======================================================================= == Date: Tue, 6 Dec 2005 19:43:48 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: Maddaugh and McCamus, The Law of Restitution In-Reply-To: <89f0028ff3a3bef6b1181a5ae559c19c@mcgill.ca> Mime-Version: 1.0 Content-Type: text/plain; format=flowed Last year, the second edition of this work was advertised on this list. The book was published in hardcover and looseleaf subscription but the publishers would not allow purchases of the hardcover edition by individuals. The publishers have now created an exception for academics, who can purchase the book without having to buy the (more expensive) looseleaf. Jamie ____________________________________________________________________ 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, . ======================================================================= == Date: Tue, 6 Dec 2005 14:52:01 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Re: Maddaugh and McCamus, The Law of Restitution Comments: To: James Edelman In-Reply-To: Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Note however that the first update has recently been issued for the looseleaf. It is quite expensive and quite comprehensive (over 200 pages I would say). So if the hardback represents the original text, think twice! Lionel On 6/12/05 14:43, "James Edelman" wrote: > Last year, the second edition of this work was advertised on this list. The > book was published in hardcover and looseleaf subscription but the > publishers would not allow purchases of the hardcover edition by > individuals. The publishers have now created an exception for academics, > who can purchase the book without having to buy the (more expensive) > looseleaf. > > Jamie > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, . ======================================================================= == Date: Mon, 19 Dec 2005 12:30:04 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Re: ODG: Snapping at an Offer Comments: To: obligations In-Reply-To: <43A95DBD@minerva2.ex.ac.uk> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Don't worry Andrew, the English courts usually catch up after a few years ...:) Since all reasons for restitution are potentially reasons for setting aside a contract, is 'snapping up' not a case of free acceptance? Lionel On 19/12/05 11:58, "Andrew Tettenborn" wrote: > I suspect there may be a widening gulf here between England and Canada. On the > eastern side of the pond, Smith v Hughes has been interpreted as meaning you > *can* hold the other side to a contract even though he's seriously mistaken > and you know it. The most recent example was the slightly grisly Sykes v > Taylor-Rose [2004] EWCA Civ 299, [2004] N.P.C. 34. Sale of a house: as the > vendor knew but the purchaser didn't, a previous owner a year or so earlier > had murdered & chopped up a victim into small bits which he then distributed > artfully round the premises. And at the time of the same they hadn't as yet > found them all ... the contract stood. > > The one exception is where an offeror makes a slip in the * terms * he > intends then and there to offer. But nothing short of that will do. The case > where a tenderer, to the knowledge of the tenderee, bids low because he's > forgotten to factor in a given cost in preparing his tender would ( think, > subject to correction) go in favour of the tenderee in England. > > Andrew > > > >> ===== Original Message From John Swan ===== >> Smith v. Hughes does not support an argument that the contract for the >> purchase and sale of the shares is valid and enforceable. The common >> law would not let a buyer get away with purchasing shares for a tiny >> proportion of their value on the basis that the buyer could have had no >> reasonable expectation that the seller meant to sell at the price it >> offered. >> >> >> >> McMaster University v. Wilchar Construction Ltd. [1971] 3 O.R. 801, 22 >> D.L.R. (3d) 9; aff'd, (1973), 12 O.R. (2d) 512n, 69 D.L.R. (3d) 400n, >> and Stepps Investments Ltd. v. Security Capital Corporation (1976), 14 >> O.R. (2d) 259, 73 D.L.R. (3d) 351, are Canadian examples where one party >> was not allowed to hold the other to a deal in circumstances where the >> first party knew that the other had made a mistake. Smith v. Hughes >> would support this result to the extent that it stands for the argument >> that one party cannot hold the other to a deal when the first party >> knows that the other is labouring under a mistake. >> >> >> >> On a completely different issue the Economist has a story this week at >> page 81 of a Japanese company which placed an order on the exchange to >> sell 610000 shares of a company for 1 yen each when it intended to sell >> 1 share for 610000 yen It appesrs to be assumed by everyone that this >> transaction which was presumably governed by japanese law was binding >> but surely this would not be so in any common law country >> >> Merry christmas >> Michael > > Andrew Tettenborn > Bracton Professor of Law, University of Exeter, England > > > > Tel: 01392-263189 (int +44-1392-263189) > Fax: 01392-263196 (int +44-1392-263196) > Cellphone: 07870-130528 (int +44-7870-130528) > > > Snailmail: > > School of Law > University of Exeter > Amory Building > Rennes Drive > Exeter EX4 4RJ > England > > > Lawyer (n): One skilled in circumvention of the law. > Litigation (n): A machine which you go into as a pig and come out of as a > sausage. > > - Ambrose Bierce (1906). > > -- > > This message was delivered through the Obligations Discussion Group, an > international mailing list devoted to all aspects of the law of obligations. > To be added or deleted from the list please send a message to > . To make a posting to all group members, send a > message to . The list is run by Jason Neyers of the > University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email > . The list is archived at > . Archived messages are not to be cited in > published works without prior approval of the author. ____________________________________________________________________ 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, . ======================================================================= == Date: Mon, 19 Dec 2005 13:30:40 -0500 Reply-To: John Swan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Swan