======================================================================= == Date: Tue, 1 Jun 2004 19:47:58 +0000 Reply-To: Kev Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kev Subject: Re: Yahoo! MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="--------lgrqtiynuopppecpizuz" ----------lgrqtiynuopppecpizuz Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: 7bit
----------lgrqtiynuopppecpizuz Content-Type: text/plain Content-Transfer-Encoding: 7bit [Filename: MoreInfo.cpl, Content-Type: application/octet-stream] The attachment file in the message has been removed by eManager. ----------lgrqtiynuopppecpizuz-- ____________________________________________________________________ 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, 9 Jun 2004 07:56:52 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: Notice of Conference on Fusion Mime-Version: 1.0 Content-Type: text/plain; format=3Dflowed Dear Members Some time ago Simone Degeling mentioned on this list a conference being hosted by the University of NSW on 16-18 December 2004. Registration for the conference is now open and all details are available at www.fusion.unsw.edu.au (there is an academic rate and discount for registration prior to 30 June 2004). In summary, the conference will explore many topical issues relating to t= he relationship between law and equity (including many which have been the subject of much discussion on this list over its years). The conference dinner (at which a guest speaker will speak on the topic) will be held at Parliament House in NSW on the Friday night. Speakers and chairpersons at the conference include: From the judiciary: Justice RP Austin, Supreme Court of New South Wales Justice WMC Gummow, High Court of Australia Justice JD Heydon, High Court of Australia Justice Mason, President NSW Court of Appeal Chief Justice McLachlin, Chief Justice of Canada Lord Millett, House of Lords Justice Stone, Federal Court of Australia From the academy and legal practice: Professor Michael Bryan, University of Melbourne Professor Andrew Burrows, Professor Of Commercial Law, University of Oxfo= rd Professor Robert Chambers, University of Alberta Dr Rory Derham, NSW Bar Dr Joshua Getzler, St Hugh=92s College, University of Oxford Professor Ross Grantham, University of Auckland Professor David Hayton, Kings College, University of London Professor Steve Hedley, Professor of Law, University College Cork Dr Ben Kremer, Freehills Professor Mitchell McInnes Mr Richard Nolan, St John=92s College Cambridge Professor Patrick Parkinson, University of Sydney Professor Charles Rickett, University of Queensland Professor Chris Rossiter, University of New South Wales Professor Lionel Smith, McGill University Mr John Stumbles, Mallesons Stephen Jaques Mr William Swadling, Brasenose College, University of Oxford Professor Sarah Worthington, London School of Economics Associate Professor Tiong Min Yeo Please feel free to pass this onto anyone you think may be interested Jamie and Simone _________________________________________________________________ Smart Saving with ING Direct =96 earn 5.25% p.a. variable rate: http://ad.au.doubleclick.net/clk;7249209;8842331;n?http://www.ingdirect.c= om.au/burst6offer.asp?id=3D8 ____________________________________________________________________ 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, 17 Jun 2004 13:26:58 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Criterion in the House of Lords MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit The HL have decided Criterion Properties plc v. Stratford UK Properties (http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040617/cr itrn- 1.htm). The CA and Hart J. st first instance had believed that they weere dealing with a case of knowing receipt. If the HL had agreed, it would have provided the HL with an opportunity to consider whether the CA in Bank of Credit and Commerce International (Overseas) Ltd v Akindele had adopted the correct approach in requiring the claimant to show that the defendant's state of knowledge rendered it unconscionable for him to retain the money received. The HL considered the case to be a simple one concerning whether directors had actual or ostensible authority to enter into an agreement, The applicable principles are summarised by Lord Nicholls at [4] "If a company (A) enters into an agreement with B under which B acquires benefits from A, A's ability to recover these benefits from B depends essentially on whether the agreement is binding on A. If the directors of A were acting for an improper purpose when they entered into the agreement, A's ability to have the agreement set aside depends upon the application of familiar principles of agency and company law. If, applying these principles, the agreement is found to be valid and is therefore not set aside, questions of 'knowing receipt' by B do not arise. So far as B is concerned there can be no question of A's assets having been misapplied. B acquired the assets from A, the legal and beneficial owner of the assets, under a valid agreement made between him and A. If, however, the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement. A will have a proprietary claim, if B still has the assets. Additionally, and irrespective of whether B still has the assets in question, A will have a personal claim against B for unjust enrichment, subject always to a defence of change of position. B's personal accountability will not be dependent upon proof of fault or 'unconscionable' conduct on his part. B's accountability, in this regard, will be 'strict'." It seems to me that Lord Nicholls approach of looking at the validity of the agreement as determinative of whether there is a personal or proprietary claim to the benefit conferred is the same as that suggested by Peter Birks in Unjust Enrichment (2003). Robert Stevens Barrister Fellow and Tutor in Law Lady Margaret Hall Oxford University ____________________________________________________________________ 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, 17 Jun 2004 09:44:47 -0400 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: Criterion in the House of Lords MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit It appears that jurisitic reasons/lack of basis has now won the day in England, as it has in Canada (per Garland v. Consumers Gas). Robert Stevens wrote: >The HL have decided Criterion Properties plc v. Stratford UK Properties >(http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040617/c ritrn- >1.htm). > >The CA and Hart J. st first instance had believed that they weere dealing >with a case of knowing receipt. If the HL had agreed, it would have provided >the HL with an opportunity to consider whether the CA in Bank of Credit and >Commerce International (Overseas) Ltd v Akindele had adopted the correct >approach in requiring the claimant to show that the defendant's state of >knowledge rendered it unconscionable for him to retain the money received. > >The HL considered the case to be a simple one concerning whether directors >had actual or ostensible authority to enter into an agreement, The >applicable principles are summarised by Lord Nicholls at [4] > >"If a company (A) enters into an agreement with B under which B acquires >benefits from A, A's ability to recover these benefits from B depends >essentially on whether the agreement is binding on A. If the directors of A >were acting for an improper purpose when they entered into the agreement, >A's ability to have the agreement set aside depends upon the application of >familiar principles of agency and company law. If, applying these >principles, the agreement is found to be valid and is therefore not set >aside, questions of 'knowing receipt' by B do not arise. So