=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=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, 1 Apr 2004 12:54:00 +0100 Reply-To: "Penner,JE" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Penner,JE" Subject: FW: constructive trust in proceeds of theft MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----_=3D_NextPart_001_01C417E0.058C4E2E" This is a multi-part message in MIME format. ------_=3D_NextPart_001_01C417E0.058C4E2E Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to = =3D say that a thief holds any proceeds from the sale of stolen goods on =3D trust for the true owner. My question what is the relationship of this =3D trust with the rights of the buyer from the thief of the stolen goods? =3D This no doubt reveals my shocking ignorance of contract law.=3D20 It seems to me that there are a couple of possible ways in which the =3D buyer can assert a right to the proceeds the thief receives from the =3D sale, i.e. the money the buyer paid the thief for the owner's goods: (1) Assuming that the sale is clearly fraudulent, such that the thief =3D would be liable for the tort of deceit, is it possible that the buyer =3D could claim that the contract was void ab initio? If so, then in the =3D case contemplated by LBW, then the constructive trust of proceeds would =3D be a trust over the buyer's property, which seems clearly wrong.=3D20 (2) If this is not the right analysis, then it would seem at the =3D very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had good title); now we have two possible scenarios; if we =3D assume that the buyer rescinds before the true owner makes a claim =3D against him for conversion or claims a right in the proceeds of the =3D sale, is the resulting legal or equitable title he gets still subject to = =3D owner's LBW trust? If he does not rescind before either the owner makes =3D a claim against him for conversion or asserts title in the proceeds, =3D then does the buyer necessarily lose out to the LBW trust because a =3D right to rescind is a 'mere equity', which does not bind someone with an = =3D equitable ownership interest? This strikes me as all very complicated because it depends upon the time = =3D at which the owner's LBW trust arises. If it arises by operation of law =3D upon the sale, then it effectively extinguishes any right to rescind or =3D any other appropriate legal or equitable interest that the buyer might =3D have in the money he paid, which was, after all, his property to begin =3D with, and I don't see how that is necessarily just. Indeed, it seems to =3D me that as a matter of justice, equity's first concern should be to =3D ensure that the innocent buyer is able to recover the proceeds and any =3D traceable product, not the true owner, who has a strict liability claim =3D against the buyer in any case - his mere taking possession of the car =3D will render him liable whether the contract under whose auspices he did =3D so is void ab initio or avoided later.=3D20 One might say of course, that none of this matters practically, for if =3D the true owner asserts title in the substitute, the proceeds, then he in = =3D essence 'adopts' or ratifies the sale by the thief of his original =3D goods, so that the buyer is no longer liable for conversion. And if the =3D buyer retains a legal or equitable interest in the proceeds that =3D prevails over the owner, then he will merely have to transfer an =3D equivalent amount to the owner anyway, because of his strict liability =3D for conversion. But what if the proceeds increase in value? Say the =3D thief sells the owner's car to the buyer for its true value of =3DA310,00= 0 =3D (its true value, which he then invests in shares now worth =3DA315,000. =3D Both the owner and the buyer will wish to have an interest in these =3D proceeds. If the owner gets them, he will have an asset worth =3DA35,000 = =3D more than what he would get from the conversion claim. Equally, if the =3D buyer gets the proceeds, he will be able to meet his conversion =3D liability of =3DA310,000 and keep the extra =3DA35000 of value. So this d= oes =3D seem to me to raise a real issue.=3D20 J E Penner =3D20 ------_=3D_NextPart_001_01C417E0.058C4E2E Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable
 Assume Lord Browne-Wilkinson in= =3D20 Westdeutsche is properly interpreted to say that a thief holds =3D any=3D20 proceeds from the sale of stolen goods on trust for the true owner. My =3D question=3D20 what is the relationship of this trust with the rights of the buyer from = =3D the=3D20 thief of the stolen goods? This no doubt reveals my shocking ignorance =3D of=3D20 contract law.=3D20

It seems to me that there are a couple of possible= =3D ways in=3D20 which the buyer can assert a right to the proceeds the thief receives =3D from the=3D20 sale, i.e. the money the buyer paid the thief for the owner’s =3D goods:

(1)  =3D20 Assuming that the sale is clearly fraudulent, such that the thief = =3D would=3D20 be liable for the tort of deceit, is it possible that the buyer could =3D claim that=3D20 the contract was void ab initio? If so, then in the case contemplated by = =3D LBW,=3D20 then the constructive trust of proceeds would be a trust over the =3D buyer’s=3D20 property, which seems clearly wrong. 

 (2)   If this is no= t =3D the right=3D20 analysis, then it  would = =3D seem at the=3D20 very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had=3D20 good title); now we have two possible scenarios; if we assume that the =3D buyer=3D20 rescinds before the true owner makes a claim against him for conversion =3D or=3D20 claims a right in the proceeds of the sale, is the resulting legal or =3D equitable=3D20 title he gets still subject to owner’s LBW trust? If he does not =3D rescind before=3D20 either the owner makes a claim against him for conversion or asserts =3D title in=3D20 the proceeds, then does the buyer necessarily lose out to the LBW trust =3D because=3D20 a right to rescind is a ‘mere equity’, which does not bind =3D someone with an=3D20 equitable ownership interest?

This strikes me as all very complicated because it= =3D depends=3D20 upon the time at which the owner’s LBW trust arises. If it arises =3D by operation=3D20 of law upon the sale, then it effectively extinguishes any right to =3D rescind or=3D20 any other appropriate legal or equitable interest that the buyer might =3D have in=3D20 the money he paid, which was, after all, his property to begin with, and I =3D don’t see how=3D20 that is necessarily just. Indeed, it seems to me that as a matter of =3D justice,=3D20 equity’s first concern should be to ensure that the innocent buyer = =3D is able to=3D20 recover the proceeds and any traceable product, not the true owner, who =3D has a=3D20 strict liability claim against the buyer in any case – his mere =3D taking=3D20 possession of the car will render him liable whether the contract under =3D whose=3D20 auspices he did so is void ab initio or avoided later.

One might say of course, that none of this matters= =3D20 practically, for if the true owner asserts title in the substitute, the=3D= 20 proceeds, then he in essence ‘adopts’ or ratifies the sale =3D by the thief of his=3D20 original goods, so that the buyer is no longer liable for conversion. =3D And if the=3D20 buyer retains a legal or equitable interest in the proceeds that =3D prevails over=3D20 the owner, then he will merely have to transfer an equivalent amount to =3D the=3D20 owner anyway, because of his strict liability for conversion. But what =3D if the=3D20 proceeds increase in value? Say the thief sells the owner’s car to = =3D the buyer for=3D20 its true value of =3DA310,000 (its true value, which he then invests in =3D shares now=3D20 worth =3DA315,000. Both the owner and the buyer will wish to have an =3D interest in=3D20 these proceeds. If the owner gets them, he will have an asset worth =3D =3DA35,000 more=3D20 than what he would get from the conversion claim. Equally, if the buyer =3D gets the=3D20 proceeds, he will be able to meet his conversion liability of =3DA310,000= =3D and keep=3D20 the extra =3DA35000 of value. So this does seem to me to raise a real =3D issue. 

J E =3D Penner

 

------_=3D_NextPart_001_01C417E0.058C4E2E-- ____________________________________________________________________ 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, 1 Apr 2004 13:31:23 +0100 Reply-To: "Penner,JE" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Penner,JE" Subject: FW: [RDG:] FW: constructive trust in proceeds of thef= t MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----_=3D_NextPart_001_01C417E5.3E30A552" This is a multi-part message in MIME format. ------_=3D_NextPart_001_01C417E5.3E30A552 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Further to my last query, I should also have mentioned that in its =3D concurrent or auxiliary jurisdiction the court of equity has on any =3D number of occasions assisted the victim of a fraud by allowing him to =3D trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. = =3D Why should not the buyer of the worthless title to the owner's car not =3D be able to invoke the same assistance and claim the proceeds of the =3D property of which he was defrauded? =3D20 JEP -----Original Message----- From: Penner,JE=3D20 Sent: 01 April 2004 12:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] FW: constructive trust in proceeds of theft Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to = =3D say that a thief holds any proceeds from the sale of stolen goods on =3D trust for the true owner. My question what is the relationship of this =3D trust with the rights of the buyer from the thief of the stolen goods? =3D This no doubt reveals my shocking ignorance of contract law.=3D20 It seems to me that there are a couple of possible ways in which the =3D buyer can assert a right to the proceeds the thief receives from the =3D sale, i.e. the money the buyer paid the thief for the owner's goods: (1) Assuming that the sale is clearly fraudulent, such that the thief =3D would be liable for the tort of deceit, is it possible that the buyer =3D could claim that the contract was void ab initio? If so, then in the =3D case contemplated by LBW, then the constructive trust of proceeds would =3D be a trust over the buyer's property, which seems clearly wrong.=3D20 (2) If this is not the right analysis, then it would seem at the =3D very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had good title); now we have two possible scenarios; if we =3D assume that the buyer rescinds before the true owner makes a claim =3D against him for conversion or claims a right in the proceeds of the =3D sale, is the resulting legal or equitable title he gets still subject to = =3D owner's LBW trust? If he does not rescind before either the owner makes =3D a claim against him for conversion or asserts title in the proceeds, =3D then does the buyer necessarily lose out to the LBW trust because a =3D right to rescind is a 'mere equity', which does not bind someone with an = =3D equitable ownership interest? This strikes me as all very complicated because it depends upon the time = =3D at which the owner's LBW trust arises. If it arises by operation of law =3D upon the sale, then it effectively extinguishes any right to rescind or =3D any other appropriate legal or equitable interest that the buyer might =3D have in the money he paid, which was, after all, his property to begin =3D with, and I don't see how that is necessarily just. Indeed, it seems to =3D me that as a matter of justice, equity's first concern should be to =3D ensure that the innocent buyer is able to recover the proceeds and any =3D traceable product, not the true owner, who has a strict liability claim =3D against the buyer in any case - his mere taking possession of the car =3D will render him liable whether the contract under whose auspices he did =3D so is void ab initio or avoided later.=3D20 One might say of course, that none of this matters practically, for if =3D the true owner asserts title in the substitute, the proceeds, then he in = =3D essence 'adopts' or ratifies the sale by the thief of his original =3D goods, so that the buyer is no longer liable for conversion. And if the =3D buyer retains a legal or equitable interest in the proceeds that =3D prevails over the owner, then he will merely have to transfer an =3D equivalent amount to the owner anyway, because of his strict liability =3D for conversion. But what if the proceeds increase in value? Say the =3D thief sells the owner's car to the buyer for its true value of =3DA310,00= 0 =3D (its true value, which he then invests in shares now worth =3DA315,000. =3D Both the owner and the buyer will wish to have an interest in these =3D proceeds. If the owner gets them, he will have an asset worth =3DA35,000 = =3D more than what he would get from the conversion claim. Equally, if the =3D buyer gets the proceeds, he will be able to meet his conversion =3D liability of =3DA310,000 and keep the extra =3DA35000 of value. So this d= oes =3D seem to me to raise a real issue.=3D20 J E Penner =3D20 ------_=3D_NextPart_001_01C417E5.3E30A552 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable
Further to my last query, I should also have= =3D mentioned=3D20 that in its concurrent or auxiliary jurisdiction the court of equity has = =3D on any=3D20 number of occasions assisted the victim of a fraud by allowing him to =3D trace into=3D20 the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why should = =3D not the=3D20 buyer of the worthless title to the owner's car not be able to invoke =3D the same=3D20 assistance and claim the proceeds of the property of which he was=3D20 defrauded?
 
JEP
-----Original Message-----
From: Penner,JE =3D
Sent: 01=3D20 April 2004 12:54
To: =3D ENRICHMENT@LISTS.MCGILL.CA
Subject:=3D20 [RDG:] FW: constructive trust in proceeds of theft

 Assume Lord Browne-Wilkinson in= =3D20 Westdeutsche is properly interpreted to say that a thief holds =3D any=3D20 proceeds from the sale of stolen goods on trust for the true owner. My =3D question=3D20 what is the relationship of this trust with the rights of the buyer from = =3D the=3D20 thief of the stolen goods? This no doubt reveals my shocking ignorance =3D of=3D20 contract law.=3D20

It seems to me that there are a couple of possible= =3D ways in=3D20 which the buyer can assert a right to the proceeds the thief receives =3D from the=3D20 sale, i.e. the money the buyer paid the thief for the owner’s =3D goods:

(1)  =3D20 Assuming that the sale is clearly fraudulent, such that the thief = =3D would=3D20 be liable for the tort of deceit, is it possible that the buyer could =3D claim that=3D20 the contract was void ab initio? If so, then in the case contemplated by = =3D LBW,=3D20 then the constructive trust of proceeds would be a trust over the =3D buyer’s=3D20 property, which seems clearly wrong. 

 (2)   If this is no= t =3D the right=3D20 analysis, then it  would = =3D seem at the=3D20 very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had=3D20 good title); now we have two possible scenarios; if we assume that the =3D buyer=3D20 rescinds before the true owner makes a claim against him for conversion =3D or=3D20 claims a right in the proceeds of the sale, is the resulting legal or =3D equitable=3D20 title he gets still subject to owner’s LBW trust? If he does not =3D rescind before=3D20 either the owner makes a claim against him for conversion or asserts =3D title in=3D20 the proceeds, then does the buyer necessarily lose out to the LBW trust =3D because=3D20 a right to rescind is a ‘mere equity’, which does not bind =3D someone with an=3D20 equitable ownership interest?

This strikes me as all very complicated because it= =3D depends=3D20 upon the time at which the owner’s LBW trust arises. If it arises =3D by operation=3D20 of law upon the sale, then it effectively extinguishes any right to =3D rescind or=3D20 any other appropriate legal or equitable interest that the buyer might =3D have in=3D20 the money he paid, which was, after all, his property to begin with, and I =3D don’t see how=3D20 that is necessarily just. Indeed, it seems to me that as a matter of =3D justice,=3D20 equity’s first concern should be to ensure that the innocent buyer = =3D is able to=3D20 recover the proceeds and any traceable product, not the true owner, who =3D has a=3D20 strict liability claim against the buyer in any case – his mere =3D taking=3D20 possession of the car will render him liable whether the contract under =3D whose=3D20 auspices he did so is void ab initio or avoided later.

One might say of course, that none of this matters= =3D20 practically, for if the true owner asserts title in the substitute, the=3D= 20 proceeds, then he in essence ‘adopts’ or ratifies the sale =3D by the thief of his=3D20 original goods, so that the buyer is no longer liable for conversion. =3D And if the=3D20 buyer retains a legal or equitable interest in the proceeds that =3D prevails over=3D20 the owner, then he will merely have to transfer an equivalent amount to =3D the=3D20 owner anyway, because of his strict liability for conversion. But what =3D if the=3D20 proceeds increase in value? Say the thief sells the owner’s car to = =3D the buyer for=3D20 its true value of =3DA310,000 (its true value, which he then invests in =3D shares now=3D20 worth =3DA315,000. Both the owner and the buyer will wish to have an =3D interest in=3D20 these proceeds. If the owner gets them, he will have an asset worth =3D =3DA35,000 more=3D20 than what he would get from the conversion claim. Equally, if the buyer =3D gets the=3D20 proceeds, he will be able to meet his conversion liability of =3DA310,000= =3D and keep=3D20 the extra =3DA35000 of value. So this does seem to me to raise a real =3D issue. 

J E =3D Penner

 

------_=3D_NextPart_001_01C417E5.3E30A552-- ____________________________________________________________________ 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, 1 Apr 2004 15:10:57 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D_18990125=3D=3D_.ALT" -- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_1899012= 5=3D=3D_.ALT Content-Type: text/plain; charset=3D"iso-8859-1"; format=3Dflowed Content-Transfer-Encoding: quoted-printable I appreciate that this is not a particularly helpful reply to James'=3D20 question, but when considering the respective rights of the true owner of= =3D20 the stolen goods and the purchaser of the goods in the situation which he= =3D20 postulates, it might be useful to bear in mind that three first-instance=3D= 20 judges have now shown a marked reluctance to extend Lord B-W's rule to th= e=3D =3D20 case where a claimant is fraudulently induced to enter a contract under=3D= 20 which he transfers property to a defendant (besides questioning the=3D20 rightness of Lord B-W's rule even in the case of the thief): Box v Barcla= ys=3D =3D20 Bank [1998] Lloyd's Law Reports Banking 185, 200-1 (Ferris J); Papamichae= l=3D =3D20 v National Westminster Bank [2003] 1 Lloyd's Rep 341, [231]-[241] (Judge=3D= 20 Chambers QC); Shalson v Russo [2003] EWHC 1637 (Ch), [106]-[127] (Rimer J= ). On a completely different point, Mummery LJ has just reaffirmed Sir Marti= n=3D =3D20 Nourse's comments in Hammond v Osbourn, to hold in Niersmans v Pesticcio=3D= 20 [2004] EWCA Civ 372 that UI is not an equitable wrong: the relevant bit i= s=3D =3D20 para 20: The insistence of Mr Thomas that Maureen had "done nothing wrong" is an=3D= 20 instance of the "continuing misconceptions" mentioned by Sir Martin Nours= e=3D =3D20 in Hammond about the circumstances in which gifts will be set aside on th= e=3D =3D20 ground of presumed undue influence. Although undue influence is sometimes= =3D20 described as an "equitable wrong" or even as a species of equitable fraud= ,=3D =3D20 the basis of the court's intervention is not the commission of a dishones= t=3D =3D20 or wrongful act by the defendant, but that, as a matter of public policy,= =3D20 the presumed influence arising from the relationship of trust and=3D20 confidence should not operate to the disadvantage of the victim, if the=3D= 20 transaction is not satisfactorily explained by ordinary motives: Allcard = v.=3D =3D20 Skinner (1887) 36 Ch D 145 at 171. The court scrutinises the circumstance= s=3D =3D20 in which the transaction, under which benefits were conferred on the=3D20 recipient, took place and the nature of the continuing relationship betwe= en=3D =3D20 the parties, rather than any specific act or conduct on the part of the=3D= 20 recipient. A transaction may be set aside by the court, even though the=3D= 20 actions and conduct of the person who benefits from it could not be=3D20 criticised as wrongful. The presumption arising from the trust and=3D20 confidence of their relationship made it unnecessary, for example, for=3D= 20 Bernard to prove that Maureen actually had influence over him in relation= =3D20 to the gift of the, House, let alone that she in fact exercised undue=3D2= 0 influence or applied improper pressure to obtain the Deed of Gift. Whethe= r=3D =3D20 or not Maureen's conduct could be described as "wrongful", the requiremen= t=3D =3D20 of the doctrine of undue influence is that it must be "affirmatively=3D20 established that the donor's trust and confidence in the donee has not be= en=3D =3D20 betrayed or abused: " see Hammond at paragraph 32. On that point Mr Thoma= s=3D =3D20 relied on the part played by Miss Tindall. On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html Charles At 13:31 01/04/2004 +0100, you wrote: Further to my last query, I should also have mentioned that in its=3D20 concurrent or auxiliary jurisdiction the court of equity has on any numbe= r=3D =3D20 of occasions assisted the victim of a fraud by allowing him to trace into= =3D20 the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why should=3D= 20 not the buyer of the worthless title to the owner's car not be able to=3D= 20 invoke the same assistance and claim the proceeds of the property of whic= h=3D =3D20 he was defrauded? JEP -----Original Message----- From: Penner,JE Sent: 01 April 2004 12:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] FW: constructive trust in proceeds of theft Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to= =3D20 say that a thief holds any proceeds from the sale of stolen goods on trus= t=3D =3D20 for the true owner. My question what is the relationship of this trust wi= th=3D =3D20 the rights of the buyer from the thief of the stolen goods? This no doubt= =3D20 reveals my shocking ignorance of contract law. It seems to me that there are a couple of possible ways in which the buye= r=3D =3D20 can assert a right to the proceeds the thief receives from the sale, i.e.= =3D20 the money the buyer paid the thief for the owner s goods: (1) Assuming that the sale is clearly fraudulent, such that the thief=3D= 20 would be liable for the tort of deceit, is it possible that the buyer cou= ld=3D =3D20 claim that the contract was void ab initio? If so, then in the case=3D20 contemplated by LBW, then the constructive trust of proceeds would be a=3D= 20 trust over the buyer s property, which seems clearly wrong. (2) If this is not the right analysis, then it would seem at the ver= y=3D =3D20 minimum that the buyer has the right to rescind the transaction for=3D20 fraudulent misreprentation (the misrepresentation by the thief being that= =3D20 he had good title); now we have two possible scenarios; if we assume that= =3D20 the buyer rescinds before the true owner makes a claim against him for=3D= 20 conversion or claims a right in the proceeds of the sale, is the resultin= g=3D =3D20 legal or equitable title he gets still subject to owner s LBW trust? If h= e=3D =3D20 does not rescind before either the owner makes a claim against him for=3D= 20 conversion or asserts title in the proceeds, then does the buyer=3D20 necessarily lose out to the LBW trust because a right to rescind is a mer= e=3D =3D20 equity , which does not bind someone with an equitable ownership interest= ? This strikes me as all very complicated because it depends upon the time = at=3D =3D20 which the owner s LBW trust arises. If it arises by operation of law upon= =3D20 the sale, then it effectively extinguishes any right to rescind or any=3D= 20 other appropriate legal or equitable interest that the buyer might have i= n=3D =3D20 the money he paid, which was, after all, his property to begin with, and = I=3D =3D20 don t see how that is necessarily just. Indeed, it seems to me that as a=3D= 20 matter of justice, equity s first concern should be to ensure that the=3D= 20 innocent buyer is able to recover the proceeds and any traceable product,= =3D20 not the true owner, who has a strict liability claim against the buyer in= =3D20 any case his mere taking possession of the car will render him liable=3D2= 0 whether the contract under whose auspices he did so is void ab initio or=3D= 20 avoided later. One might say of course, that none of this matters practically, for if th= e=3D =3D20 true owner asserts title in the substitute, the proceeds, then he in=3D20 essence adopts or ratifies the sale by the thief of his original goods, s= o=3D =3D20 that the buyer is no longer liable for conversion. And if the buyer retai= ns=3D =3D20 a legal or equitable interest in the proceeds that prevails over the owne= r,=3D =3D20 then he will merely have to transfer an equivalent amount to the owner=3D= 20 anyway, because of his strict liability for conversion. But what if the=3D= 20 proceeds increase in value? Say the thief sells the owner s car to the=3D= 20 buyer for its true value of =3DA310,000 (its true value, which he then in= vests=3D =3D20 in shares now worth =3DA315,000. Both the owner and the buyer will wish t= o=3D have=3D20 an interest in these proceeds. If the owner gets them, he will have an=3D= 20 asset worth =3DA35,000 more than what he would get from the conversion cl= aim.=3D =3D20 Equally, if the buyer gets the proceeds, he will be able to meet his=3D20 conversion liability of =3DA310,000 and keep the extra =3DA35000 of value= . So=3D this=3D20 does seem to me to raise a real issue. J E Penner 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 -- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_1899012= 5=3D=3D_.ALT Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable I appreciate that this is not a particularly helpful reply to James' question, but when considering the respective rights of the true owner of the stolen goods and the purchaser of the goods in the situation which he postulates, it might be useful to bear in mind that three first-instance judges have now shown a marked reluctance to extend Lord B-W's rule to the case where a claimant is fraudulently induced to enter a contract under which he transfers property to a defendant (besides questioning the rightness of Lord B-W's rule even in the case of the thief): Box v Barclays Bank [1998] Lloyd's Law Reports Banking 185, 200-1 (Ferris J); Papamichael v National Westminster Bank [2003] 1 Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo [2003] EWHC 1637 (Ch), [106]-[127] (Rimer J).

On a completely different point, Mummery LJ has just reaffirmed Sir Martin Nourse's comments in Hammond v Osbourn, to hold in Niersmans v Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the relevant bit is para 20:

The insistence of Mr Thomas that Maureen had "done nothing wrong" is an instance of the "continuing misconceptions" mentioned by Sir Martin Nourse in Hammond about the circumstances in which gifts will be set aside on the ground of presumed undue influence. Although undue influence is sometimes described as an "equitable wrong" or even as a species of equitable fraud, the basis of the court's intervention is not the commission of a dishonest or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confidence should not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives: Allcard v. Skinner (1887) 36 Ch D 145 at 171. The court scrutinises the circumstances in which the transaction, under which benefits were conferred on the recipient, took place and the nature of the continuing relationship between the parties, rather than any specific act or conduct on the part of the recipient. A transaction may be set aside by the court, even though the actions and conduct of the person who benefits from it could not be criticised as wrongful. The presumption arising from the trust and confidence of their relationship made it unnecessary, for example, for Bernard to prove that Maureen actually had influence over him in relation to the gift of the, House, let alone that she in fact exercised undue influence or applied improper pressure to obtain the Deed of Gift. Whether or not Maureen's conduct could be described as "wrongful", the requirement of the doctrine of undue influence is that it must be "affirmatively established that the donor's trust and confidence in the donee has not been betrayed or abused: " see Hammond at paragraph 32. On that point Mr Thomas relied on the part played by Miss Tindall.

