========================================================================= Date: Wed, 7 Jul 2004 13:45:36 +0100 Reply-To: =?iso-8859-1?q?Christopher=20Kirkbride?= Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: =?iso-8859-1?q?Christopher=20Kirkbride?= Subject: Professor Peter Birks QC DCL FBA 1941-2004: A Message from Prof John Birds MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Professor Peter Birks QC DCL FBA 1941-2004 Regius Professor of Civil Law, University of Oxford It is with enormous sadness that we have to report the untimely death of my immediate predecessor as President. It is almost unbelievable that this has happened only a few months since his immensely impressive conference at Oxford. Peter was an intellectual giant of his generation with an outstanding commitment to legal scholarship and legal education. His own scholarship was of course the highest quality traditional doctrinal scholarship, but he was among the first to recognise the validity of other ways of looking at the law. His output was prodigious and highly influential, especially (but by no means exclusively) in the field of restitution. His outstanding international reputation was reflected in the honours he achieved. At the same time Peter was a source of constant inspiration and encouragement to his many students and to younger colleagues. The Society owes as great a debt to Peter as I think it does to anyone in living memory. This is not simply because of his Presidency, but also because of the fact that he was Honorary Secretary (of the then SPTL) from 1989 to 1996. He was a moving force in consolidating the Society as a genuine learned society, with, among other things, active and successful subject sections and programmes of seminars and lectures, many of which Peter himself organised. Without his tireless devotion and commitment and unfailing courtesy and concern, the Society would be a much less interesting and influential organisation. We must and we shall honour his memory in a fitting and enduring way. Professor John Birds. 6th July 2004. SLS President. University of Sheffield. j.birds@sheffield.ac.uk ___________________________________________________________ALL-NEW Yahoo! Messenger - sooooo many all-new ways to express yourself http://uk.messenger.yahoo.com ____________________________________________________________________ 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, 7 Jul 2004 10:23:36 -0600 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Peter Birks Mime-Version: 1.0 (Apple Message framework v618) Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=ISO-8859-1; format=flowed I post this message from Bill Swadling: As many of you will already know, Peter Birks died peacefully at home=20 at 3.30 am on Tuesday, 6th July after a short battle with cancer.=A0=20 Though his funeral will take place privately, there will be a public=20 memorial service later this year.=A0 I will circulate details when they=20= are known.=A0 A number of people have asked where they might send their=20= condolences to Peter's widow.=A0 If anyone would like to write, and she=20= would be very pleased to hear from you, her address is as follows: =A0 Mrs Jacqueline Birks Oak Trees Sandy Lane Boars Hill Oxford OX1 5HN =A0 Bill Swadling =A0 William Swadling Fellow and Tutor in Law Brasenose College Oxford OX1 4AJ Tel: +44 1865 277869 (direct) Tel: +44 1865 277510 (secretary) Fax: +44 1865 277520 (direct) ____________________________________________________________________ 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, 7 Jul 2004 22:20:03 +0000 Reply-To: Kev Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kev Subject: Re: Text message MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="--------segrrgsrktpvubirfrjt" ----------segrrgsrktpvubirfrjt Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit ------------------ Virus Warning Message (on mailscan4.cc.mcgill.ca) Found virus WORM_BAGLE.GEN-1 in file Document.zip The uncleanable file is deleted. No action is required on your part. McGill NCS has removed the virus from your email. 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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: Fri, 9 Jul 2004 08:14:05 +0100 Reply-To: William Swadling Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: William Swadling Subject: Peter Birks MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0018_01C4658C.B34EF6E0" This is a multi-part message in MIME format. ------=_NextPart_000_0018_01C4658C.B34EF6E0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Colleagues might like to see the excellent obituary for Peter Birks, = written by Andrew Burrows, in today's Times: http://www.timesonline.co.uk/newspaper/0,,174-1172559,00.html William Swadling Fellow and Tutor in Law Tutor for Admissions Brasenose College Oxford OX1 4AJ Tel: +44 1865 277869 (direct) Tel: +44 1865 277510 (secretary) Fax: +44 1865 277520 (direct) ------=_NextPart_000_0018_01C4658C.B34EF6E0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Colleagues might like to see the excellent obituary for Peter = Birks,=20 written by Andrew Burrows, in today's Times:
 
ht= tp://www.timesonline.co.uk/newspaper/0,,174-1172559,00.html
 
William Swadling
Fellow and Tutor in Law
Tutor for=20 Admissions
Brasenose College
Oxford OX1 4AJ
 