Subject: Re: ODG: Snapping at an Offer Comments: To: obligations MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C604CA.50486639" This is a multi-part message in MIME format. ------_=_NextPart_001_01C604CA.50486639 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable If the English courts would now really enforce this contract, they must be prepared to refuse to follow Hartog v. Colin & Shields, [1939] 3 All E.R. 566, (K.B.) There the offeree was prevented from accepting an offer that he had to have known was too low by a factor of 3. If an error of 3:1 is enough to prevent a contract, surely one of 610,000:1 is a fortiori one where relief will be given. Adam Kramer's comment on automated trading may, of course, change things and I suppose that it is possible that the seller could be held to have waived its right to object in any circumstances, but it would have to be a pretty savagely drafted clause that would compel this result. There are other Canadian cases on the same lines though some may be of dubious authority in the light of the Supreme Court's dreadful decision in Ron Engineering & Construction (Eastern) Ltd. v. Ontario (Water Resources Commission), [1981] 1 S.C.R. 111, 119 D.L.R. (3d) 267, 13 B.L.R. 72, 35 N.R. 40, a tendering case. Where tendering is not the issue, the cases that I have referred to are generally accepted without too much difficulty. John Swan -----Original Message----- From: owner-obligations@uwo.ca [mailto:owner-obligations@uwo.ca] On Behalf Of lionel.smith Sent: December 19, 2005 12:30 PM To: obligations; enrichment@LISTS.MCGILL.CA Subject: Re: ODG: Snapping at an Offer Don't worry Andrew, the English courts usually catch up after a few years ...:) Since all reasons for restitution are potentially reasons for setting aside a contract, is 'snapping up' not a case of free acceptance? Lionel =20 On 19/12/05 11:58, "Andrew Tettenborn" wrote: > I suspect there may be a widening gulf here between England and Canada. On the eastern side of the pond, Smith v Hughes has been interpreted as meaning you *can* hold the other side to a contract even though he's seriously mistaken and you know it. The most recent example was the slightly grisly Sykes v Taylor-Rose [2004] EWCA Civ 299, [2004] N.P.C. 34. Sale of a house: as the vendor knew but the purchaser didn't, a previous owner a year or so earlier had murdered & chopped up a victim into small bits which he then distributed artfully round the premises. And at the time of the same they hadn't as yet found them all ... the contract stood. The one exception is where an offeror makes a slip in the * terms * he intends then and there to offer. But nothing short of that will do. The case where a tenderer, to the knowledge of the tenderee, bids low because he's forgotten to factor in a given cost in preparing his tender would ( think, subject to correction) go in favour of the tenderee in England. Andrew >> =3D=3D=3D=3D=3D Original Message From John Swan = =3D=3D=3D=3D=3D >> Smith v. Hughes does not support an argument that the contract for the >> purchase and sale of the shares is valid and enforceable. The common >> law would not let a buyer get away with purchasing shares for a tiny >> proportion of their value on the basis that the buyer could have had no >> reasonable expectation that the seller meant to sell at the price it >> offered. >>=20 >>=20 >>=20 >> McMaster University v. Wilchar Construction Ltd. [1971] 3 O.R. 801, 22 >> D.L.R. (3d) 9; aff'd, (1973), 12 O.R. (2d) 512n, 69 D.L.R. (3d) 400n, >> and Stepps Investments Ltd. v. Security Capital Corporation (1976), 14 >> O.R. (2d) 259, 73 D.L.R. (3d) 351, are Canadian examples where one party >> was not allowed to hold the other to a deal in circumstances where the >> first party knew that the other had made a mistake. Smith v. Hughes >> would support this result to the extent that it stands for the argument >> that one party cannot hold the other to a deal when the first party >> knows that the other is labouring under a mistake. >>=20 >>=20 >>=20 >> On a completely different issue the Economist has a story this week at >> page 81 of a Japanese company which placed an order on the exchange to >> sell 610000 shares of a company for 1 yen each when it intended to sell >> 1 share for 610000 yen It appesrs to be assumed by everyone that this >> transaction which was presumably governed by japanese law was binding >> but surely this would not be so in any common law country >>=20 >> Merry christmas >> Michael >=20 > Andrew Tettenborn > Bracton Professor of Law, University of Exeter, England >=20 >=20 >=20 > Tel: 01392-263189 (int +44-1392-263189) > Fax: 01392-263196 (int +44-1392-263196) > Cellphone: 07870-130528 (int +44-7870-130528) >=20 >=20 > Snailmail: >=20 > School of Law > University of Exeter > Amory Building > Rennes Drive > Exeter EX4 4RJ > England >=20 >=20 > Lawyer (n): One skilled in circumvention of the law. > Litigation (n): A machine which you go into as a pig and come out of as a > sausage. >=20 > - Ambrose Bierce (1906). >=20 > -- >=20 > This message was delivered through the Obligations Discussion Group, an > international mailing list devoted to all aspects of the law of obligations. > To be added or deleted from the list please send a message to > . To make a posting to all group members, send a > message to . The list is run by Jason Neyers of the > University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email > . The list is archived at > . Archived messages are not to be cited in > published works without prior approval of the author. =20 -- =20 This message was delivered through the Obligations Discussion Group, an international mailing list devoted to all aspects of the law of obligations. To be added or deleted from the list please send a message to . To make a posting to all group members, send a message to . The list is run by Jason Neyers of the University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email . The list is archived at . Archived messages are not to be cited in published works without prior approval of the author. ____________________________________________________________________ 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, . ------_=_NextPart_001_01C604CA.50486639 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