On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.ht= ml


Charles
At 13:31 01/04/2004 +0100, you wrote:
Further to my last = query, I should also have mentioned that in its concurrent or auxiliary jurisdiction the court of equity has on any number of occasions assisted the victim of a fraud by allowing him to trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why should not the buyer of the worthless title to the owner's car not be able to invoke the same assistance and claim the proceeds of the property of which he was defrauded?
 
JEP
-----Original Message-----
From: Penner,JE
Sent: 01 April 2004 12:54
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] FW: constructive trust in proceeds of theft

 Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to say that a thief holds any proceeds from the sale of stolen goods on trust for the true owner. My question what is the relationship of this trust with the rights of the buyer from the thief of the stolen goods? This no doubt reveals my shocking ignorance of contract law.

It seems to me that there are a couple of possible ways in which the buyer can assert a right to the proceeds the thief receives from the sale, i.e. the money the buyer paid the thief for the owner s goods:

(1)   Assuming that the sale is clearly fraudulent, such that the thief would be liable for the tort of deceit, is it possible that the buyer could claim that the contract was void ab initio? If so, then in the case contemplated by LBW, then the constructive trust of proceeds would be a trust over the buyer s property, which seems clearly wrong.

 (2)   If this is not the right analysis, then it  would seem at the very minimum that the buyer has the right to rescind the transaction for fraudulent misreprentation (the misrepresentation by the thief being that he had good title); now we have two possible scenarios; if we assume that the buyer rescinds before the true owner makes a claim against him for conversion or claims a right in the proceeds of the sale, is the resulting legal or equitable title he gets still subject to owner s LBW trust? If he does not rescind before either the owner makes a claim against him for conversion or asserts title in the proceeds, then does the buyer necessarily lose out to the LBW trust because a right to rescind is a mere equity , which does not bind someone with an equitable ownership interest?

This strikes me as all very complicated because it depends upon the time at which the owner s LBW trust arises. If it arises by operation of law upon the sale, then it effectively extinguishes any right to rescind or any other appropriate legal or equitable interest that the buyer might have in the money he paid, which was, after all, his property to begin with, and I don t see how that is necessarily just. Indeed, it seems to me that as a matter of justice, equity s first concern should be to ensure that the innocent buyer is able to recover the proceeds and any traceable product, not the true owner, who has a strict liability claim against the buyer in any case his mere taking possession of the car will render him liable whether the contract under whose auspices he did so is void ab initio or avoided later.

One might say of course, that none of this matters practically, for if the true owner asserts title in the substitute, the proceeds, then he in essence adopts or ratifies the sale by the thief of his original goods, so that the buyer is no longer liable for conversion. And if the buyer retains a legal or equitable interest in the proceeds that prevails over the owner, then he will merely have to transfer an equivalent amount to the owner anyway, because of his strict liability for conversion. But what if the proceeds increase in value? Say the thief sells the owner s car to the buyer for its true value of =3DA310,000 (its true value, which= he then invests in shares now worth =3DA315,000. Both the owner and the buye= r will wish to have an interest in these proceeds. If the owner gets them, he will have an asset worth =3DA35,000 more than what he would get from t= he conversion claim. Equally, if the buyer gets the proceeds, he will be able to meet his conversion liability of =3DA310,000 and keep the extra =3D= A3500=3D 0 of value. So this does seem to me to raise a real issue.

J E Penner

 

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 -- =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D_1899012= 5=3D=3D_.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 . =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D=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, 1 Apr 2004 15:35:44 +0100 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Re: FW: constructive trust in proceeds of theft MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----_=3D_NextPart_001_01C417F6.9D433E80" This message is in MIME format. Since your mail reader does not understan= d this format, some or all of this message may not be legible. ------_=3D_NextPart_001_01C417F6.9D433E80 Content-Type: text/plain; charset=3D"iso-8859-1" At the risk of being even less helpful than Charles, I'd add that in the = law of sale of goods it would be rare to drag questions of fraud into the mat= ter unless unavoidable. A purported sale of property to which the seller can'= t pass title would be a breach of s 12 SGA, which would give rise to a rise= to terminate the contract, fraud or no fraud. There is clearly then a perso= nal action to recover money paid, but as Charles says there is little authori= ty suggesting that there is anything more to it. Steve Hedley Faculty of Law, University College, Cork -----Original Message----- From: Penner,JE [mailto:J.E.Penner@LSE.AC.UK] Sent: 01 April 2004 12:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] FW: constructive trust in proceeds of theft Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to = say that a thief holds any proceeds from the sale of stolen goods on trust fo= r the true owner. My question what is the relationship of this trust with t= he rights of the buyer from the thief of the stolen goods? This no doubt reveals my shocking ignorance of contract law. It seems to me that there are a couple of possible ways in which the buye= r can assert a right to the proceeds the thief receives from the sale, i.e. the money the buyer paid the thief for the owner's goods: (1) Assuming that the sale is clearly fraudulent, such that the thief would be liable for the tort of deceit, is it possible that the buyer cou= ld claim that the contract was void ab initio? If so, then in the case contemplated by LBW, then the constructive trust of proceeds would be a trust over the buyer's property, which seems clearly wrong. (2) If this is not the right analysis, then it would seem at the very minimum that the buyer has the right to rescind the transaction for fraudulent misreprentation (the misrepresentation by the thief being that= he had good title); now we have two possible scenarios; if we assume that th= e buyer rescinds before the true owner makes a claim against him for conversion or claims a right in the proceeds of the sale, is the resultin= g legal or equitable title he gets still subject to owner's LBW trust? If h= e does not rescind before either the owner makes a claim against him for conversion or asserts title in the proceeds, then does the buyer necessar= ily lose out to the LBW trust because a right to rescind is a 'mere equity', which does not bind someone with an equitable ownership interest? This strikes me as all very complicated because it depends upon the time = at which the owner's LBW trust arises. If it arises by operation of law upon the sale, then it effectively extinguishes any right to rescind or any ot= her appropriate legal or equitable interest that the buyer might have in the money he paid, which was, after all, his property to begin with, and I do= n't see how that is necessarily just. Indeed, it seems to me that as a matter= of justice, equity's first concern should be to ensure that the innocent buy= er is able to recover the proceeds and any traceable product, not the true owner, who has a strict liability claim against the buyer in any case - h= is mere taking possession of the car will render him liable whether the contract under whose auspices he did so is void ab initio or avoided late= r. One might say of course, that none of this matters practically, for if th= e true owner asserts title in the substitute, the proceeds, then he in esse= nce 'adopts' or ratifies the sale by the thief of his original goods, so that the buyer is no longer liable for conversion. And if the buyer retains a legal or equitable interest in the proceeds that prevails over the owner, then he will merely have to transfer an equivalent amount to the owner anyway, because of his strict liability for conversion. But what if the proceeds increase in value? Say the thief sells the owner's car to the bu= yer for its true value of =A310,000 (its true value, which he then invests in shares now worth =A315,000. Both the owner and the buyer will wish to hav= e an interest in these proceeds. If the owner gets them, he will have an asset worth =A35,000 more than what he would get from the conversion claim. Equ= ally, if the buyer gets the proceeds, he will be able to meet his conversion liability of =A310,000 and keep the extra =A35000 of value. So this does = seem to me to raise a real issue. J E Penner ------_=3D_NextPart_001_01C417F6.9D433E80 Content-Type: text/html; charset=3D"iso-8859-1"
At the risk of being even less helpful than Charles, I'd add that in the law of = sale of goods it would be rare to drag questions of fraud into the matter unless unavoidable. A purported sale of property to which the seller can't pass = title would be a breach of s 12 SGA, which would give rise to a rise to termina= te the contract, fraud or no fraud.  There is clearly then a personal actio= n to recover money paid, but as Charles says there is little authority suggest= ing that there is anything more to it. 
 

Steve Hedley
Faculty of Law, University College, Cork

-----Original Message-----
From: Penner,JE [mailto:J.E.Penner@LSE.AC.UK]
Sent: 01 April 2004 12:54
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:= ] FW: constructive trust in proceeds of theft

 Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to say that a thief holds a= ny proceeds from the sale of stolen goods on trust for the true owner. My question what is the relationship of this trust with the rights of the = buyer from the thief of the stolen goods? This no doubt reveals my shocking ignorance of contract law.

It seems to me that there are a couple of possible= ways in which the buyer can assert a right to the proceeds the thief receives f= rom the sale, i.e. the money the buyer paid the thief for the owner's goods:

(1)&nb= sp;  Assuming that the sale is clearly fraudulent, such that the thie= f would be liable for the tort of deceit, is it possible that the buyer could c= laim that the contract was void ab initio? If so, then in the case contempla= ted by LBW, then the constructive trust of proceeds would be a trust over the = buyer's property, which seems clearly wrong. 

 (2)<= SPAN style=3D"FONT: 7pt 'Times New Roman'">   If this is no= t the right analysis, then it  = would seem at the very minimum that the buyer has the right to rescind the transaction for fraudulent misreprentation (the misrepresentation by th= e thief being that he had good title); now we have two possible scenarios; if w= e assume that the buyer rescinds before the true owner makes a claim agai= nst him for conversion or claims a right in the proceeds of the sale, is the re= sulting legal or equitable title he gets still subject to owner's LBW trust? If= he does not rescind before either the owner makes a claim against him for conversion or asserts title in the proceeds, then does the buyer necess= arily lose out to the LBW trust because a right to rescind is a 'mere equity'= , which does not bind someone with an equitable ownership interest?

This strikes me as all very complicated because it= depends upon the time at which the owner's LBW trust arises. If it arises by op= eration of law upon the sale, then it effectively extinguishes any right to res= cind or any other appropriate legal or equitable interest that the buyer might = have in the money he paid, which was, after all, his property to begin with, and I do= n't see how that is necessarily just. Indeed, it seems to me that as a matter o= f justice, equity's first concern should be to ensure that the innocent b= uyer is able to recover the proceeds and any traceable product, not the true ow= ner, who has a strict liability claim against the buyer in any case - his me= re taking possession of the car will render him liable whether the contrac= t under whose auspices he did so is void ab initio or avoided later.

One might say of course, that none of this matters practically, for if the true owner asserts title in the substitute, the proceeds, then he in essence 'adopts' or ratifies the sale by the thief= of his original goods, so that the buyer is no longer liable for conversion. A= nd if the buyer retains a legal or equitable interest in the proceeds that pr= evails over the owner, then he will merely have to transfer an equivalent amou= nt to the owner anyway, because of his strict liability for conversion. But w= hat if the proceeds increase in value? Say the thief sells the owner's car to = the buyer for its true value of =A310,000 (its true value, which he then in= vests in shares now worth =A315,000. Both the owner and the buyer will wish to h= ave an interest in these proceeds. If the owner gets them, he will have an ass= et worth =A35,000 more than what he would get from the conversion claim. E= qually, if the buyer gets the proceeds, he will be able to meet his conversion liability of =A310,000 and keep the extra =A35000 of value. So this doe= s seem to me to raise a real issue. =

J E Penner=

 

<= /BODY> ------_=3D_NextPart_001_01C417F6.9D433E80-- ____________________________________________________________________ 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, 1 Apr 2004 10:45:33 -0500 Reply-To: John Swan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Swan MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----_=3D_NextPart_001_01C41800.5E89CAA1" This is a multi-part message in MIME format. ------_=3D_NextPart_001_01C41800.5E89CAA1 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable Some answers to James Penner's questions under the common law and =3D ignoring some special rules and the possible application of some =3D statutes are: * If the "thief" is a thief and stole the goods, whether the =3D owner has a right or not against the thief, the owner can recover the =3D value of the goods from the purchaser in conversion. The owner can =3D pursue the goods into the hands of anyone who acts inconsistently with =3D the owner's title. The claims against art galleries for paintings, =3D etc., looted after WW II are of this type. Note also that no one in the = =3D chain of wrongful holders and certainly not the last is likely to be =3D protected by the Limitations Act. * The right of the owner to recover from the thief and from the = =3D wrongful holder is, presumably, subject to the limit imposed by the =3D Privy Council in Mahesan: the owner cannot recover more than once. The = =3D ultimate holder, on being made liable to the owner, can sue his or her =3D seller, and so on back up the line. The person who bought from the =3D thief can sue him or her. Such claims could be brought under the Sale =3D of Goods Act. * The old common law right to "waive the tort" and to claim the = =3D proceeds of the tort from the tortfeasor may also give the owner a =3D claim, but that claim would not be based on a trust. I would have =3D thought, without the benefit of any review of the cases, that the real =3D question is whether the proceeds received by the thief can be traced. * If the goods are obtained by fraud, the "purchaser's" title =3D is voidable. In this situation, the goods can be obtained from the =3D "purchaser" on the rescission of the contract. The "purchaser" is, of =3D course, liable under the contract or for damages for deceit. Since the =3D "purchaser's" title is voidable and not void, a bona fide purchaser for =3D value from that person will now get good title. See, e.g., Lewis v. =3D Avery. I am not sure how this analysis plugs into the points that concerned Mr. = =3D Penner, but I think that the distinction between theft and fraud has to =3D be kept in mind. John Swan =3D20 -----Original Message----- From: Charles Mitchell [mailto:charles.mitchell@KCL.AC.UK]=3D20 Sent: April 1, 2004 9:11 AM To: ENRICHMENT@lists.mcgill.ca Subject: [RDG:] =3D20 I appreciate that this is not a particularly helpful reply to James' =3D question, but when considering the respective rights of the true owner =3D of the stolen goods and the purchaser of the goods in the situation =3D which he postulates, it might be useful to bear in mind that three =3D first-instance judges have now shown a marked reluctance to extend Lord =3D B-W's rule to the case where a claimant is fraudulently induced to enter = =3D a contract under which he transfers property to a defendant (besides =3D questioning the rightness of Lord B-W's rule even in the case of the =3D thief): Box v Barclays Bank [1998] Lloyd's Law Reports Banking 185, =3D 200-1 (Ferris J); Papamichael v National Westminster Bank [2003] 1 =3D Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo [2003] = =3D EWHC 1637 (Ch), [106]-[127] (Rimer J). On a completely different point, Mummery LJ has just reaffirmed Sir =3D Martin Nourse's comments in Hammond v Osbourn, to hold in Niersmans v =3D Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the =3D relevant bit is para 20: The insistence of Mr Thomas that Maureen had "done nothing wrong" is an =3D instance of the "continuing misconceptions" mentioned by Sir Martin =3D Nourse in Hammond about the circumstances in which gifts will be set =3D aside on the ground of presumed undue influence. Although undue =3D influence is sometimes described as an "equitable wrong" or even as a =3D species of equitable fraud, the basis of the court's intervention is not = =3D the commission of a dishonest or wrongful act by the defendant, but =3D that, as a matter of public policy, the presumed influence arising from =3D the relationship of trust and confidence should not operate to the =3D disadvantage of the victim, if the transaction is not satisfactorily =3D explained by ordinary motives: Allcard v. Skinner (1887) 36 Ch D 145 at =3D 171. The court scrutinises the circumstances in which the transaction, =3D under which benefits were conferred on the recipient, took place and the = =3D nature of the continuing relationship between the parties, rather than =3D any specific act or conduct on the part of the recipient. A transaction =3D may be set aside by the court, even though the actions and conduct of =3D the person who benefits from it could not be criticised as wrongful. The = =3D presumption arising from the trust and confidence of their relationship =3D made it unnecessary, for example, for Bernard to prove that Maureen =3D actually had influence over him in relation to the gift of the, House, =3D let alone that she in fact exercised undue influence or applied improper = =3D pressure to obtain the Deed of Gift. Whether or not Maureen's conduct =3D could be described as "wrongful", the requirement of the doctrine of =3D undue influence is that it must be "affirmatively established that the =3D donor's trust and confidence in the donee has not been betrayed or =3D abused: " see Hammond at paragraph 32. On that point Mr Thomas relied on = =3D the part played by Miss Tindall.=3D20 On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html Charles At 13:31 01/04/2004 +0100, you wrote: Further to my last query, I should also have mentioned that in its =3D concurrent or auxiliary jurisdiction the court of equity has on any =3D number of occasions assisted the victim of a fraud by allowing him to =3D trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. = =3D Why should not the buyer of the worthless title to the owner's car not =3D be able to invoke the same assistance and claim the proceeds of the =3D property of which he was defrauded? =3D20 JEP -----Original Message----- From: Penner,JE=3D20 Sent: 01 April 2004 12:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] FW: constructive trust in proceeds of theft Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted to = =3D say that a thief holds any proceeds from the sale of stolen goods on =3D trust for the true owner. My question what is the relationship of this =3D trust with the rights of the buyer from the thief of the stolen goods? =3D This no doubt reveals my shocking ignorance of contract law.=3D20 It seems to me that there are a couple of possible ways in which the =3D buyer can assert a right to the proceeds the thief receives from the =3D sale, i.e. the money the buyer paid the thief for the owner s goods: (1) Assuming that the sale is clearly fraudulent, such that the thief =3D would be liable for the tort of deceit, is it possible that the buyer =3D could claim that the contract was void ab initio? If so, then in the =3D case contemplated by LBW, then the constructive trust of proceeds would =3D be a trust over the buyer s property, which seems clearly wrong.=3D20 (2) If this is not the right analysis, then it would seem at the =3D very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had good title); now we have two possible scenarios; if we =3D assume that the buyer rescinds before the true owner makes a claim =3D against him for conversion or claims a right in the proceeds of the =3D sale, is the resulting legal or equitable title he gets still subject to = =3D owner s LBW trust? If he does not rescind before either the owner makes =3D a claim against him for conversion or asserts title in the proceeds, =3D then does the buyer necessarily lose out to the LBW trust because a =3D right to rescind is a mere equity , which does not bind someone with an =3D equitable ownership interest? This strikes me as all very complicated because it depends upon the time = =3D at which the owner s LBW trust arises. If it arises by operation of law =3D upon the sale, then it effectively extinguishes any right to rescind or =3D any other appropriate legal or equitable interest that the buyer might =3D have in the money he paid, which was, after all, his property to begin =3D with, and I don t see how that is necessarily just. Indeed, it seems to =3D me that as a matter of justice, equity s first concern should be to =3D ensure that the innocent buyer is able to recover the proceeds and any =3D traceable product, not the true owner, who has a strict liability claim =3D against the buyer in any case his mere taking possession of the car will = =3D render him liable whether the contract under whose auspices he did so is = =3D void ab initio or avoided later.=3D20 One might say of course, that none of this matters practically, for if =3D the true owner asserts title in the substitute, the proceeds, then he in = =3D essence adopts or ratifies the sale by the thief of his original goods, =3D so that the buyer is no longer liable for conversion. And if the buyer =3D retains a legal or equitable interest in the proceeds that prevails over = =3D the owner, then he will merely have to transfer an equivalent amount to =3D the owner anyway, because of his strict liability for conversion. But =3D what if the proceeds increase in value? Say the thief sells the owner s =3D car to the buyer for its true value of =3DA310,000 (its true value, which= =3D he then invests in shares now worth =3DA315,000. Both the owner and the =3D buyer will wish to have an interest in these proceeds. If the owner gets = =3D them, he will have an asset worth =3DA35,000 more than what he would get = =3D from the conversion claim. Equally, if the buyer gets the proceeds, he =3D will be able to meet his conversion liability of =3DA310,000 and keep the= =3D extra =3DA35000 of value. So this does seem to me to raise a real issue.=3D= 20 J E Penner =3D20 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 ------_=3D_NextPart_001_01C41800.5E89CAA1 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable

Some =3D answers to James Penner’s questions under the common law and ignoring some special =3D rules and the possible application of some statutes are:

•=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0 If the =3D “thief” is a thief and stole the goods, =3D whether the owner has a right or not against the thief, the owner can recover the =3D value of the goods from the purchaser in conversion.=3DA0 The owner can pursue the= =3D goods into the hands of anyone who acts inconsistently with the owner’s =3D title.=3DA0 The claims against art galleries for paintings, etc., looted after WW II = =3D are of this type.=3DA0 Note also that no one in the chain of wrongful holders an= d certainly not the last is likely to be protected by the Limitations =3D Act.

•=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0 The righ= t of the owner to =3D recover from the thief and from the wrongful holder is, presumably, subject to the limit =3D imposed by the Privy Council in Mahesan: =3DA0the owner cannot recover more than once.=3DA0 The ultimate holder, on being =3D made liable to the owner, can sue his or her seller, and so on back up the line.=3DA0= =3D The person who bought from the thief can sue him or her.=3DA0 Such claims =3D could be brought under the Sale of Goods Act.

•=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0 The old = common law right =3D to “waive the tort” and to claim the proceeds of the tort from the tortfeasor may also give =3D the owner a claim, but that claim would not be based on a trust.=3DA0 I would= =3D have thought, without the benefit of any review of the cases, that the real =3D question is whether the proceeds received by the thief can be =3D traced.

•=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0=3DA0 If the g= oods are obtained =3D by fraud, the “purchaser’s” title is voidable.=3DA0 In this situation, the goods can be obtained from= =3D the “purchaser” on the rescission of the contract.=3DA0 The “purchaser” is, o= f =3D course, liable under the contract or for damages for deceit.=3DA0 Since the =3D “purchaser’s” title is voidable and not void, a bona fide purchaser for value from =3D that person will now get good title.=3DA0 See, e.g., Lewis v. =3D Avery.

I am =3D not sure how this analysis plugs into the points that concerned Mr. Penner, but I = =3D think that the distinction between theft and fraud has to be kept in =3D mind.

John =3D Swan

 

-----Origi= nal Message-----
From: Charles Mitchell [mailto:charles.mitchell@KCL.AC.UK]
Sent: April 1, 2004 9:11 AM
To: =3D ENRICHMENT@lists.mcgill.ca
Subject: =3D [RDG:]

 

I appreciate that this is not a particularly helpful reply to =3D James' question, but when considering the respective rights of the true owner =3D of the stolen goods and the purchaser of the goods in the situation which he postulates, it might be useful to bear in mind that three first-instance = =3D judges have now shown a marked reluctance to extend Lord B-W's rule to the case = =3D where a claimant is fraudulently induced to enter a contract under which he =3D transfers property to a defendant (besides questioning the rightness of Lord B-W's = =3D rule even in the case of the thief): Bo= x =3D v Barclays Bank [1998] Lloyd's Law Reports Banking 185, 200-1 =3D (Ferris J); Papamichael v National =3D Westminster Bank [2003] 1 Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo [2003] EWHC 1637 (Ch), [106]-[127] =3D (Rimer J).

On a completely different point, Mummery LJ has just reaffirmed Sir =3D Martin Nourse's comments in Hammond v =3D Osbourn, to hold in Niersmans v =3D Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the relevant bit =3D is para 20:

The insistence of Mr Thomas that Maureen had "done nothing =3D wrong" is an instance of the "continuing misconceptions" mentioned by =3D Sir Martin Nourse in Hammond =3D about the circumstances in which gifts will be set aside on the ground of presumed = =3D undue influence. Although undue influence is sometimes described as an "equitable wrong" or even as a species of equitable fraud, the = =3D basis of the court's intervention is not the commission of a dishonest or =3D wrongful act by the defendant, but that, as a matter of public policy, the =3D presumed influence arising from the relationship of trust and confidence should =3D not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives: Allcard v. Skinner (1887) 36 Ch D 145 at 171. The court scrutinises =3D the circumstances in which the transaction, under which benefits were =3D conferred on the recipient, took place and the nature of the continuing relationship =3D between the parties, rather than any specific act or conduct on the part of the recipient. A transaction may be set aside by the court, even though the =3D actions and conduct of the person who benefits from it could not be criticised =3D as wrongful. The presumption arising from the trust and confidence of their relationship made it unnecessary, for example, for Bernard to prove that Maureen actually had influence over him in relation to the gift of the, =3D House, let alone that she in fact exercised undue influence or applied improper pressure to obtain the Deed of Gift. Whether or not Maureen's conduct =3D could be described as "wrongful", the requirement of the doctrine of =3D undue influence is that it must be "affirmatively established that the =3D donor's trust and confidence in the donee has not been betrayed or abused: =3D " see Hammond at paragraph 32. On that point Mr Thomas relied on the part =3D played by Miss Tindall.

On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html<= /a=3D >


Charles
At 13:31 01/04/2004 +0100, you wrote:
Further to my last query, I should also have mentioned = =3D that in its concurrent or auxiliary jurisdiction the court of equity has on =3D any number of occasions assisted the victim of a fraud by allowing him to =3D trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why =3D should not the buyer of the worthless title to the owner's car not be able to =3D invoke the same assistance and claim the proceeds of the property of which he =3D was defrauded?
 
JEP
-----Original Message-----
From: Penner,JE
Sent: 01 April 2004 =3D 12:54
To: =3D ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] FW: =3D constructive trust in proceeds of theft

 Assume Lord Browne-Wilkinson in =3D Westdeutsche is properly =3D interpreted to say that a thief holds any proceeds from the sale of stolen goods on =3D trust for the true owner. My question what is the relationship of this trust with =3D the rights of the buyer from the thief of the stolen goods? This no doubt =3D reveals my shocking ignorance of contract law.

It seems to me that there are a couple of possible ways in which the =3D buyer can assert a right to the proceeds the thief receives from the sale, i.e. =3D the money the buyer paid the thief for the owner s goods:

(1)   Assuming that the sale is clearly fraudulent, such that =3D the thief would be liable for the tort of deceit, is it possible that the =3D buyer could claim that the contract was void ab initio? If so, then in the =3D case contemplated by LBW, then the constructive trust of proceeds would be a =3D trust over the buyer s property, which seems clearly wrong.