Tel: +44 1865 277869 (direct)
Tel: +44 1865 277510 = (secretary)
Fax:=20 +44 1865 277520 (direct)
------=_NextPart_000_0018_01C4658C.B34EF6E0-- ____________________________________________________________________ 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: Fri, 9 Jul 2004 08:46:22 +0100 Reply-To: William Swadling Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: William Swadling Subject: Peter Birks MIME-Version: 1.0 Content-Type: multipart/related; type="multipart/alternative"; boundary="----=_NextPart_000_004F_01C46591.35CDF590" This is a multi-part message in MIME format. ------=_NextPart_000_004F_01C46591.35CDF590 Content-Type: multipart/alternative; boundary="----=_NextPart_001_0050_01C46591.35CDF590" ------=_NextPart_001_0050_01C46591.35CDF590 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I gather that there is difficulty accessing the Times website from = abroad. Here is a copy of the obituary. Bill Obituaries=20 =20 =20 =20 July 09, 2004=20 Professor Peter Birks Regius professor at Oxford who shaped the law of = restitution as a modern discipline =20 =20 =20 Peter Birks, the Regius Professor of Civil Law = in the University of Oxford, was one of the greatest English academic = lawyers of our time. Best known for his work on the law of restitution, = he was also a distinguished Roman lawyer and legal historian. But his = learning and scholarship tell only part of the story. For Peter Birks = was a charismatic leader and a dynamic teacher, who inspired fellow = academics and generations of students with his passion for academic law. = He was also a dedicated administrator, both = within Oxford and in his work for the Society of Public Teachers of Law. = There have been other brilliant legal scholars and teachers but few, if = any, have had Peter Birks's intensity of commitment to the study of law = in universities.=20 =20 =20 Peter Brian Herrenden Birks was the son of a GP. = He attended Chislehurst and Sidcup County Grammar School in Kent, where = he was a talented rugby player and cricketer and excelled in history and = Latin. Although he contemplated a career as a classics master, he chose = to read law at university and won a place at Trinity College, Oxford. = Here he was fortunate to have as his main tutor the Roman lawyer and = Irish constitutional expert John Kelly, a multi-talented man who went on = to a chair at University College, Dublin, and to Irish politics. He made = a lasting impression on the young Birks and set him on the academic = road.=20 After going down from Oxford, Birks spent a year = as a faculty teaching associate in the United States and the following = year completed a masters degree in law at University College London. It = was here that he first encountered the law of restitution, which was = then being taught by George Webber.=20 Birks's first academic job, in 1966, was as a = lecturer at UCL in the law department dominated by the distinguished = Roman lawyer, Tony Thomas; and, while his first love was Oxford, his = loyalty to UCL was also to prove lifelong - recognised by his being made = a fellow there in 1993.=20 In 1971 he was appointed Law Fellow and Tutor at = Brasenose College, Oxford. The decade that followed was to be the = happiest of his academic life. The role of an Oxford tutor suited him = perfectly, combining as it did the opportunity to carry out fundamental = research while challenging and shaping the minds of gifted students = through the tutorial system. He regarded it as a privilege to be at = Brasenose with its long legal tradition and headed, during his time as a = tutorial fellow, by Herbert Hart and subsequently Barry Nicholas, both = internationally-renowned academic lawyers. As Birks wrote in the preface = to one of his books: "Brasenose was a wonderful place to be and to be a = lawyer." His excitable and intensive tutorial style - in which he = demanded high-level answers to difficult questions - proved the perfect = foil for the calm reasonableness of his senior law colleague, John = Davies.=20 It was during these years that he started to = teach restitution on the Oxford postgraduate BCL course. His seminars in = restitution were to become legendary. Taught with a variety of = colleagues over the years (including his former student and long-time = friend, Jack Beatson, now a High Court judge), the seminars attracted = some of the finest law students from across the Commonwealth. They = became accustomed to Birks's brilliance in cutting through a mass of = detail with crisp and decisive explanations and comments occasionally = punctuated, at least in the early years, by silences while he wrestled = with where the truth lay. Many came to Oxford simply for the experience = of being taught by him. It was in these seminars that, with his = characteristic passion and energy, he mapped out and tested - through = discussion and argument with students and colleagues - his ideas on the = topic. In 1985, having left Oxford to take up the chair of civil law at = the University of Edinburgh, Birks finished and published his seminal = work An Introduction to the Law of Restitution.=20 This branch of the law had first been brought to = the attention of English lawyers in 1966 by Robert Goff, later to be a = law lord, and Gareth Jones, in their book, The Law of Restitution. They = had shown that a mass of English legal decisions, both at common law and = in equity, were alike in being concerned with the reversal of unjust = enrichments. If Goff and Jones could thereby be said to have "created" = the subject of restitution in England, it was to be Birks's book that = triggered the huge modern academic interest in it. He argued, with the = clarity and rigour and dramatic turn of phrase that were the hallmarks = of his unique style of prose, that an elegant and illuminating = conceptual structure underpinned the cases granting restitution of an = unjust enrichment at the claimant's expense. The law was therefore = revealed to have a transparent rationality, with the judges being guided = by coherent principles that ensured that like cases were treated alike. = In the Birksian world there was no place for labels and fictions that = were misleading or obscure. They were replaced by modern language that = was precise and clear, and rendered the law and legal decision-making = open and intelligible.=20 Birks followed the publication of his book with = a torrent of articles on various aspects of the law of restitution. By = now his work was inspiring not only other academics but was also = influencing practitioners and judges. He came to be held in great esteem = by many senior judges who admired the power of his analysis in pointing = the way to a principled decision. The respect afforded to his views = reached the point where, in one case, even a mere footnote in a Birks = article proved to be the subject of several paragraphs of reasoning in = the speeches of the law lords.=20 As a Roman lawyer, Birks's main interest was in = the law of delict. His very first published article was on the early = history of iniuria and, in line with his firm view that teaching and = research complemented one another, he was still teaching an advanced = course on the law of delict in Oxford until a few months before his = death. He also produced fascinating work on Roman property law. During = the tenure of his chair at Edinburgh he joined with Grant McLeod in = producing a new translation of Justinian's Institutes and this has = become a standard text for all English students of Roman law. Throughout = his career Birks was a passionate believer in the value of Roman law as = a means of introducing students to refined legal concepts such as rights = in rem and rights in personam. He was a great admirer of the work done = by Gaius and Justinian in classifying Roman law in their Institutes and = this was to be the underpinning of his approach to modern English law. = It was the Roman law of quasi-contract that led Birks to the English law = of restitution.=20 While at Edinburgh, he turned his attention to = the Scots law of unjust enrichment and, through his articles, = contributed enormously to the way in which it subsequently developed. He = drew inspiration there from talking law with his great friend Alan = Rodger, who was then at the Scottish Bar and was later to rise through = the Scottish judiciary to become a law lord. Birks would fortnightly = catch the night coach from Edinburgh to Oxford not only to be with his = wife Jackie but also to give weekend tutorials in Brasenose on Roman law = and restitution. The strain of travelling - and his respect for the = excellence of its law faculty - led to him accepting a chair at the = University of Southampton, but a year later in 1989 he was appointed to = the regius chair of civil law at Oxford and to a fellowship at All = Souls.=20 By now, he had become increasingly interested in = the work of the Society of Public Teachers of Law (SPTL). For seven = years he acted as its honorary secretary and, in that role, was the = person primarily responsible for transforming it, through root and = branch reform, into today's thriving learned society. Not least of his = achievements was in successfully pushing for the society to be opened up = to all law degree teachers (so as to include those from the former = polytechnics). During these years and subsequently, his decisive views = and deep knowledge of the legal academic community made him a hugely = influential figure in the law schools, not least in advising on = appointments.=20 Through his position in the SPTL, he also argued = the case for entry to the legal profession to be restricted to those = with law degrees. Although that mission failed, a welcome effect of = Birks's high-profile views was to help to break down some of the = traditional barriers between the academic and practising branches of the = profession. This was further helped by the SPTL seminars, which Birks = organised on a regular basis in All Souls. These brought together = academics, practitioners and judges to debate not only matters of legal = education but also difficult areas of private law. Several books edited = by Birks were the product of those seminars including The Frontiers of = Liability (1994); Reviewing Legal Education (1994); Laundering and = Tracing (1995); Wrongs and Remedies in the Twenty-First Century (1996); = What are Law Schools For? (1996); Privacy and Loyalty (1997); and The = Classification of Obligations (1997).=20 Birks was revered not only by those who took his = taught courses but also by his doctoral students. He was a meticulous = supervisor who treated a thesis as a joint project and spent long hours = helping and working with his students. Several high-quality books = written by his most talented pupils are a permanent testament to his = devotion and skills as a supervisor.=20 In the early 1990s he devoted a huge amount of = time and energy to the creation of his brainchild the Oxford Institute = of Legal Practice (OILP), a joint venture between Oxford University and = Oxford Brookes University. He saw OILP, founded in 1994 and operating = from a modern building near the railway station, as largely fulfilling = his dream that within Oxford the Law Society finals course (now called = the Legal Practice Course) should provide a rigorous academic link = between the undergraduate law degree and practice.=20 In the past ten years he became particularly = interested in the modern comparative law of unjust enrichment. His = reliance on Roman law in his writings about English law was now = supplemented by references to German law, which he particularly admired = for its detailed clarity. These civil law influences encouraged him to = focus more widely on the classification of English private law. He = argued that accurate taxonomy was as important in law as in the natural = sciences. His views on classification continue to inspire heated = academic debate across the common law world. Critics saw Birks as a = rule-orientated formalist who failed to recognise the validity of = overlapping categories and the wide choices faced by judges in = decision-making. His supporters applauded the clarity and rigour and = rationality of his approach.=20 Birks's concern with classification led him to = believe that an important book for English practitioners and foreign = lawyers would be one that, with a clear structure, gave an overview of = the principles of English private and public law. Gathering together a = team of academic contributors under his general editorship, a two-volume = work, English Private Law, was published in 2000. Its companion, English = Public Law, followed this year.=20 By the mid-1990s Birks's reputation as an = exciting and provocative lecturer had travelled far and he regularly = accepted speaking invitations from all over the world. A Birks lecture = tended to be something of a showpiece: he usually lectured without notes = and commonly with a missionary-like zeal. He was a visiting professor at = the Australian National University in 1989, at the University of = Nijmegen between 1994 and 1996, at the University of Texas in 2001 and = at the University of Leiden in 2003. The series of lectures that he gave = at the University of Western Australia in 1992 on Restitution - The = Future and at the Victoria University of Wellington in 1999 on The = Foundations of Unjust Enrichment were published as books. Although he = was offered lucrative permanent positions in the United States and = elsewhere, he turned them all down, knowing that he would be unhappy = away from his beloved Oxford.=20 Despite the firm and decisive way in which he = expressed his views, Birks was never afraid to change his mind in the = search for an ever-more precise and stylish picture of the law. His most = recent book, published in the Clarendon Law series of which he was = general editor, confirmed his conversion to a more civilian way of = thinking about the law of restitution. In Unjust Enrichment (2003) he = emphasised his preference for the subject being called by its cause of = action (rather than restitution). More importantly, and radically, he = favoured a generalised "absence of basis" approach over his previously = articulated "unjust factor" scheme.=20 Up to a few weeks before his death and refusing = to allow his ill-health to stop him working, he was preparing a revised = version of that new book. All in all, he published more than 120 law = articles or case notes and wrote, or edited, some 25 books.=20 He was made a Fellow of the British Academy in = 1989, a member of the Academy of European Private Lawyers in 1994, an = Honorary Fellow of Trinity College, Oxford, in 1994, an Honorary QC in = 1995 and a foreign member of the Royal Netherlands Academy in 2001. He = was awarded the degree of DCL at Oxford (1991) and LLD at Edinburgh = (1991) and honorary degrees by the universities of Regensburg and = Nijmegen and De Montfort University. He was President of the Society of = Legal Scholars (the renamed SPTL) for 2002-03.=20 Peter Birks was a warm, loyal and entertaining = companion to his close friends with whom he loved to talk about law and = legal personalities. For someone with such a powerful mind, he was = modest about his own abilities and generous about those of others.=20 While work totally dominated his life - he did = not believe in holidays - he did enjoy gardening, music and watching = cricket.=20 His first two marriages were dissolved before he = found long-term stability and happiness with Jackie, whom he married in = 1984. He remained close to his sister throughout his life. He is = survived by his wife and a son and two stepchildren, a daughter from his = first marriage and a son and a daughter from his second marriage.=20 Cherishing their traditions, Birks had a deep = sense of obligation to his college and the Oxford law faculty and worked = tirelessly for them. He was generous to a fault with his time for = students and colleagues alike. With his death, English academic law has = lost its most dedicated scholar and its leading ambassador.=20 Professor Peter Birks, academic lawyer, was born = on October 3, 1941. He died from cancer on July 6, 2004, aged 62.=20 =20 =20 =20 =20 William Swadling Fellow and Tutor in Law Tutor for Admissions Brasenose College Oxford OX1 4AJ Tel: +44 1865 277869 (direct) Tel: +44 1865 277510 (secretary) Fax: +44 1865 277520 (direct) ------=_NextPart_001_0050_01C46591.35CDF590 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
I gather that there is difficulty accessing the Times website from=20 abroad.  Here is a copy of the obituary.
 