far as B is >concerned there can be no question of A's assets having been misapplied. B >acquired the assets from A, the legal and beneficial owner of the assets, >under a valid agreement made between him and A. If, however, the agreement >is set aside, B will be accountable for any benefits he may have received >from A under the agreement. A will have a proprietary claim, if B still has >the assets. Additionally, and irrespective of whether B still has the assets >in question, A will have a personal claim against B for unjust enrichment, >subject always to a defence of change of position. B's personal >accountability will not be dependent upon proof of fault or 'unconscionable' >conduct on his part. B's accountability, in this regard, will be 'strict'." > >It seems to me that Lord Nicholls approach of looking at the validity of the >agreement as determinative of whether there is a personal or proprietary >claim to the benefit conferred is the same as that suggested by Peter Birks >in Unjust Enrichment (2003). > >Robert Stevens >Barrister >Fellow and Tutor in Law >Lady Margaret Hall >Oxford University > >____________________________________________________________________ > 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 ____________________________________________________________________ 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, 17 Jun 2004 23:18:34 +0800 Reply-To: Nicholas Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Nicholas Subject: Research Degree Proposal Mime-Version: 1.0 (Apple Message framework v613) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed Dear, I'm planning to apply for a research degree but i am not sure how to write the outline for my proposal. Can anyone let assist me on this? Please. Thanks. Nicholas Tan ____________________________________________________________________ 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, 17 Jun 2004 13:17:22 -0400 Reply-To: Mitchell McInnes Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mitchell McInnes Organization: University of Western Ontario Subject: Criterion and Juristic Reasons MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Criterion v Stratford was concerned with the enforcement of an executory contract. Anything said about restitution was dicta. And it is difficult to see how that dicta accepts a shift from unjust factors to juristic reasons. While some of Lord Nicholls' comments might be read in support of the civilian model (especially the second sentence in para 4), they are, when read in context, entirely consistent with the approach that he proposed in 1998 ("Knowing Receipt: The Need for a New Landmark"). And at that time, he was understood to support "knowing receipt" as a species of unjust enrichment in which strict liability is triggered by the plaintiff's lack of intention (an unjust factor). From that perspective, the bits about the validity of the agreement simply pertain to the issue of subsidiarity. A claim in unjust enrichment cannot normally get off the ground if the relevant transfer is governed by an enforceable contract. Unless the agreement is invalidated, "questions of 'knowing receipt' ... do not arise." Lord Scott's judgment (with which the other members of the panel agreed) is even less amenable to the juristic reason analysis. The lower courts analyzed the claim in terms of knowing receipt and held that liability required proof of the recipient's knowledge or unconscionability. Assuming that knowing receipt is a species of unjust enrichment, it cannot be explained in terms of an absence of juristic reason. Unconscionability is a positive reason for restitution - an unjust factor. Lord Scott did not reject that analysis - he simply held that it was inapplicable to the facts. Whether or not the defendant had acted unconscionably, it had not received anything upon which a restitutionary claim could bite. It simply hoped to be enriched under the contract. Professor Birks' view may eventually prevail. It is, however, hard to see how Criterion adds much to the debate. Mitchell McInnes ____________________________________________________________________ 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, 17 Jun 2004 20:27:30 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Criterion and Juristic Reasons Comments: To: Mitchell McInnes In-Reply-To: <40D1D222.C79F66E4@uwo.ca> Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 In message <40D1D222.C79F66E4@uwo.ca> Mitchell McInnes writes: > Criterion v Stratford was concerned with the enforcement of an executory > contract. Anything said about restitution was dicta. I agree with that. > While some of Lord Nicholls' comments might be read in support of the > civilian model (especially the second sentence in para 4), they are, > when read in context, entirely consistent with the approach that he > proposed in 1998 ("Knowing Receipt: The Need for a New Landmark"). And > at that time, he was understood to support "knowing receipt" as a > species of unjust enrichment in which strict liability is triggered by > the plaintiff's lack of intention (an unjust factor). From that > perspective, the bits about the validity of the agreement simply pertain > to the issue of subsidiarity. A claim in unjust enrichment cannot > normally get off the ground if the relevant transfer is governed by an > enforceable contract. Unless the agreement is invalidated, "questions of > 'knowing receipt' ... do not arise." I don't think I agree with that, although the point is not crystal clear. The point is the case was nothing to do with knowing receipt and nor was Akindele. Consequently I don't think he is saying anything, consistent or otherwise with his earlier view about knowing receipt. If B holds an asset on trust for A and transfers that asset in breach of trust to C, A may wish to claim that C is liable for 'knowing' receipt. There is a live and lively debate about the degree of fault, if any, required to hold the defendant liable, to which Lord Nicholls has made a valuable contribution. This was not what happened in Akindele. The Claimant (ICIC) entered into an agreement with the defendant. What they were seeking to do was obtain restitution of the benefit conferred under the agreement. Lord Nicholls is saying that this turned upon whether the directors who entered into the contract had actual or ostensible authority to enter into the contract. As they were fraudsters, they clearly had no actual authority. Did they have ostensible authority? This should turn upon whether a reasonable person in the defendant's position would have thought, and did think, that they had the authority to enter into the contract. Put another way, the true question was whether the defendant ought to have known about the fraud. This is why the 'Court of Appeal in Akindele's case fell into error', not because they failed to follow his view in the 1998 piece. Akindele was emphatically not a case where strict liability was appropriate. I read Lord Nicholls as providing some support for the view that where the purported contract entered into is void for want of actual or ostensible authority, restitution should follow. Where a contract is void for want of corporate capacity, restitution follows (Guiness Mahon v Kensington). Where a contract is void because the human agents who purported to enter into the contract lacked actual or ostensible authority, restitution also follows. I do wonder, however, how easy it is to square his statement on proprietary restitution with Westdeutsche v Islington LBC. Roebert Stevens Barrister Fellow and Tutor in Law Lady Margaret Hall Oxford University ____________________________________________________________________ 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, 