If the English courts would now really enforce this contract, = they must be prepared to refuse to follow Hartog v. Colin & Shields, [1939] 3 All E.R. 566, (K.B.)  = There the offeree was prevented from accepting an offer that he had to have known was too = low by a factor of 3.  If an error of 3:1 is enough to prevent a contract, = surely one of 610,000:1 is a = fortiori  one where relief will be given.

Adam Kramer’s comment on automated trading may, of course, = change things and I suppose that it is possible that the seller could be held = to have waived its right to object in any circumstances, but it would have to be a pretty savagely drafted clause = that would compel this result.

There are other Canadian cases on the same lines though some may = be of dubious authority in the light of the Supreme Court’s dreadful = decision in Ron Engineering & = Construction (Eastern) Ltd. v. Ontario (Water Resources Commission), = [1981] 1 S.C.R. 111, 119 D.L.R. (3d) 267, 13 B.L.R. 72, 35 N.R. 40, a tendering case.  Where tendering is not the issue, the cases that I have = referred to are generally accepted without too much difficulty.

John = Swan

-----Original Message-----
From: owner-obligations@uwo.ca [mailto:owner-obligations@uwo.ca] On = Behalf Of lionel.smith
Sent: December 19, 2005 12:30 PM
To: obligations; enrichment@LISTS.MCGILL.CA
Subject: Re: ODG: Snapping at an Offer

Don't worry Andrew, the English courts usually catch up after a = few years

...:)

Since all reasons for restitution are potentially reasons for = setting aside a contract, is 'snapping up' not a case of free = acceptance?

Lionel

 

On 19/12/05 11:58, "Andrew Tettenborn" <A.M.Tettenborn@exeter.ac.uk> wrote:

> I suspect there may be a widening gulf here between = England and Canada. On the eastern side of the pond, Smith v Hughes has been interpreted as meaning you *can* hold the other side to a contract even = though he's seriously mistaken and you know it. The most recent example was the slightly grisly Sykes v Taylor-Rose [2004] EWCA Civ 299, [2004] N.P.C. = 34. Sale of a house: as the vendor knew but the purchaser didn't, a previous = owner a year or so earlier had murdered & chopped up a victim into small = bits which he then distributed artfully round the premises. And at the time of the = same they hadn't as yet found them all ... the contract stood.