 (2)   If this is not the right analysis, then it  =3D would seem at the very minimum that the buyer has the right to rescind the transaction for fraudulent misreprentation (the misrepresentation by the = =3D thief being that he had good title); now we have two possible scenarios; if we = =3D assume that the buyer rescinds before the true owner makes a claim against him =3D for conversion or claims a right in the proceeds of the sale, is the =3D resulting legal or equitable title he gets still subject to owner s LBW trust? If =3D he does not rescind before either the owner makes a claim against him for =3D conversion or asserts title in the proceeds, then does the buyer necessarily lose out =3D to the LBW trust because a right to rescind is a mere equity , which does not =3D bind someone with an equitable ownership interest?

This strikes me as all very complicated because it depends upon the time = =3D at which the owner s LBW trust arises. If it arises by operation of law =3D upon the sale, then it effectively extinguishes any right to rescind or any other appropriate legal or equitable interest that the buyer might have in the = =3D money he paid, which was, after all, his property to begin with, and I don t see how that is necessarily just. =3D Indeed, it seems to me that as a matter of justice, equity s first concern =3D should be to ensure that the innocent buyer is able to recover the proceeds and any traceable product, not the true owner, who has a strict liability claim =3D against the buyer in any case his mere taking possession of the car will render =3D him liable whether the contract under whose auspices he did so is void ab =3D initio or avoided later.

One might say of course, that none of this matters practically, for if =3D the true owner asserts title in the substitute, the proceeds, then he in essence =3D adopts or ratifies the sale by the thief of his original goods, so that the =3D buyer is no longer liable for conversion. And if the buyer retains a legal or =3D equitable interest in the proceeds that prevails over the owner, then he will =3D merely have to transfer an equivalent amount to the owner anyway, because of his =3D strict liability for conversion. But what if the proceeds increase in value? =3D Say the thief sells the owner s car to the buyer for its true value of =3DA310,00= 0 =3D (its true value, which he then invests in shares now worth =3DA315,000. Both the =3D owner and the buyer will wish to have an interest in these proceeds. If the owner =3D gets them, he will have an asset worth =3DA35,000 more than what he would get = =3D from the conversion claim. Equally, if the buyer gets the proceeds, he will be =3D able to meet his conversion liability of =3DA310,000 and keep the extra =3DA35000= of =3D value. So this does seem to me to raise a real issue.

J E Penner

 

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

=3D00 ------_=3D_NextPart_001_01C41800.5E89CAA1-- ____________________________________________________________________ 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, 1 Apr 2004 11:14:02 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Undue Influence MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"------------080509000605090301050005" --------------080509000605090301050005 Content-Type: text/plain; charset=3DISO-8859-1; format=3Dflowed Content-Transfer-Encoding: 8bit If UI is not a wrong of some sort then why should the court be intervening? Why should I have to look out for the best interests of someone else? If the best that the Eng. CA can come up with is policy (which tends to make me suspicious), then I would at least like to know which policy is being served and why this might outweigh other policies such as certainty, etc. Charles Mitchell wrote: > I appreciate that this is not a particularly helpful reply to James' > question, but when considering the respective rights of the true owner > of the stolen goods and the purchaser of the goods in the situation > which he postulates, it might be useful to bear in mind that three > first-instance judges have now shown a marked reluctance to extend > Lord B-W's rule to the case where a claimant is fraudulently induced > to enter a contract under which he transfers property to a defendant > (besides questioning the rightness of Lord B-W's rule even in the case > of the thief): Box v Barclays Bank [1998] Lloyd's Law Reports Banking > 185, 200-1 (Ferris J); Papamichael v National Westminster Bank [2003] > 1 Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo > [2003] EWHC 1637 (Ch), [106]-[127] (Rimer J). > > On a completely different point, Mummery LJ has just reaffirmed Sir > Martin Nourse's comments in Hammond v Osbourn, to hold in Niersmans v > Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the > relevant bit is para 20: > > The insistence of Mr Thomas that Maureen had "done nothing wrong" is > an instance of the "continuing misconceptions" mentioned by Sir Martin > Nourse in Hammond about the circumstances in which gifts will be set > aside on the ground of presumed undue influence. Although undue > influence is sometimes described as an "equitable wrong" or even as a > species of equitable fraud, the basis of the court's intervention is > not the commission of a dishonest or wrongful act by the defendant, > but that, as a matter of public policy, the presumed influence arising > from the relationship of trust and confidence should not operate to > the disadvantage of the victim, if the transaction is not > satisfactorily explained by ordinary motives: Allcard v. Skinner > (1887) 36 Ch D 145 at 171. The court scrutinises the circumstances in > which the transaction, under which benefits were conferred on the > recipient, took place and the nature of the continuing relationship > between the parties, rather than any specific act or conduct on the > part of the recipient. A transaction may be set aside by the court, > even though the actions and conduct of the person who benefits from it > could not be criticised as wrongful. The presumption arising from the > trust and confidence of their relationship made it unnecessary, for > example, for Bernard to prove that Maureen actually had influence over > him in relation to the gift of the, House, let alone that she in fact > exercised undue influence or applied improper pressure to obtain the > Deed of Gift. Whether or not Maureen's conduct could be described as > "wrongful", the requirement of the doctrine of undue influence is that > it must be "affirmatively established that the donor's trust and > confidence in the donee has not been betrayed or abused: " see Hammond > at paragraph 32. On that point Mr Thomas relied on the part played by > Miss Tindall. > > On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html > > > Charles > At 13:31 01/04/2004 +0100, you wrote: > Further to my last query, I should also have mentioned that in its > concurrent or auxiliary jurisdiction the court of equity has on any > number of occasions assisted the victim of a fraud by allowing him to > trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc > etc. Why should not the buyer of the worthless title to the owner's > car not be able to invoke the same assistance and claim the proceeds > of the property of which he was defrauded? > > JEP > -----Original Message----- > From: Penner,JE > Sent: 01 April 2004 12:54 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] FW: constructive trust in proceeds of theft > > Assume Lord Browne-Wilkinson in Westdeutsche is properly interpreted > to say that a thief holds any proceeds from the sale of stolen goods > on trust for the true owner. My question what is the relationship of > this trust with the rights of the buyer from the thief of the stolen > goods? This no doubt reveals my shocking ignorance of contract law. > > It seems to me that there are a couple of possible ways in which the > buyer can assert a right to the proceeds the thief receives from the > sale, i.e. the money the buyer paid the thief for the owner s goods: > > (1) Assuming that the sale is clearly fraudulent, such that the > thief would be liable for the tort of deceit, is it possible that the > buyer could claim that the contract was void ab initio? If so, then in > the case contemplated by LBW, then the constructive trust of proceeds > would be a trust over the buyer s property, which seems clearly wrong. > > (2) If this is not the right analysis, then it would seem at the > very minimum that the buyer has the right to rescind the transaction > for fraudulent misreprentation (the misrepresentation by the thief > being that he had good title); now we have two possible scenarios; if > we assume that the buyer rescinds before the true owner makes a claim > against him for conversion or claims a right in the proceeds of the > sale, is the resulting legal or equitable title he gets still subject > to owner s LBW trust? If he does not rescind before either the owner > makes a claim against him for conversion or asserts title in the > proceeds, then does the buyer necessarily lose out to the LBW trust > because a right to rescind is a mere equity , which does not bind > someone with an equitable ownership interest? > > This strikes me as all very complicated because it depends upon the > time at which the owner s LBW trust arises. If it arises by operation > of law upon the sale, then it effectively extinguishes any right to > rescind or any other appropriate legal or equitable interest that the > buyer might have in the money he paid, which was, after all, his > property to begin with, and I don t see how that is necessarily just. > Indeed, it seems to me that as a matter of justice, equity s first > concern should be to ensure that the innocent buyer is able to recover > the proceeds and any traceable product, not the true owner, who has a > strict liability claim against the buyer in any case his mere taking > possession of the car will render him liable whether the contract > under whose auspices he did so is void ab initio or avoided later. > > One might say of course, that none of this matters practically, for if > the true owner asserts title in the substitute, the proceeds, then he > in essence adopts or ratifies the sale by the thief of his original > goods, so that the buyer is no longer liable for conversion. And if > the buyer retains a legal or equitable interest in the proceeds that > prevails over the owner, then he will merely have to transfer an > equivalent amount to the owner anyway, because of his strict liability > for conversion. But what if the proceeds increase in value? Say the > thief sells the owner s car to the buyer for its true value of =A310,00= 0 > (its true value, which he then invests in shares now worth =A315,000. > Both the owner and the buyer will wish to have an interest in these > proceeds. If the owner gets them, he will have an asset worth =A35,000 > more than what he would get from the conversion claim. Equally, if the > buyer gets the proceeds, he will be able to meet his conversion > liability of =A310,000 and keep the extra =A35000 of value. So this doe= s > seem to me to raise a real issue. > > J E Penner > > > > 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 -- Jason Neyers January Term Director Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------080509000605090301050005 Content-Type: text/html; charset=3Dus-ascii Content-Transfer-Encoding: 7bit If UI is not a wrong of some sort then why should the court be intervenin= g? Why should I have to look out for the best interests of someone else?&nbs= p; If the best that the Eng. CA can come up with is policy (which tends to make me suspicious), then I would at least like to know which policy is being served and why this might outweigh other policies such as certainty, etc.

Charles Mitchell wrote:
I appreci= ate that this is not a particularly helpful reply to James' question, but when considering the respective rights of the true owner of the stole= n goods and the purchaser of the goods in the situation which he postulates= , it might be useful to bear in mind that three first-instance judges have now shown a marked reluctance to extend Lord B-W's rule to the case where a claimant is fraudulently induced to enter a contract under which he tra= nsfers property to a defendant (besides questioning the rightness of Lord B-W's rule even in the case of the thief): Box v Barclays Bank [1998] Ll= oyd's Law Reports Banking 185, 200-1 (Ferris J); Papamichael v National West= minster Bank [2003] 1 Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Sh= alson v Russo [2003] EWHC 1637 (Ch), [106]-[127] (Rimer J).

On a completely different point, Mummery LJ has just reaffirmed Sir Mart= in Nourse's comments in Hammond v Osbourn, to hold in Niersmans v Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the relevant bit is para 20:

The insistence of Mr Thomas that Maureen had "done nothing wrong" is an instance of the "continuing misconceptions" mentioned by Sir Martin Nours= e in Hammond about the circumstances in which gifts will be set asid= e on the ground of presumed undue influence. Although undue influence is so= metimes described as an "equitable wrong" or even as a species of equitable fraud= , the basis of the court's intervention is not the commission of a dishones= t or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confide= nce should not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives: Allcard v. Skinne= r (1887) 36 Ch D 145 at 171. The court scrutinises the circumstances in which the transaction, under which benefits were conferred on the reci= pient, took place and the nature of the continuing relationship between the part= ies, rather than any specific act or conduct on the part of the recipient. A t= ransaction may be set aside by the court, even though the actions and conduct of the person who benefits from it could not be criticised as wrongful. The pres= umption arising from the trust and confidence of their relationship made it unnec= essary, for example, for Bernard to prove that Maureen actually had influence ove= r him in relation to the gift of the, House, let alone that she in fact exe= rcised undue influence or applied improper pressure to obtain the Deed of Gift. Whether or not Maureen's conduct could be described as "wrongful", the re= quirement of the doctrine of undue influence is that it must be "affirmatively esta= blished that the donor's trust and confidence in the donee has not been betrayed or abused: " see Hammond at paragraph 32. On that point Mr Thomas relied on the part played by Miss Tindall.

On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html=


Charles
At 13:31 01/04/2004 +0100, you wrote:
Further to my last que= ry, I should also have mentioned that in its concurrent or auxiliary jurisdiction the court of equity has on any number of occasions assisted the victim of a f= raud by allowing him to trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why should not the buyer of the worthless title to the owner's car not be able to invoke the same assistance and claim the proce= eds of the property of which he was defrauded?
 
JEP
-----Original Message-----
From: Penner,JE
Sent: 01 April 2004 12:54
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] FW: constructive trust in proceeds of theft

 Assume Lord Browne-Wilkinson in Westdeut= sche is properly interpreted to say that a thief holds any proceeds from the s= ale of stolen goods on trust for the true owner. My question what is the rela= tionship of this trust with the rights of the buyer from the thief of the stolen g= oods? This no doubt reveals my shocking ignorance of contract law.

It seems to me that there are a couple of possible ways in which the buy= er can assert a right to the proceeds the thief receives from the sale, i.e. the money the buyer paid the thief for the owner s goods:

(1)   Assuming that the sale is clearly fraudulent, such that = the thief would be liable for the tort of deceit, is it possible that the buyer cou= ld claim that the contract was void ab initio? If so, then in the case conte= mplated by LBW, then the constructive trust of proceeds would be a trust over the buyer s property, which seems clearly wrong.

 (2)   If this is not the right analysis, then it  w= ould seem at the very minimum that the buyer has the right to rescind the transaction for fraud= ulent misreprentation (the misrepresentation by the thief being that he had goo= d title); now we have two possible scenarios; if we assume that the buyer r= escinds before the true owner makes a claim against him for conversion or claims a right in the proceeds of the sale, is the resulting legal or equitable title he gets still subject to owner s LBW trust? If he does not rescind before either the owner makes a claim against him for conversion or asser= ts title in the proceeds, then does the buyer necessarily lose out to the LB= W trust because a right to rescind is a mere equity , which does not bind s= omeone with an equitable ownership interest?

This strikes me as all very complicated because it depends upon the time at which the owner s LBW trust arises. If it arises by operation of law u= pon the sale, then it effectively extinguishes any right to rescind or any ot= her appropriate legal or equitable interest that the buyer might have in the money he paid, which was, after all, his property to begin with, a= nd I don t see how that is necessarily just. Indeed, it seems to me that as a matter of justice, equity s first concern should be to ensure that the innocent buyer is able to recover the proceeds and any traceable product, not the true owner, who has a strict liability claim against the buyer in any case his mere taking possession of the car will render him liable whe= ther the contract under whose auspices he did so is void ab initio or avoided later.

One might say of course, that none of this matters practically, for if t= he true owner asserts title in the substitute, the proceeds, then he in esse= nce adopts or ratifies the sale by the thief of his original goods, so that t= he buyer is no longer liable for conversion. And if the buyer retains a lega= l or equitable interest in the proceeds that prevails over the owner, then he will merely have to transfer an equivalent amount to the owner anyway, because of his strict liability for conversion. But what if the proceeds increase in value? Say the thief sells the owner s car to the buyer for i= ts true value of £10,000 (its true value, which he then invests in sha= res now worth £15,000. Both the owner and the buyer will wish to have an in= terest in these proceeds. If the owner gets them, he will have an asset worth &p= ound;5,000 more than what he would get from the conversion claim. Equally, if the bu= yer gets the proceeds, he will be able to meet his conversion liability of &p= ound;10,000 and keep the extra £5000 of value. So this does seem to me to raise= a real issue.

J E Penner

 

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
--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

--------------080509000605090301050005-- ____________________________________________________________________ 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, 1 Apr 2004 20:24:17 +0100 Reply-To: William Swadling Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: William Swadling Subject: Re: Undue Influence Comments: To: Jason Neyers MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=3D"----=3D_NextPart_000_00EF_01C41827.4E8AFFE0" This is a multi-part message in MIME format. ------=3D_NextPart_000_00EF_01C41827.4E8AFFE0 Content-Type: text/plain; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable If I pay you =3DA3100 by mistake, you commit no wrong in your receipt. =3D Yet a court will intervene and order you to repay me that amount. The =3D point which Mummery LJ is making, and quite rightly so, is that the =3D repayment of money paid through undue influence can be explained as a =3D species of unjust enrichment, without any need to rely on wrongdoing.=3D2= 0 W J Swadling ----- Original Message -----=3D20 From: Jason Neyers=3D20 To: ENRICHMENT@LISTS.MCGILL.CA=3D20 Sent: Thursday, April 01, 2004 5:14 PM Subject: [RDG:] Undue Influence If UI is not a wrong of some sort then why should the court be =3D intervening? Why should I have to look out for the best interests of =3D someone else? If the best that the Eng. CA can come up with is policy =3D (which tends to make me suspicious), then I would at least like to know =3D which policy is being served and why this might outweigh other policies =3D such as certainty, etc.=3D20 Charles Mitchell wrote: I appreciate that this is not a particularly helpful reply to James' = =3D question, but when considering the respective rights of the true owner =3D of the stolen goods and the purchaser of the goods in the situation =3D which he postulates, it might be useful to bear in mind that three =3D first-instance judges have now shown a marked reluctance to extend Lord =3D B-W's rule to the case where a claimant is fraudulently induced to enter = =3D a contract under which he transfers property to a defendant (besides =3D questioning the rightness of Lord B-W's rule even in the case of the =3D thief): Box v Barclays Bank [1998] Lloyd's Law Reports Banking 185, =3D 200-1 (Ferris J); Papamichael v National Westminster Bank [2003] 1 =3D Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo [2003] = =3D EWHC 1637 (Ch), [106]-[127] (Rimer J). On a completely different point, Mummery LJ has just reaffirmed Sir =3D Martin Nourse's comments in Hammond v Osbourn, to hold in Niersmans v =3D Pesticcio [2004] EWCA Civ 372 that UI is not an equitable wrong: the =3D relevant bit is para 20: The insistence of Mr Thomas that Maureen had "done nothing wrong" is = =3D an instance of the "continuing misconceptions" mentioned by Sir Martin =3D Nourse in Hammond about the circumstances in which gifts will be set =3D aside on the ground of presumed undue influence. Although undue =3D influence is sometimes described as an "equitable wrong" or even as a =3D species of equitable fraud, the basis of the court's intervention is not = =3D the commission of a dishonest or wrongful act by the defendant, but =3D that, as a matter of public policy, the presumed influence arising from =3D the relationship of trust and confidence should not operate to the =3D disadvantage of the victim, if the transaction is not satisfactorily =3D explained by ordinary motives: Allcard v. Skinner (1887) 36 Ch D 145 at =3D 171. The court scrutinises the circumstances in which the transaction, =3D under which benefits were conferred on the recipient, took place and the = =3D nature of the continuing relationship between the parties, rather than =3D any specific act or conduct on the part of the recipient. A transaction =3D may be set aside by the court, even though the actions and conduct of =3D the person who benefits from it could not be criticised as wrongful. The = =3D presumption arising from the trust and confidence of their relationship =3D made it unnecessary, for example, for Bernard to prove that Maureen =3D actually had influence over him in relation to the gift of the, House, =3D let alone that she in fact exercised undue influence or applied improper = =3D pressure to obtain the Deed of Gift. Whether or not Maureen's conduct =3D could be described as "wrongful", the requirement of the doctrine of =3D undue influence is that it must be "affirmatively established that the =3D donor's trust and confidence in the donee has not been betrayed or =3D abused: " see Hammond at paragraph 32. On that point Mr Thomas relied on = =3D the part played by Miss Tindall.=3D20 On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html Charles At 13:31 01/04/2004 +0100, you wrote: Further to my last query, I should also have mentioned that in its =3D concurrent or auxiliary jurisdiction the court of equity has on any =3D number of occasions assisted the victim of a fraud by allowing him to =3D trace into the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. = =3D Why should not the buyer of the worthless title to the owner's car not =3D be able to invoke the same assistance and claim the proceeds of the =3D property of which he was defrauded? =3D20 JEP -----Original Message----- From: Penner,JE=3D20 Sent: 01 April 2004 12:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] FW: constructive trust in proceeds of theft Assume Lord Browne-Wilkinson in Westdeutsche is properly =3D interpreted to say that a thief holds any proceeds from the sale of =3D stolen goods on trust for the true owner. My question what is the =3D relationship of this trust with the rights of the buyer from the thief =3D of the stolen goods? This no doubt reveals my shocking ignorance of =3D contract law.=3D20 It seems to me that there are a couple of possible ways in which the = =3D buyer can assert a right to the proceeds the thief receives from the =3D sale, i.e. the money the buyer paid the thief for the owner s goods: (1) Assuming that the sale is clearly fraudulent, such that the =3D thief would be liable for the tort of deceit, is it possible that the =3D buyer could claim that the contract was void ab initio? If so, then in =3D the case contemplated by LBW, then the constructive trust of proceeds =3D would be a trust over the buyer s property, which seems clearly wrong.=3D= 20 (2) If this is not the right analysis, then it would seem at the = =3D very minimum that the buyer has the right to rescind the transaction for = =3D fraudulent misreprentation (the misrepresentation by the thief being =3D that he had good title); now we have two possible scenarios; if we =3D assume that the buyer rescinds before the true owner makes a claim =3D against him for conversion or claims a right in the proceeds of the =3D sale, is the resulting legal or equitable title he gets still subject to = =3D owner s LBW trust? If he does not rescind before either the owner makes =3D a claim against him for conversion or asserts title in the proceeds, =3D then does the buyer necessarily lose out to the LBW trust because a =3D right to rescind is a mere equity , which does not bind someone with an =3D equitable ownership interest? This strikes me as all very complicated because it depends upon the =3D time at which the owner s LBW trust arises. If it arises by operation of = =3D law upon the sale, then it effectively extinguishes any right to rescind = =3D or any other appropriate legal or equitable interest that the buyer =3D might have in the money he paid, which was, after all, his property to =3D begin with, and I don t see how that is necessarily just. Indeed, it =3D seems to me that as a matter of justice, equity s first concern should =3D be to ensure that the innocent buyer is able to recover the proceeds and = =3D any traceable product, not the true owner, who has a strict liability =3D claim against the buyer in any case his mere taking possession of the =3D car will render him liable whether the contract under whose auspices he =3D did so is void ab initio or avoided later.=3D20 One might say of course, that none of this matters practically, for =3D if the true owner asserts title in the substitute, the proceeds, then he = =3D in essence adopts or ratifies the sale by the thief of his original =3D goods, so that the buyer is no longer liable for conversion. And if the =3D buyer retains a legal or equitable interest in the proceeds that =3D prevails over the owner, then he will merely have to transfer an =3D equivalent amount to the owner anyway, because of his strict liability =3D for conversion. But what if the proceeds increase in value? Say the =3D thief sells the owner s car to the buyer for its true value of =3DA310,00= 0 =3D (its true value, which he then invests in shares now worth =3DA315,000. =3D Both the owner and the buyer will wish to have an interest in these =3D proceeds. If the owner gets them, he will have an asset worth =3DA35,000 = =3D more than what he would get from the conversion claim. Equally, if the =3D buyer gets the proceeds, he will be able to meet his conversion =3D liability of =3DA310,000 and keep the extra =3DA35000 of value. So this d= oes =3D seem to me to raise a real issue.=3D20 J E Penner =3D20 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 -- Jason Neyers January Term Director Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=3D20 ------=3D_NextPart_000_00EF_01C41827.4E8AFFE0 Content-Type: text/html; charset=3D"iso-8859-1" Content-Transfer-Encoding: quoted-printable
If I pay you =3DA3100 by mistake, you commit no wrong in your =3D receipt. =3D20 Yet a court will intervene and order you to repay me that amount.  =3D The=3D20 point which Mummery LJ is making, and quite rightly so, is that the = =3D repayment of money paid through undue influence can be explained as = =3D a=3D20 species of unjust enrichment, without any need to rely=3D20 on wrongdoing. 
 
W J Swadling
----- Original Message -----
From:=3D20 Jason =3D Neyers
Sent: Thursday, April 01, 2004= =3D 5:14=3D20 PM
Subject: [RDG:] Undue =3D Influence

If UI is not a wrong of some sort then why should the =3D court be=3D20 intervening? Why should I have to look out for the best interests of =3D someone=3D20 else?  If the best that the Eng. CA can come up with is policy =3D (which=3D20 tends to make me suspicious), then I would at least like to know which = =3D policy=3D20 is being served and why this might outweigh other policies such as =3D certainty,=3D20 etc.

Charles Mitchell wrote:
I appreciate that this is not a particularly =3D helpful=3D20 reply to James' question, but when considering the respective rights = =3D of the=3D20 true owner of the stolen goods and the purchaser of the goods in the = =3D situation which he postulates, it might be useful to bear in mind =3D that three=3D20 first-instance judges have now shown a marked reluctance to extend =3D Lord=3D20 B-W's rule to the case where a claimant is fraudulently induced to =3D enter a=3D20 contract under which he transfers property to a defendant (besides=3D= 20 questioning the rightness of Lord B-W's rule even in the case of the = =3D thief):=3D20 Box v Barclays Bank [1998] Lloyd's Law Reports Banking 185, =3D 200-1=3D20 (Ferris J); Papamichael v National Westminster Bank [2003] 1 =3D Lloyd's=3D20 Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo =3D [2003] EWHC=3D20 1637 (Ch), [106]-[127] (Rimer J).