Bill
Obituaries
3D""=20
3D""
July 09,=20 2004

Professor Peter=20 Birks
Regius = professor=20 at Oxford who shaped the law of restitution as a = modern=20 = discipline
3D""=20
Peter = Birks, the=20 Regius Professor of Civil Law in the University = of=20 Oxford, was one of the greatest English academic = lawyers=20 of our time. Best known for his work on the law = of=20 restitution, he was also a distinguished Roman = lawyer=20 and legal historian. But his learning and = scholarship=20 tell only part of the story. For Peter Birks was = a=20 charismatic leader and a dynamic teacher, who = inspired=20 fellow academics and generations of students = with his=20 passion for academic law.=20

He was also a dedicated administrator, both = within=20 Oxford and in his work for the Society of Public = Teachers of Law. There have been other brilliant = legal=20 scholars and teachers but few, if any, have had = Peter=20 Birks=92s intensity of commitment to the study = of law in=20 universities.=20

NI_MPU('middle');
Peter Brian = Herrenden Birks=20 was the son of a GP. He attended Chislehurst and = Sidcup=20 County Grammar School in Kent, where he was a = talented=20 rugby player and cricketer and excelled in = history and=20 Latin. Although he contemplated a career as a = classics=20 master, he chose to read law at university and = won a=20 place at Trinity College, Oxford. Here he was = fortunate=20 to have as his main tutor the Roman lawyer and = Irish=20 constitutional expert John Kelly, a = multi-talented man=20 who went on to a chair at University College, = Dublin,=20 and to Irish politics. He made a lasting = impression on=20 the young Birks and set him on the academic = road.=20

After going down from Oxford, Birks spent a = year as a=20 faculty teaching associate in the United States = and the=20 following year completed a masters degree in law = at=20 University College London. It was here that he = first=20 encountered the law of restitution, which was = then being=20 taught by George Webber.=20

Birks=92s first academic job, in 1966, was as = a=20 lecturer at UCL in the law department dominated = by the=20 distinguished Roman lawyer, Tony Thomas; and, = while his=20 first love was Oxford, his loyalty to UCL was = also to=20 prove lifelong =97 recognised by his being made = a fellow=20 there in 1993.=20