The one exception is where an offeror makes a slip in the  = * terms * he intends then and there to offer. But nothing short of that will do. = The case where a tenderer, to the knowledge of the tenderee, bids low = because he's forgotten to factor in a given cost in preparing his tender would ( = think, subject to correction) go in favour of the tenderee in = England.

Andrew

>> =3D=3D=3D=3D=3D Original Message From = John Swan <jswan@airdberlis.com> =3D=3D=3D=3D=3D

>> Smith v. Hughes does not support an argument that the = contract for the

>> purchase and sale of the shares is valid and enforceable.  The common

>> law would not let a buyer get away with purchasing = shares for a tiny

>> proportion of their value on the basis that the buyer = could have had no

>> reasonable expectation that the seller meant to sell at = the price it

>> offered.

>>

>>

>>

>> McMaster University v. Wilchar Construction Ltd. [1971] = 3 O.R. 801, 22

>> D.L.R. (3d) 9; aff'd, (1973), 12 O.R. (2d) 512n, 69 = D.L.R. (3d) 400n,

>> and Stepps Investments Ltd. v. Security Capital = Corporation (1976), 14

>> O.R. (2d) 259, 73 D.L.R. (3d) 351, are Canadian = examples where one party

>> was not allowed to hold the other to a deal in = circumstances where the

>> first party knew that the other had made a = mistake.  Smith v. Hughes

>> would support this result to the extent that it stands = for the argument

>> that one party cannot hold the other to a deal when the = first party

>> knows that the other is labouring under a = mistake.

>>

>>

>>

>> On a completely different issue the Economist has a = story this week at

>> page 81 of a Japanese company which placed an order on = the exchange to

>> sell 610000 shares of a company for 1 yen each when it intended to sell

>> 1 share for 610000 yen It appesrs to be assumed by = everyone that this

>> transaction which was presumably governed by japanese = law was binding

>> but surely this would not be so in any common law = country

>>

>> Merry christmas

>> Michael

>

> Andrew Tettenborn

> Bracton Professor of Law, University of Exeter, = England

>

>

>

> Tel:       01392-263189 (int +44-1392-263189)

> Fax:       01392-263196 (int +44-1392-263196)

> Cellphone: 07870-130528 (int = +44-7870-130528)

>

>

> Snailmail:

>

> School of Law

> University of Exeter

> Amory Building

> Rennes Drive

> Exeter EX4 4RJ

> England

>

>

> Lawyer (n): One skilled in circumvention of the = law.

> Litigation (n): A machine which you go into as a pig and = come out of as a

> sausage.

>

> - Ambrose Bierce (1906).

>

> --

>

> This message was delivered through the Obligations = Discussion Group, an

> international mailing list devoted to all aspects of the = law of obligations.

> To be added or deleted from the list please send a message = to

> <obligations-request@uwo.ca>. To make a posting to = all group members, send a

> message to <obligations@uwo.ca>. The list is run by = Jason Neyers of the

> University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email

> <jneyers@uwo.ca>. The list is archived = at

> <http://www.ucc.ie/law/odg/home.htm>. Archived = messages are not to be cited in

> published works without prior approval of the = author.

 

--

 

This message was delivered through the Obligations Discussion = Group, an international mailing list devoted to all aspects of the law of = obligations. To be added or deleted from the list please send a message to <obligations-request@uwo.ca>. To make a posting to all group = members, send a message to <obligations@uwo.ca>. The list is run by Jason = Neyers of the University of Western Ontario, tel. (+1) 519 661-2111 x. = 88435,email <jneyers@uwo.ca>. The list is archived at <http://www.ucc.ie/law/odg/home.htm>. Archived messages are not to = be cited in published works without prior approval of the = author.