On a completely different =3D point,=3D20 Mummery LJ has just reaffirmed Sir Martin Nourse's comments in =3D Hammond v=3D20 Osbourn, to hold in Niersmans v Pesticcio [2004] EWCA Civ = =3D 372=3D20 that UI is not an equitable wrong: the relevant bit is para =3D 20:

The=3D20 insistence of Mr Thomas that Maureen had "done nothing wrong" is an =3D instance=3D20 of the "continuing misconceptions" mentioned by Sir Martin Nourse in = =3D Hammond about the circumstances in which gifts will be set =3D aside on=3D20 the ground of presumed undue influence. Although undue influence is=3D= 20 sometimes described as an "equitable wrong" or even as a species of=3D= 20 equitable fraud, the basis of the court's intervention is not the =3D commission=3D20 of a dishonest or wrongful act by the defendant, but that, as a =3D matter of=3D20 public policy, the presumed influence arising from the relationship =3D of trust=3D20 and confidence should not operate to the disadvantage of the victim, = =3D if the=3D20 transaction is not satisfactorily explained by ordinary motives: =3D Allcard=3D20 v. Skinner (1887) 36 Ch D 145 at 171. The court scrutinises the=3D= 20 circumstances in which the transaction, under which benefits were =3D conferred=3D20 on the recipient, took place and the nature of the continuing =3D relationship=3D20 between the parties, rather than any specific act or conduct on the =3D part of=3D20 the recipient. A transaction may be set aside by the court, even =3D though the=3D20 actions and conduct of the person who benefits from it could not be=3D= 20 criticised as wrongful. The presumption arising from the trust and=3D= 20 confidence of their relationship made it unnecessary, for example, =3D for=3D20 Bernard to prove that Maureen actually had influence over him in =3D relation to=3D20 the gift of the, House, let alone that she in fact exercised undue =3D influence=3D20 or applied improper pressure to obtain the Deed of Gift. Whether or =3D not=3D20 Maureen's conduct could be described as "wrongful", the requirement =3D of the=3D20 doctrine of undue influence is that it must be "affirmatively =3D established=3D20 that the donor's trust and confidence in the donee has not been =3D betrayed or=3D20 abused: " see Hammond at paragraph 32. On that point Mr =3D Thomas relied=3D20 on the part played by Miss Tindall.

On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.htm= l<=3D /A>


Charles
At=3D20 13:31 01/04/2004 +0100, you wrote:
Further to my last query, I should also have mentioned tha= t =3D in its=3D20 concurrent or auxiliary jurisdiction the court of equity has on any =3D number=3D20 of occasions assisted the victim of a fraud by allowing him to trace = =3D into=3D20 the proceeds of the fraud -- Agip (Africa), El Ajou, etc etc. Why =3D should not=3D20 the buyer of the worthless title to the owner's car not be able to =3D invoke=3D20 the same assistance and claim the proceeds of the property of which =3D he was=3D20 defrauded?
 
JEP
----- Origin= al=3D20 Message-----
From: Penner,JE
Sent: 01 April =3D 2004=3D20 12:54
To: ENRICHMENT@LISTS.M CGILL.CA=3D
Subject:=3D20 [RDG:] FW: constructive trust in proceeds of =3D theft

 Assume Lord Browne-Wilkinson in Westdeutsche is =3D properly=3D20 interpreted to say that a thief holds any proceeds from the sale of =3D stolen=3D20 goods on trust for the true owner. My question what is the =3D relationship of=3D20 this trust with the rights of the buyer from the thief of the stolen = =3D goods?=3D20 This no doubt reveals my shocking ignorance of contract law. =3D

It=3D20 seems to me that there are a couple of possible ways in which the =3D buyer can=3D20 assert a right to the proceeds the thief receives from the sale, =3D i.e. the=3D20 money the buyer paid the thief for the owner s =3D goods:

(1)  =3D20 Assuming that the sale is clearly fraudulent, such that the thief =3D would be=3D20 liable for the tort of deceit, is it possible that the buyer could =3D claim=3D20 that the contract was void ab initio? If so, then in the case =3D contemplated=3D20 by LBW, then the constructive trust of proceeds would be a trust =3D over the=3D20 buyer s property, which seems clearly wrong. =3D

 (2)  =3D20 If this is not the right analysis, then it  would seem at the =3D very=3D20 minimum that the buyer has the right to rescind the transaction for=3D= 20 fraudulent misreprentation (the misrepresentation by the thief being = =3D that he=3D20 had good title); now we have two possible scenarios; if we assume =3D that the=3D20 buyer rescinds before the true owner makes a claim against him for=3D= 20 conversion or claims a right in the proceeds of the sale, is the =3D resulting=3D20 legal or equitable title he gets still subject to owner s LBW trust? = =3D If he=3D20 does not rescind before either the owner makes a claim against him =3D for=3D20 conversion or asserts title in the proceeds, then does the buyer =3D necessarily=3D20 lose out to the LBW trust because a right to rescind is a mere =3D equity ,=3D20 which does not bind someone with an equitable ownership=3D20 interest?

This strikes me as all very complicated because it =3D depends=3D20 upon the time at which the owner s LBW trust arises. If it arises by = =3D operation of law upon the sale, then it effectively extinguishes any = =3D right=3D20 to rescind or any other appropriate legal or equitable interest that = =3D the=3D20 buyer might have in the money he paid, which was, after all, =3D his=3D20 property to begin with, and I don t see how that is necessarily =3D just.=3D20 Indeed, it seems to me that as a matter of justice, equity s first =3D concern=3D20 should be to ensure that the innocent buyer is able to recover the =3D proceeds=3D20 and any traceable product, not the true owner, who has a strict =3D liability=3D20 claim against the buyer in any case his mere taking possession of =3D the car=3D20 will render him liable whether the contract under whose auspices he =3D did so=3D20 is void ab initio or avoided later.

One might say of course, = =3D that=3D20 none of this matters practically, for if the true owner asserts =3D title in the=3D20 substitute, the proceeds, then he in essence adopts or ratifies the =3D sale by=3D20 the thief of his original goods, so that the buyer is no longer =3D liable for=3D20 conversion. And if the buyer retains a legal or equitable interest =3D in the=3D20 proceeds that prevails over the owner, then he will merely have to =3D transfer=3D20 an equivalent amount to the owner anyway, because of his strict =3D liability=3D20 for conversion. But what if the proceeds increase in value? Say the =3D thief=3D20 sells the owner s car to the buyer for its true value of =3DA310,000 = =3D (its true=3D20 value, which he then invests in shares now worth =3DA315,000. Both th= e =3D owner and=3D20 the buyer will wish to have an interest in these proceeds. If the =3D owner gets=3D20 them, he will have an asset worth =3DA35,000 more than what he would = =3D get from=3D20 the conversion claim. Equally, if the buyer gets the proceeds, he =3D will be=3D20 able to meet his conversion liability of =3DA310,000 and keep the =3D extra =3DA35000 of=3D20 value. So this does seem to me to raise a real issue.

J E=3D2= 0 Penner

 

Dr= =3D Charles=3D20 Mitchell
Reader in Law
Director of Postgraduate Taught=3D20 Programmes
School of Law
King's College =3D London
Strand
London=3D20 WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 =3D 2465
--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 






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____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

 an international internet LISTSERV devoted to all aspects of the law

 of unjust enrichment. To subscribe, send "subscribe enrichment" in

 the body of a message to . 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, 1 Apr 2004 21:28:13 +0100

Reply-To:     William Swadling 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         William Swadling 

Subject:      Fw: [LF] University Lecturership in Property Law and Trusts

MIME-Version: 1.0

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Please forgive any breach of etiquette, but I wondered if members of the =

=3D

list might be interested in a new permanent position in Property and =3D

Trusts offered by the University of Oxford.  Alternatively, if you know =3D

of anyone who might be interested, I'd be grateful if you'd pass it on.



Bill Swadling



UNIVERSITY OF OXFORD



FACULTY OF LAW



In association with Trinity College



UNIVERSITY LECTURERSHIP IN PROPERTY LAW AND TRUSTS



Salary up to =3DA342,900 per annum (under review)



Applications are invited for this new post, to start on 1 October 2004=3D=

20

or as soon as possible after that date. The University Lecturership is=3D=

20

associated with a tutorial fellowship at Trinity College. The combined=3D=

20

university and college salary will be according to age on a scale up to=3D=

20

=3DA342,900 per annum (pay award pending), plus housing allowance and =3D

other=3D20

college allowances. Further particulars (containing details of the=3D20

duties and full range of benefits and allowances associated with both=3D2=

0

the university and the college posts) may be obtained on the web at=3D20

http://www.admin.ox.ac.uk/fp/ or from Mrs S.E. Samuelson, Faculty=3D20

Administrator, Faculty of Law, St Cross Building, St Cross Road, Oxford, =

=3D



OX1 3UL (email: lawfac@law.ox.ac.uk, tel. 01865 271491). The closing=3D20

date for applications is Tuesday 4 May 2004.



This post is in an area currently designated by the Higher Education=3D20

Funding Council as a shortage subject under its =3D91Golden Hello=3D92 =3D

Scheme.=3D20

The appointee may therefore be eligible for a three year salary=3D20

supplement if he or she fulfils certain conditions and if funds are=3D20

available in the limited budget for the scheme.



The University is an equal opportunities employer.

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Please forgive any breach of etiquette, but I wondered if members =3D

of the=3D20

list might be interested in a new permanent position in Property and =3D

Trusts=3D20

offered by the University of Oxford.  Alternatively, if you know of =

=3D

anyone=3D20

who might be interested, I'd be grateful if you'd pass it on.



 



Bill Swadling

UNIVERSITY OF OXFORD

FACULTY 

OF =3D

LAW

In=3D20

association with Trinity College

UNIVERSITY LECTURERSHIP IN =3D

PROPERTY LAW=3D20

AND TRUSTS

Salary up to =3DA342,900 per annum (under=3D20

review)

Applications are invited for this new post, to start on 1 =

=3D

October=3D20

2004 
or as soon as possible after that date. The University =3D

Lecturership is=3D20


associated with a tutorial fellowship at Trinity College. The =3D

combined=3D20


university and college salary will be according to age on a scale up =

=3D

to=3D20


=3DA342,900 per annum (pay award pending), plus housing allowance and=

 =3D

other=3D20


college allowances. Further particulars (containing details of the=3D=

20


duties and full range of benefits and allowances associated with =3D

both=3D20


the university and the college posts) may be obtained on the web at =3D


http://www.admin.ox.ac.uk/fp/ =3D

or from=3D20

Mrs S.E. Samuelson, Faculty 
Administrator, Faculty of Law, St Cross=3D=

20

Building, St Cross Road, Oxford, 
OX1 3UL (email: lawfac@law.ox.ac.uk, tel. 01865=

 =3D

271491).=3D20

The closing 
date for applications is Tuesday 4 May 2004.

This =

=3D

post is=3D20

in an area currently designated by the Higher Education 
Funding =3D

Council as a=3D20

shortage subject under its =3D91Golden Hello=3D92 Scheme. 
The appoint=

ee =3D

may=3D20

therefore be eligible for a three year salary 
supplement if he or =3D

she=3D20

fulfils certain conditions and if funds are 
available in the limited =

=3D

budget=3D20

for the scheme.

The University is an equal opportunities=3D20

employer.



------=3D_NextPart_000_016E_01C41830.3D06A900--



____________________________________________________________________

 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, 1 Apr 2004 16:28:38 -0500

Reply-To:     Jason Neyers 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Jason Neyers 

Subject:      Re: Undue Influence

Comments: To: William Swadling 

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I guess the trouble that I have is that I fail to see how it can be an

UE when there is a "juristic reason" justifying the retention of the

value, in most cases of UI a gift or contract.  In order to show that

the enrichment is unjust, one must then attack the underlying contract

or gift which requires some sort of fault (duress, breach of fiduciary

duty, etc.) or the implicit objective agreement of the parties that it

is not to bind in certain circumstances (conditional gift, fundamental

mistake in assumptions, etc.).  If UI is not about fault then how does

it upset the underlying contract or gift so that UE can operate?



As an aside, the other problem that I have with the doctrine is that the

presumptions of UI are seemingly applied counter intuitively -- i.e. in

the very type of relationship where one would be most likely to subvert

their desire for gain or equivalent exchange, such as family

relationships, the law presumes some sort of quasi-fault rather than the

fulfillment of natural obligation.



Cheers,



William Swadling wrote:



> If I pay you =A3100 by mistake, you commit no wrong in your receipt.

> Yet a court will intervene and order you to repay me that amount.  The

> point which Mummery LJ is making, and quite rightly so, is that the

> repayment of money paid through undue influence can be explained as a

> species of unjust enrichment, without any need to rely on wrongdoing.

>

> W J Swadling

>

>     ----- Original Message -----

>     From: Jason Neyers 

>     To: ENRICHMENT@LISTS.MCGILL.CA 



>     Sent: Thursday, April 01, 2004 5:14 PM

>     Subject: [RDG:] Undue Influence

>

>     If UI is not a wrong of some sort then why should the court be

>     intervening? Why should I have to look out for the best interests

>     of someone else?  If the best that the Eng. CA can come up with is

>     policy (which tends to make me suspicious), then I would at least

>     like to know which policy is being served and why this might

>     outweigh other policies such as certainty, etc.

>

>     Charles Mitchell wrote:

>

>>     I appreciate that this is not a particularly helpful reply to

>>     James' question, but when considering the respective rights of

>>     the true owner of the stolen goods and the purchaser of the goods

>>     in the situation which he postulates, it might be useful to bear

>>     in mind that three first-instance judges have now shown a marked

>>     reluctance to extend Lord B-W's rule to the case where a claimant

>>     is fraudulently induced to enter a contract under which he

>>     transfers property to a defendant (besides questioning the

>>     rightness of Lord B-W's rule even in the case of the thief): Box

>>     v Barclays Bank [1998] Lloyd's Law Reports Banking 185, 200-1

>>     (Ferris J); Papamichael v National Westminster Bank [2003] 1

>>     Lloyd's Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo

>>     [2003] EWHC 1637 (Ch), [106]-[127] (Rimer J).

>>

>>     On a completely different point, Mummery LJ has just reaffirmed

>>     Sir Martin Nourse's comments in Hammond v Osbourn, to hold in

>>     Niersmans v Pesticcio [2004] EWCA Civ 372 that UI is not an

>>     equitable wrong: the relevant bit is para 20:

>>

>>     The insistence of Mr Thomas that Maureen had "done nothing wrong"

>>     is an instance of the "continuing misconceptions" mentioned by

>>     Sir Martin Nourse in Hammond about the circumstances in which

>>     gifts will be set aside on the ground of presumed undue

>>     influence. Although undue influence is sometimes described as an

>>     "equitable wrong" or even as a species of equitable fraud, the

>>     basis of the court's intervention is not the commission of a

>>     dishonest or wrongful act by the defendant, but that, as a matter

>>     of public policy, the presumed influence arising from the

>>     relationship of trust and confidence should not operate to the

>>     disadvantage of the victim, if the transaction is not

>>     satisfactorily explained by ordinary motives: Allcard v. Skinner

>>     (1887) 36 Ch D 145 at 171. The court scrutinises the

>>     circumstances in which the transaction, under which benefits were

>>     conferred on the recipient, took place and the nature of the

>>     continuing relationship between the parties, rather than any

>>     specific act or conduct on the part of the recipient. A

>>     transaction may be set aside by the court, even though the

>>     actions and conduct of the person who benefits from it could not

>>     be criticised as wrongful. The presumption arising from the trust

>>     and confidence of their relationship made it unnecessary, for

>>     example, for Bernard to prove that Maureen actually had influence

>>     over him in relation to the gift of the, House, let alone that

>>     she in fact exercised undue influence or applied improper

>>     pressure to obtain the Deed of Gift. Whether or not Maureen's

>>     conduct could be described as "wrongful", the requirement of the

>>     doctrine of undue influence is that it must be "affirmatively

>>     established that the donor's trust and confidence in the donee

>>     has not been betrayed or abused: " see Hammond at paragraph 32.

>>     On that point Mr Thomas relied on the part played by Miss Tindall.

>>

>>     On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html

>>

>>

>>     Charles

>>     At 13:31 01/04/2004 +0100, you wrote:

>>     Further to my last query, I should also have mentioned that in

>>     its concurrent or auxiliary jurisdiction the court of equity has

>>     on any number of occasions assisted the victim of a fraud by

>>     allowing him to trace into the proceeds of the fraud -- Agip

>>     (Africa), El Ajou, etc etc. Why should not the buyer of the

>>     worthless title to the owner's car not be able to invoke the same

>>     assistance and claim the proceeds of the property of which he was

>>     defrauded?

>>

>>     JEP

>>     -----Original Message-----

>>     From: Penner,JE

>>     Sent: 01 April 2004 12:54

>>     To: ENRICHMENT@LISTS.MCGILL.CA

>>     Subject: [RDG:] FW: constructive trust in proceeds of theft

>>

>>      Assume Lord Browne-Wilkinson in Westdeutsche is properly

>>     interpreted to say that a thief holds any proceeds from the sale

>>     of stolen goods on trust for the true owner. My question what is

>>     the relationship of this trust with the rights of the buyer from

>>     the thief of the stolen goods? This no doubt reveals my shocking

>>     ignorance of contract law.

>>

>>     It seems to me that there are a couple of possible ways in which

>>     the buyer can assert a right to the proceeds the thief receives

>>     from the sale, i.e. the money the buyer paid the thief for the

>>     owner s goods:

>>

>>     (1)   Assuming that the sale is clearly fraudulent, such that the

>>     thief would be liable for the tort of deceit, is it possible that

>>     the buyer could claim that the contract was void ab initio? If

>>     so, then in the case contemplated by LBW, then the constructive

>>     trust of proceeds would be a trust over the buyer s property,

>>     which seems clearly wrong.

>>

>>      (2)   If this is not the right analysis, then it  would seem at

>>     the very minimum that the buyer has the right to rescind the

>>     transaction for fraudulent misreprentation (the misrepresentation

>>     by the thief being that he had good title); now we have two

>>     possible scenarios; if we assume that the buyer rescinds before

>>     the true owner makes a claim against him for conversion or claims

>>     a right in the proceeds of the sale, is the resulting legal or

>>     equitable title he gets still subject to owner s LBW trust? If he

>>     does not rescind before either the owner makes a claim against

>>     him for conversion or asserts title in the proceeds, then does

>>     the buyer necessarily lose out to the LBW trust because a right

>>     to rescind is a mere equity , which does not bind someone with an

>>     equitable ownership interest?

>>

>>     This strikes me as all very complicated because it depends upon

>>     the time at which the owner s LBW trust arises. If it arises by

>>     operation of law upon the sale, then it effectively extinguishes

>>     any right to rescind or any other appropriate legal or equitable

>>     interest that the buyer might have in the money he paid, which

>>     was, after all, his property to begin with, and I don t see how

>>     that is necessarily just. Indeed, it seems to me that as a matter

>>     of justice, equity s first concern should be to ensure that the

>>     innocent buyer is able to recover the proceeds and any traceable

>>     product, not the true owner, who has a strict liability claim

>>     against the buyer in any case his mere taking possession of the

>>     car will render him liable whether the contract under whose

>>     auspices he did so is void ab initio or avoided later.

>>

>>     One might say of course, that none of this matters practically,

>>     for if the true owner asserts title in the substitute, the

>>     proceeds, then he in essence adopts or ratifies the sale by the

>>     thief of his original goods, so that the buyer is no longer

>>     liable for conversion. And if the buyer retains a legal or

>>     equitable interest in the proceeds that prevails over the owner,

>>     then he will merely have to transfer an equivalent amount to the

>>     owner anyway, because of his strict liability for conversion. But

>>     what if the proceeds increase in value? Say the thief sells the

>>     owner s car to the buyer for its true value of =A310,000 (its true

>>     value, which he then invests in shares now worth =A315,000. Both

>>     the owner and the buyer will wish to have an interest in these

>>     proceeds. If the owner gets them, he will have an asset worth

>>     =A35,000 more than what he would get from the conversion claim.

>>     Equally, if the buyer gets the proceeds, he will be able to meet

>>     his conversion liability of =A310,000 and keep the extra =A35000 o=

f

>>     value. So this does seem to me to raise a real issue.

>>

>>     J E Penner

>>

>>

>>

>>     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

>

>--

>Jason Neyers

>January Term Director

>Assistant Professor of Law

>Faculty of Law

>University of Western Ontario

>N6A 3K7

>(519) 661-2111 x. 88435

>

>

>



--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435







--------------000103080001000609030101

Content-Type: text/html; charset=3Dus-ascii

Content-Transfer-Encoding: 7bit









  

  





I guess the trouble that I have is that I fail to see how it can be an UE

when there is a "juristic reason" justifying the retention of the value,

in most cases of UI a gift or contract.  In order to show that the e=

nrichment

is unjust, one must then attack the underlying contract or gift which req=

uires

some sort of fault (duress, breach of fiduciary duty, etc.) or the implic=

it

objective agreement of the parties that it is not to bind in certain circ=

umstances

(conditional gift, fundamental mistake in assumptions, etc.).  If UI=

 is not

about fault then how does it upset the underlying contract or gift s=

o that

UE can operate? 





As an aside, the other problem that I have with the doctrine is that the

presumptions of UI are seemingly applied counter intuitively -- i.e. in t=

he

very type of relationship where one would be most likely to subvert their

desire for gain or equivalent exchange, such as family relationships, the

law presumes some sort of quasi-fault rather than the fulfillment of natu=

ral

obligation.     





Cheers,





William Swadling wrote:





  



  



  



  

  
If I pay you £100 by mistake, you commit no wrong in your re=

ceipt. 

 Yet a court will intervene and order you to repay me that amount.  =

The  point

which Mummery LJ is making, and quite rightly so, is that the  repay=

ment

of money paid through undue influence can be explained as a  species=

 of unjust

enrichment, without any need to rely  on wrongdoing. 




  
 




  
W J Swadling




  




    
-----

Original Message ----- 




    



    



    
Sent:

Thursday, April 01, 2004 5:14    PM




    
Subject:

[RDG:] Undue Influence




    



    


If UI is not a wrong of some sort then why should the court be    interve=

ning?

Why should I have to look out for the best interests of someone    else?&=

nbsp;

If the best that the Eng. CA can come up with is policy (which    tends t=

o

make me suspicious), then I would at least like to know which policy    i=

s

being served and why this might outweigh other policies such as certainty=

,

   etc. 


    


Charles Mitchell wrote:




    
I

appreciate that this is not a particularly helpful      reply to J=

ames'

question, but when considering the respective rights of the      true own=

er

of the stolen goods and the purchaser of the goods in the      situation

which he postulates, it might be useful to bear in mind that three      f=

irst-instance

judges have now shown a marked reluctance to extend Lord      B-W's rule

to the case where a claimant is fraudulently induced to enter a      cont=

ract

under which he transfers property to a defendant (besides      questionin=

g

the rightness of Lord B-W's rule even in the case of the thief):      =

Box

v Barclays Bank [1998] Lloyd's Law Reports Banking 185, 200-1      (F=

erris

J); Papamichael v National Westminster Bank [2003] 1 Lloyd's

Rep 341, [231]-[241] (Judge Chambers QC); Shalson v Russo [2003] E=

WHC

     1637 (Ch), [106]-[127] (Rimer J).


      


On a completely different point,      Mummery LJ has just reaffirmed Sir

Martin Nourse's comments in Hammond v      Osbourn, to hold in =

Niersmans

v Pesticcio [2004] EWCA Civ 372      that UI is not an equitable wron=

g:

the relevant bit is para 20:


      


The      insistence of Mr Thomas that Maureen had "done nothing wrong" is

an instance      of the "continuing misconceptions" mentioned by Sir Mart=

in

Nourse in      Hammond about the circumstances in which gifts will

be set aside on      the ground of presumed undue influence. Although und=

ue

influence is      sometimes described as an "equitable wrong" or even as

a species of      equitable fraud, the basis of the court's intervention

is not the commission      of a dishonest or wrongful act by the defendan=

t,

but that, as a matter of      public policy, the presumed influence arisi=

ng

from the relationship of trust      and confidence should not operate to

the disadvantage of the victim, if the      transaction is not satisfacto=

rily

explained by ordinary motives: Allcard      v. Skinner (1887) 36 C=

h

D 145 at 171. The court scrutinises the      circumstances in which the t=

ransaction,

under which benefits were conferred      on the recipient, took place and

the nature of the continuing relationship      between the parties, rathe=

r

than any specific act or conduct on the part of      the recipient. A tra=

nsaction

may be set aside by the court, even though the      actions and conduct o=

f

the person who benefits from it could not be      criticised as wrongful.

The presumption arising from the trust and      confidence of their relat=

ionship

made it unnecessary, for example, for      Bernard to prove that Maureen

actually had influence over him in relation to      the gift of the, Hous=

e,

let alone that she in fact exercised undue influence      or applied impr=

oper

pressure to obtain the Deed of Gift. Whether or not      Maureen's conduc=

t

could be described as "wrongful", the requirement of the      doctrine of

undue influence is that it must be "affirmatively established      that t=

he

donor's trust and confidence in the donee has not been betrayed or      a=

bused:

" see Hammond at paragraph 32. On that point Mr Thomas relied

 on the part played by Miss Tindall. 