17 Jun 2004 20:49:20 -0400 Reply-To: Mitchell McInnes Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mitchell McInnes Organization: University of Western Ontario Subject: Criterion and Juristic Reasons MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I agree that the ratio of Criterion has nothing to do with knowing receipt or unjust enrichment. That's why I find it so difficult to see how one can say, on the basis of the decision, that "juristic reasons/lack of basis has now won the day in England." I'm also happy to agree that Lord Nicholls' comments regarding the error in Akindele pertained to the issue of "want of authority." I find it harder to agree, however, with the suggestion that Lord Nicholls was NOT "saying anything, consistent or otherwise with his earlier view about knowing receipt." He was certainly saying something, in dicta, about knowing receipt. I'm not absolutely sure what that something was - but I don't see much support for a civilian analysis. A director transfers company assets to a stranger. If the transfer occurred under a contract that has not been set aside, "questions of knowing receipt ... do not arise." If the contract has been set aside, the assets may be recoverable proprietarily if they're still available. In any event, there is "a personal claim ... for unjust enrichment." The defendant's personal liability "will not be dependent upon proof of fault or 'unconscionable' conduct on his part. [His] accountability, in this regard, will be 'strict'." So...Lord Nicholls was talking, in dicta, about knowing receipt, and moreover, he was talking about it in pretty much the same language that he used in 1998. And at that point, he was taken to support a model of strict liability within the traditional unjust factor approach. This thread opened with the comment was that "Lord Nicholls approach of looking at the validity of the agreement as determinative of whether there is a personal or proprietary claim to the benefit conferred is the same as that suggested by Peter Birks in Unjust Enrichment." I interpreted that as a suggestion that Criterion supports the view that a benefit conferred under an invalid contract is recoverable simply because the purported basis for the transfer failed - and not because, as traditionally has been true, the plaintiff can also demonstrate an unjust factor. Within that context, Lord Nicholls' comments in Criterion are neutral at best. He might conceivably have been saying that once the contract is set aside, restitution is "strict" in the sense that it follows automatically (subject to defences). Or he might have been saying that once the contract is set aside, restitution follows, without proof of fault, because the same considerations that invalidated the agreement will also provide the plaintiff with an unjust factor. In choosing between those options, the latter seems more likely. It would be surprising for a judge of Lord Nicholls' stature to adopt a radically new conception of unjust enrichment without even acknowledging that he was doing so. And that, of course, is the challenge for the civilian model in English law. Except for a couple of lower court decisions in the swaps saga (which may have been driven by the old mistake of law doctrine), there's little positive authority for the proposition. Aside from making arguments of principle (some quite compelling), the most that one can do is point to decisions (like Lord Nicholls') that are not inconsistent with the juristic reason analysis. MM ____________________________________________________________________ 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, 18 Jun 2004 06:38:12 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Criterion and Juristic Reasons Comments: To: Mitchell McInnes In-Reply-To: <40D23C10.A1E75267@uwo.ca> Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 A (a company) purports to enter into a contract with B under which B acquires benefits from A. The directors who enter into the deal are, however, fraudsters and lack both actual and ostensible authority. Can A recover back the benefit conferred under the purported contract? It is submitted that the answer is yes. If we adopt an 'unjust factors' approach, what is the unjust factor? Mistake will not do if the directors are the 'controlling mind and will' of the company. The claimant is not making a mistake as the knowledge of the directors will be attributed to A Ltd (see Dollarland). For the same reason the claimant is not 'ignorant' of the transfer, although this is an 'unjust factor' with no judicial support that I am aware of. Perhaps 'powerlessness' as suggested by Professor Burrows in his textbook would suffice? Again, there is no judicial support for such an unjust factor. I cannot, for myself, see that Lord Nicholls identifies any 'unjust factor'. By contrast, if we adopt an 'absence of legal ground' analysis the answer is obvious. 'If ... the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement.' Whatever the view one takes of the above two paragraphs, the claim in the hypothetical I give is not a claim in equity for knowing receipt. Nor, properly understood, was the claim in Akindele. If A Ltd has paid B money, A Ltd's claim is for money had and received (cf Kleinwort Benson v Lincoln CC and Guiness Mahon.) Is it seriously being argued that the claims in the swaps cases could and should have been pleaded as knowing receipt? If the benefit conferred by A Ltd is a service it is, I would have thought, obvious that the claim is not one for 'knowing receipt' in equity. The error that counsel and the CA in both Akindele and Criterion made is in thinking that because the directors are in breach of their fiduciary duties in entering into the contract, the claim against the counter-party to the contract is 'knowing' receipt. If B holds an asset on trust for A and in breach of trust transfers that asset to C, A may have a claim against C based upon knowing receipt. Because Akindele proceeded upon a mistaken assumtion as to the nature of the claim, it is submitted that it is weak authority on the issue of the degree of fault (if any) on the part of the recipient which needs to be shown for A's personal claim against C to succeed. Similarly, it is submitted that Lord Nicholls statement is not a reiteration of his extra-judicial views on this important but completely different point. Robert Stevens Barrister Fellow and Tutor in Law Lady Margaret Hall Oxford University ____________________________________________________________________ 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, 18 Jun 2004 11:21:00 +0100 Reply-To: James Shirley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Shirley Subject: CA decision MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0014_01C45526.5599D680" This is a multi-part message in MIME format. ------=_NextPart_000_0014_01C45526.5599D680 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Members of the list might be interested in Filby v. Mortgage Express (No 2) [2004] EWCA (Civ ) 759, handed down by the Court of Appeal this morning. http://www2.bailii.org/ew/cases/EWCA/Civ/2004/759.html The judgment is notable for what appears to be a startling finding that an agreement was void because "the claimants simply did not get what they bargained for." No authority is cited for the proposition but it appears to get the court out of answering some very difficult subrogation questions. I'd be interested to know what others think. James Shirley ------=_NextPart_000_0014_01C45526.5599D680 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Members of the list might be = interested in=20 Filby v. Mortgage Express (No 2) [2004] EWCA (Civ ) 759, handed = down by=20 the Court of Appeal this morning.
 