In 1971 he was appointed Law Fellow and Tutor = at=20 Brasenose College, Oxford. The decade that = followed was=20 to be the happiest of his academic life. The = role of an=20 Oxford tutor suited him perfectly, combining as = it did=20 the opportunity to carry out fundamental = research while=20 challenging and shaping the minds of gifted = students=20 through the tutorial system. He regarded it as a = privilege to be at Brasenose with its long legal = tradition and headed, during his time as a = tutorial=20 fellow, by Herbert Hart and subsequently Barry = Nicholas,=20 both internationally-renowned academic lawyers. = As Birks=20 wrote in the preface to one of his books: = =93Brasenose was=20 a wonderful place to be and to be a lawyer.=94 = His=20 excitable and intensive tutorial style =97 in = which he=20 demanded high-level answers to difficult = questions =97=20 proved the perfect foil for the calm = reasonableness of=20 his senior law colleague, John Davies.=20

It was during these years that he started to = teach=20 restitution on the Oxford postgraduate BCL = course. His=20 seminars in restitution were to become = legendary. Taught=20 with a variety of colleagues over the years = (including=20 his former student and long-time friend, Jack = Beatson,=20 now a High Court judge), the seminars attracted = some of=20 the finest law students from across the = Commonwealth.=20 They became accustomed to Birks=92s brilliance = in cutting=20 through a mass of detail with crisp and decisive = explanations and comments occasionally = punctuated, at=20 least in the early years, by silences while he = wrestled=20 with where the truth lay. Many came to Oxford = simply for=20 the experience of being taught by him. It was in = these=20 seminars that, with his characteristic passion = and=20 energy, he mapped out and tested =97 through = discussion=20 and argument with students and colleagues =97 = his ideas on=20 the topic. In 1985, having left Oxford to take = up the=20 chair of civil law at the University of = Edinburgh, Birks=20 finished and published his seminal work An=20 Introduction to the Law of Restitution.=20

This branch of the law had first been brought = to the=20 attention of English lawyers in 1966 by Robert = Goff,=20 later to be a law lord, and Gareth Jones, in = their book,=20 The Law of Restitution. They had shown = that a=20 mass of English legal decisions, both at common = law and=20 in equity, were alike in being concerned with = the=20 reversal of unjust enrichments. If Goff and = Jones could=20 thereby be said to have =93created=94 the = subject of=20 restitution in England, it was to be Birks=92s = book that=20 triggered the huge modern academic interest in = it. He=20 argued, with the clarity and rigour and dramatic = turn of=20 phrase that were the hallmarks of his unique = style of=20 prose, that an elegant and illuminating = conceptual=20 structure underpinned the cases granting = restitution of=20 an unjust enrichment at the claimant=92s = expense. The law=20 was therefore revealed to have a transparent=20 rationality, with the judges being guided by = coherent=20 principles that ensured that like cases were = treated=20 alike. In the Birksian world there was no place = for=20 labels and fictions that were misleading or = obscure.=20 They were replaced by modern language that was = precise=20 and clear, and rendered the law and legal=20 decision-making open and intelligible.=20

Birks followed the publication of his book = with a=20 torrent of articles on various aspects of the = law of=20 restitution. By now his work was inspiring not = only=20 other academics but was also influencing = practitioners=20 and judges. He came to be held in great esteem = by many=20 senior judges who admired the power of his = analysis in=20 pointing the way to a principled decision. The = respect=20 afforded to his views reached the point where, = in one=20 case, even a mere footnote in a Birks article = proved to=20 be the subject of several paragraphs of = reasoning in the=20 speeches of the law lords.=20

As a Roman lawyer, Birks=92s main interest = was in the=20 law of delict. His very first published article = was on=20 the early history of iniuria and, in line with = his firm=20 view that teaching and research complemented one = another, he was still teaching an advanced = course on the=20 law of delict in Oxford until a few months = before his=20 death. He also produced fascinating work on = Roman=20 property law. During the tenure of his chair at=20 Edinburgh he joined with Grant McLeod in = producing a new=20 translation of Justinian=92s Institutes and this = has=20 become a standard text for all English students = of Roman=20 law. Throughout his career Birks was a = passionate=20 believer in the value of Roman law as a means of = introducing students to refined legal concepts = such as=20 rights in rem and rights in personam. He was a = great=20 admirer of the work done by Gaius and Justinian = in=20 classifying Roman law in their Institutes and = this was=20 to be the underpinning of his approach to modern = English=20 law. It was the Roman law of quasi-contract that = led=20 Birks to the English law of restitution.=20

While at Edinburgh, he turned his attention = to the=20 Scots law of unjust enrichment and, through his=20 articles, contributed enormously to the way in = which it=20 subsequently developed. He drew inspiration = there from=20 talking law with his great friend Alan Rodger, = who was=20 then at the Scottish Bar and was later to rise = through=20 the Scottish judiciary to become a law lord. = Birks would=20 fortnightly catch the night coach from Edinburgh = to=20 Oxford not only to be with his wife Jackie but = also to=20 give weekend tutorials in Brasenose on Roman law = and=20 restitution. The strain of travelling =97 and = his respect=20 for the excellence of its law faculty =97 led to = him=20 accepting a chair at the University of = Southampton, but=20 a year later in 1989 he was appointed to the = regius=20 chair of civil law at Oxford and to a fellowship = at All=20 Souls.=20

By now, he had become increasingly interested = in the=20 work of the Society of Public Teachers of Law = (SPTL).=20 For seven years he acted as its honorary = secretary and,=20 in that role, was the person primarily = responsible for=20 transforming it, through root and branch reform, = into=20 today=92s thriving learned society. Not least of = his=20 achievements was in successfully pushing for the = society=20 to be opened up to all law degree teachers (so = as to=20 include those from the former polytechnics). = During=20 these years and subsequently, his decisive views = and=20 deep knowledge of the legal academic community = made him=20 a hugely influential figure in the law schools, = not=20 least in advising on appointments.=20

Through his position in the SPTL, he also = argued the=20 case for entry to the legal profession to be = restricted=20 to those with law degrees. Although that mission = failed,=20 a welcome effect of Birks=92s high-profile views = was to=20 help to break down some of the traditional = barriers=20 between the academic and practising branches of = the=20 profession. This was further helped by the SPTL=20 seminars, which Birks organised on a regular = basis in=20 All Souls. These brought together academics,=20 practitioners and judges to debate not only = matters of=20 legal education but also difficult areas of = private law.=20 Several books edited by Birks were the product = of those=20 seminars including The Frontiers of = Liability=20 (1994); Reviewing Legal Education (1994); = Laundering and Tracing (1995); Wrongs = and=20 Remedies in the Twenty-First Century (1996); = What=20 are Law Schools For? (1996); Privacy and=20 Loyalty (1997); and The Classification of = Obligations (1997).=20

