========================================================================= Date: Thu, 1 Mar 2007 11:40:46 -0000 Reply-To: Rotherham Craig Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Rotherham Craig Subject: Re: ODG: Waiver of tort Comments: To: Doug Rendleman MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C75BF6.748A453F" This is a multi-part message in MIME format. ------_=_NextPart_001_01C75BF6.748A453F Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable It is interesting to hear how the American law is developing. There is limited English authority regarding nuisance and a certain amount of academic resistance to the possibility. In his Introduction to the Law of Restitution, Peter Birks argued that a gain-based remedy should not be available for nuisance, as it is a "anti-harm wrong" and not an "anti-enrichment" harm. Soon after Millett, in Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922, suggested that profits would be recoverable in a case involving a nuisance by interference with a right to light. Birks ultimately gave up on this distinction (Civil Wrongs - a New World (1991)) but others have continued to flirt with it.=20=20 =20 After, Saunders, in Stoke-on-Trent CC v Wass [1988] 3 All 394, the Court of Appeal denied the defendant's claim for recovery for nuisance caused by breaching the claimant's monopoly to licence markets within a particular area and Nourse LJ was rather overly hostile to the possibility of having benefit-based recovery in this context. However, the facts of the case are rather special. There is a judicial presumption that markets breaching such a geographical monopoly cause harm and therefore an injunction is automatically available without proof of actual harm. However, the Court found that, as a matter of fact, the claimant suffered no loss from the breach in question. So, it was case of a "presumed nuisance, if you like, and, in this respect, not a terribly compelling case for gain-based relief (on the other hand, the fact that the defendant breaches of the claimant's rights were knowing and repeated might have been thought sufficient to outweigh this consideration). =20 I suspect that an English court might well find for the claimant in a Boomer-like case but we will have to wait and see.=20=20=20 ________________________________ From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Doug Rendleman Sent: 27 February 2007 19:44 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort =09 =09 Hi All,=20 I am following Calev Crossland from New Zealand about restitution for nuisance and the Canadian interchange about gain-based restitution.=20=20 The 4th Tentative Draft of the Restatement (Third) of Restitution, section 44, illustration 14 is restitution for a nuisance, measured by the value of a license. It was based on a damages case, Boomer v. Atlantic Cement, and Dan Friedmann's comment in Restitution of Benefits, 80 Columbia Law Review 504, 509, n. 28 (1980).=20=20 A recent United States Court of Appeals decision on restitution for nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006). Judge Arnold's strong dissent says yes.=20=20 Best Regards to All. Doug Rendleman=20 Washington & Lee=20 =09 This message has been checked for viruses but the contents of an attachment may still contain software viruses, which could damage your computer system: you are advised to perform your own checks. Email communications with the University of Nottingham may be monitored as permitted by UK legislation. ____________________________________________________________________ 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_01C75BF6.748A453F Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable
It is interesting to hear how the= American=20 law is developing.  There is limited English=20 authority regarding nuisance a= nd a=20 certain amount of academic resistance to the possibility.  In h= is=20 Introduction to the Law of Restitution, Peter Birks argued that a=20 gain-based remedy should not be available for nuisance, as it is a "anti-ha= rm=20 wrong" and not an "anti-enrichment" harm.  Soon after Millett, in=20 Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922, suggeste= d=20 that profits would be recoverable in a case involving a nuisance by=20 interference with a right to light.  Birks=20 ultimately gave up on t= his=20 distinction (Civil Wrongs - a New World=20 (1991)) but others have continued to flirt with it. =20
 
After, Saun= ders,=20 in Stoke-on-Trent CC v Wass [1988] 3 All 394, the Court of Appeal denied the=20 defendant's claim for recovery for nuisance caused by breaching the claiman= t's=20 monopoly to licence markets within a=20 particular area and Nourse LJ was rather overly hostile to the=20 possibility of having benefit-based recovery in this context.  However, the facts of the case are rathe= r=20 special.  There is a judicial presumption that markets breaching such = a=20 geographical monopoly cause harm and therefore an injunction is=20 automatically available without proof of actual harm.  Howev= er,=20 the Court found that, as a matter of fact, the claimant suffered no loss fr= om=20 the breach in question.  So, it was case of a "presumed nuisance, if y= ou=20 like, and, in this respect, not a terribly compelling case for gain-based r= elief=20 (on the other hand, the fact that the defendant breaches of the claima= nt's=20 rights were knowing and repeated might have been thought sufficient to= =20 outweigh this consideration).
 
I suspect that an= English=20 court might well find for the claimant in a Boomer-like case but we will ha= ve to=20 wait and see.  

From: Enrichment - Restitution & Unjust=20 Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf = Of=20 Doug Rendleman
Sent: 27 February 2007 19:44
To:= =20 ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of=20 tort

Hi All,
 I am following Calev Crossland from New Zealand about restitut= ion=20 for nuisance and the Canadian interchange about gain-based restitution.&n= bsp;=20
 The 4th Tentative Draft of the Restatement (Third) of Restitut= ion,=20 section 44, illustration 14 is restitution for a nuisance, measured by th= e=20 value of a license.  It was based on a damages case, Boomer v. Atlan= tic=20 Cement, and Dan Friedmann's comment in Restitution of Benefits, 80 Columb= ia=20 Law Review 504, 509, n. 28 (1980). 
 A recent United States Court of Appeals decision on restitutio= n for=20 nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006).  Ju= dge=20 Arnold's strong dissent says yes. 
Best Regards to All.
Doug Rendleman
Washington & Lee

This message has been checked for viruses but the contents of an attachment may still contain software viruses, which could damage your computer system: you are advised to perform your own checks. Email communications with the University of Nottingham may be monitored as permitted by UK legislation.