      


On-line at: http://www.bailii.org/ew/cases/EWCA/Civ/2004/372.html=




      


      


Charles


At      13:31 01/04/2004 +0100, you wrote:


      Further to my las=

t query,

I should also have mentioned that in its      concurrent or auxiliary jur=

isdiction

the court of equity has on any number      of occasions assisted the vict=

im

of a fraud by allowing him to trace into      the proceeds of the fraud -=

-

Agip (Africa), El Ajou, etc etc. Why should not      the buyer of the wor=

thless

title to the owner's car not be able to invoke      the same assistance a=

nd

claim the proceeds of the property of which he was      defrauded?


       


      JEP


      -----Original      Message-=

----


      From: Penner,JE 


      Sent: 01 April 2004      12:54


      To: ENRICHMENT@LISTS.MC

GILL.CA


      Subject:      [RDG:] FW: constructive trust in proceeds of t=

heft


      


       Assume Lord Browne-Wilkinson=

 in Westdeutsche

is properly      interpreted to say that a thief holds any proceeds from

the sale of stolen      goods on trust for the true owner. My question wh=

at

is the relationship of      this trust with the rights of the buyer from

the thief of the stolen goods?      This no doubt reveals my shocking ign=

orance

of contract law. 


      


It      seems to me that there are a couple of possible ways in which the

buyer can      assert a right to the proceeds the thief receives from the

sale, i.e. the      money the buyer paid the thief for the owner s goods:=




      


(1)        Assuming that the sale is clearly fraudulent, such t=

hat the thief

would be      liable for the tort of deceit, is it possible that the buye=

r

could claim      that the contract was void ab initio? If so, then in the

case contemplated      by LBW, then the constructive trust of proceeds wo=

uld

be a trust over the      buyer s property, which seems clearly wrong. 

      


 (2)        If this is not the right analysis, then it&nbs=

p; would seem at the

very      minimum that the buyer has the right to rescind the transaction

for      fraudulent misreprentation (the misrepresentation by the thief b=

eing

that he      had good title); now we have two possible scenarios; if we a=

ssume

that the      buyer rescinds before the true owner makes a claim against

him for      conversion or claims a right in the proceeds of the sale, is

the resulting      legal or equitable title he gets still subject to owne=

r

s LBW trust? If he      does not rescind before either the owner makes a

claim against him for      conversion or asserts title in the proceeds, t=

hen

does the buyer necessarily      lose out to the LBW trust because a right

to rescind is a mere equity ,      which does not bind someone with an eq=

uitable

ownership      interest?


      


This strikes me as all very complicated because it depends      upon the

time at which the owner s LBW trust arises. If it arises by      operatio=

n

of law upon the sale, then it effectively extinguishes any right      to

rescind or any other appropriate legal or equitable interest that the

  buyer might have in the money he paid, which was, after all, his

     property to begin with, and I don t see how that is necessarily just.

     Indeed, it seems to me that as a matter of justice, equity s first c=

oncern

     should be to ensure that the innocent buyer is able to recover the p=

roceeds

     and any traceable product, not the true owner, who has a strict liab=

ility

     claim against the buyer in any case his mere taking possession of th=

e

car      will render him liable whether the contract under whose auspices

he did so      is void ab initio or avoided later. 


      


One might say of course, that      none of this matters practically, for

if the true owner asserts title in the      substitute, the proceeds, the=

n

he in essence adopts or ratifies the sale by      the thief of his origin=

al

goods, so that the buyer is no longer liable for      conversion. And if

the buyer retains a legal or equitable interest in the      proceeds that

prevails over the owner, then he will merely have to transfer      an equ=

ivalent

amount to the owner anyway, because of his strict liability      for conv=

ersion.

But what if the proceeds increase in value? Say the thief      sells the

owner s car to the buyer for its true value of £10,000 (its true   =

   value,

which he then invests in shares now worth £15,000. Both the owner a=

nd

  the buyer will wish to have an interest in these proceeds. If the owner

gets      them, he will have an asset worth £5,000 more than what h=

e would

get from      the conversion claim. Equally, if the buyer gets the procee=

ds,

he will be      able to meet his conversion liability of £10,000 an=

d keep

the extra £5000 of      value. So this does seem to me to raise a r=

eal issue.

      


      


J E      Penner


      


 


      


      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


    
--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 


    


    


  









--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 











--------------000103080001000609030101--



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Date:         Fri, 2 Apr 2004 07:08:29 +0800

Reply-To:     Low Fatt Kin Kelvin 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Low Fatt Kin Kelvin 

Subject:      Re: Undue Influence

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Date:         Fri, 2 Apr 2004 07:36:03 +0800

Reply-To:     Low Fatt Kin Kelvin 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Low Fatt Kin Kelvin 

Subject:      Re:

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Date:         Fri, 2 Apr 2004 09:42:26 +0100

Reply-To:     Robert Stevens 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Robert Stevens 

Subject:      Re: Undue Influence

Comments: To: Jason Neyers 

MIME-Version: 1.0

Content-Type: text/plain; charset=3D"iso-8859-1"

Content-Transfer-Encoding: 7bit



I don't think I agree with some of the points made in Professor Neyers la=

st

post.:



"In order to show that the enrichment is unjust, one must then attack the

underlying contract or gift which requires some sort of fault (duress,

breach of fiduciary duty, etc.) or the implicit objective agreement of th=

e

parties that it is not to bind in certain circumstances (conditional gift=

,

fundamental mistake in assumptions, etc.).  If UI is not about fault then

how does it upset the underlying contract or gift so that UE can operate?=

"



I don't think this can be correct. One party's innocent misrepresentation

entitles the other party to rescind a contract. No fault is required;

rescission is not based upon an implied agreement that the contract it is

capable of being rescinded. I also doubt whether duress necessarily impli=

es

fault (eg The Atlantic Baron [1979] QB 705). A breach of fiduciary duty m=

ay

also be wholly innocent (eg Boardman v Phipps [1967] 2 AC 407) and is alw=

ays

a wrong although duress and undue influence are probably not.



It may be that, like misrepresentation, undue influence can be a wrong (i=

.e.

a breach of duty) which gives rise to a claim for damages where it is

applied fraudulently (cf duress) or even possibly negligently (cf Hedley

Byrne). When the undue influence with the counter party arises wholly

innocently I doubt whether it is a wrong but it does entitle the dependen=

t

party to rescind (cf Allcard v Skinner (1887) 36 ChD 145 with Redgrave v

Hurd (1881) 20 ChD 1).



RS







--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435



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 send "signoff enrichment" to the same address. To make a posting to

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Date:         Fri, 2 Apr 2004 09:10:20 -0500

Reply-To:     jneyers@UWO.CA

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Jason Neyers 

Subject:      Re: Undue Influence

Comments: To: William Swadling 

MIME-Version: 1.0

Content-Type: text/plain; charset=3DISO-8859-1

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Dear Colleagues:



I think that I have been misunderstood:



     William Swadling wrote:



     Unjust Enrichment is most avowedly not about fault: see Birks, The R=

ole of

     Fault in the Law of Unjust Enrichment, in Swadling & Jones (edd), Th=

e

     Search for Principle (Oxford, 1999).



That is not what I was trying to say. My point is that UE is about enrich=

ments

that are unjustified (at least from a Canadian perspective). An enrichmen=

t

cannot be unjustified when there is a valid legal reason explaining why X=

 has

Y's value. In cases of that you would term "mistake," there is no valid

legal reason why X has Y's value and hence it must be returned, as you po=

int out

not because X is at fault, but because the value is Y's. My point was tha=

t in

cases of UI there is a valid legal reason (usually a contract or gift)

justifying X's retention of Y's value. Hence, the only way it can be an U=

E

is to find a way to knock out this valid legal reason. So my claim is not=

 the UE

is about fault but that in some instances a wrong is a necessary practica=

l

precursor to one succeeding in an UE claim.



     Robert Stevens wrote:



     I don't think this can be correct. One party's innocent misrepresent=

ation

     entitles the other party to rescind a contract. No fault is required=

;

     rescission is not based upon an implied agreement that the contract =

it is

     capable of being rescinded.



This raises the question of why a contract can be rescinded for a materia=

l

innocent misrepresentation. I agree the reason is not fault. But I do not=

 agree

that it has nothing to do with the implied agreement of the parties. I se=

e the

reason for the courts intervention, being similar to the reason the court

intervenes (or is asked to intervene) in cases like Scott v. Coulson, Bel=

l v.

Lever Bros.  The implied agreement/condition is that the contract is to b=

ind

only their shared fundamental assumption is true. Hence if you would have=

 put

the point to the parties in Redgrave v. Hurd, they would have objectively

agreed that the contract was to bind only if the practice brought in L400=

 per

year. While one may not agree with this analysis, it has a long history: =

see

Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter Ben=

son,

The Unity of Contract of Law (2001: CUP). As I argued above, once the con=

tract

is set aside on this basis, then UE can follow.



          Robert Stevens wrote:



          A breach of fiduciary duty may also be wholly innocent (e.g.\

          Boardman  v Phipps [1967] 2 AC 407) and is always a wrong.



I fail to see how this impeaches what I have said. It is like saying one =

may

breach a contract without fraud or negligence but it is still considered =

a

wrong -- the fault being failure to deliver what was promised. If anythin=

g it

seems to support my contention that UI could be a wrong even if the fault

element might not be fraud or negligence.



     Low Fatt Kin Kelvin wrote:



     To answer Mr Neyer's point about presumed undue influence being coun=

ter-

     intuitive, it is not sufficient merely to establish some sort of

     relationship of trust and confidence to raise the presumption. It is

     necessary to, according to Lord Nicholls, demonstrate that the trans=

action

     calls for an explanation. Bearing in mind this additional requiremen=

t, I

     do not see how it is counter-intuitive.



Being no expert on UI (so I would be happy to be disabused of this notion=

) my

understanding of the cases is that generally a  "transaction calls for an

explanation" when it to the material disadvantage of

the party entering into it. When is someone most likely to enter into a s=

uch a

transaction such as guaranteeing a loan? When they are in a close family

relationship. Yet instead of presuming that the basis of the transaction =

was

natural love and affection or mutual support, the essence of family life,=

 the

court presumes it was on the basis of an influence

which was 'undue'. Is that not at least somewhat counter-intuitive?



Cheers,





>

> --

> Jason Neyers

> January Term Director

> Assistant Professor of Law

> Faculty of Law

> University of Western Ontario

> N6A 3K7

> (519) 661-2111 x. 88435

>



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 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

 .

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

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

=3D=3D=3D=3D=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, 2 Apr 2004 16:55:53 +0100

Reply-To:     Robert Stevens 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Robert Stevens 

Subject:      Re: Undue Influence

Comments: To: jneyers@UWO.CA

MIME-Version: 1.0

Content-Type: text/plain; charset=3D"iso-8859-1"

Content-Transfer-Encoding: 7bit



Jason Neyers wrote:



> This raises the question of why a contract can be rescinded for a mater=

ial

> innocent misrepresentation. I agree the reason is not fault. But I do n=

ot

agree

> that it has nothing to do with the implied agreement of the parties. I =

see

the

> reason for the courts intervention, being similar to the reason the cou=

rt

> intervenes (or is asked to intervene) in cases like Scott v. Coulson, B=

ell

v.

> Lever Bros.  The implied agreement/condition is that the contract is to

bind

> only their shared fundamental assumption is true. Hence if you would ha=

ve

put

> the point to the parties in Redgrave v. Hurd, they would have objective=

ly

> agreed that the contract was to bind only if the practice brought in L4=

00

per

> year. While one may not agree with this analysis, it has a long history=

:

see

> Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter

Benson,

> The Unity of Contract of Law (2001: CUP).



I do not find this a convincing explanation as to why a misrepresentation

entitles the misrepresentee to rescind.

I would be prepared to concede that where there is a common fundamental

mistake made by both parties to a contract one plausible explanation as t=

o

why the contract is void is that there is an implied condition precendent

that the agreement is not to bind. So,



A agrees to hire B's music hall and surrounding gardens. Unknown to both =

A

and B, ten minutes before the deal was struck the music hall had burnt to

the ground.

We might be prepared to say, on an officious bystander test, that there i=

s

no contract because it was an implied condition precedent that the music

hall existed. We might also be prepared to say that if the music hall bur=

nt

down ten minutes after the agreement that there was an implied condition

subsequent that the deal was to come to an end.



There are other plausible explanations for the result that the contract i=

s

no longer on foot and in the context of frustration the implied condition

analysis has become unfashionable.



Where rescission for misrepresentation is concerned, the misrepresentatio=

n

need not be fundamental nor need it be shared. All that is necessary is t=

hat

the misrepresentation, however minor, was in part a cause of the decision=

 to

enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).



A agrees to charter B's ship for six months. Wholly innocently, B

misrepresents the size of the propellor. The size of the propellor played=

 a

minor role in A's decision to hire the ship.



As the contract is voidable, not void, the implied term would have to be

something like:



"If either party misrepresents to the other, regardless of fault, a matte=

r

material to the other's entering into the contract, this shall entitle th=

e

other party to avoid the deal.'



I don't think myself that such an impled term passes the officious bystan=

der

test. If we say the term is implied by law, rather than fact, we just get

back to asking why the law should imply such a term.



It seems to me that a better explanation is that the misrepresentee's

consent has been vitiated by the misrepresentation and that this entitles

him to set aside the deal. If I make you a gift because of a

misrepresentation you have made to me I am entitled to recover the gift. =

I

do not, myself think that this can be explained through an implied agreem=

ent

to return the gift. Similarly if I enter into a contract with you because=

 of

your holding a gun to my head or because I am hopelessly dependent upon y=

ou,

I can avoid the deal. I don't think that this is because of any implied

agreement that I am entitled to do so.



RS



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

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 send "signoff enrichment" to the same address. To make a posting to

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Date:         Fri, 2 Apr 2004 17:31:11 +0100

Reply-To:     Andrew.Dickinson@CLIFFORDCHANCE.COM

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Andrew.Dickinson@CLIFFORDCHANCE.COM

Subject:      Re: Undue Influence

MIME-Version: 1.0

Content-Type: text/plain; charset=3D"ISO-8859-1"



I agree with Robert.  Implied contractual terms are an unsatisfactory way=

 of

explaining frustration or common mistake (where both parties have reached=

 an

objective agreement on an equal footing) (see Great Peace Shipping v.

Tsavliris [2003] QB 679, [73] (CA) ("What do these developments in the la=

w

of frustration have to tell us about the law of common mistake? First tha=

t

the theory of the implied term is as unrealistic when considering common

mistake as when considering frustration. Where a fundamental assumption u=

pon

which an agreement is founded proves to be mistaken, it is not realistic =

to

ask whether the parties impliedly agreed that in those circumstances the

contract would not be binding. The avoidance of a contract on the ground =

of

common mistake results from a rule of law under which, if it transpires t=

hat

one or both of the parties have agreed to do something which it is

impossible to perform, no obligation arises out of that agreement.").



They are an even less satisfactory way of explaining vitiating factors su=

ch

as misrepresentation, duress and undue influence, where the conduct of on=

e

party (innocent or otherwise) has unbalanced the relationship in such a w=

ay

as to justify the other being given the legal option, subject to certain

qualifications, to undo the bargain (see John Cartwright's analysis in-

"Unequal Bargaining").  Sometimes that option is exercisable unilaterally

(e.g. rescission at common law for fraud) and sometimes it requires the

sanction of the court (e.g. rescission in equity for undue influence).  T=

he

remedy of rescission, in many cases, also effects restitution between the

parties.  The idea that an implied contractual term is necessary, or

appropriate, to achieve this result over-complicates the analysis and is

reminiscent of the argument that the reversal of unjust enrichment was

itself founded on an implied contract.



Andrew



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

From: Robert Stevens [mailto:robert.stevens@LAW.OXFORD.AC.UK]

Sent: 02 April 2004 16:56

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG:] Undue Influence





Jason Neyers wrote:



> This raises the question of why a contract can be rescinded for a mater=

ial

> innocent misrepresentation. I agree the reason is not fault. But I do n=

ot

agree

> that it has nothing to do with the implied agreement of the parties. I =

see

the

> reason for the courts intervention, being similar to the reason the cou=

rt

> intervenes (or is asked to intervene) in cases like Scott v. Coulson, B=

ell

v.

> Lever Bros.  The implied agreement/condition is that the contract is to

bind

> only their shared fundamental assumption is true. Hence if you would ha=

ve

put

> the point to the parties in Redgrave v. Hurd, they would have objective=

ly

> agreed that the contract was to bind only if the practice brought in L4=

00

per

> year. While one may not agree with this analysis, it has a long history=

:

see

> Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter

Benson,

> The Unity of Contract of Law (2001: CUP).



I do not find this a convincing explanation as to why a misrepresentation

entitles the misrepresentee to rescind.

I would be prepared to concede that where there is a common fundamental

mistake made by both parties to a contract one plausible explanation as t=

o

why the contract is void is that there is an implied condition precendent

that the agreement is not to bind. So,



A agrees to hire B's music hall and surrounding gardens. Unknown to both =

A

and B, ten minutes before the deal was struck the music hall had burnt to

the ground.

We might be prepared to say, on an officious bystander test, that there i=

s

no contract because it was an implied condition precedent that the music

hall existed. We might also be prepared to say that if the music hall bur=

nt

down ten minutes after the agreement that there was an implied condition

subsequent that the deal was to come to an end.



There are other plausible explanations for the result that the contract i=

s

no longer on foot and in the context of frustration the implied condition

analysis has become unfashionable.



Where rescission for misrepresentation is concerned, the misrepresentatio=

n

need not be fundamental nor need it be shared. All that is necessary is t=

hat

the misrepresentation, however minor, was in part a cause of the decision=

 to

enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).



A agrees to charter B's ship for six months. Wholly innocently, B

misrepresents the size of the propellor. The size of the propellor played=

 a

minor role in A's decision to hire the ship.



As the contract is voidable, not void, the implied term would have to be

something like:



"If either party misrepresents to the other, regardless of fault, a matte=

r

material to the other's entering into the contract, this shall entitle th=

e

other party to avoid the deal.'



I don't think myself that such an impled term passes the officious bystan=

der

test. If we say the term is implied by law, rather than fact, we just get

back to asking why the law should imply such a term.



It seems to me that a better explanation is that the misrepresentee's

consent has been vitiated by the misrepresentation and that this entitles

him to set aside the deal. If I make you a gift because of a

misrepresentation you have made to me I am entitled to recover the gift. =

I

do not, myself think that this can be explained through an implied agreem=

ent

to return the gift. Similarly if I enter into a contract with you because=

 of

your holding a gun to my head or because I am hopelessly dependent upon y=

ou,

I can avoid the deal. I don't think that this is because of any implied

agreement that I am entitled to do so.



RS



____________________________________________________________________

 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 and any attachment are confidential and may be privileged or=

 otherwise protected from disclosure.  If you are not the intended recipi=

ent, please telephone or email the sender and delete this message and any=

 attachment from your system.  If you are not the intended recipient you =

must not copy this message or attachment or disclose the contents to any =

other person.



For further information about Clifford Chance please see our website at h=

ttp://www.cliffordchance.com or refer to any Clifford Chance office.



____________________________________________________________________

 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

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

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Date:         Fri, 2 Apr 2004 11:13:48 -0500

Reply-To:     jneyers@uwo.ca

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Jason Neyers 

Organization: University of Western Ontario

Subject:      Re: Undue Influence

Comments: To: Robert Stevens 

MIME-Version: 1.0

Content-Type: text/plain; charset=3Dus-ascii

Content-Transfer-Encoding: 7bit



As an aside, Hamish Stewart has an article in the August edition of the C=

anadian

Bar Review which (if the abstract is any indication) is critical of the v=

itiated

consent / over-borne will theory of duress and which might be of interest=

 to

members of the RDG. See

http://www.cba.org/CBA/canadian_bar_review/CBRAugust2003/August2003.asp.



Cheers,



Robert Stevens wrote:



> Jason Neyers wrote:

>

> > This raises the question of why a contract can be rescinded for a mat=

erial

> > innocent misrepresentation. I agree the reason is not fault. But I do=

 not

> agree

> > that it has nothing to do with the implied agreement of the parties. =

I see

> the

> > reason for the courts intervention, being similar to the reason the c=

ourt

> > intervenes (or is asked to intervene) in cases like Scott v. Coulson,=

 Bell

> v.

> > Lever Bros.  The implied agreement/condition is that the contract is =

to

> bind

> > only their shared fundamental assumption is true. Hence if you would =

have

> put

> > the point to the parties in Redgrave v. Hurd, they would have objecti=

vely

> > agreed that the contract was to bind only if the practice brought in =

L400

> per

> > year. While one may not agree with this analysis, it has a long histo=

ry:

> see

> > Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter

> Benson,

> > The Unity of Contract of Law (2001: CUP).

>

> I do not find this a convincing explanation as to why a misrepresentati=

on

> entitles the misrepresentee to rescind.

> I would be prepared to concede that where there is a common fundamental

> mistake made by both parties to a contract one plausible explanation as=

 to

> why the contract is void is that there is an implied condition precende=

nt

> that the agreement is not to bind. So,

>

> A agrees to hire B's music hall and surrounding gardens. Unknown to bot=

h A

> and B, ten minutes before the deal was struck the music hall had burnt =

to

> the ground.

> We might be prepared to say, on an officious bystander test, that there=

 is

> no contract because it was an implied condition precedent that the musi=

c

> hall existed. We might also be prepared to say that if the music hall b=

urnt

> down ten minutes after the agreement that there was an implied conditio=

n

> subsequent that the deal was to come to an end.

>

> There are other plausible explanations for the result that the contract=

 is

> no longer on foot and in the context of frustration the implied conditi=

on

> analysis has become unfashionable.

>

> Where rescission for misrepresentation is concerned, the misrepresentat=

ion

> need not be fundamental nor need it be shared. All that is necessary is=

 that

> the misrepresentation, however minor, was in part a cause of the decisi=

on to

> enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).

>

> A agrees to charter B's ship for six months. Wholly innocently, B

> misrepresents the size of the propellor. The size of the propellor play=

ed a

> minor role in A's decision to hire the ship.

>

> As the contract is voidable, not void, the implied term would have to b=

e

> something like:

>

> "If either party misrepresents to the other, regardless of fault, a mat=

ter

> material to the other's entering into the contract, this shall entitle =

the

> other party to avoid the deal.'

>

> I don't think myself that such an impled term passes the officious byst=

ander

> test. If we say the term is implied by law, rather than fact, we just g=

et

> back to asking why the law should imply such a term.

>

> It seems to me that a better explanation is that the misrepresentee's

> consent has been vitiated by the misrepresentation and that this entitl=

es

> him to set aside the deal. If I make you a gift because of a

> misrepresentation you have made to me I am entitled to recover the gift=

. I

> do not, myself think that this can be explained through an implied agre=

ement

> to return the gift. Similarly if I enter into a contract with you becau=

se of

> your holding a gun to my head or because I am hopelessly dependent upon=

 you,

> I can avoid the deal. I don't think that this is because of any implied

> agreement that I am entitled to do so.

>

> RS



--

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

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

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

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Date:         Fri, 2 Apr 2004 11:26:30 -0500

Reply-To:     smiths 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         smiths 

Subject:      Re: Undue Influence

Comments: To: Robert Stevens 

MIME-Version: 1.0

Content-Type: text/plain; charset=3Dus-ascii

Content-Transfer-Encoding: 7bit



If I may add a small comment to this debate, it is dangerous, I suggest,

to place significant weight on analogies to the law of innocent

misrepresentation. The reason is that the basis of this excuse is itself

unclear. Robert is no doubt correct to say that the effect of an

innocent misrepresentation is 'vitiate consent'. But why does it have

this effect? Whatever reasons explain why a contract can be set aside

for mistake (e.g., implied term, mistake vitiates consent)do not apply

to innocent misrepresentations. This is true even if we drop the

requirement that the mistake be shared, since it is a futher (and

obviously sensible) requirement, shared by systems that allow for an

excuse of unilateral mistake, that the mistake be serious. Nor does the

analogy to duress or negl/fraudulent misrep. work, for the obvious

reason that these acts involve wrongs. In short, the usual rule is that

if there has been no wrongdoing, and nothing that otherwise

significantly impairs consent (e.g., mistake, incapacity,) then the law

leaves things as they are. So why an excuse of innocent mispresentation?

Consistent with these observations, the civil law systems I am familiar

with do not recognize an excuse of innocent misrepresentation. I am not

at this point suggesting there should be no excuse of innocent

misrepresentation. This is a complex issue that requires more thought.

But I am suggesting that the excuse is difficult to square with the

others kinds of excuses that the law does and should recognize, and thus

we should be careful before we use it as the basis for explaining

another area of the law.



steve smith



Robert Stevens wrote:

>

> Jason Neyers wrote:

>

> > This raises the question of why a contract can be rescinded for a mat=

erial

> > innocent misrepresentation. I agree the reason is not fault. But I do=

 not

> agree

> > that it has nothing to do with the implied agreement of the parties. =

I see

> the

> > reason for the courts intervention, being similar to the reason the c=

ourt

> > intervenes (or is asked to intervene) in cases like Scott v. Coulson,=

 Bell

> v.

> > Lever Bros.  The implied agreement/condition is that the contract is =

to

> bind

> > only their shared fundamental assumption is true. Hence if you would =

have

> put

> > the point to the parties in Redgrave v. Hurd, they would have objecti=

vely

> > agreed that the contract was to bind only if the practice brought in =

L400

> per

> > year. While one may not agree with this analysis, it has a long histo=

ry:

> see

> > Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter

> Benson,

> > The Unity of Contract of Law (2001: CUP).