Birks was revered not only by those who took = his=20 taught courses but also by his doctoral = students. He was=20 a meticulous supervisor who treated a thesis as = a joint=20 project and spent long hours helping and working = with=20 his students. Several high-quality books written = by his=20 most talented pupils are a permanent testament = to his=20 devotion and skills as a supervisor.=20

In the early 1990s he devoted a huge amount = of time=20 and energy to the creation of his brainchild the = Oxford=20 Institute of Legal Practice (OILP), a joint = venture=20 between Oxford University and Oxford Brookes = University.=20 He saw OILP, founded in 1994 and operating from = a modern=20 building near the railway station, as largely = fulfilling=20 his dream that within Oxford the Law Society = finals=20 course (now called the Legal Practice Course) = should=20 provide a rigorous academic link between the=20 undergraduate law degree and practice.=20

In the past ten years he became particularly=20 interested in the modern comparative law of = unjust=20 enrichment. His reliance on Roman law in his = writings=20 about English law was now supplemented by = references to=20 German law, which he particularly admired for = its=20 detailed clarity. These civil law influences = encouraged=20 him to focus more widely on the classification = of=20 English private law. He argued that accurate = taxonomy=20 was as important in law as in the natural = sciences. His=20 views on classification continue to inspire = heated=20 academic debate across the common law world. = Critics saw=20 Birks as a rule-orientated formalist who failed = to=20 recognise the validity of overlapping categories = and the=20 wide choices faced by judges in decision-making. = His=20 supporters applauded the clarity and rigour and=20 rationality of his approach.=20

Birks=92s concern with classification led him = to=20 believe that an important book for English = practitioners=20 and foreign lawyers would be one that, with a = clear=20 structure, gave an overview of the principles of = English=20 private and public law. Gathering together a = team of=20 academic contributors under his general = editorship, a=20 two-volume work, English Private Law, was = published in 2000. Its companion, English = Public=20 Law, followed this year.=20

By the mid-1990s Birks=92s reputation as an = exciting=20 and provocative lecturer had travelled far and = he=20 regularly accepted speaking invitations from all = over=20 the world. A Birks lecture tended to be = something of a=20 showpiece: he usually lectured without notes and = commonly with a missionary-like zeal. He was a = visiting=20 professor at the Australian National University = in 1989,=20 at the University of Nijmegen between 1994 and = 1996, at=20 the University of Texas in 2001 and at the = University of=20 Leiden in 2003. The series of lectures that he = gave at=20 the University of Western Australia in 1992 on=20 Restitution =97 The Future and at the = Victoria=20 University of Wellington in 1999 on The = Foundations=20 of Unjust Enrichment were published as = books.=20 Although he was offered lucrative permanent = positions in=20 the United States and elsewhere, he turned them = all=20 down, knowing that he would be unhappy away from = his=20 beloved Oxford.=20

Despite the firm and decisive way in which he = expressed his views, Birks was never afraid to = change=20 his mind in the search for an ever-more precise = and=20 stylish picture of the law. His most recent = book,=20 published in the Clarendon Law series of which = he was=20 general editor, confirmed his conversion to a = more=20 civilian way of thinking about the law of = restitution.=20 In Unjust Enrichment (2003) he emphasised = his=20 preference for the subject being called by its = cause of=20 action (rather than restitution). More = importantly, and=20 radically, he favoured a generalised =93absence = of basis=94=20 approach over his previously articulated = =93unjust factor=94=20 scheme.=20

Up to a few weeks before his death and = refusing to=20 allow his ill-health to stop him working, he was = preparing a revised version of that new book. = All in=20 all, he published more than 120 law articles or = case=20 notes and wrote, or edited, some 25 books.=20

He was made a Fellow of the British Academy = in 1989,=20 a member of the Academy of European Private = Lawyers in=20 1994, an Honorary Fellow of Trinity College, = Oxford, in=20 1994, an Honorary QC in 1995 and a foreign = member of the=20 Royal Netherlands Academy in 2001. He was = awarded the=20 degree of DCL at Oxford (1991) and LLD at = Edinburgh=20 (1991) and honorary degrees by the universities = of=20 Regensburg and Nijmegen and De Montfort = University. He=20 was President of the Society of Legal Scholars = (the=20 renamed SPTL) for 2002-03.=20

Peter Birks was a warm, loyal and = entertaining=20 companion to his close friends with whom he = loved to=20 talk about law and legal personalities. For = someone with=20 such a powerful mind, he was modest about his = own=20 abilities and generous about those of others.=20

While work totally dominated his life =97 he = did not=20 believe in holidays =97 he did enjoy gardening, = music and=20 watching cricket.=20

His first two marriages were dissolved before = he=20 found long-term stability and happiness with = Jackie,=20 whom he married in 1984. He remained close to = his sister=20 throughout his life. He is survived by his wife = and a=20 son and two stepchildren, a daughter from his = first=20 marriage and a son and a daughter from his = second=20 marriage.=20

Cherishing their traditions, Birks had a deep = sense=20 of obligation to his college and the Oxford law = faculty=20 and worked tirelessly for them. He was generous = to a=20 fault with his time for students and colleagues = alike.=20 With his death, English academic law has lost = its most=20 dedicated scholar and its leading ambassador.=20

Professor Peter Birks, academic = lawyer, was=20 born on October 3, 1941. He died from cancer on = July 6,=20 2004, aged 62. =

 
William Swadling
Fellow and Tutor in Law
Tutor for=20 Admissions
Brasenose College
Oxford OX1 4AJ
 