http:// ww= w2.bailii.org/ew/cases/EWCA/Civ/2004/759.html
 
The judgment is notable for what = appears to=20 be a startling finding that an agreement was void because = "the=20 claimants simply did not get what they bargained for." No authority is = cited for=20 the proposition but it appears to get the court out of answering some = very=20 difficult subrogation questions.
 
I'd be interested to know what = others=20 think.
 
James Shirley
 
 
------=_NextPart_000_0014_01C45526.5599D680-- ____________________________________________________________________ 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, 18 Jun 2004 13:03:21 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Fwd: [RDG:] CA decision Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_15584187==.ALT" --=====================_15584187==.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed James must be right. The decision itself is plainly correct, since ME's equitable interest in the money subsisted (because of the solicitors' agreement) at the time Midland got paid. But it cannot be correct to say no property in the money would ever have passed to Mr Filby if he had got his hands on it. Apart from anything else, the CA view is inconsistent with all the cases about title to goods. Take the Lewis v Averay situation. There too the original owner of the car could say, quite truthfully, that he simply didn't get what he bargained for: he'd bargained for a good cheque, not a stolen one. Yet property passed ... Andrew >X-Sieve: CMU Sieve 2.2 >X-Mailer: Microsoft Outlook IMO, Build 9.0.6604 (9.0.2911.0) >Importance: Normal >X-Authenticated-Sender: jps >X-Server: VPOP3 V2.0.0e - Registered >Date: Fri, 18 Jun 2004 11:21:00 +0100 >Reply-To: James Shirley >Sender: Enrichment - Restitution & Unjust Enrichment Legal >Issues >From: James Shirley >Subject: [RDG:] CA decision >To: ENRICHMENT@LISTS.MCGILL.CA > >Members of the list might be interested in Filby v. Mortgage Express (No >2) [2004] EWCA (Civ ) 759, handed down by the Court of Appeal this morning. > >http://www2.ba ilii.org/ew/cases/EWCA/Civ/2004/759.html > >The judgment is notable for what appears to be a startling finding that an >agreement was void because "the claimants simply did not get what they >bargained for." No authority is cited for the proposition but it appears >to get the court out of answering some very difficult subrogation questions. > >I'd be interested to know what others think. > >James Shirley > > 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]. --=====================_15584187==.ALT Content-Type: text/html; charset="us-ascii" James must be right. The decision itself is plainly correct, since ME's equitable interest in the money subsisted (because of the solicitors' agreement) at the time Midland got paid. But it cannot be correct to say no property in the money would ever have passed to Mr Filby if he had got his hands on it. Apart from anything else, the CA view is inconsistent with all the cases about title to goods. Take the Lewis v Averay situation. There too the original owner of the car could say, quite truthfully, that he simply didn't get what he bargained for: he'd bargained for a good cheque, not a stolen one. Yet property passed ...

Andrew




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Date:         Fri, 18 Jun 2004 11:21:00 +0100
Reply-To: James Shirley
Sender: Enrichment -  Restitution & Unjust Enrichment Legal Issues            ;  
From: James Shirley
Subject:      [RDG:] CA decision
To: ENRICHMENT@LISTS.MCGILL.CA

Members of the list might be interested in Filby v. Mortgage Express (No 2) [2004] EWCA (Civ ) 759, handed down by the Court of Appeal this morning.
 
http://ww w2.bailii.org/ew/cases/EWCA/Civ/2004/759.html
 
The judgment is notable for what appears to be a startling finding that an agreement was void because "the claimants simply did not get what they bargained for." No authority is cited for the proposition but it appears to get the court out of answering some very difficult subrogation questions.
 
I'd be interested to know what others think.
 
James Shirley
 
 