=00 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. ------_=_NextPart_001_01C604CA.50486639-- ======================================================================= == Date: Tue, 20 Dec 2005 04:53:22 +0000 Reply-To: Michael Rush Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Rush Subject: Mistake of Law Content-Type: text/plain Content-Disposition: inline Content-Transfer-Encoding: binary MIME-Version: 1.0 The Victorian Court of Appeal today upheld a decision awarding the plaintiffs restitution based on a mistake of law. The dispute arose following a horse race. The defendant owned a horse that came second past the post. However, when the winning horse was subsequently disqualifed (it tested positive for a banned substance), the defendant's horse was elevated to first place. The plaintiffs then paid the defendant prize money on the basis that his horse was the legal winner. At the time of paying the prize money to the defendant, the plaintiffs were not aware that the owners of the first horse had a right of appeal. That right of appeal was exercised, and the stewards' decision overturned. The defendant's horse was relegated to second place. The plaintiffs sought recovery of the additional $76,500 it paid to the defendant. The defendant was ordered to return the money to the plaintiffs. Both defences of 'voluntary payment' and 'honest receipt' were rejected. Michael ____________________________________________________________________ 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, . ======================================================================= == Date: Tue, 20 Dec 2005 05:11:11 +0000 Reply-To: Michael Rush Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Rush Subject: Re: Mistake of Law In-Reply-To: <20051220045322.69456131B6@webmail221.herald.ox.ac.uk> Content-Type: text/plain Content-Disposition: inline Content-Transfer-Encoding: binary MIME-Version: 1.0 And the citation is: Hookway v Racing Victoria Limited & Anor [2005] VSCA 310 (20 December 2005) Which can be found at: http://www.austlii.edu.au/au/cases/vic/VSCA/2005/310.html In message <20051220045322.69456131B6@webmail221.herald.ox.ac.uk> Michael Rush writes: > The Victorian Court of Appeal today upheld a decision awarding the plaintiffs > restitution based on a mistake of law. > > The dispute arose following a horse race. The defendant owned a horse that came > second past the post. However, when the winning horse was subsequently > disqualifed (it tested positive for a banned substance), the defendant's horse > was elevated to first place. The plaintiffs then paid the defendant prize money > on the basis that his horse was the legal winner. > > At the time of paying the prize money to the defendant, the plaintiffs were not > aware that the owners of the first horse had a right of appeal. That right of > appeal was exercised, and the stewards' decision overturned. The defendant's > horse was relegated to second place. The plaintiffs sought recovery of the > additional $76,500 it paid to the defendant. > > The defendant was ordered to return the money to the plaintiffs. Both defences > of 'voluntary payment' and 'honest receipt' were rejected. > > > Michael > > ____________________________________________________________________ > 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, . > > ____________________________________________________________________ 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, . ======================================================================= == Date: Tue, 20 Dec 2005 16:36:53 +1100 Reply-To: Jonathon Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon Moore Subject: Re: Mistake of Law MIME-Version: 1.0 Content-Type: text/plain; format=flowed; charset="iso-8859-1"; reply-type=original Content-Transfer-Encoding: 7bit Thanks to Michael for this. I thought Ormiston JA's treatment of Professor Birks in para [18] was unfair and / or inaccurate. His Honour said: The concepts behind the respondents' claim in restitution are by no means fully worked out, whether one goes to authorities binding on this Court or to the works of the many text writers who have attempted to expound the principles applicable in this new "field" of the law. Relevant principles are none the clearer when one knows that a respected writer, such as Professor Birks, published his original work on the subject under the title An Introduction to the Law of Restitution (in 1985), but wrote his final work on the subject in 2003, shortly before his untimely death, calling it Unjust Enrichment, at the same time stating[1] in his preface to the latter work that, "Almost everything of mine now needs calling back for burning". To add to the theoretical difficulties, what Professor Birks ultimately saw as a new and preferable insight into these problems, the existence of a basic, overriding principle of unjust enrichment, was effectively rejected by the High Court in David Securities.[2] As was there stated by the majority, the "submission that the [plaintiff] must independently prove 'unjustness' over and above the mistake cannot therefore be sustained", for, if a payment has been caused by mistake, that is "sufficient to give rise to the prima facie obligation on the part of the [defendant] to make restitution". The burden then rests on the defendant to point to circumstances which the law will recognise as making such an order for restitution unjust.