Tel: +44 1865 277869 (direct)
Tel: +44 1865 277510 = (secretary)
Fax:=20 +44 1865 277520 (direct)
------=_NextPart_001_0050_01C46591.35CDF590-- ------=_NextPart_000_004F_01C46591.35CDF590 Content-Type: image/gif; name="grey.gif" Content-Transfer-Encoding: base64 Content-Location: http://images.thetimes.co.uk/images/grey.gif R0lGODlhAQABAIAAAM7OzgAAACH5BAAAAAAALAAAAAABAAEAAAICRAEAOw== ------=_NextPart_000_004F_01C46591.35CDF590 Content-Type: image/gif; name="trans.gif" Content-Transfer-Encoding: base64 Content-Location: http://images.thetimes.co.uk/images/trans.gif R0lGODlhAQABAJECAAAAMwAAAP///wAAACH5BAEAAAIALAAAAAABAAEAQAICVAEAOw== ------=_NextPart_000_004F_01C46591.35CDF590-- ____________________________________________________________________ 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: Tue, 20 Jul 2004 11:42:32 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: failure of consideration - or not? Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_7292890==.ALT" --=====================_7292890==.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable Payment for disputed rights surfaces again. I say I have a right to drive across your land to my house. You say I=20 haven't, and if I want one I'll have to pay. Litigation is threading its=20 tortuous way to the HL on the point. Meanwhile I want access for my car. If= =20 I pay now, insisting it's under protest, can I get my money back from you=20 if the HL rules in my favour? No, says Rimer in Cobbold and others v Bakewell Management Ltd [2003] EWHC= =20 2289 (Ch) (a case that seems only to have surfaced recently). C owns a house abutting a Newbury common owned by B; C says he has a right= =20 to drive across the common to his house, but B denies this. The CA has=20 decided for B but a HL appeal is pending. Under 2002 legislation C has a right to compulsorily purchase an easement=20 from B, but it'll cost him, and he can only get the order if he applies,=20 like, now (i.e. if he waits for the HL his application will be out of time,= =20 and if the HL upholds the CA he'll then be over a barrel and have to=20 negotiate on the open market with B or its successor). A further=20 complication: B is on the skids, and if C pays now the chances are =A310 to= a=20 dried pea that B won't be able to repay. C seeks to pay but immediately to Mareva (sorry, freeze) the payment=20 pending the HL decision. Whether he can do this depends on whether he has a= =20 decent arguable case that, if the HL reverses the CA, he will have a right= =20 to get his money back. Rimer says he doesn't have such a case. There's no=20 mistake; and because by buying an easement now C will be buying certainty,= =20 there's no failure of consideration either. So no relief. On mistake this is arguably right: even if we accept Nurdin v Ramsden=20 [1999] 1 AER 941, it's going to be difficult for C to say he was under any= =20 illusion as to his right to repayment. But on failure of consideration /=20 purpose? If I pay you for something (i.e. access) that isn't yours to give,= =20 surely there's a failure of purpose: the fact that I'm buying certainty is= =20 irrelevant, and there's no indication that I intend to compromise my rights. Or is there something I'm missing? 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]. = =20 --=====================_7292890==.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Payment for disputed rights surfaces again.

I say I have a right to drive across your land to my house. You say I haven't, and if I want one I'll have to pay. Litigation is threading its tortuous way to the HL on the point. Meanwhile I want access for my car. If I pay now, insisting it's under protest, can I get my money back from you if the HL rules in my favour?

No, says Rimer in Cobbold and others v Bakewell Management Ltd [2003] EWHC 2289 (Ch) (a case that seems only to have surfaced recently).

C owns a house abutting a Newbury common owned by B; C says he has a right to drive across the common to his house, but B denies this. The CA has decided for B but a HL appeal is pending.
Under 2002 legislation C has a right to compulsorily purchase an easement from B, but it'll cost him, and he can only get the order if he applies, like, now (i.e. if he waits for the HL his application will be out of time, and if the HL upholds the CA he'll then be over a barrel and have to negotiate on the open market with B or its successor). A further complication: B is on the skids, and if C pays now the chances are =A310 to a dried pea that B won't be able to repay.

C seeks to pay but immediately to Mareva (sorry, freeze) the payment pending the HL decision. Whether he can do this depends on whether he has a decent arguable case that, if the HL reverses the CA, he will have a right to get his money back. Rimer says he doesn't have such a case. There's no mistake; and because by buying an easement now C will be buying certainty, there's no failure of consideration either. So no relief.

On mistake this is arguably right: even if we accept Nurdin v Ramsden [1999] 1 AER 941, it's going to be difficult for C to say he was under any illusion as to his right to repayment. But on failure of consideration / purpose? If I pay you for something (i.e. access) that isn't yours to give, surely there's a failure of purpose: the fact that I'm buying certainty is irrelevant, and there's no indication that I intend to compromise my rights.

Or is there something I'm missing?


Andrew



Andrew Tettenborn MA LLB
Bracton Professor of Law


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

Snailmail:    School of Law,
            &nbs= p;      University of Exeter,
            &nbs= p;      Amory Building,
            &nbs= p;      Rennes Drive,
            &nbs= p;      Exeter EX4 4RJ
            &nbs= p;      England

            &nbs= p;      [School homepage: http://www.ex.ac.uk/law/ ]
            &nbs= p;      [My homepage:
            &nbs= p;        http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_7292890==.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 4670, email . ========================================================================= Date: Tue, 20 Jul 2004 12:50:23 +0100 Reply-To: Simon MacDonald Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simon MacDonald Subject: Re: failure of consideration - or not? MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C46E4F.BD64CA6C" This is a multi-part message in MIME format. ------_=_NextPart_001_01C46E4F.BD64CA6C Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable A bird in the hand... =20 =20 I have more sympathy form Rimer's reasoning. The consideration's = failure is contingent upon a future event; C is entitled to gamble upon = that future event or to buy peace of mind in the here and now. If the = future event goes C's way, then he hasn't lost the benefit of the = insurance which he had against an adverse outcome. Waiting and praying = for the HL to overrule Top deck ( = http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040401/bake-= 1.htm) was no doubt easier given C's relative indifference to the = outcome. =20 Simon = =20 Simon MacDonald=20 Solicitor=20 Oury Clark Solicitors=20 10 John Street, London, WC1N 2EB=20 Tel: + 44 (0)207 067 4300=20 Fax: + 44 (0)207 067 4301=20 Email: simon.macdonald@ouryclarksolicitors.co.uk=20 Website: www.ouryclark.com=20 =20 -----Original Message----- From: Andrew Tettenborn [mailto:A.M.Tettenborn@EXETER.AC.UK] Sent: 20 July 2004 11:43 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] failure of consideration - or not? Payment for disputed rights surfaces again. I say I have a right to drive across your land to my house. You say I = haven't, and if I want one I'll have to pay. Litigation is threading its = tortuous way to the HL on the point. Meanwhile I want access for my car. = If I pay now, insisting it's under protest, can I get my money back from = you if the HL rules in my favour? No, says Rimer in Cobbold and others v Bakewell Management Ltd [2003] = EWHC 2289 (Ch) (a case that seems only to have surfaced recently).=20 C owns a house abutting a Newbury common owned by B; C says he has a = right to drive across the common to his house, but B denies this. The CA = has decided for B but a HL appeal is pending.=20 Under 2002 legislation C has a right to compulsorily purchase an = easement from B, but it'll cost him, and he can only get the order if he = applies, like, now (i.e. if he waits for the HL his application will be = out of time, and if the HL upholds the CA he'll then be over a barrel = and have to negotiate on the open market with B or its successor). A = further complication: B is on the skids, and if C pays now the chances = are =A310 to a dried pea that B won't be able to repay.=20 C seeks to pay but immediately to Mareva (sorry, freeze) the payment = pending the HL decision. Whether he can do this depends on whether he = has a decent arguable case that, if the HL reverses the CA, he will have = a right to get his money back. Rimer says he doesn't have such a case. = There's no mistake; and because by buying an easement now C will be = buying certainty, there's no failure of consideration either. So no = relief. On mistake this is arguably right: even if we accept Nurdin v Ramsden = [1999] 1 AER 941, it's going to be difficult for C to say he was under = any illusion as to his right to repayment. But on failure of = consideration / purpose? If I pay you for something (i.e. access) that = isn't yours to give, surely there's a failure of purpose: the fact that = I'm buying certainty is irrelevant, and there's no indication that I = intend to compromise my rights.=20 Or is there something I'm missing? 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:=20 = http://www.ex.ac.uk/law/staff/tettenborn/index.html].=20 ------_=_NextPart_001_01C46E4F.BD64CA6C Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