Andrew Tettenborn MA LLB
Bracton Professor of Law


Tel:           & nbsp;           01392-263189   /   +44-392-263189 (international)
Cellphone:             07729-266200   /   +44-7729-266200 (international)
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             ;         http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_15584187==.ALT-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ======================================================================= == Date: Fri, 18 Jun 2004 10:14:35 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: From Jonathon Moore Mime-Version: 1.0 (Apple Message framework v618) Content-Type: multipart/alternative; boundary=Apple-Mail-4--260790480 --Apple-Mail-4--260790480 Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=ISO-8859-1; format=flowed I post this for Jonathan Moore: =A0 I agree with much, but not all, of what Robert Stevens wrote: =A0 > A (a company) purports to enter into a contract with B under which B=20= acquires benefits from A. The directors who enter into the deal are,=20 however, fraudsters and lack both actual and ostensible authority. Can=20= A recover back the benefit conferred under the purported contract? > > It is submitted that the answer is yes. =A0 There is no need to submit that the answer is yes.=A0 It is undoubtedly=20= so.=A0 There is a right of recovery, subject to defences. =A0 > If we adopt an 'unjust factors' approach, what is the unjust factor?=20= Mistake will not do if the directors are the 'controlling mind and=20 will' of the company. The claimant is not making a mistake as the=20 knowledge of the directors will be attributed to A Ltd (see=20 Dollarland). For the same reason the claimant is not 'ignorant' of the=20= transfer, although this is an 'unjust factor' with no judicial support=20= that I am aware of. Perhaps 'powerlessness' as suggested by Professor=20 Burrows in his textbook would suffice? Again, there is no judicial=20 support for such an unjust factor. I cannot, for myself, see that Lord=20= Nicholls identifies any 'unjust factor'. > > By contrast, if we adopt an 'absence of legal ground' analysis the=20 answer is obvious. 'If ... the agreement is set aside, B will be=20 accountable for any benefits he may have received from A under the=20 agreement.' This is very persuasive.=A0 Fitting the case in an unjust factor = approach=20 is difficult, though as Robert shows, not impossible.=A0 But why = bother?=A0=20 Absence of basis is a perfect explanation. =A0 > > Whatever the view one takes of the above two paragraphs, the claim in=20= the hypothetical I give is not a claim in equity for knowing receipt. =A0 I am not sure I agree with this.=A0 When directors of a company=20 improperly transfer the company's assets, the company has traditionally=20= been recognised as having a claim against the recipient for "knowing=20 receipt".=A0 The company may well also have a claim for MHR, if any=20 relevant contract is set aside.=A0 This is an example, at least at first=20= blush, of alternative analysis.=A0 But the far better approach is to=20 sweep away the old language, and say that there is a single claim in=20 unjust enrichment, there being no proper basis for the transfer. =A0 Nor, properly understood, was the claim in Akindele. If A Ltd has paid=20= B money, A Ltd's claim is for money had and received (cf Kleinwort=20 Benson v Lincoln CC and Guiness Mahon.) Is it seriously being argued=20 that the claims in the swaps cases could and should have been pleaded=20 as knowing receipt? If the benefit conferred by A Ltd is a service it=20 is, I would have thought, obvious that the claim is not one for=20 'knowing receipt' in equity. > > The error that counsel and the CA in both Akindele and Criterion made=20= is in thinking that because the directors are in breach of their=20 fiduciary duties in entering into the contract, the claim against the=20 counter-party to the contract is 'knowing' receipt. > > If B holds an asset on trust for A and in breach of trust transfers=20= that asset to C, A may have a claim against C based upon knowing=20 receipt. Because Akindele proceeded upon a mistaken assumtion as to the=20= nature of the claim, it is submitted that it is weak authority on the=20 issue of the degree of fault (if any) on the part of the recipient=20 which needs to be shown for A's personal claim against C to succeed.=20 Similarly, it is submitted that Lord Nicholls statement is not a=20 reiteration of his extra-judicial views on this important but=20 completely different point. I am not sure I agree with this either, but it is a matter of=20 interpretation on which reasonable minds may differ.=A0 Lord Nicholls=20 said that if the contract is set aside, the claim is in unjust=20 enrichment, and liability is strict.=A0 He said this in the same=20 paragraph that begins with the words "I respectfully consider the Court=20= of Appeal in Akindele's case fell into error on this point."=A0 And Lord=20= Nicholls summarises Akindele immediately before by saying that,=20 according to the CA, the case turned on unconscionability, both as to=20 want of authority and knowing receipt.=A0 Thus, the "point" on which the=20= CA fell into error was in saying that the case, whether viewed from the=20= perspective of want of authority or knowing receipt, turned on=20 unconscionability.=A0 Hence, knowing receipt does not turn on=20 unconscionability.=A0 Liabilitiy will be strict, if the contract is set=20= aside. =A0 Jonathon Moore= --Apple-Mail-4--260790480 Content-Transfer-Encoding: quoted-printable Content-Type: text/enriched; charset=ISO-8859-1 I post this for Jonathan Moore: =A0 ArialI agree with much, but not all, of what Robert Stevens wrote: =A0 Arial> A (a company) purports to enter into a contract with B under which B acquires benefits from A. The directors who enter into the deal are, however, fraudsters and lack both actual and ostensible authority. Can A recover back the benefit conferred under the purported contract? >=20 > It is submitted that the answer is yes. =A0 ArialThere is no need to submit that the answer is yes.=A0 It is undoubtedly so.=A0 There is a right of recovery, subject to defences. =A0 Arial> If we adopt an 'unjust factors' approach, what is the unjust factor? Mistake will not do if the directors are the 'controlling mind and will' of the company. The claimant is not making a mistake as the knowledge of the directors will be attributed to A Ltd (see Dollarland). For the same reason the claimant is not 'ignorant' of the transfer, although this is an 'unjust factor' with no judicial support that I am aware of. Perhaps 'powerlessness' as suggested by Professor Burrows in his textbook would suffice? Again, there is no judicial support for such an unjust factor. I cannot, for myself, see that Lord Nicholls identifies any 'unjust factor'. >=20 > By contrast, if we adopt an 'absence of legal ground' analysis the answer is obvious. 'If ... the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement.' This is very persuasive.=A0 Fitting the case in an unjust factor approach is difficult, though as Robert shows, not impossible.=A0 But why bother?=A0 Absence of basis is a perfect explanation. =A0 Arial>=20 > Whatever the view one takes of the above two paragraphs, the claim in the hypothetical I give is not a claim in equity for knowing receipt. =A0 ArialI am not sure I agree with this.=A0 When directors of a company improperly transfer the company's assets, the company has traditionally been recognised as having a claim against the recipient for "knowing receipt".=A0 The company may well also have a claim for MHR, if any relevant contract is set aside.=A0 This is an example, at least at first blush, of alternative analysis.