether the claims for food/lodgings arose in the context of a claim for compensation by the prisoner, whereby either (i) the government sought to have the compensation award reduced to the extent of the benefits allegedly received by the prisoner or (ii) following an award of compensation to the prisoner, the government separately sought to recover some of the money back on the basis of having provided benefits to the prisoner. One might find the government's approach in either of the last two scenarios objectionable but it would be in a somewhat different category to a government claim against the prisoner outside the context of already paying compensation to the prisoner (which is how the matter seemed to be presented in some newspaper reports). -----Original Message----- From: Lisa Spagnolo Slater To: ENRICHMENT@LISTS.MCGILL.CA Sent: 24/03/2004 23:49 Subject: Re: [RDG:] Unjust enrichment That is quite extraordinary. Please keep us posted on the outcome. Are the claims by the government against former prisoners being set up as common law restitutionary actions, or under statutory provisions? I have been following the discussions on RDG for a few years now, but this is my first contribution. Regards Lisa Spagnolo Slater -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith Sent: Saturday, 20 March 2004 4:20 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Unjust enrichment Here is a very interesting story which Rob Chambers sent me. http://www.sundayherald.com/40592 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 . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ======================================================================= == Date: Thu, 25 Mar 2004 11:00:20 -0000 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Re: claims against prisoners MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" The award is under Criminal Justice Act 1988 s 133 (which is at http://www.bailii.org/uk/legis/num_act/cja1988172/s133.html), and is indeed in the context of assessing an award for a miscarriage of justice. Assessment is by Home Office assessor, and the assessment can then be challenged as a public law matter. The principles applied are sui generis, though I suspect that personal injuries lawyers will find them not unfamiliar. The damages include both a pecuniary element and a non-pecuniary element (pain, suffering, humiliation etc). The precise issue here is whether provision of board, lodging etc in prison can be referred to in assessing pecuniary loss - so that a lower amount would be payable on the ground that the prisoner has not had to find their own food, accommodation etc. As I understand it, there is no question of the state claming money from the ex-prisoners, they are simply trying to reduce the amount they will have to pay in compensation. The only detailed discussion of damages so far appears to be O'Brien and others, R (on the application of) v. Independent Assessor [2003] EWHC 855 (Admin) (16 April 2003), http://www.bailii.org/ew/cases/EWHC/Admin/2003/855.html. This contains a thorough discussion of the relevant principles, include whether there can be a deduction as suggested. Maurice Kay J held that there could not: paras [35]-[39]. The Home Secretary appears, from Lionel's newspaper report, to be challenging this on appeal. Steve Hedley Faculty of Law, University College, Cork -----Original Message----- From: Mee, John [mailto:JMee@LAW.UCC.IE] Sent: 25 March 2004 09:41 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] claims against prisoners I was wondering also about the context of such claims, which didn't seem totally clear from the newspaper article. It would seem amazing if a person were released on the basis that there had been a miscarriage of justice and then simply presented with a bill for accommodation and food during their incarceration. I wonder whether the claims for food/lodgings arose in the context of a claim for compensation by the prisoner, whereby either (i) the government sought to have the compensation award reduced to the extent of the benefits allegedly received by the prisoner or (ii) following an award of compensation to the prisoner, the government separately sought to recover some of the money back on the basis of having provided benefits to the prisoner. One might find the government's approach in either of the last two scenarios objectionable but it would be in a somewhat different category to a government claim against the prisoner outside the context of already paying compensation to the prisoner (which is how the matter seemed to be presented in some newspaper reports). ____________________________________________________________________ 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, 30 Mar 2004 16:26:19 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Bribe money held on constructive trust Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_10287125==_.ALT" --=====================_10287125==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed In Daraydan Holdings Ltd v Solland International Ltd Lawrence Collins J follows A-G for Hong Kong v Reid, and distinguishes Lister v Stubbs on the basis that in Lister the source of the bribe money was a third party whereas in Darayden it was the principal itself - thus in the judge's view there was a 'proprietary base' to the principal's claim. There seems to have been some leapfrogging going on here as the principal appears to have paid the money to the briber as the (improperly inflated) contractual price for some interior design work; the briber then paid it on to the agent as a 'kickback'. Halifax v Thomas is waved to one side, I am pleased to say. Available on-line at: http://www.bailii.org/ew/cases/EWHC/Ch/2004/622.html Charles Dr Charles Mitchell Reader in Law Director of Postgraduate Taught Programmes School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 --=====================_10287125==_.ALT Content-Type: text/html; charset="us-ascii" In Daraydan Holdings Ltd v Solland International Ltd Lawrence Collins J follows A-G for Hong Kong v Reid, and distinguishes Lister v Stubbs on the basis that in Lister the source of the bribe money was a third party whereas in Darayden it was the principal itself - thus in the judge's view there was a 'proprietary base' to the principal's claim. There seems to have been some leapfrogging going on here as the principal appears to have paid the money to the briber as the (improperly inflated) contractual price for some interior design work; the briber then paid it on to the agent as a 'kickback'. Halifax v Thomas is waved to one side, I am pleased to say. Available on-line at:

http://www.bailii.org/ew/cases/EWHC/Ch/2004/622.html

Charles

Dr Charles Mitchell
Reader in Law
Director of Postgraduate Taught Programmes
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465 --=====================_10287125==_.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 .