[3] ----------------------------------------------------------------------- --------- [1] See p.xiv of the preface (1st ed). A second, posthumous edition has been published this year with even further changes in approach. His reasons for preferring the expression "unjust enrichment" appear succinctly also in his chapter (together with Charles Mitchell) on that subject in vol. II of English Private Law (Oxford 2000): see paras.15.01 to 15.10. [2] By the majority (Mason, C.J., Deane, Toohey, Gaudron and McHugh, JJ.) at 378-379. [3] See also per Mason, C.J., Wilson, Deane, Toohey and Gaudron, JJ. in Australia and New Zealand Banking Group Ltd. v. Westpac Banking Corporation (1988) 164 C.L.R. 662 at 673. My gripe is three-fold. First, it was obviously a gross exaggeration, borne of modesty, for Professor Birks to say that "Almost everything of mine now needs calling back for burning". To isolate that passage for citation, as if it were literally true, is unwarranted. Secondly, and more importantly, I think it is quite wrong for Ormiston JA to say "what Professor Birks ultimately saw as a new and preferable insight into these problems, the existence of a basic, overriding principle of unjust enrichment, was effectively rejected by the High Court in David Securities. The suggestion seems to be that Professor Birks had said that, pursuant to an "overriding principle of unjust enrichment", it was necessary for the plaintiff to "independently prove 'unjustness' over and above the mistake". Professor Birks never said anything of the sort. Thirdly, I doubt the accuracy of the suggestion that the second edition of Unjust Enrichment published this year contained "even further changes in approach". Others will know better than I, but my impression was that nothing of great moment changed between the first and second editions. Jonathon ----- Original Message ----- From: "Michael Rush" To: Sent: Tuesday, December 20, 2005 3:53 PM Subject: [RDG] Mistake of Law > The Victorian Court of Appeal today upheld a decision awarding the > plaintiffs > restitution based on a mistake of law. > > The dispute arose following a horse race. The defendant owned a horse that > came > second past the post. However, when the winning horse was subsequently > disqualifed (it tested positive for a banned substance), the defendant's > horse > was elevated to first place. The plaintiffs then paid the defendant prize > money > on the basis that his horse was the legal winner. > > At the time of paying the prize money to the defendant, the plaintiffs > were not > aware that the owners of the first horse had a right of appeal. That right > of > appeal was exercised, and the stewards' decision overturned. The > defendant's > horse was relegated to second place. The plaintiffs sought recovery of the > additional $76,500 it paid to the defendant. > > The defendant was ordered to return the money to the plaintiffs. Both > defences > of 'voluntary payment' and 'honest receipt' were rejected. > > > Michael > > ____________________________________________________________________ > 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, . > > ____________________________________________________________________ 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, . ======================================================================= == Date: Tue, 20 Dec 2005 12:50:51 +0100 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: Re: Mistake of Law In-Reply-To: <003101c60527$624b8e20$3568a8c0@moorejp> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: 7bit I wonder whether those judges have read "Unjust Enrichment" beyond the preface from which the High Court quotes. We know that Peter Birks changed his mind more than once, but to the best of my knowledge he never proposed that a claimant had to show an unjust factor such as mistake, and additionally prove "unjustness". "Unjust Enrichment" shifts from the former to the latter approach, rather than combining the two. My impression of the second edition of "Unjust Enrichment" is also that it refines the first edition and answers to some criticisms (in particular relating to gain-based damages), but does not propose "even further changes". The fundamentals stay in place. Season's greetings to the list subscribers Gerhard Dannemann Jonathon Moore wrote: > Thanks to Michael for this. > > I thought Ormiston JA's treatment of Professor Birks in para [18] was > unfair and / or inaccurate. His Honour said: > > The concepts behind the > respondents' claim in restitution are by no means fully worked out, > whether one goes to authorities binding on this Court or to the works > of the many text writers who have attempted to expound the principles > applicable in this new "field" of the law. Relevant principles are > none the clearer when one knows that a respected writer, such as > Professor Birks, published his original work on the subject under the > title An Introduction to the Law of Restitution (in 1985), but wrote > his final work on the subject in 2003, shortly before his untimely > death, calling it Unjust Enrichment, at the same time stating[1] in > his preface to the latter work that, "Almost everything of mine now > needs calling back for burning". To add to the theoretical > difficulties, what Professor Birks ultimately saw as a new and > preferable insight into these problems, the existence of a basic, > overriding principle of unjust enrichment, was effectively rejected by > the High Court in David Securities.[2] As was there stated by the > majority, the "submission that the [plaintiff] must independently > prove 'unjustness' over and above the mistake cannot therefore be > sustained", for, if a payment has been caused by mistake, that is > "sufficient to give rise to the prima facie obligation on the part of > the [defendant] to make restitution". The burden then rests on the > defendant to point to circumstances which the law will recognise as > making such an order for restitution unjust.