A bird in the hand...  =
 
I have more sympathy form Rimer's = reasoning.  The=20 consideration's failure is contingent upon a future event; C is entitled = to=20 gamble upon that future event or to buy peace of mind in the here and = now. =20 If the future event goes C's way, then he hasn't lost the benefit of the = insurance which he had against an adverse outcome.  Waiting and = praying for=20 the HL to overrule Top deck (http://www.publications.parliament.uk/pa/ld200304/ldjudgmt= /jd040401/bake-1.htm)=20 was no doubt easier given C's relative indifference to the=20 outcome.
 
Simon

       =20        =20        =20        =20        =20        =20        =20        =20        =20        =20        =20        
Simon MacDonald
Solicitor=20
Oury Clark Solicitors
10 John Street, London, WC1N 2EB
Tel:=20 + 44 (0)207 067 4300
Fax: + 44 = (0)207 067=20 4301
Email: simon.macdonald@ouryclarksolicitors.co.uk=20
Website: www.ouryclark.com

 

-----Original Message-----
From: Andrew Tettenborn=20 [mailto:A.M.Tettenborn@EXETER.AC.UK]
Sent: 20 July 2004=20 11:43
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: = [RDG:]=20 failure of consideration - or not?

Payment for = disputed=20 rights surfaces again.

I say I have a right to drive across = your=20 land to my house. You say I haven't, and if I want one I'll have to = pay.=20 Litigation is threading its tortuous way to the HL on the point. = Meanwhile I=20 want access for my car. If I pay now, insisting it's under protest, = can I get=20 my money back from you if the HL rules in my favour?

No, says = Rimer in=20 Cobbold and others v Bakewell Management Ltd [2003] EWHC 2289 = (Ch) (a=20 case that seems only to have surfaced recently).

C owns a = house=20 abutting a Newbury common owned by B; C says he has a right to drive = across=20 the common to his house, but B denies this. The CA has decided for B = but a HL=20 appeal is pending.
Under 2002 legislation C has a right to = compulsorily=20 purchase an easement from B, but it'll cost him, and he can only get = the order=20 if he applies, like, now (i.e. if he waits for the HL his application = will be=20 out of time, and if the HL upholds the CA he'll then be over a barrel = and have=20 to negotiate on the open market with B or its successor). A further=20 complication: B is on the skids, and if C pays now the chances are = =A310 to a=20 dried pea that B won't be able to repay.

C seeks to pay but=20 immediately to Mareva (sorry, freeze) the payment pending the HL = decision.=20 Whether he can do this depends on whether he has a decent arguable = case that,=20 if the HL reverses the CA, he will have a right to get his money back. = Rimer=20 says he doesn't have such a case. There's no mistake; and because by = buying an=20 easement now C will be buying certainty, there's no failure of = consideration=20 either. So no relief.

On mistake this is arguably right: even = if we=20 accept Nurdin v Ramsden [1999] 1 AER 941, it's going to be difficult = for C to=20 say he was under any illusion as to his right to repayment. But on = failure of=20 consideration / purpose? If I pay you for something (i.e. access) that = isn't=20 yours to give, surely there's a failure of purpose: the fact that I'm = buying=20 certainty is irrelevant, and there's no indication that I intend to = compromise=20 my rights.

Or is there something I'm=20 missing?