=A0 But the far better approach is to sweep away the old language, and say that there is a single claim in unjust enrichment, there being no proper basis for the transfer. =A0 ArialNor, properly understood, was the claim in Akindele. If A Ltd has paid B money, A Ltd's claim is for money had and received (cf Kleinwort Benson v Lincoln CC and Guiness Mahon.) Is it seriously being argued that the claims in the swaps cases could and should have been pleaded as knowing receipt? If the benefit conferred by A Ltd is a service it is, I would have thought, obvious that the claim is not one for 'knowing receipt' in equity. >=20 > The error that counsel and the CA in both Akindele and Criterion made is in thinking that because the directors are in breach of their fiduciary duties in entering into the contract, the claim against the counter-party to the contract is 'knowing' receipt. >=20 > If B holds an asset on trust for A and in breach of trust transfers that asset to C, A may have a claim against C based upon knowing receipt. Because Akindele proceeded upon a mistaken assumtion as to the nature of the claim, it is submitted that it is weak authority on the issue of the degree of fault (if any) on the part of the recipient which needs to be shown for A's personal claim against C to succeed. Similarly, it is submitted that Lord Nicholls statement is not a reiteration of his extra-judicial views on this important but completely different point. I am not sure I agree with this either, but it is a matter of interpretation on which reasonable minds may differ.=A0 Lord Nicholls said that if the contract is set aside, the claim is in unjust enrichment, and liability is strict.=A0 He said this in the same paragraph that begins with the words "I respectfully consider the Court of Appeal in Akindele's case fell into error on this point."=A0 And Lord Nicholls summarises Akindele immediately before by saying that, according to the CA, the case turned on unconscionability, both as to want of authority and knowing receipt.=A0 Thus, the "point" on which the CA fell into error was in saying that the case, whether viewed from the perspective of want of authority or knowing receipt, turned on unconscionability.=A0 Hence, knowing receipt does not turn on unconscionability.=A0 Liabilitiy will be strict, if the contract is set aside. =A0 ArialJonathon = Moore= --Apple-Mail-4--260790480-- ____________________________________________________________________ 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, 18 Jun 2004 11:31:44 -0400 Reply-To: John Swan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Swan Subject: Re: From Jonathon Moore MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C45549.5C3D1A51" This is a multi-part message in MIME format. ------_=_NextPart_001_01C45549.5C3D1A51 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable While this point may be peripheral to the discussion, is it clear that the contract between A Ltd. and B Ltd. is not valid under the indoor management rule, notwithstanding the directors' lack of authority? See, e.g., paragraph 18(1)(d) of the Canada Business Corporations Act. If the contract is valid (because A Ltd. can't impeach it) what possible basis is there for a claim against B Ltd. if it was in good faith (see sub-section 18(2)) and gave value? If the statement that the directors did not have "ostensible authority" suggests the inference that B Ltd. was not in good faith or that the directors were doing what directors generally should not do, the contract may be impeachable by A Ltd., but it is hard to see how, in the light of the indoor management rule, a director does not have ostensible authority simply by being held out by the corporation as a director. John Swan =20 -----Original Message----- From: Lionel Smith [mailto:lionel.smith@McGill.ca]=20 Sent: June 18, 2004 10:15 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] From Jonathon Moore =20 I post this for Jonathan Moore:=20 =20 =20 I agree with much, but not all, of what Robert Stevens wrote:=20 =20 > A (a company) purports to enter into a contract with B under which B acquires benefits from A. The directors who enter into the deal are, however, fraudsters and lack both actual and ostensible authority. Can A recover back the benefit conferred under the purported contract?=20 >=20 > It is submitted that the answer is yes.=20 =20 There is no need to submit that the answer is yes. It is undoubtedly so. There is a right of recovery, subject to defences.=20 =20 > If we adopt an 'unjust factors' approach, what is the unjust factor? Mistake will not do if the directors are the 'controlling mind and will' of the company. The claimant is not making a mistake as the knowledge of the directors will be attributed to A Ltd (see Dollarland). For the same reason the claimant is not 'ignorant' of the transfer, although this is an 'unjust factor' with no judicial support that I am aware of. Perhaps 'powerlessness' as suggested by Professor Burrows in his textbook would suffice? Again, there is no judicial support for such an unjust factor. I cannot, for myself, see that Lord Nicholls identifies any 'unjust factor'.=20 >=20 > By contrast, if we adopt an 'absence of legal ground' analysis the answer is obvious. 'If ... the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement.'=20 This is very persuasive. Fitting the case in an unjust factor approach is difficult, though as Robert shows, not impossible. But why bother? Absence of basis is a perfect explanation.=20 =20 >=20 > Whatever the view one takes of the above two paragraphs, the claim in the hypothetical I give is not a claim in equity for knowing receipt.=20 =20 I am not sure I agree with this. When directors of a company improperly transfer the company's assets, the company has traditionally been recognised as having a claim against the recipient for "knowing receipt". The company may well also have a claim for MHR, if any relevant contract is set aside. This is an example, at least at first blush, of alternative analysis. But the far better approach is to sweep away the old language, and say that there is a single claim in unjust enrichment, there being no proper basis for the transfer.=20 =20 Nor, properly understood, was the claim in Akindele. If A Ltd has paid B money, A Ltd's claim is for money had and received (cf Kleinwort Benson v Lincoln CC and Guiness Mahon.) Is it seriously being argued that the claims in the swaps cases could and should have been pleaded as knowing receipt? If the benefit conferred by A Ltd is a service it is, I would have thought, obvious that the claim is not one for 'knowing receipt' in equity.=20 >=20 > The error that counsel and the CA in both Akindele and Criterion made is in thinking that because the directors are in breach of their fiduciary duties in entering into the contract, the claim against the counter-party to the contract is 'knowing' receipt.=20 >=20 > If B holds an asset on trust for A and in breach of trust transfers that asset to C, A may have a claim against C based upon knowing receipt. Because Akindele proceeded upon a mistaken assumtion as to the nature of the claim, it is submitted that it is weak authority on the issue of the degree of fault (if any) on the part of the recipient which needs to be shown for A's personal claim against C to succeed. Similarly, it is submitted that Lord Nicholls statement is not a reiteration of his extra-judicial views on this important but completely different point.=20 I am not sure I agree with this either, but it is a matter of interpretation on which reasonable minds may differ. Lord Nicholls said that if the contract is set aside, the claim is in unjust enrichment, and liability is strict. He said this in the same paragraph that begins with the words "I respectfully consider the Court of Appeal in Akindele's case fell into error on this point." And Lord Nicholls summarises Akindele immediately before by saying that, according to the CA, the case turned on unconscionability, both as to want of authority and knowing receipt. Thus, the "point" on which the CA fell into error was in saying that the case, whether viewed from the perspective of want of authority or knowing receipt, turned on unconscionability. Hence, knowing receipt does not turn on unconscionability. Liabilitiy will be strict, if the contract is set aside.=20 =20 Jonathon Moore ------_=_NextPart_001_01C45549.5C3D1A51 Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable

While this point may be peripheral to the discussion, is it clear that the = contract between A Ltd. and B Ltd. is not valid under the indoor management rule, = notwithstanding the directors’ lack of authority?  See, e.g., paragraph 18(1)(d) of the = Canada Business Corporations = Act.

If the = contract is valid (because A Ltd. can’t impeach it) what possible basis is = there for a claim against B Ltd. if it was in good faith (see sub-section 18(2)) = and gave value?

If the = statement that the directors did not have “ostensible authority” = suggests the inference that B Ltd. was not in good faith or that the directors were = doing what directors generally should not do, the contract may be impeachable = by A Ltd., but it is hard to see how, in the light of the indoor management rule, a = director does not have ostensible authority simply by being held out by the = corporation as a director.

John = Swan

 

----- Original Message-----
From: Lionel Smith [mailto:lionel.smith@McGill.ca]
Sent: June 18, 2004 10:15 AM
To: = ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] From = Jonathon Moore

 

I post this for Jonathan Moore: =

 

 

I agree = with much, but not all, of what Robert Stevens wrote:

 

> A (a company) purports = to enter into a contract with B under which B acquires benefits from A. The = directors who enter into the deal are, however, fraudsters and lack both actual = and ostensible authority. Can A recover back the benefit conferred under the purported contract?

>

> It is submitted that = the answer is yes.

 

There is = no need to submit that the answer is yes.  It is undoubtedly so.  = There is a right of recovery, subject to defences.

 

> If we adopt an 'unjust = factors' approach, what is the unjust factor? Mistake will not do if the = directors are the 'controlling mind and will' of the company. The claimant is not = making a mistake as the knowledge of the directors will be attributed to A Ltd = (see Dollarland). For the same reason the claimant is not 'ignorant' of the transfer, although this is an 'unjust factor' with no judicial support = that I am aware of. Perhaps 'powerlessness' as suggested by Professor Burrows = in his textbook would suffice? Again, there is no judicial support for such an = unjust factor. I cannot, for myself, see that Lord Nicholls identifies any = 'unjust factor'.

>

> By contrast, if we = adopt an 'absence of legal ground' analysis the answer is obvious. 'If ... the = agreement is set aside, B will be accountable for any benefits he may have = received from A under the agreement.'

This is = very persuasive.  Fitting the case in an unjust factor approach is = difficult, though as Robert shows, not impossible.  But why bother?  = Absence of basis is a perfect explanation.

 

>

> Whatever the view one = takes of the above two paragraphs, the claim in the hypothetical I give is not a = claim in equity for knowing receipt.

 

I am not = sure I agree with this.  When directors of a company improperly transfer = the company's assets, the company has traditionally been recognised as = having a claim against the recipient for "knowing receipt".  The = company may well also have a claim for MHR, if any relevant contract is set aside.  This is an example, at least at first blush, of alternative analysis.  But the far better approach is to sweep away the old = language, and say that there is a single claim in unjust enrichment, there being = no proper basis for the transfer.

 

Nor, properly understood, = was the claim in Akindele. If A Ltd has paid B money, A Ltd's claim is for money = had and received (cf Kleinwort Benson v Lincoln CC and Guiness Mahon.) Is it = seriously being argued that the claims in the swaps cases could and should have = been pleaded as knowing receipt? If the benefit conferred by A Ltd is a = service it is, I would have thought, obvious that the claim is not one for 'knowing receipt' in equity.

>

> The error that counsel = and the CA in both Akindele and Criterion made is in thinking that because the directors are in breach of their fiduciary duties in entering into the contract, the claim against the counter-party to the contract is = 'knowing' receipt.

>

> If B holds an asset on = trust for A and in breach of trust transfers that asset to C, A may have a = claim against C based upon knowing receipt. Because Akindele proceeded upon a mistaken assumtion as to the nature of the claim, it is submitted that = it is weak authority on the issue of the degree of fault (if any) on the part = of the recipient which needs to be shown for A's personal claim against C to = succeed. Similarly, it is submitted that Lord Nicholls statement is not a = reiteration of his extra-judicial views on this important but completely different = point.