>

> I do not find this a convincing explanation as to why a misrepresentati=

on

> entitles the misrepresentee to rescind.

> I would be prepared to concede that where there is a common fundamental

> mistake made by both parties to a contract one plausible explanation as=

 to

> why the contract is void is that there is an implied condition precende=

nt

> that the agreement is not to bind. So,

>

> A agrees to hire B's music hall and surrounding gardens. Unknown to bot=

h A

> and B, ten minutes before the deal was struck the music hall had burnt =

to

> the ground.

> We might be prepared to say, on an officious bystander test, that there=

 is

> no contract because it was an implied condition precedent that the musi=

c

> hall existed. We might also be prepared to say that if the music hall b=

urnt

> down ten minutes after the agreement that there was an implied conditio=

n

> subsequent that the deal was to come to an end.

>

> There are other plausible explanations for the result that the contract=

 is

> no longer on foot and in the context of frustration the implied conditi=

on

> analysis has become unfashionable.

>

> Where rescission for misrepresentation is concerned, the misrepresentat=

ion

> need not be fundamental nor need it be shared. All that is necessary is=

 that

> the misrepresentation, however minor, was in part a cause of the decisi=

on to

> enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).

>

> A agrees to charter B's ship for six months. Wholly innocently, B

> misrepresents the size of the propellor. The size of the propellor play=

ed a

> minor role in A's decision to hire the ship.

>

> As the contract is voidable, not void, the implied term would have to b=

e

> something like:

>

> "If either party misrepresents to the other, regardless of fault, a mat=

ter

> material to the other's entering into the contract, this shall entitle =

the

> other party to avoid the deal.'

>

> I don't think myself that such an impled term passes the officious byst=

ander

> test. If we say the term is implied by law, rather than fact, we just g=

et

> back to asking why the law should imply such a term.

>

> It seems to me that a better explanation is that the misrepresentee's

> consent has been vitiated by the misrepresentation and that this entitl=

es

> him to set aside the deal. If I make you a gift because of a

> misrepresentation you have made to me I am entitled to recover the gift=

. I

> do not, myself think that this can be explained through an implied agre=

ement

> to return the gift. Similarly if I enter into a contract with you becau=

se of

> your holding a gun to my head or because I am hopelessly dependent upon=

 you,

> I can avoid the deal. I don't think that this is because of any implied

> agreement that I am entitled to do so.

>

> RS

>

> ____________________________________________________________________

>  This message was delivered through the Restitution Discussion Group,

>  an international internet LISTSERV devoted to all aspects of the law

>  of unjust enrichment. To subscribe, send "subscribe enrichment" in

>  the body of a message to . To unsubscribe,

>  send "signoff enrichment" to the same address. To make a posting to

>  all group members, send to . The list is

>  run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, emai=

l

>  .



--

Stephen A. Smith

Associate Professor

Faculty of Law, McGill University

3674 Peel St.

Montreal, Quebec

H3A 1W9

CANADA



Tel: (1) (514) 398-6633

Fax: (1) (514) 398-3233



____________________________________________________________________

 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

 .

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Date:         Fri, 2 Apr 2004 17:25:15 +0100

Reply-To:     duncan.sheehan@uea.ac.uk

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Duncan Sheehan 

Subject:      Re: Undue Influence & Natural Obligations

Comments: To: jneyers@UWO.CA

In-Reply-To:  <1080915020.406d744cb93ce@mail.uwo.ca>

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Dear all,



I want to pick up on a number of things that have come out of the recent

discussion on undue influence and in particular in Jason Neyer's

contributions. A number of things then.



Firstly I quite agree with Robert that this has nothing to do with implie=

d

agreements of any description, and nor does misrepresentation. Whenever I

see implied agreement I immediately go on high alert, as it were, to see =

if

this is real. There are far too many imaginary implied agreements around

without adding more, and it does seem to me to go back to the old error t=

hat

restitution is about implied contract (Sorry, Steve). It is either implie=

d

in fact, and on the officious bystander test I don't think it is, or it i=

s

not implied at all. If we are going to say it is implied by law we might =

as

well say there's a rule that undue influence works if X, Y and Z are true.



If we are talking about fault and wrongs, and this may just be to perpetu=

ate

a misunderstanding, but I think it worth reiterating... I don't think und=

ue

influence is a wrong. Certainly if there is a wrong committed by the

defendant on the claimant that may well vitiate the contract - fraud is g=

ood

case in point. That is to say no more than that a wrong is sufficient, bu=

t

that is no reason to say it is necessary. Crudely we can say that when we

enter a contract, subject to the need to protect the other party, we shou=

ld

do so with full consent. Undue influence vitiates that and so with caveat=

s

to protect the defendant's right to expect a contract or transfer to rema=

in

in force, we vitiate the contract or transfer. This is no more than the o=

ld

debate as to whether undue influence is a claimant or a defendant sided

unjust factor.



Crucially though I want go off on a tangent and pick Jason Neyers up on h=

is

aside about natural obligation. It is far from obvious to me that the

operation of the presumptions (along with Lord Nicholls' requirement of a

transaction calling for an explanation) is counter-intuitive. My girlfrie=

nd

may well be legitimately pissed off with me if I never give her any

presents, ever - Christmas, or birthday presents. Further you would expec=

t

that I would give her Christmas and birthday presents. This is just norma=

l

behaviour. She probably isn't entitled to expect that I reregister the ho=

use

I've bought to put it in her name instead of mine. That might not be quit=

e

normal - it may need explanation. It may be that our relationship is such

that I am so love sick for her that I'll give her anything (Louth v

Diprose). I think the point is that sometimes it is intuitive that I real=

ly

meant it because I love her, and sometimes it isn't. Sometimes these

relationships are abused, and the presumption is an attempt to draw the l=

ine

between those relationships that are and are not abused. As importantly a=

s

that I want to squelch Jason Neyers' notion of natural obligation. It see=

ms

to me that he is using a phrase which has the capacity to cause immense

difficulty, and he is using it in a very dangerous way. I have no

obligation - natural or otherwise - to give presents to my girlfriend,

whatever her expectations are, and whatever potentially unpleasant

consequences there are of not indulging her expectations. To use the phra=

se

in this type of context raises the possibility of a very wide, vague and

difficult to establish concept. It would then be legitimate to attack it =

on

this basis. I do believe in natural obligations, but I would want to conf=

ine

the term to invalid agreements where the reason the agreement is invalid

does not reflect a belief that the agreement is itself "bad", for example=

 it

is illegal, or a belief that the claimant needs protecting (undue influen=

ce

for instance). That has the advantage of keeping the concept in tight rei=

n,

and preventing it running off into the somewhat unruly "moral/ familial

obligation" undergrowth.



I will not go into this in any more detail (unless you want me to), but m=

y

latest utterances will be on the subject of natural obligations in, I thi=

nk,

the next issue of the LMCLQ.



Duncan







Dr Duncan Sheehan

Postgraduate Admissions Officer

Norwich Law School

University of East Anglia

Norwich NR4 7TJ

United Kingdom



> -----Original Message-----

> From: Enrichment - Restitution & Unjust Enrichment Legal Issues

> [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Jason Neyers

> Sent: Friday, April 02, 2004 3:10 PM

> To: ENRICHMENT@LISTS.MCGILL.CA

> Subject: Re: [RDG:] Undue Influence

>

>

> Dear Colleagues:

>

> I think that I have been misunderstood:

>

>      William Swadling wrote:

>

>      Unjust Enrichment is most avowedly not about fault: see

> Birks, The Role of

>      Fault in the Law of Unjust Enrichment, in Swadling & Jones (edd), =

The

>      Search for Principle (Oxford, 1999).

>

> That is not what I was trying to say. My point is that UE is

> about enrichments

> that are unjustified (at least from a Canadian perspective). An enrichm=

ent

> cannot be unjustified when there is a valid legal reason

> explaining why X has

> Y's value. In cases of that you would term "mistake," there is no valid

> legal reason why X has Y's value and hence it must be returned,

> as you point out

> not because X is at fault, but because the value is Y's. My point

> was that in

> cases of UI there is a valid legal reason (usually a contract or gift)

> justifying X's retention of Y's value. Hence, the only way it can be an=

 UE

> is to find a way to knock out this valid legal reason. So my

> claim is not the UE

> is about fault but that in some instances a wrong is a necessary practi=

cal

> precursor to one succeeding in an UE claim.

>

>      Robert Stevens wrote:

>

>      I don't think this can be correct. One party's innocent

> misrepresentation

>      entitles the other party to rescind a contract. No fault is requir=

ed;

>      rescission is not based upon an implied agreement that the

> contract it is

>      capable of being rescinded.

>

> This raises the question of why a contract can be rescinded for a mater=

ial

> innocent misrepresentation. I agree the reason is not fault. But

> I do not agree

> that it has nothing to do with the implied agreement of the

> parties. I see the

> reason for the courts intervention, being similar to the reason the cou=

rt

> intervenes (or is asked to intervene) in cases like Scott v.

> Coulson, Bell v.

> Lever Bros.  The implied agreement/condition is that the contract

> is to bind

> only their shared fundamental assumption is true. Hence if you

> would have put

> the point to the parties in Redgrave v. Hurd, they would have objective=

ly

> agreed that the contract was to bind only if the practice brought

> in L400 per

> year. While one may not agree with this analysis, it has a long

> history: see

> Grotius, The Law and War and Peace, Bk. II c.11 and the work of

> Peter Benson,

> The Unity of Contract of Law (2001: CUP). As I argued above, once

> the contract

> is set aside on this basis, then UE can follow.

>

>           Robert Stevens wrote:

>

>           A breach of fiduciary duty may also be wholly innocent (e.g.\

>           Boardman  v Phipps [1967] 2 AC 407) and is always a wrong.

>

> I fail to see how this impeaches what I have said. It is like

> saying one may

> breach a contract without fraud or negligence but it is still considere=

d a

> wrong -- the fault being failure to deliver what was promised. If

> anything it

> seems to support my contention that UI could be a wrong even if the fau=

lt

> element might not be fraud or negligence.

>

>      Low Fatt Kin Kelvin wrote:

>

>      To answer Mr Neyer's point about presumed undue influence

> being counter-

>      intuitive, it is not sufficient merely to establish some sort of

>      relationship of trust and confidence to raise the presumption. It =

is

>      necessary to, according to Lord Nicholls, demonstrate that

> the transaction

>      calls for an explanation. Bearing in mind this additional

> requirement, I

>      do not see how it is counter-intuitive.

>

> Being no expert on UI (so I would be happy to be disabused of

> this notion) my

> understanding of the cases is that generally a  "transaction calls for =

an

> explanation" when it to the material disadvantage of

> the party entering into it. When is someone most likely to enter

> into a such a

> transaction such as guaranteeing a loan? When they are in a close famil=

y

> relationship. Yet instead of presuming that the basis of the

> transaction was

> natural love and affection or mutual support, the essence of

> family life, the

> court presumes it was on the basis of an influence

> which was 'undue'. Is that not at least somewhat counter-intuitive?

>

> Cheers,

>

>

> >

> > --

> > Jason Neyers

> > January Term Director

> > Assistant Professor of Law

> > Faculty of Law

> > University of Western Ontario

> > N6A 3K7

> > (519) 661-2111 x. 88435

> >

>

> ____________________________________________________________________

>  This message was delivered through the Restitution Discussion Group,

>  an international internet LISTSERV devoted to all aspects of the law

>  of unjust enrichment. To subscribe, send "subscribe enrichment" in

>  the body of a message to . To unsubscribe,

>  send "signoff enrichment" to the same address. To make a posting to

>  all group members, send to . The list is

>  run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, emai=

l

>  .

>



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Date:         Fri, 2 Apr 2004 18:05:24 +0100

Reply-To:     Robert Stevens 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Robert Stevens 

Subject:      Re: Undue Influence

Comments: To: smiths 

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Two points



> Nor does the

> analogy to duress or negl/fraudulent misrep. work, for the obvious

> reason that these acts involve wrongs.



Do they? Pointing a gun at your head is a wrong but I am not sure that ev=

ery

instance of duress sufficient to avoid a contract is a wrong. A threat to

defame amounts to duress and is a threat of a wrong but is it in itself a

wrong?



Steve also wrote



" I suggest,

to place significant weight on analogies to the law of innocent

misrepresentation. The reason is that the basis of this excuse is itself

unclear. "



If I buy a car mistakenly believing it to have a 1.6 litre engine when it

only has a 1.4 litre engine my mistake is not enough to get me out of the

deal. The other party is entitled to say "I am entitled to rely upon the

agreement we have struck. Your error is nothing to do with me." If, howev=

er,

my mistake is caused by the seller misrepresenting the car's engine size,

whether  innocently or not, I can say "My consent to this deal was vitiat=

ed

by my mistake for which you are responsible. The deal is off." These are =

the

rules of the game.



Where there is no contract (eg a bare promise under a deed) my mistake al=

one

allows me to recover, I do not need to show that you induced my mistake.



RS



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Date:         Fri, 2 Apr 2004 15:24:23 -0500

Reply-To:     Jason Neyers 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Jason Neyers 

Subject:      Re: Undue Influence and Innocent Misrepresentations

Comments: To: Robert Stevens 

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    Robert Stevens wrote:



    Where rescission for misrepresentation is concerned, the

    misrepresentation need not be fundamental nor need it be shared. All

    that is necessary is that the misrepresentation, however minor, was

    in part a cause of the decision to enter into the deal (Edgington v

    Fitmaurice (1885) 29 ChD 459).



I am not sure that this accurately states the law, at least not the

Canadian common law. For example, Fridman, The Law of Contract (p. 320

ff) argues that the misrepresentation must be "substantial" and that a

merely causative mistake induced by a innocent misrepresentation is not

enough for rescission (citing Kennedy v. Royal Mail of Panama (1867) LR

2 QB 580 and other Canadian appellate authority). If this is correct,

then I think that there is some justification for integrating IM into

the law of mistake of fundamental assumptions.



--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435







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Robert Stevens wrote:


  


  Where rescission for misrepresentation is concerned, the misrepr=

esentation

need not be fundamental nor need it be shared. All that is necessary is t=

hat

the misrepresentation, however minor, was in part a cause of the d=

ecision

to enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).





I am not sure that this accurately states the law, at least not the Canad=

ian

common law. For example, Fridman, The Law of Contract (p. 320 ff)

argues that the misrepresentation must be "substantial" and that a merely

causative mistake induced by a innocent misrepresentation is not enough f=

or

rescission (citing Kennedy v. Royal Mail of Panama (1867) LR 2 QB

580 and other Canadian appellate authority). If this is correct, then I t=

hink

that there is some justification for integrating IM into the law of mista=

ke

of fundamental assumptions.    



--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 











--------------020108020703020901080607--



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Date:         Sat, 3 Apr 2004 15:39:14 +0100

Reply-To:     Robert Stevens 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Robert Stevens 

Subject:      Re: Undue Influence and Innocent Misrepresentations

Comments: To: Jason Neyers 

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I don't know what the Canadian cases are but Kennedy v Royal Mail of Pana=

ma is a decision of Blackburn J. It is concerned with the ability to set =

aside a contract at common law. At common law it was (and is) a requireme=

nt that the misrepresentation be 'substantial.' At common law, of course,=

 the misrepresentation also had to be fraudulent.

In equity, the misrepresentation neither has to be substantial nor does i=

t have to be fraudulent: Edgington v Fitzmaurice. Does Canada not possess=

 the right to rescind for innocent misrepresentation in equity?

RS



In message <406DCBF7.4050207@uwo.ca> Jason Neyers  

writes=

:

>     Robert Stevens wrote:

>

>     Where rescission for misrepresentation is concerned, the

>     misrepresentation need not be fundamental nor need it be shared. Al=

l

>     that is necessary is that the misrepresentation, however minor, was

>     in part a cause of the decision to enter into the deal (Edgington v

>     Fitmaurice (1885) 29 ChD 459).

>

> I am not sure that this accurately states the law, at least not the

> Canadian common law. For example, Fridman, The Law of Contract (p. 320

> ff) argues that the misrepresentation must be "substantial" and that a

> merely causative mistake induced by a innocent misrepresentation is not

> enough for rescission (citing Kennedy v. Royal Mail of Panama (1867) LR

> 2 QB 580 and other Canadian appellate authority). If this is correct,

> then I think that there is some justification for integrating IM into

> the law of mistake of fundamental assumptions.

>

> --

> Jason Neyers

> January Term Director

> Assistant Professor of Law

> Faculty of Law

> University of Western Ontario

> N6A 3K7

> (519) 661-2111 x. 88435

>

>



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Date:         Sat, 3 Apr 2004 10:40:32 -0700

Reply-To:     Rob Chambers 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Rob Chambers 

Subject:      Undue Influence and Innocent Misrepresentations

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In Canada, contracts can be rescinded for innocent misrepresentation

under the rules of equity. The cases are too numerous to mention, but

Wurz v Devlin (1920) 52 DLR 414 (Saskatchewan CA) and Ennis v Klassen

[1990] 4 WWR 609, 70 DLR (4th) 321 (Manitoba CA) provide good examples.

As I understand it (although I've never investigated the issue and

would be happy to be corrected), the requirement that the

misrepresentation be substantial applies to fully executed sales of

land. In that situation, it is too late to rescind unless the

misrepresentation was either fraudulent or substantial: Shortt v

MacLennan [1959] SCR 3, 16 DLR (2d) 161.



With best wishes,

Rob Chambers



> From: Robert Stevens 

> Date: 3 April 2004 7:39:14 am GMT-07:00

> To: ENRICHMENT@LISTS.MCGILL.CA

> Subject: Re: [RDG:] Undue Influence and Innocent Misrepresentations

> Reply-To: Robert Stevens 

>

> I don't know what the Canadian cases are but Kennedy v Royal Mail of

> Panama is a decision of Blackburn J. It is concerned with the ability

> to set aside a contract at common law. At common law it was (and is) a

> requirement that the misrepresentation be 'substantial.' At common

> law, of course, the misrepresentation also had to be fraudulent.

> In equity, the misrepresentation neither has to be substantial nor

> does it have to be fraudulent: Edgington v Fitzmaurice. Does Canada

> not possess the right to rescind for innocent misrepresentation in

> equity?

> RS



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In Canada, contracts can be rescinded for innocent misrepresentation

under the rules of equity. The cases are too numerous to mention, but

Wurz v Devlin (1920) 52 DLR 414 (Saskatchewan CA) and Ennis v Klassen

[1990] 4 WWR 609, 70 DLR (4th) 321 (Manitoba CA) provide good

examples. As I understand it (although I've never investigated the

issue and would be happy to be corrected), the requirement that the

misrepresentation be substantial applies to fully executed sales of

land. In that situation, it is too late to rescind unless the

misrepresentation was either fraudulent or substantial: Shortt v

MacLennan [1959] SCR 3, 16 DLR (2d) 161.





With best wishes,



Rob Chambers





0000,0000,0000From:

Robert Stevens <



0000,0000,0000Date: 3 April

2004 7:39:14 am GMT-07:00



0000,0000,0000To:

ENRICHMENT@LISTS.MCGILL.CA



0000,0000,0000Subject: Re: [RDG:]

Undue Influence and Innocent Misrepresentations



0000,0000,0000Reply-To: Robert

Stevens <





I don't know what the Canadian cases are but Kennedy v Royal Mail of

Panama is a decision of Blackburn J. It is concerned with the ability

to set aside a contract at common law. At common law it was (and is) a

requirement that the misrepresentation be 'substantial.' At common

law, of course, the misrepresentation also had to be fraudulent.



In equity, the misrepresentation neither has to be substantial nor

does it have to be fraudulent: Edgington v Fitzmaurice. Does Canada

not possess the right to rescind for innocent misrepresentation in

equity?



RS





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Date:         Sat, 3 Apr 2004 22:11:32 +0100

Reply-To:     Joshua Getzler 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Joshua Getzler 

Subject:      Re: Undue Influence

Comments: To: smiths 

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Steve Smith wrote:



'I am not at this point suggesting there should be no excuse of innocent

misrepresentation. This is a complex issue that requires more thought.

But I am suggesting that the excuse is difficult to square with the

others kinds of excuses that the law does and should recognize, and thus

we should be careful before we use it as the basis for explaining

another area of the law.'



I hesitate to pollute the airways with economic analysis, but is at

least arguable that the law accords a remedy allowing rescission for

innocent misrepresentation because the representor is more able

(cheapest cost avoider) ) to guard against actively causing mistakes

affectng both parties, compared to the information costs facing the

representee. Trustwothy commercial information is therefore cheapened

and costs of protecting oneself against the other side's errors are

lessened. Also we call misrepresentations 'innocent' when negligence or

deceit cannot readily be proven - but there may still be some wrongdoing

lurking in the misrepresentor's behaviour, at least to the degree that

the benefit of the contract is rightly denied to the representor. The

duty to disclose accurate information in close relationships can readily

be fitted into these models.



Steve Smith's important new Clarendon Series book on 'Contract Theory'

(OUP, 2004) has just been published, for which many congratulations to

the author.



Joshua Getzler



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

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

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

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

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

=3D=3D=3D

Date:         Sun, 4 Apr 2004 11:16:03 -0400

Reply-To:     Lionel Smith 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Lionel Smith 

Subject:      Re: Undue Influence & Natural Obligations

In-Reply-To:  <001401c418cf$14aebf70$d198de8b@uea.ac.uk>

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Does "natural obligation" mean that "the transaction does not call for

an explanation"? And perhaps that it does not reveal "manifest

disadvantage"?



Lionel



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

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 send "signoff enrichment" to the same address. To make a posting to

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

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Date:         Mon, 5 Apr 2004 09:35:11 +0100

Reply-To:     duncan.sheehan@uea.ac.uk

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Duncan Sheehan 

Subject:      Re: Undue Influence & Natural Obligations

Comments: To: Lionel Smith 

In-Reply-To:  

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Dear all,



I imagine that if there were a natural obligation, at least how I define

them, that the answer would be no the transaction does not call for an

explanation if there is one. I say this because if natural obligations ar=

ise

because we see the agreement to do act X as being worthy of some

recognition, despite being unenforceable, it is inconsistent to say that

there can be a natural obligation where there is undue influence, or undu=

e

infuence where there is a natural obligation. Where there is undue influe=

nce

the law states that there is a need to protect the claimant, which negati=

ves

the possibility of a natural obligation.



Duncan



Dr Duncan Sheehan

Postgraduate Admissions Officer

Norwich Law School

University of East Anglia

Norwich NR4 7TJ

United Kingdom



> -----Original Message-----

> From: Enrichment - Restitution & Unjust Enrichment Legal Issues

> [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith

> Sent: Sunday, April 04, 2004 4:16 PM

> To: ENRICHMENT@LISTS.MCGILL.CA

> Subject: Re: [RDG:] Undue Influence & Natural Obligations

>

>

> Does "natural obligation" mean that "the transaction does not call for

> an explanation"? And perhaps that it does not reveal "manifest

> disadvantage"?

>

> 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, emai=

l

>  .

>



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

 an international internet LISTSERV devoted to all aspects of the law

 of unjust enrichment. To subscribe, send "subscribe enrichment" in

 the body of a message to . To unsubscribe,

 send "signoff enrichment" to the same address. To make a posting to

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

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

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

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

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=3D=3D=3D

Date:         Mon, 5 Apr 2004 10:25:56 +0100

Reply-To:     William Swadling 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         William Swadling 

Subject:      Re: Undue Influence & Natural Obligations

Comments: To: duncan.sheehan@uea.ac.uk

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The issue, surely, is not about an 'explanation' at all.  The transfer =3D

in Allcard v Skinner, for example, can be 'explained' as one where the =3D

novice was acting under the influence of the Mother Superior.  =3D

Similarly, the 'explanation' of Chase Manhattan is that the second =3D

transfer was made by mistake.  Indeed, if these 'explanations' were =3D

removed, the ground of claim would simply disappear.  What Duncan seems =3D

to be looking for is a justification for the transfers, not an =3D

explanation.



WJS=3D20

  ----- Original Message -----=3D20

  From: Duncan Sheehan=3D20

  To: ENRICHMENT@LISTS.MCGILL.CA=3D20

  Sent: Monday, April 05, 2004 9:35 AM

  Subject: Re: [RDG:] Undue Influence & Natural Obligations





  Dear all,



  I imagine that if there were a natural obligation, at least how I =3D

define

  them, that the answer would be no the transaction does not call for an

  explanation if there is one. I say this because if natural obligations =

=3D

arise

  because we see the agreement to do act X as being worthy of some

  recognition, despite being unenforceable, it is inconsistent to say =3D

that

  there can be a natural obligation where there is undue influence, or =3D

undue

  infuence where there is a natural obligation. Where there is undue =3D

influence

  the law states that there is a need to protect the claimant, which =3D

negatives

  the possibility of a natural obligation.