Andrew



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


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

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

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

------_=_NextPart_001_01C46E4F.BD64CA6C-- ____________________________________________________________________ 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: Tue, 20 Jul 2004 09:52:45 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: failure of consideration - or not? In-Reply-To: <7A569B0C5635F8419E9DF3779455741B1A5DC2@interceptor.ocs.local> Mime-Version: 1.0 (Apple Message framework v618) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit I tend to agree with Simon. Andrew said: > But on failure of consideration / purpose? If I pay you for something > (i.e. access) that isn't yours to give, surely there's a failure of > purpose: the fact that I'm buying certainty is irrelevant, and there's > no indication that I intend to compromise my rights. I think it is possible that there is no FOB even where something is paid for that cannot be given. Eg at a sheriff's sale, the sheriff makes no warranty of title and everyone knows it. If I buy goods and it turns out someone else owns them, there is no FOB. In Andrew's case and in the sheriff's sale, the seller always has something to give in the sense of binding himself to a contract, whether or not he has the proprietary right which the parties may think and hope he has. I think the heart of it must be the last part of what Andrew says. I make the payment saying "this payment is conditional on its being the case that I have to buy this right of access from you." You either say "OK" or "forget it, I will only sell unconditionally like a sheriff." If you say "OK" there will be FOB if the HL overrules the CA. If you say "forget it", then I have to decide whether I want to take this risk myself, and of course you are also taking a risk, that I do not want to buy on those terms. Of course it will often be unclear which of the two deals the parties have made, but that is just a question of fact I think, even if a difficult one. There is a line of this in Woolwich where the facts pointed to "forget it." In Andrew's case there was no agreement between the parties which seems clearly a case of "forget it" and suggests Rimer J got it right. I think it is a separate question whether the time limit in the compulsory purchase legislation should be such as to allow for suspension of the running of time where there is litigation (or whether some general jurisdiction could allow the court to suspend it). That looks like the best solution to me. 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 4670, email . ========================================================================= Date: Tue, 20 Jul 2004 09:53:59 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: NZ case Mime-Version: 1.0 (Apple Message framework v618) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed Decided just over a year ago, but only just reported, I don't think there has been any mention yet of Saunders & Co (a firm) v Hague, [2004] 2 NZLR 475. It is similar to Lipkin Gorman but LG is distinguished and the case is decided as one of mistake. There is an interesting discussion of change of position, adopting passages from Grantham and RIckett, Enrichment and Restitution in New Zealand (2000). Saunders is available on Lexis. 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 4670, email . ========================================================================= Date: Tue, 20 Jul 2004 11:18:47 -0500 Reply-To: Mark Gergen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mark Gergen Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_3812552==_.ALT" --=====================_3812552==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Nurdin belongs in a larger category of cases in which the restitution claimant does an act that conditionally enriches another (or gives the other more than the other's due) depending on the resolution of an uncertain question of law. Consider: The claimant pays a judgment he challenges. The claimant pays a tax on property knowing another has a claim to the property. The claimant pays a tax he disputes. The claimant performs a contractual obligation he disputes. The claimant improves property knowing his ownership is disputed. The series proceeds from the strongest claim to the weakest under the common law. There is an almost absolute right to recover an amount paid on a judgment. There is an almost equally strong right to recover a current property tax payment if ownership is lost. There is a very strong right to recover a disputed tax payment but it is not absolute. In the Third Restatement, the right to recover for contractual performance rendered in a dispute is qualified by a threshold requirement that the performance avoid a loss. Under the Third Restatement there is no right to recover for an improvement to property made with the knowledge that ownership is disputed. None of this has anything to do with mistake. You could say the payment is recoverable because of failure of basis but that doesn't explain why sometimes the claim is denied. --=====================_3812552==_.ALT Content-Type: text/html; charset="us-ascii" Nurdin belongs in a larger category of cases in which the restitution claimant does an act that conditionally enriches another (or gives the other more than the other's due) depending on the resolution of an uncertain question of law.  Consider:
        The claimant pays a judgment he challenges.
                The claimant pays a tax on property knowing another has a claim to the property.
                The claimant pays a tax he disputes.
                The claimant performs a contractual obligation he disputes.
                The claimant improves property knowing his ownership is disputed. 
The series proceeds from the strongest claim to the weakest under the common law.  There is an almost absolute right to recover an amount paid on a judgment.  There is an almost equally strong right to recover a current property tax payment if ownership is lost.   There is a very strong right to recover a disputed tax payment but it is not absolute.  In the Third Restatement, the right to recover for contractual performance rendered in a dispute is qualified by a threshold requirement that the performance avoid a loss.  Under the Third Restatement there is no right to recover for an improvement to property made with the knowledge that ownership is disputed.
None of this has anything to do with mistake.  You could say the payment is recoverable because of  failure of basis but that doesn't explain why sometimes the claim is denied.
--=====================_3812552==_.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 4670, email . ========================================================================= Date: Wed, 21 Jul 2004 09:25:05 +0800 Reply-To: Low Fatt Kin Kelvin Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Low Fatt Kin Kelvin Subject: Re: failure of consideration - or not? 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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 4670, email . ========================================================================= Date: Thu, 22 Jul 2004 23:02:11 +0800 Reply-To: Low Fatt Kin Kelvin Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Low Fatt Kin Kelvin Subject: Re: failure of consideration - or not? 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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: Fri, 23 Jul 2004 21:29:33 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Applying Garland MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------6342DC3CC57C9FD180C139E3" --------------6342DC3CC57C9FD180C139E3 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Dear Colleagues, For an interesting application of the Supreme Court of Canada's decision in Garland, see Canadian-Automatic Data Processing Services Ltd. v. Bentley (http://www.courts.gov.bc.ca/Jdb-txt/CA/04/04/2004BCCA0408.htm). The court's summary is as follows: The plaintiff appealed from an order dismissing its action in unjust enrichment. Plaintiff made payroll payment to employees of Syntecor. Syntecor did not have funds to cover payment. Plaintiff sought to recover from Bentley, corporate officer of Syntecor, arguing that the plaintiff discharged Bentley=92s liability under the Employment Standards Act, s. 96. HELD: Appeal dismissed. Plaintiff=92s payment did not confer an =93incontrovertible benefit=94 on Bentley. Under the facts and scheme of the Act, Bentley=92s liability was not inevitable. The plaintiff can not circumvent the enforcement mechanisms of the Act. The parties=92 reasonable expectations and public policy provide juristic reason for any benefit to Bentley. The plaintiff could have relied on contractual protections against this kind of loss. Officer liability is an exception to separate corporate personality that must be limited to protecting employees; the rule is not intended to protect commercial creditors. Huddart J.A. (dissenting): The plaintiff=92s payment relieved Bentley of his liability under s. 96. Neither considerations of public policy nor the reasonable expectations of the parties provided any juristic reason for the enrichment. Sincerely, -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 --------------6342DC3CC57C9FD180C139E3 Content-Type: text/html; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Dear Colleagues,

For an interesting application of the Supreme Court of Canada's decisi= on in Garland, see Canadian-Automatic Data Processing Services Ltd. v. Bentley (http://www.courts.gov.bc.ca/Jdb-txt/CA/04/04/2004BCCA0408.h= tm). The court's summary is as follows:

The plaintiff appealed from an order dismissi= ng its action in unjust enrichment. Plaintiff made payroll payment to employ= ees of Syntecor. Syntecor did not have funds to cover payment. Plaintiff soug= ht to recover from Bentley, corporate officer of Syntecor, arguing that the plaintiff discharged Bentley=92s liability under the Employment Standards= Act, s. 96.

HELD: Appeal dismissed. Plaintiff=92s payment did not = confer an =93incontrovertible benefit=94 on Bentley. Under the facts and scheme = of the Act, Bentley=92s liability was not inevitable. The plaintiff can not circumvent the enforcement mechanisms of the Act.<= /font>

The parties=92 reasonable expectations and public poli= cy provide juristic reason for any benefit to Bentley. The plaintiff could have relied on contractual protections against this kind of loss. Officer= liability is an exception to separate corporate personality that must be limited to protecting employees; the rule is not intended to protect comm= ercial creditors.

Huddart J.A. (dissenting): The plaintiff=92s payment r= elieved Bentley of his liability under s. 96. Neither considerations of public policy nor the reasonable expectations of the parties provided any jurist= ic reason for the enrichment.


Sincerely,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
  --------------6342DC3CC57C9FD180C139E3-- ____________________________________________________________________ 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: Sat, 24 Jul 2004 10:36:42 +0800 Reply-To: CHONG_Chin_Chin@AGC.GOV.SG Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: CHONG_Chin_Chin@AGC.GOV.SG Subject: Chin Chin CHONG/AGC/SINGOV is out of the office. MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII I will be out of the office starting 24/07/2004 and will not return until 28/07/2004. I will respond to your message when I return. ____________________________________________________________________ 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 .