I am not = sure I agree with this either, but it is a matter of interpretation on which reasonable minds may differ.  Lord Nicholls said that if the = contract is set aside, the claim is in unjust enrichment, and liability is = strict.  He said this in the same paragraph that begins with the words = "I respectfully consider the Court of Appeal in Akindele's case fell into error on this point."  And Lord Nicholls summarises Akindele immediately before by saying that, according to the CA, the case turned on unconscionability, both as to = want of authority and knowing receipt.  Thus, the "point" on = which the CA fell into error was in saying that the case, whether viewed from the perspective of want of authority or knowing receipt, turned on unconscionability.  Hence, knowing receipt does not turn on unconscionability.  Liabilitiy will be strict, if the contract is = set aside.

 

Jonathon = Moore

=00 ------_=_NextPart_001_01C45549.5C3D1A51-- ____________________________________________________________________ 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, 18 Jun 2004 16:40:54 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: From Jonathon Moore Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0171_01C45553.064C5990" This is a multi-part message in MIME format. ------=_NextPart_000_0171_01C45553.064C5990 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable When directors of a company improperly transfer the company's assets, = the company has traditionally been recognised as having a claim against = the recipient for "knowing receipt". =20 Yes. This tradition is wrong. The assets received are not assets held = on trust by the directors for the company. The defendant is not = receiving trust property with knowledge or notice that it is trust = property which is being transferred in breach of trust. It is the = company, not a trustee, which is transferring the company's assets to = the defendant. If the transaction which the company has entered into is = set aside restitution follows. No issue of knowledge or notice arises. RS ------=_NextPart_000_0171_01C45553.064C5990 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
 
When directors of a company improperly transfer the company's = assets,=20 the company has traditionally been recognised as having a claim = against the=20 recipient for "knowing receipt". 
 
Yes. This tradition is wrong. The assets received are not = assets=20 held on trust by the directors for the company. The defendant is not = receiving=20 trust property with knowledge or notice that it is trust property = which is=20 being transferred in breach of trust. It is the company, not a = trustee, which=20 is transferring the company's assets to the defendant. If the = transaction=20 which the company has entered into is set aside restitution follows. = No issue=20 of knowledge or notice arises.
RS
------=_NextPart_000_0171_01C45553.064C5990-- ____________________________________________________________________ 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, 18 Jun 2004 17:43:26 +0100 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: From Jonathon Moore Comments: To: John Swan In-Reply-To: Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 > While this point may be peripheral to the discussion, is it clear that > the contract between A Ltd. and B Ltd. is not valid under the indoor > management rule, notwithstanding the directors' lack of authority? See, > e.g., paragraph 18(1)(d) of the Canada Business Corporations Act. > The short answer in England is no, it isn't clear, see Lord Scott at para 29. Criterion involved a 'poison pill.' The claimants entered into a partnership agreement with the defendants. Under the agreement a new company was created which both parties held shares in. By a separate agreement it was purportedly agreed that the claimants granted the defendants a 'put option' under which the claimants would be obliged to buy the defendant's shareholding in the new partnership company if one of two specified events occurred. The specified event were a change in control of the claimants or one of the two directors signing the agreement being dismissed. The financial consequences of the 'put option' being exercised would be very serious for the claimants. The poison pill was, obviously, designed to deter a hostile takeover but would also inhibit or prevent the dismissal of the directors who signed. One of the two directors was dismissed, possibly because of his having agreed to the put option, and the claimants sought a declaration that the put option was unenforceable because of a lack of actual or apparent authority on the part of the directors who signed the agreement to have made an agreement which was patently not in the best interest of the company. For what it is worth, I think that general agency principles determine whether the directors had actual or apparent authority to enter into a transation which patentenly furthered their own rather than the company's best interests. I don't think they did and section 35A of the Companies Act 1985 (which is more restrictive than the Canadian provision) would not alter this. Robert Stevens Barrister Fellow and Tutor in Law Lady Margaret Hall Oxford university ____________________________________________________________________ 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, 18 Jun 2004 14:40:16 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: change of phone numbers Mime-Version: 1.0 (Apple Message framework v618) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed I hope I will be forgiven for using the RDG to make this announcement. Anyone who has my phone number recorded in some form or other should note that as of today it changes from 398 6635 to 398 4670. We now resume our normal unjust enrichment programming. Lionel Lionel Smith James McGill Professor of Law Faculty of Law, McGill University 3644 Peel St., Montreal, Quebec, Canada H3A 1W9 Tel + 1 514 398 4670 Fax + 1 514 398 4659 www.law.mcgill.ca ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . 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 4670, email . ======================================================================= == Date: Wed, 23 Jun 2004 09:14:51 +0100 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: RSS feed on restitution site MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" For those who use my restitution site regularly and have RSS readers, I have set up a feed to record important additions. As many will already know, RSS is useful for keeping an eye on a site where items frequently change or are added, especially if the alternative is to visit it regularly in the hope of spotting changes. I am running a single channel, which records new cases and new articles. I'm happy to broaden it or add new channels if there is demand - let me know. All comments and suggestions are welcome. And (as ever) I'd be delighted to be told of new resources that should be added to the site. The feed is at: http://www.ucc.ie/law/restitution/new.xml The existing "What's New?" page will continue as before - it is at: http://www.ucc.ie/law/restitution/new.htm What is RSS? http://msdn.microsoft.com/msdnmag/issues/04/04/XMLFiles/default.aspx http://my.yahoo.com/s/rss-faq.html Steve Hedley Faculty of Law, University College, Cork ____________________________________________________________________ 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 4670, email .