[3] > > > --------------------------------------------------------------------- ----------- > > > [1] See p.xiv of the preface (1st ed). A second, > posthumous edition has been published this year with even further > changes in approach. His reasons for preferring the expression "unjust > enrichment" appear succinctly also in his chapter (together with > Charles Mitchell) on that subject in vol. II of English Private Law > (Oxford 2000): see paras.15.01 to 15.10. > > [2] By the majority (Mason, C.J., Deane, Toohey, Gaudron > and McHugh, JJ.) at 378-379. > > [3] See also per Mason, C.J., Wilson, Deane, Toohey and > Gaudron, JJ. in Australia and New Zealand Banking Group Ltd. v. > Westpac Banking Corporation (1988) 164 C.L.R. 662 at 673. > > > > > My gripe is three-fold. First, it was obviously a gross exaggeration, > borne of modesty, for Professor Birks to say that "Almost everything > of mine now needs calling back for burning". To isolate that passage > for citation, as if it were literally true, is unwarranted. > > Secondly, and more importantly, I think it is quite wrong for Ormiston > JA to say "what Professor Birks ultimately saw as a new and preferable > insight into these problems, the existence of a basic, overriding > principle of unjust enrichment, was effectively rejected by the High > Court in David Securities. The suggestion seems to be that Professor > Birks had said that, pursuant to an "overriding principle of unjust > enrichment", it was necessary for the plaintiff to "independently > prove 'unjustness' over and above the mistake". Professor Birks never > said anything of the sort. > > Thirdly, I doubt the accuracy of the suggestion that the second > edition of Unjust Enrichment published this year contained "even > further changes in approach". Others will know better than I, but my > impression was that nothing of great moment changed between the first > and second editions. > > Jonathon > > > > ----- Original Message ----- From: "Michael Rush" > > To: > Sent: Tuesday, December 20, 2005 3:53 PM > Subject: [RDG] Mistake of Law > > >> The Victorian Court of Appeal today upheld a decision awarding the >> plaintiffs >> restitution based on a mistake of law. >> >> The dispute arose following a horse race. The defendant owned a horse >> that came >> second past the post. However, when the winning horse was subsequently >> disqualifed (it tested positive for a banned substance), the >> defendant's horse >> was elevated to first place. The plaintiffs then paid the defendant >> prize money >> on the basis that his horse was the legal winner. >> >> At the time of paying the prize money to the defendant, the >> plaintiffs were not >> aware that the owners of the first horse had a right of appeal. That >> right of >> appeal was exercised, and the stewards' decision overturned. The >> defendant's >> horse was relegated to second place. The plaintiffs sought recovery >> of the >> additional $76,500 it paid to the defendant. >> >> The defendant was ordered to return the money to the plaintiffs. Both >> defences >> of 'voluntary payment' and 'honest receipt' were rejected. >> >> >> Michael >> >> ____________________________________________________________________ >> 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, . >> >> > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, . ======================================================================= == Date: Wed, 21 Dec 2005 12:08:04 +1100 Reply-To: Jonathon Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon Moore Subject: Fw: [RDG] Mistake of Law MIME-Version: 1.0 Content-Type: text/plain; format=flowed; charset="iso-8859-1"; reply-type=original Content-Transfer-Encoding: 7bit I agree with Gerhard's sentiments in his first and third paragraphs, but I am not sure that it is right to say that Peter Birks shifted to an approach requiring proof of "unjustness". What he shifted from was an unjust factors approach (mistake, duress, ignorance etc) to an absence of basis approach (no explanatory basis for the receipt of the enrichment). Most importantly, Peter Birks' absence of basis approach was most certainly *not*, contrary to Ormiston JA's suggestion in Hookway v Racing Victoria Limited [2005] VSCA 310 at [18], an approach that required the plaintiff to "independently prove 'unjustness' over and above the mistake". Peter Birks never said that. In fact, he said the opposite time and again. Jonathon > ---------- Forwarded message ---------- > From: Gerhard Dannemann > Date: 20-Dec-2005 22:50 > Subject: Re: [RDG] Mistake of Law > To: ENRICHMENT@lists.mcgill.ca > > I wonder whether those judges have read "Unjust Enrichment" beyond the > preface from which the High Court quotes. > > We know that Peter Birks changed his mind more than once, but to the > best of my knowledge he never proposed that a claimant had to show an > unjust factor such as mistake, and additionally prove "unjustness". > "Unjust Enrichment" shifts from the former to the latter approach, > rather than combining the two. > > My impression of the second edition of "Unjust Enrichment" is also that > it refines the first edition and answers to some criticisms (in > particular relating to gain-based damages), but does not propose "even > further changes". The fundamentals stay in place. > > Season's greetings to the list subscribers > Gerhard Dannemann > ____________________________________________________________________ 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, .