  Duncan



  Dr Duncan Sheehan

  Postgraduate Admissions Officer

  Norwich Law School

  University of East Anglia

  Norwich NR4 7TJ

  United Kingdom



  > -----Original Message-----

  > From: Enrichment - Restitution & Unjust Enrichment Legal Issues

  > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith

  > Sent: Sunday, April 04, 2004 4:16 PM

  > To: ENRICHMENT@LISTS.MCGILL.CA

  > Subject: Re: [RDG:] Undue Influence & Natural Obligations

  >

  >

  > Does "natural obligation" mean that "the transaction does not call =3D

for

  > an explanation"? And perhaps that it does not reveal "manifest

  > disadvantage"?

  >

  > Lionel

  >

  > ____________________________________________________________________

  >  This message was delivered through the Restitution Discussion =3D

Group,

  >  an international internet LISTSERV devoted to all aspects of the =3D

law

  >  of unjust enrichment. To subscribe, send "subscribe enrichment" in

  >  the body of a message to . To =3D

unsubscribe,

  >  send "signoff enrichment" to the same address. To make a posting to

  >  all group members, send to . The list =3D

is

  >  run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, =3D

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, =3D

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   .





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The issue, surely, is not about an 'explanation' at all.  =

=3D

The=3D20

transfer in Allcard v Skinner, for example, can be 'explained' =3D

as one=3D20

where the novice was acting under the influence of the Mother=3D20

Superior.  Similarly, the 'explanation' of Chase Manhattan =

=3D

is that=3D20

the second transfer was made by mistake.  Indeed, if these=3D20

'explanations' were removed, the ground of claim would simply=3D20

disappear.  What Duncan seems to be looking for is=3D20

a justification for the transfers, not an explanation.



 



WJS 




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


  From:=3D20

  Duncan Sheehan 

  

  
Sent: Monday, April 05, 2004 =3D

9:35=3D20

AM


  
Subject: Re: [RDG:] Undue =3D

Influence &=3D20

  Natural Obligations


  

Dear all,

I imagine that if there were a natural =

=3D



  obligation, at least how I define
them, that the answer would be no =

=3D

the=3D20

  transaction does not call for an
explanation if there is one. I say =

=3D

this=3D20

  because if natural obligations arise
because we see the agreement =3D

to do act=3D20

  X as being worthy of some
recognition, despite being unenforceable, =

=3D

it is=3D20

  inconsistent to say that
there can be a natural obligation where =3D

there is=3D20

  undue influence, or undue
infuence where there is a natural =3D

obligation.=3D20

  Where there is undue influence
the law states that there is a need =3D

to=3D20

  protect the claimant, which negatives
the possibility of a natural=3D=

20

  obligation.

Duncan

Dr Duncan Sheehan
Postgraduate =3D

Admissions=3D20

  Officer
Norwich Law School
University of East Anglia
Norwich =3D

NR4=3D20

  7TJ
United Kingdom

> -----Original Message-----
> =3D

From:=3D20

  Enrichment - Restitution & Unjust Enrichment Legal Issues
>=3D=

20

  [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith
> 

=3D

Sent:=3D20

  Sunday, April 04, 2004 4:16 PM
> To: ENRICHMENT@LISTS.M

CGILL.CA=3D


>=3D20

  Subject: Re: [RDG:] Undue Influence & Natural=3D20

  Obligations
>
>
> Does "natural obligation" mean =3D

that "the=3D20

  transaction does not call for
> an explanation"? And perhaps =3D

that it=3D20

  does not reveal "manifest
> disadvantage"?
>
>=3D20

  Lionel
>
>=3D20

  =3D

____________________________________________________________________
&=

=3D

gt; =3D20

  This message was delivered through the Restitution Discussion=3D20

  Group,
>  an international internet LISTSERV devoted to all =

=3D

aspects=3D20

  of the law
>  of unjust enrichment. To subscribe, send =3D

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>  the body of a message to <listserv@lists.mcgill.ca&g=

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>  send "signoff enrichment" to the same =3D

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  make a posting to
>  all group members, send to <enrichment@lists.mcgill.ca=3D

>.=3D20

  The list is
>  run by Lionel Smith of McGill University, =3D

tel. (+1)=3D20

  514 398 6635, email
>  <lionel.smith@mcgill.ca>.<=

BR=3D

>>

_________________________________________________________

___=

=3D

________
 This=3D20

  message was delivered through the Restitution Discussion =3D

Group,
 an=3D20

  international internet LISTSERV devoted to all aspects of the =3D

law
 of=3D20

  unjust enrichment. To subscribe, send "subscribe enrichment" =3D

in
 the=3D20

  body of a message to <listserv@lists.mcgill.ca&g=

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 send "signoff enrichment" to the same address. =3D

To make a=3D20

  posting to
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  The list is
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BR=3D

>




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____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

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 send "signoff enrichment" to the same address. To make a posting to

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Date:         Mon, 5 Apr 2004 12:04:44 +0100

Reply-To:     duncan.sheehan@uea.ac.uk

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Duncan Sheehan 

Subject:      Re: Undue Influence & Natural Obligations

Comments: To: William Swadling 



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That's fair, I think, but I'm not sure it makes a vast amount of differen=

ce.

My 'justification' removes their 'explanation'.



Duncan



Dr Duncan Sheehan

Postgraduate Admissions Officer

Norwich Law School

University of East Anglia

Norwich NR4 7TJ

United Kingdom





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

  From: Enrichment - Restitution & Unjust Enrichment Legal Issues

[mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of William Swadling

  Sent: Monday, April 05, 2004 10:26 AM

  To: ENRICHMENT@LISTS.MCGILL.CA

  Subject: Re: [RDG:] Undue Influence & Natural Obligations





  The issue, surely, is not about an 'explanation' at all.  The transfer =

in

Allcard v Skinner, for example, can be 'explained' as one where the novic=

e

was acting under the influence of the Mother Superior.  Similarly, the

'explanation' of Chase Manhattan is that the second transfer was made by

mistake.  Indeed, if these 'explanations' were removed, the ground of cla=

im

would simply disappear.  What Duncan seems to be looking for is a

justification for the transfers, not an explanation.



  WJS

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

    From: Duncan Sheehan

    To: ENRICHMENT@LISTS.MCGILL.CA

    Sent: Monday, April 05, 2004 9:35 AM

    Subject: Re: [RDG:] Undue Influence & Natural Obligations





    Dear all,



    I imagine that if there were a natural obligation, at least how I def=

ine

    them, that the answer would be no the transaction does not call for a=

n

    explanation if there is one. I say this because if natural obligation=

s

arise

    because we see the agreement to do act X as being worthy of some

    recognition, despite being unenforceable, it is inconsistent to say t=

hat

    there can be a natural obligation where there is undue influence, or

undue

    infuence where there is a natural obligation. Where there is undue

influence

    the law states that there is a need to protect the claimant, which

negatives

    the possibility of a natural obligation.



    Duncan



    Dr Duncan Sheehan

    Postgraduate Admissions Officer

    Norwich Law School

    University of East Anglia

    Norwich NR4 7TJ

    United Kingdom



    > -----Original Message-----

    > From: Enrichment - Restitution & Unjust Enrichment Legal Issues

    > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith

    > Sent: Sunday, April 04, 2004 4:16 PM

    > To: ENRICHMENT@LISTS.MCGILL.CA

    > Subject: Re: [RDG:] Undue Influence & Natural Obligations

    >

    >

    > Does "natural obligation" mean that "the transaction does not call =

for

    > an explanation"? And perhaps that it does not reveal "manifest

    > disadvantage"?

    >

    > Lionel

    >

    > ___________________________________________________________________=

_

    >  This message was delivered through the Restitution Discussion Grou=

p,

    >  an international internet LISTSERV devoted to all aspects of the l=

aw

    >  of unjust enrichment. To subscribe, send "subscribe enrichment" in

    >  the body of a message to . To unsubscrib=

e,

    >  send "signoff enrichment" to the same address. To make a posting t=

o

    >  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, em=

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That's=3D20

fair, I think, but I'm not sure it makes a vast amount of difference. My =

=3D



'justification' removes their 'explanation'.



 



Duncan=3D20





 



Dr Duncan Sheehan
Postgraduate Admissions =3D

Officer
Norwich=3D20

Law School
University of East Anglia
Norwich NR4 7TJ
United=3D20

Kingdom 



 




  
-----Original Message-----
From: Enrichment - =3D

Restitution=3D20

  & Unjust Enrichment Legal Issues =3D

[mailto:ENRICHMENT@LISTS.MCGILL.CA]On=3D20

  Behalf Of William Swadling
Sent: Monday, April 05, 2004 =3D

10:26=3D20

  AM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: 

Re: =3D

[RDG:]=3D20

  Undue Influence & Natural Obligations



  
The issue, surely, is not about an 'explanation' at =3D

all.  The=3D20

  transfer in Allcard v Skinner, for example, can be =3D

'explained' as one=3D20

  where the novice was acting under the influence of the Mother=3D20

  Superior.  Similarly, the 'explanation' of Chase =3D

Manhattan is=3D20

  that the second transfer was made by mistake.  Indeed, if these=3D=

20

  'explanations' were removed, the ground of claim would simply=3D20

  disappear.  What Duncan seems to be looking for is=3D20

  a justification for the transfers, not an explanation.


  
 


  
WJS 


  

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


    From:=3D20

    Duncan Sheehan 

    
To: ENRICHMENT@LISTS.MCGILL.

CA =3D




    
Sent: Monday, April 05, 2004=

 =3D

9:35=3D20

    AM


    
Subject: Re: [RDG:] Undue =3D

Influence=3D20

    & Natural Obligations


    

Dear all,

I imagine that if there were a =3D

natural=3D20

    obligation, at least how I define
them, that the answer would be =3D

no the=3D20

    transaction does not call for an
explanation if there is one. I =3D

say this=3D20

    because if natural obligations arise
because we see the agreement =

=3D

to do=3D20

    act X as being worthy of some
recognition, despite being =3D

unenforceable,=3D20

    it is inconsistent to say that
there can be a natural obligation =3D

where=3D20

    there is undue influence, or undue
infuence where there is a =3D

natural=3D20

    obligation. Where there is undue influence
the law states that =3D

there is a=3D20

    need to protect the claimant, which negatives
the possibility of =3D

a=3D20

    natural obligation.

Duncan

Dr Duncan =3D

Sheehan
Postgraduate=3D20

    Admissions Officer
Norwich Law School
University of East=3D20

    Anglia
Norwich NR4 7TJ
United Kingdom

> =3D

-----Original=3D20

    Message-----
> From: Enrichment - Restitution & Unjust =3D

Enrichment=3D20

    Legal Issues
> [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of 

=

=3D

Lionel=3D20

    Smith
> Sent: Sunday, April 04, 2004 4:16 PM
> To: ENRICHMENT@LISTS.M

CGILL.CA=3D


>=3D20

    Subject: Re: [RDG:] Undue Influence & Natural=3D20

    Obligations
>
>
> Does "natural obligation" mean =3D

that "the=3D20

    transaction does not call for
> an explanation"? And perhaps =3D

that it=3D20

    does not reveal "manifest
> disadvantage"?
>
>=3D20

    Lionel
>
>=3D20

    =3D

____________________________________________________________________
&=

=3D

gt; =3D20

    This message was delivered through the Restitution Discussion=3D20

    Group,
>  an international internet LISTSERV devoted to =3D

all=3D20

    aspects of the law
>  of unjust enrichment. To subscribe, =

=3D

send=3D20

    "subscribe enrichment" in
>  the body of a message to =3D

<listserv@lists.mcgill.ca&g=

t;=3D

. To=3D20

    unsubscribe,
>  send "signoff enrichment" to the same =3D

address. To=3D20

    make a posting to
>  all group members, send to <enrichment@lists.mcgill.ca=3D

>.=3D20

    The list is
>  run by Lionel Smith of McGill University, =3D

tel.=3D20

    (+1) 514 398 6635, email
>  <lionel.smith@mcgill.ca>.<=

BR=3D

>>

_________________________________________________________

___=

=3D

________
 This=3D20

    message was delivered through the Restitution Discussion =3D

Group,
 an=3D20

    international internet LISTSERV devoted to all aspects of the=3D20

    law
 of unjust enrichment. To subscribe, send "subscribe =3D

enrichment"=3D20

    in
 the body of a message to <listserv@lists.mcgill.ca&g=

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    unsubscribe,
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=3D

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    The list is
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    398 6635, email
 <lionel.smith@mcgill.ca>.<=

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>




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Date:         Mon, 5 Apr 2004 09:39:49 -0400

Reply-To:     Lionel Smith 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Lionel Smith 

Subject:      Natural Obligations

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I post this on behalf of Hector MacQueen. I should say that I am aware

of the sense of 'natural obligation' which he describes, which also

exists in the civil law of Quebec, and was very familiar to common

lawyers at least in the days of Lord Mansfield and Sir William Evans. I

meant to suggest that as it relates to proof of undue influence, there

may be no real difference between that idea and some of the

formulations which common law courts have used. The words capture an

underlying factual idea, which can issue in more than one legal

consequence.



Lionel







Dear Lionel



Apologies if I am coming into the middle of something here (I hadn't

been following this thread until I saw your contribution), but as I

understand "natural obligation", it means an obligation unenforceable as

such in law but which nonetheless may have certain secondary effects in

the law of obligations, e.g. if money is paid under a natural obligation

such as a prescribed debt, it is not reclaimable as an unjustified

enrichment; and it can be used in set-off.  The root is Roman law and

the concept is very familiar in continental European systems.



Best wishes



Hector



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

From: Enrichment - Restitution & Unjust Enrichment Legal Issues

[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith

Sent: 04 April 2004 16:16

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG:] Undue Influence & Natural Obligations





Does "natural obligation" mean that "the transaction does not call for

an explanation"? And perhaps that it does not reveal "manifest

disadvantage"?



Lionel



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

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 send "signoff enrichment" to the same address. To make a posting to

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 .

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

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

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=3D=3D=3D

Date:         Mon, 5 Apr 2004 17:43:56 +0100

Reply-To:     duncan.sheehan@uea.ac.uk

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Duncan Sheehan 

Subject:      Re: Natural Obligations

Comments: To: Lionel Smith 

In-Reply-To:  

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Dear all,



I had not intended to... but here we go. I think it worth spelling out

precisely what I do think these things are.



Hector MacQueen's contribution almost precisely mirrors what I mean by

natural obligations IN ENGLISH LAW. Indeed my argument is precisely that

Lord Mansfield and Sir William Evans knew about these things, and they ha=

ve

never gone away, merely that since their major effect is to bar recovery =

of

payments under a mistake (almost invariably of law) they were buried by t=

he

mistake of law bar. Essentially the argument goes that there are some

obligations that English law recognises as being worthy of some effect

despite being unenforceable.



The obligation should arise where the claimant has undertaken to do an ac=

t,

but the contract, under which he undertook the duty, is void; nonetheless=

,

we see the undertaking of the duty as worthy of some recognition. However=

,

the reason why the contract, or agreement, is void ought not indicate a

disapproval of the act itself, or a need to protect the claimant. Thus wh=

ere

the contract is void for informality a natural obligation ought to be

recognised; however, where the contract is void for the mistake of one of

the parties relief ought not to be denied to that party. I understand tha=

t

this is a central case of natural obligations in several jurisdictions.



I think that there are three types of natural obligation, which I have

imaginatively labelled type 1, type 2, and type 3. Type 1 obligations are

those that only bar recovery of money paid by mistake (either of law or

fact). Type 2 obligations also support a future promise to do the act

promised. This is the remnants of moral consideration integrated into the

theory - it's notable that Treitel's general statement of when moral

consideration arises is remarkably similar to the general idea lying behi=

nd

my concept of natural obligation. Type 3 obligations include other effect=

s -

ability to support accessory or guarantor liability - minors contracts fo=

r

instance (albeit only by statute).



Duncan



Dr Duncan Sheehan

Postgraduate Admissions Officer

Norwich Law School

University of East Anglia

Norwich NR4 7TJ

United Kingdom



> -----Original Message-----

> From: Enrichment - Restitution & Unjust Enrichment Legal Issues

> [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Lionel Smith

> Sent: Monday, April 05, 2004 2:40 PM

> To: ENRICHMENT@LISTS.MCGILL.CA

> Subject: [RDG:] Natural Obligations

>

>

> I post this on behalf of Hector MacQueen. I should say that I am aware

> of the sense of 'natural obligation' which he describes, which also

> exists in the civil law of Quebec, and was very familiar to common

> lawyers at least in the days of Lord Mansfield and Sir William Evans. I

> meant to suggest that as it relates to proof of undue influence, there

> may be no real difference between that idea and some of the

> formulations which common law courts have used. The words capture an

> underlying factual idea, which can issue in more than one legal

> consequence.

>

> Lionel

>

>

>

> Dear Lionel

>

> Apologies if I am coming into the middle of something here (I hadn't

> been following this thread until I saw your contribution), but as I

> understand "natural obligation", it means an obligation unenforceable a=

s

> such in law but which nonetheless may have certain secondary effects in

> the law of obligations, e.g. if money is paid under a natural obligatio=

n

> such as a prescribed debt, it is not reclaimable as an unjustified

> enrichment; and it can be used in set-off.  The root is Roman law and

> the concept is very familiar in continental European systems.

>

> Best wishes

>

> Hector



____________________________________________________________________

 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

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 send "signoff enrichment" to the same address. To make a posting to

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

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

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

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

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=3D=3D=3D

Date:         Mon, 5 Apr 2004 17:01:53 -0400

Reply-To:     Jason Neyers 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         Jason Neyers 

Subject:      Undue Influence and Innocent Misrepresentations

Comments: To: Andrew.Dickinson@CLIFFORDCHANCE.COM

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Dear Andrew:



How is explaining common mistake or frustration as a rule of law better

than saying that the whole tenor of the agreement objectively

interpreted is consistent with the implication that these obligations

were not to bind in certain circumstances (a natural law position). More

importantly, the rule of law route is a cop-out since it does not

explain why there should be such a rule of law. If the best that the CA

can come up with is that a rule exists because the judges said so or for

some unnamed criteria of policy or fairness, then the English common law

understanding of this area is quite impoverished.



Andrew.Dickinson@CLIFFORDCHANCE.COM wrote:



>I agree with Robert.  Implied contractual terms are an unsatisfactory wa=

y of

>explaining frustration or common mistake (where both parties have reache=

d an

>objective agreement on an equal footing) (see Great Peace Shipping v.

>Tsavliris [2003] QB 679, [73] (CA) ("What do these developments in the l=

aw

>of frustration have to tell us about the law of common mistake? First th=

at

>the theory of the implied term is as unrealistic when considering common

>mistake as when considering frustration. Where a fundamental assumption =

upon

>which an agreement is founded proves to be mistaken, it is not realistic=

 to

>ask whether the parties impliedly agreed that in those circumstances the

>contract would not be binding. The avoidance of a contract on the ground=

 of

>common mistake results from a rule of law under which, if it transpires =

that

>one or both of the parties have agreed to do something which it is

>impossible to perform, no obligation arises out of that agreement.").

>

>They are an even less satisfactory way of explaining vitiating factors s=

uch

>as misrepresentation, duress and undue influence, where the conduct of o=

ne

>party (innocent or otherwise) has unbalanced the relationship in such a =

way

>as to justify the other being given the legal option, subject to certain

>qualifications, to undo the bargain (see John Cartwright's analysis in-

>"Unequal Bargaining").  Sometimes that option is exercisable unilaterall=

y

>(e.g. rescission at common law for fraud) and sometimes it requires the

>sanction of the court (e.g. rescission in equity for undue influence).  =

The

>remedy of rescission, in many cases, also effects restitution between th=

e

>parties.  The idea that an implied contractual term is necessary, or

>appropriate, to achieve this result over-complicates the analysis and is

>reminiscent of the argument that the reversal of unjust enrichment was

>itself founded on an implied contract.

>

>Andrew

>

>-----Original Message-----

>From: Robert Stevens [mailto:robert.stevens@LAW.OXFORD.AC.UK]

>Sent: 02 April 2004 16:56

>To: ENRICHMENT@LISTS.MCGILL.CA

>Subject: Re: [RDG:] Undue Influence

>

>

>Jason Neyers wrote:

>

>

>

>>This raises the question of why a contract can be rescinded for a mater=

ial

>>innocent misrepresentation. I agree the reason is not fault. But I do n=

ot

>>

>>

>agree

>

>

>>that it has nothing to do with the implied agreement of the parties. I =

see

>>

>>

>the

>

>

>>reason for the courts intervention, being similar to the reason the cou=

rt

>>intervenes (or is asked to intervene) in cases like Scott v. Coulson, B=

ell

>>

>>

>v.

>

>

>>Lever Bros.  The implied agreement/condition is that the contract is to

>>

>>

>bind

>

>

>>only their shared fundamental assumption is true. Hence if you would ha=

ve

>>

>>

>put

>

>

>>the point to the parties in Redgrave v. Hurd, they would have objective=

ly

>>agreed that the contract was to bind only if the practice brought in L4=

00

>>

>>

>per

>

>

>>year. While one may not agree with this analysis, it has a long history=

:

>>

>>

>see

>

>

>>Grotius, The Law and War and Peace, Bk. II c.11 and the work of Peter

>>

>>

>Benson,

>

>

>>The Unity of Contract of Law (2001: CUP).

>>

>>

>

>I do not find this a convincing explanation as to why a misrepresentatio=

n

>entitles the misrepresentee to rescind.

>I would be prepared to concede that where there is a common fundamental

>mistake made by both parties to a contract one plausible explanation as =

to

>why the contract is void is that there is an implied condition precenden=

t

>that the agreement is not to bind. So,

>

>A agrees to hire B's music hall and surrounding gardens. Unknown to both=

 A

>and B, ten minutes before the deal was struck the music hall had burnt t=

o

>the ground.

>We might be prepared to say, on an officious bystander test, that there =

is

>no contract because it was an implied condition precedent that the music

>hall existed. We might also be prepared to say that if the music hall bu=

rnt

>down ten minutes after the agreement that there was an implied condition

>subsequent that the deal was to come to an end.

>

>There are other plausible explanations for the result that the contract =

is

>no longer on foot and in the context of frustration the implied conditio=

n

>analysis has become unfashionable.

>

>Where rescission for misrepresentation is concerned, the misrepresentati=

on

>need not be fundamental nor need it be shared. All that is necessary is =

that

>the misrepresentation, however minor, was in part a cause of the decisio=

n to

>enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).

>

>A agrees to charter B's ship for six months. Wholly innocently, B

>misrepresents the size of the propellor. The size of the propellor playe=

d a

>minor role in A's decision to hire the ship.

>

>As the contract is voidable, not void, the implied term would have to be

>something like:

>

>"If either party misrepresents to the other, regardless of fault, a matt=

er

>material to the other's entering into the contract, this shall entitle t=

he

>other party to avoid the deal.'

>

>I don't think myself that such an impled term passes the officious bysta=

nder

>test. If we say the term is implied by law, rather than fact, we just ge=

t

>back to asking why the law should imply such a term.

>

>It seems to me that a better explanation is that the misrepresentee's

>consent has been vitiated by the misrepresentation and that this entitle=

s

>him to set aside the deal. If I make you a gift because of a

>misrepresentation you have made to me I am entitled to recover the gift.=

 I

>do not, myself think that this can be explained through an implied agree=

ment

>to return the gift. Similarly if I enter into a contract with you becaus=

e of

>your holding a gun to my head or because I am hopelessly dependent upon =

you,

>I can avoid the deal. I don't think that this is because of any implied

>agreement that I am entitled to do so.

>

>RS

>

>____________________________________________________________________

> 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 and any attachment are confidential and may be privileged o=

r otherwise protected from disclosure.  If you are not the intended recip=

ient, please telephone or email the sender and delete this message and an=

y attachment from your system.  If you are not the intended recipient you=

 must not copy this message or attachment or disclose the contents to any=

 other person.

>

>For further information about Clifford Chance please see our website at =

http://www.cliffordchance.com or refer to any Clifford Chance office.

>

>____________________________________________________________________

> This message was delivered through the Restitution Discussion Group,

> an international internet LISTSERV devoted to all aspects of the law

> of unjust enrichment. To subscribe, send "subscribe enrichment" in

> the body of a message to . To unsubscribe,

> send "signoff enrichment" to the same address. To make a posting to

> all group members, send to . The list is

> run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

> .

>

>



--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435







--------------060600090500020801070504

Content-Type: text/html; charset=3Dus-ascii

Content-Transfer-Encoding: 7bit









  

  





Dear Andrew:





How is explaining common mistake or frustration as a rule of law b=

etter

than saying that the whole tenor of the agreement objectively interpreted

is consistent with the implication that these obligations were not to bin=

d

in certain circumstances (a natural law position). More importantly, the

rule of law route is a cop-out since it does not explain why there should

be such a rule of law. If the best that the CA can come up with is that a

rule exists because the judges said so or for some unnamed criteria of po=

licy

or fairness, then the English common law understanding of this area is qu=

ite

impoverished.  





Andrew.Dickinson@CLIFFORDCHANCE.COM 

wrote:





  
I agree with Robert.  Implied contractual terms are an u=

nsatisfactory way of

explaining frustration or common mistake (where both parties have reached=

 an

objective agreement on an equal footing) (see Great Peace Shipping v.

Tsavliris [2003] QB 679, [73] (CA) ("What do these developments in the la=

w

of frustration have to tell us about the law of common mistake? First tha=

t

the theory of the implied term is as unrealistic when considering common

mistake as when considering frustration. Where a fundamental assumption u=

pon

which an agreement is founded proves to be mistaken, it is not realistic =

to

ask whether the parties impliedly agreed that in those circumstances the

contract would not be binding. The avoidance of a contract on the ground =

of

common mistake results from a rule of law under which, if it transpires t=

hat

one or both of the parties have agreed to do something which it is

impossible to perform, no obligation arises out of that agreement.").



They are an even less satisfactory way of explaining vitiating factors su=

ch

as misrepresentation, duress and undue influence, where the conduct of on=

e

party (innocent or otherwise) has unbalanced the relationship in such a w=

ay

as to justify the other being given the legal option, subject to certain

qualifications, to undo the bargain (see John Cartwright's analysis in-

"Unequal Bargaining").  Sometimes that option is exercisable unilaterally

(e.g. rescission at common law for fraud) and sometimes it requires the

sanction of the court (e.g. rescission in equity for undue influence).  T=

he

remedy of rescission, in many cases, also effects restitution between the

parties.  The idea that an implied contractual term is necessary, or

appropriate, to achieve this result over-complicates the analysis and is

reminiscent of the argument that the reversal of unjust enrichment was

itself founded on an implied contract.



Andrew



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

From: Robert Stevens [mailto:robert.stevens@LAW.OXFORD.AC.U

K]

Sent: 02 April 2004 16:56

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG:] Undue Influence





Jason Neyers wrote:



  


  


    
This raises the question of why a contract can be resc=

inded for a material

innocent misrepresentation. I agree the reason is not fault. But I do not

    


  


  
agree

  


  


    
that it has nothing to do with the implied agreement o=

f the parties. I see

    


  


  
the

  


  


    
reason for the courts intervention, being similar to t=

he reason the court

intervenes (or is asked to intervene) in cases like Scott v. Coulson, Bel=

l

    


  


  
v.

  


  


    
Lever Bros.  The implied agreement/condition is that t=

he contract is to

    


  


  
bind

  


  


    
only their shared fundamental assumption is true. Henc=

e if you would have

    


  


  
put

  


  


    
the point to the parties in Redgrave v. Hurd, they wou=

ld have objectively

agreed that the contract was to bind only if the practice brought in L400

    


  


  
per

  


  


    
year. While one may not agree with this analysis, it h=

as a long history:

    


  


  
see

  


  


    
Grotius, The Law and War and Peace, Bk. II c.11 and th=

e work of Peter

    


  


  
Benson,

  


  


    
The Unity of Contract of Law (2001: CUP).

    


  


  


I do not find this a convincing explanation as to why a misrepresentation

entitles the misrepresentee to rescind.

I would be prepared to concede that where there is a common fundamental

mistake made by both parties to a contract one plausible explanation as t=

o

why the contract is void is that there is an implied condition precendent

that the agreement is not to bind. So,



A agrees to hire B's music hall and surrounding gardens. Unknown to both =

A

and B, ten minutes before the deal was struck the music hall had burnt to

the ground.

We might be prepared to say, on an officious bystander test, that there i=

s

no contract because it was an implied condition precedent that the music

hall existed. We might also be prepared to say that if the music hall bur=

nt

down ten minutes after the agreement that there was an implied condition

subsequent that the deal was to come to an end.



There are other plausible explanations for the result that the contract i=

s

no longer on foot and in the context of frustration the implied condition

analysis has become unfashionable.



Where rescission for misrepresentation is concerned, the misrepresentatio=

n

need not be fundamental nor need it be shared. All that is necessary is t=

hat

the misrepresentation, however minor, was in part a cause of the decision=

 to

enter into the deal (Edgington v Fitmaurice (1885)  29 ChD 459).



A agrees to charter B's ship for six months. Wholly innocently, B

misrepresents the size of the propellor. The size of the propellor played=

 a

minor role in A's decision to hire the ship.



As the contract is voidable, not void, the implied term would have to be

something like:



"If either party misrepresents to the other, regardless of fault, a matte=

r

material to the other's entering into the contract, this shall entitle th=

e

other party to avoid the deal.'



I don't think myself that such an impled term passes the officious bystan=

der

test. If we say the term is implied by law, rather than fact, we just get

back to asking why the law should imply such a term.



It seems to me that a better explanation is that the misrepresentee's

consent has been vitiated by the misrepresentation and that this entitles

him to set aside the deal. If I make you a gift because of a

misrepresentation you have made to me I am entitled to recover the gift. =

I

do not, myself think that this can be explained through an implied agreem=

ent

to return the gift. Similarly if I enter into a contract with you because=

 of

your holding a gun to my head or because I am hopelessly dependent upon y=

ou,

I can avoid the deal. I don't think that this is because of any implied

agreement that I am entitled to do so.



RS



____________________________________________________________________

 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 uns=

ubscribe,

 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 and any attachment are confidential and may be privileged or=

 otherwise protected from disclosure.  If you are not the intended recipi=

ent, please telephone or email the sender and delete this message and any=

 attachment from your system.  If you are not the intended recipient you =

must not copy this message or attachment or disclose the contents to any =

other person.



For further information about Clifford Chance please see our website at <=

a class=3D"moz-txt-link-freetext" href=3D"http://www.cliffordchance.com">=

http://www.cliffordchance.com or refer to any Clifford Chance office.



____________________________________________________________________

 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 uns=

ubscribe,

 send "signoff enrichment" to the same address. To make a posting to

 all group members, send to . =

The list is

 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

  









--

Jason Neyers

January Term Director

Assistant Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 











--------------060600090500020801070504--



____________________________________________________________________

 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

 .

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

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

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=3D=3D=3D

Date:         Tue, 6 Apr 2004 00:37:07 +0100

Reply-To:     James Shirley 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         James Shirley 

Subject:      rule of law/implied term

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The answer to the last point made is surely this: the "rule of law"

explanation is better than the implied term explanation because the latte=

r

suggests that the justification for the doctrines of innocent

mistake/frustration is that they give effect to what the parties implicit=

ly

intended and are therefore important for the same reasons as other rules =

of

law justified in that way.



The thing is that if we are wrong then there is a danger that those

doctrines will develop away from their proper justification and fulfill

their purposes less well.



The doctrines of innocent mistake et al are justified not by a need to gi=

ve

effect to the intentions of the parties but by other important values:

efficiency, substantive equality etc.



While it is true that the value of the principle that we should uphold wh=

at

the parties intended can itself only be explained by reference to

efficiency, autonomy etc, we need to recognise those situations in which =

we

are *not*  giving effect to those values just to the extent that they fav=

our

the enforcement of agreements but to other extents and in their capacity =

as

values supporting other principles (such as the principle that no man sho=

uld

profit from his own wrong for example).



Any notion that giving effect to these values is making decisions "for so=

me

unnamed criteria of policy or fairness" would be radically false: these

values can be difficult to articulate and identify but they have names an=

d

it seems to me only go "unnamed" when judges pretend that doctrines such =

as

those discussed here can be explained in terms of contractual intention.



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The answer to the last point=

 =3D

made is=3D20

surely this: the "rule of law" explanation is better than the implied =3D

term=3D20

explanation because the latter suggests that the justification for the =3D

doctrines=3D20

of innocent mistake/frustration is that they give effect to what the =3D

parties=3D20

implicitly intended and are therefore important for the same reasons as =3D

other=3D20

rules of law justified in that way.



 



The thing is that if we are wrong=

 =3D

then there=3D20

is a danger that those doctrines will develop away from their =3D

proper=3D20

justification and fulfill their purposes less well.



 



The doctrines of innocent mistake=

 =3D

et al are=3D20

justified not by a need to give effect to the intentions of the parties =3D

but by=3D20

other important values: efficiency, substantive=3D20

equality etc.



 



While=3D20

it is true that the value of the principle that we should uphold what =3D

the=3D20

parties intended can itself only be explained by reference =3D

to efficiency,=3D20

autonomy etc, we need to 

=3D

recognise=3D20

those situations in which we are *not*  giving effect to those =3D

values just=3D20

to the extent that they favour the enforcement of agreements but to =3D

other=3D20

extents and in their capacity as values supporting other principles =3D

(such as the=3D20

principle that no man should profit from his own wrong for=3D20

example).



 



Any notion that giving effect to =

=3D

these=3D20

values is making decisions "for some unnamed criteria of policy or =3D

fairness"=3D20

would be radically false: these values can be difficult to articulate =3D

and=3D20

identify but they have names and it seems to me only go "unnamed" when =3D

judges=3D20

pretend that doctrines such as those discussed here can be explained in =3D

terms of=3D20

contractual intention.




------=3D_NextPart_000_0000_01C41B6F.4A3AE4F0--



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

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 of unjust enrichment. To subscribe, send "subscribe enrichment" in

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 send "signoff enrichment" to the same address. To make a posting to

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email

 .

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

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

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

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

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

=3D=3D=3D

Date:         Tue, 6 Apr 2004 00:42:41 +0100

Reply-To:     James Shirley 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         James Shirley 

Subject:      Rule of law/implied term

MIME-Version: 1.0

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**A slightly corrected version of my last post:



The answer to the last point made is surely this: the "rule of law"

explanation is better than the implied term explanation because the latte=

r

suggests that the justification for the doctrines of innocent

mistake/frustration is that they give effect to what the parties implicit=

ly

intended and are therefore important for the same reasons as other rules =

of

law justified in that way.



The thing is that if we are wrong then there is a danger that those

doctrines will develop away from their proper justification and fulfill

their purposes less well.



The doctrines of innocent mistake et al are justified not by a need to gi=

ve

effect to the intentions of the parties but by other important values:

efficiency, substantive equality etc.



While it is true that the value of the principle that we should uphold wh=

at

the parties intended can itself only be explained by reference to

efficiency, autonomy etc, we need to recognise those situations in which =

we

are *not*  giving effect to those values just to the extent that they fav=

our

the intentions of the parties but to other extents and in their capacity =

as

values supporting other principles (such as the principle that no man sho=

uld

profit from his own wrong for example).



Any notion that giving effect to these values is making decisions "for so=

me

unnamed criteria of policy or fairness" would be radically false: these

values can be difficult to articulate and identify but they have names an=

d

it seems to me only go "unnamed" when judges pretend that doctrines such =

as

those discussed here can be explained in terms of contractual intention.



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**A slightly=3D20

corrected version of my last post:



 



The answer to the last point=

 =3D

made is=3D20

surely this: the "rule of law" explanation is better than the implied =3D

term=3D20

explanation because the latter suggests that the justification for the =3D

doctrines=3D20

of innocent mistake/frustration is that they give effect to what the =3D

parties=3D20

implicitly intended and are therefore important for the same reasons as =3D

other=3D20

rules of law justified in that way.



 



The thing is that if we are wrong=

 =3D

then there=3D20

is a danger that those doctrines will develop away from their =3D

proper=3D20

justification and fulfill their purposes less well.



 



The doctrines of innocent mistake=

 =3D

et al are=3D20

justified not by a need to give effect to the intentions of the parties =3D

but by=3D20

other important values: efficiency, substantive=3D20

equality etc.



 



While=3D20

it is true that the value of the principle that we should uphold what =3D

the=3D20

parties intended can itself only be explained by reference =3D

to efficiency,=3D20

autonomy etc, we need to 

=3D

recognise=3D20

those situations in which we are *not*  giving effect to those =3D

values just=3D20

to the extent that they favour the intentions of the parties but =

=3D

to other=3D20

extents and in their capacity as values supporting other principles =3D

(such as the=3D20

principle that no man should profit from his own wrong for=3D20

example).



 



Any notion that giving effect to =

=3D

these=3D20

values is making decisions "for some unnamed criteria of policy or =3D

fairness"=3D20

would be radically false: these values can be difficult to articulate =3D

and=3D20

identify but they have names and it seems to me only go "unnamed" when =3D

judges=3D20

pretend that doctrines such as those discussed here can be explained in =3D

terms of=3D20

contractual intention.




------=3D_NextPart_000_0006_01C41B70.11865580--



____________________________________________________________________

 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, 7 Apr 2004 11:06:13 -0400

Reply-To:     axelrod 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal Issues

              

From:         axelrod 

Subject:      [rdg]:  undue influence

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>

> -

> From: allan axelrod 

>

>

>

>     ----- Original Message -----

>     From: Jason Neyers 

>     To: ENRICHMENT@LISTS.MCGILL.CA 



>     Sent: Monday, April 05, 2004 5:01 PM

>     Subject: [RDG:] Undue Influence and Innocent Misrepresentations

>

>     Dear Andrew:

>

>     How is explaining common mistake or frustration as a rule of law

>     better than saying that the whole tenor of the agreement

>     objectively interpreted is consistent with the implication that

>     these obligations were not to bind in certain circumstances (a

>     natural law position). More importantly, the rule of law route is

>     a cop-out since it does not explain why there should be such a

>     rule of law. If the best that the CA can come up with is that a

>     rule exists because the judges said so or for some unnamed

>     criteria of policy or fairness, then the English common law

>     understanding of this area is quite impoverished.

>

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

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

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



>     from AA:    describing  the  excuse for mistake or overreaching as

>     a rule of law is a statement that on certain factual

>     circumstances, an otherwise okay contract will not be enforced:

>     for prediction purposes it is unnecessary   to consider why

>     non-enforcement follows from mistake or over-reaching

>

>         however, if one wishes to explain why the law-giver gave the

>     rule for mistake/overreaching, a possible explanation is

>     implied mutual intent and the higher rule that contract

>     enforcement is to serve intention.  but only if the law-maker has

>     some empirical foundation for a particular implied intent

>     [implausible as a mutual intent in the overreaching case] is that

>     intent an explanation:  if the lawmaker implies the intent not

>     because he believes it to be true, but  because he wishes it were

>     true [ a natural law position?] or wishes that he could think of

>     another contract excuse,  the intent thus imputed is not an

>     explanation but the beginning of another inquiry???

>

>

>



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-



  
=

From:

  allan

 axelrod 




  


  


  



  




  
 




  




    
-----

Original Message ----- 




    



    



    
Sent:

Monday, April 05, 2004 5:01  PM




    
Subject:

[RDG:] Undue Influence and    Innocent Misrepresentations




    



    




    
Dear Andrew:


    


How is explaining common mistake or frustration as a    rule of law

better than saying that the whole tenor of the agreement    objectively i=

nterpreted

is consistent with the implication that these    obligations were not to

bind in certain circumstances (a natural law    position). More important=

ly,

the rule of law route is a cop-out since it does    not explain why there

should be such a rule of law. If the best that the CA    can come up with

is that a rule exists because the judges said so or for some    unnamed c=

riteria

of policy or fairness, then the English common law    understanding of th=

is

area is quite impoverished. 


    


    




  


  





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

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

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








  
from AA:    describing  =

;the  excuse for mistake

or overreaching as a    rule of law is a statement that on certain factua=

l

circumstances, an otherwise    okay contract will not be enforced:  =

for prediction

purposes it is    unnecessary   to consider why non-enforcement=

 follows from

mistake    or over-reaching




  




    
    ho=

wever, if    one wishes

to explain why the law-giver gave the rule for    mistake/overreachi=

ng, a

possible explanation is implied mutual intent and    the higher rule=

 that

contract enforcement is to serve    intention.  but only if the=

 law-maker

has some empirical    foundation for a particular implied intent [implaus=

ible

as a mutual intent in the    overreaching case] is that intent an explanation:  if the lawmaker implies =

the intent

not    because he believes it to be true, but  because he wishes it =

were

true [    a natural law position?] or wishes that he could think of anoth=

er

contract    excuse,  the intent thus imputed is not an exp=

lanation but the

   beginning of another inquiry???




    
 




    

    


  


 








--------------030401040903080301050801--



____________________________________________________________________

 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, 23 Apr 2004 14:18:21 -0400

Reply-To:     Lionel Smith 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal 

Issues

              

From:         Lionel Smith 

Subject:      Garland v Consumers Gas

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Yesterday the SCC released Garland v Consumers Gas, which was first

mentioned on the RDG in Nov 98, following the case's first trip to the

SCC. That Oct 98 decision was to the effect that late payment penalties

collected by the regulated utility defendant were criminally unlawful.

Despite that, on the remission of the case, the trial judge and Ont CA

said there could still not be restitution. The SCC has overturned that:



http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc025.wpd.html



The court has decided that the way of the future for Canada is a

modified juristic reason approach. The plaintiff must show that there

is no established juristic reason for the enrichment. Then a prima

facie case is made out, and the burden shifts to the defendant to show

why there should not be restitution.



Strangely, the court held that restitution is available only for

payments made after the litigation was commenced in 1994. There are

also comments on the defence of change of position (not available to a

wrongdoing defendant, in this case, violation of criminal law). In

general, the analysis is on the brief side.



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

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 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, 

email

 .





=======================================================================

==

Date:         Thu, 29 Apr 2004 09:26:22 +0100

Reply-To:     Andrew Tettenborn 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal 

Issues

              

From:         Andrew Tettenborn 

Subject:      Niru 2

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Niru 2 was decided in the CA yesterday (see [2004] EWCA Civ 487).



To recap (v briefly). Niru pay out by mistake on a letter of credit

relating to unavailable goods to CAI, a bank. They sue the bank for

repayment, and also sue SGS, who certified that the goods were 

available,

for negligence. In Niru 1, held that both CAI and SGS are liable, and 

that

CAI doesn't have a defence of change of position. Hence judgment given

against CAI and SGS jointly and severally.



SGS pay the judgment and in Niru 2 seek from CAI (a) subrogation to 

Niru's

rights against SGS, (b) recoupment from CAI, (c) contribution from CAI. 

The

judge says they succeed on (a) but not (b) or (c). Both sides appeal.





Held:



(1) SGS can have subrogation, as decided below.

(2) SGS could also have had recoupment, reversing the judge.

(3) Probably SGS could have had contribution on the basis of Friends

Provident v Hillier Parker. Although Royal Brompton cast doubt on 

Friends

Provident, these doubts were obiter, and the CA pro tem remains bound 

by

Friends Provident. Sedley went further and said he actually liked the

result in FP.



Happy days



Andrew







Andrew Tettenborn MA LLB

Bracton Professor of Law





Tel:                       01392-263189   /   +44-392-263189 

(international)

Cellphone:             07729-266200   /   +44-7729-266200 

(international)

Fax:                       01392-263196    /   +44-392-263196 

(international)



Snailmail:    School of Law,

                    University of Exeter,

                    Amory Building,

                    Rennes Drive,

                    Exeter EX4 4RJ

                    England



                    [School homepage: http://www.ex.ac.uk/law/ ]

                    [My homepage:

                      

http://www.ex.ac.uk/law/staff/tettenborn/index.html].

--=====================_2231593==.ALT

Content-Type: text/html; charset="us-ascii"







Niru 2 was decided in the CA yesterday (see

[2004] EWCA Civ 487). 



To recap (v briefly). Niru pay out by mistake on a letter of credit

relating to unavailable goods to CAI, a bank. They sue the bank for

repayment, and also sue SGS, who certified that the goods were 

available,

for negligence. In Niru 1, held that both CAI and SGS are liable, and

that CAI doesn't have a defence of change of position. Hence judgment

given against CAI and SGS jointly and severally. 



SGS pay the judgment and in Niru 2 seek from CAI (a) subrogation to

Niru's rights against SGS, (b) recoupment from CAI, (c) contribution 

from

CAI. The judge says they succeed on (a) but not (b) or (c). Both sides

appeal.






Held: 



(1) SGS can have subrogation, as decided below.


(2) SGS could also have had recoupment, reversing the judge.


(3) Probably SGS could have had contribution on the basis of Friends

Provident v Hillier Parker. Although Royal Brompton cast doubt on 

Friends

Provident, these doubts were obiter, and the CA pro tem remains bound 

by

Friends Provident. Sedley went further and said he actually liked the

result in FP.



Happy days



Andrew









Andrew Tettenborn MA LLB


Bracton Professor of Law






Tel:           &

nbsp;          

01392-263189   /   +44-392-263189

(international)


Cellphone:            

07729-266200   /   +44-7729-266200

(international)


Fax:           &

nbsp;          

01392-263196    /   +44-392-263196

(international)



Snailmail:    School of Law,


            

;      

University of Exeter,


            

;      

Amory Building,


            

;      

Rennes Drive,


            

;      

Exeter EX4 4RJ


            

;      

England



            

;      

[School homepage: http://www.ex.ac.uk/law/ ]


            

;      

[My homepage: 


            

;        

http://www.ex.ac.uk/law/staff/tettenborn/index.html].







--=====================_2231593==.ALT--



____________________________________________________________________

 This message was delivered through the Restitution Discussion Group,

 an international internet LISTSERV devoted to all aspects of the law

 of unjust enrichment. To subscribe, send "subscribe enrichment" in

 the body of a message to . To unsubscribe,

 send "signoff enrichment" to the same address. To make a posting to

 all group members, send to . The list is

 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, 

email

 .

=======================================================================

==

Date:         Thu, 29 Apr 2004 12:32:03 -0400

Reply-To:     Lionel Smith 

Sender:       Enrichment -  Restitution & Unjust Enrichment Legal 

Issues

              

From:         Lionel Smith 

Subject:      Understanding Unjust Enrichment, edited by Neyers,

              McInnes and Pitel

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A new book, which will be of interest to the members of the RDG,

Lionel



> Now published!

>

> Understanding Unjust Enrichment

>  Edited by Jason Neyers, Mitchell McInnes and Stephen Pitel

>  This book is a collection of articles based on Understanding 

Unjust=20=



> Enrichment, a symposium held at the University of Western Ontario 

in=20=



> January 2003. The articles, written from the perspective of 

English,=20=



> Australian, Canadian, German and Jewish law, deal with numerous=20

> theoretical and practical issues that surround restitution and 

unjust=20=



> enrichment. The articles outline recent developments across the=20

> Commonwealth, explain the unjust enrichment principle and its=20

> component parts, and address discrete issues such as tracing, 

choice=20=



> of law, disgorgement damages for breach of contract, and the use 

of=20

> unjust enrichment in the cohabitation context. The contributors 

are=20

> Kit Barker, Peter Benson, Jeffrey Berryman, Michael Bryan, Andrew=20

> Burrows, Robert Chambers, Gerald Fridman, Peter Jaffey, Dennis=20

> Klimchuk, Thomas Krebs, John McCamus, Mitchell McInnes, Stephen 

Pitel,=20=



> Stephen Waddams and Ernest Weinrib.

>

> Jason W. Neyers is an Assistant Professor of Law at the University 

of=20=



> Western Ontario.

>  Mitchell McInnes is an Associate Professor of Law at the 

University=20=



> of Western Ontario and a member of the Alberta Bar.

>  Stephen G.A. Pitel, is an Assistant Professor of Law at the=20

> University of Western Ontario and a member of the Ontario Bar.

>

> 20/04/04=A0=A0 234 x 156mm=A0 430pp

>  Hardback=A0=A0 1-84113-423-6=A0=A0 =A342.00=A0 / =8063.00=A0 =

Discount=A0rate to e-mail=20

> list subscribers: =A337.80/ =8056.70

>  http://www.hart.oxi.net/bookdetails.asp?id=3D581&bnd=3D0

>

> To order at the discount rate, just complete the enclosed form and=20

> return to us by mail or fax (we do not recommend that you e-mail 

your=20=



> credit card details to us, as this is not secure).=A0 If you have 

any=20=



> queries, please do not hesitate to contact me.

>

>  <>

>

>  With good wishes,

>

> Jane Parker

>  Hart Publishing Ltd

> Salters Boatyard

>  Folly Bridge

>  Abingdon Road

>  Oxford OX1 4LB

>  UK

>  Tel: +44 1865 245533

>  Fax: +44 1865 794882

>  Website http://www.hartpub.co.uk

>

> If you would like to be removed from this list at any time, just 

reply=20=



> to this message with =93unsubscribe=94 typed in the subject box.



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A new book, which will be of interest to the members of the RDG,



Lionel





ArialNow

published!=20





ArialUnderstanding Unjust

Enrichment=20



 ArialEdited by

Jason Neyers, Mitchell McInnes and Stephen

Pitel=20



 ArialThis book is a collection of

articles based on Understanding Unjust Enrichment, a symposium held at

the University of Western Ontario in January 2003. The articles,

written from the perspective of English, Australian, Canadian, German

and Jewish law, deal with numerous theoretical and practical issues

that surround restitution and unjust enrichment. The articles outline

recent developments across the Commonwealth, explain the unjust

enrichment principle and its component parts, and address discrete

issues such as tracing, choice of law, disgorgement damages for breach

of contract, and the use of unjust enrichment in the cohabitation

context. The contributors are Kit Barker, Peter Benson, Jeffrey

Berryman, Michael Bryan, Andrew Burrows, Robert Chambers, Gerald

Fridman, Peter Jaffey, Dennis Klimchuk, Thomas Krebs, John McCamus,

Mitchell McInnes, Stephen Pitel, Stephen Waddams and Ernest =

Weinrib.





ArialJason W. Neyers is an

Assistant Professor of Law at the University of Western

Ontario.=20



 ArialMitchell McInnes is

an Associate Professor of Law at the University of Western Ontario and

a member of the Alberta Bar.=20



 ArialStephen G.A. Pitel,

is an Assistant Professor of Law at the University of Western Ontario

and a member of the Ontario Bar.





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