____________________________________________________________________ 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_01C75BF6.748A453F-- ========================================================================= Date: Thu, 1 Mar 2007 09:18:07 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Waiver of tort Comments: To: Rotherham Craig In-Reply-To: <052F2F9482292649B765E8F039CAAB2AFB2602@VUIEXCH3.ad.nottingham.ac.uk> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3255585489_114611" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --B_3255585489_114611 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Perhaps ironically, these recent Canadian cases are being argued on exactly the distinction between anti-enrichment and anti-harm wrongs. I would be interested to know how many RDG members find this distinction useful? On a rights-based analysis, if we thought that in some situations (and negligence might be one, perhaps not in England and Wales after Barker) the plaintiff=B9s right is only infringed if loss is caused, we might well think that a gain-based remedy is not consonant with the extent of the right in question. Eg if loss is $20 and gain is $50, and we think that $20 is not just a measure of loss but actually in some sense constitutes the violation of the right, it is arguably hard to see how the plaintiff connects to the $50.=20 Does anyone know of a theory of rights that offers an explanation for a distinction between those rights that are properly said to be violated only when a loss is caused, and those that can properly be said to be violated regardless of whether any loss is caused? My excuse for asking such a general question is that I have been kicked out of my office for over three weeks and all my books are in boxes somewhere..= . Lionel On 1/3/07 06:40, "Rotherham Craig" wrote= : > It is interesting to hear how the American law is developing. There is > limited English authority regarding nuisance and a certain amount of acad= emic > resistance to the possibility. In his Introduction to the Law of Restitu= tion, > Peter Birks argued that a gain-based remedy should not be available for > nuisance, as it is a "anti-harm wrong" and not an "anti-enrichment" harm. > Soon after Millett, in Carr-Saunders v Dick McNeil Associates Ltd [1986] = 1 WLR > 922, suggested that profits would be recoverable in a case involving a > nuisance by interference with a right to light. Birks ultimately gave up= on > this distinction (Civil Wrongs - a New World (1991)) but others have cont= inued > to flirt with it. > =20 > After, Saunders, in Stoke-on-Trent CC v Wass [1988] 3 All 394, the Court = of > Appeal denied the defendant's claim for recovery for nuisance caused by > breaching the claimant's monopoly to licence markets within a particular = area > and Nourse LJ was rather overly hostile to the possibility of having > benefit-based recovery in this context. However, the facts of the case a= re > rather special. There is a judicial presumption that markets breaching s= uch a > geographical monopoly cause harm and therefore an injunction is automatic= ally > available without proof of actual harm. However, the Court found that, a= s a > matter of fact, the claimant suffered no loss from the breach in question= . > So, it was case of a "presumed nuisance, if you like, and, in this respec= t, > not a terribly compelling case for gain-based relief (on the other hand, = the > fact that the defendant breaches of the claimant's rights were knowing an= d > repeated might have been thought sufficient to outweigh this consideratio= n). > =20 > I suspect that an English court might well find for the claimant in a > Boomer-like case but we will have to wait and see. >=20 >> =20 >> =20 >>=20 >> From: Enrichment - Restitution & Unjust Enrichment Legal Issues >> [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Doug Rendleman >> Sent: 27 February 2007 19:44 >> To: ENRICHMENT@LISTS.MCGILL.CA >> Subject: Re: [RDG] ODG: Waiver of tort >>=20 >> =20 >> =20 >> Hi All,=20 >> =20 >> I am following Calev Crossland from New Zealand about restitution for >> nuisance and the Canadian interchange about gain-based restitution. >> =20 >> The 4th Tentative Draft of the Restatement (Third) of Restitution, sec= tion >> 44, illustration 14 is restitution for a nuisance, measured by the valu= e of >> a license. It was based on a damages case, Boomer v. Atlantic Cement, = and >> Dan Friedmann's comment in Restitution of Benefits, 80 Columbia Law Rev= iew >> 504, 509, n. 28 (1980). >> =20 >> A recent United States Court of Appeals decision on restitution for >> nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006). Judge >> Arnold's strong dissent says yes. >> =20 >> Best Regards to All. >> =20 >> Doug Rendleman=20 >> =20 >> Washington & Lee >=20 > This message has been checked for viruses but the contents of an attachme= nt > may still contain software viruses, which could damage your computer syst= em: > you are advised to perform your own checks. Email communications with the > University of Nottingham may be monitored as permitted by UK legislation. > ____________________________________________________________________ This > message was delivered through the Restitution Discussion Group, an > international internet LISTSERV devoted to all aspects of the law of unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > 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, . --B_3255585489_114611 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Waiver of tort Perha= ps ironically, these recent Canadian cases are being argued on exactly the d= istinction between anti-enrichment and anti-harm wrongs. I would be interest= ed to know how many RDG members find this distinction useful?
On a rights-based analysis, if we thought that in some situations (and negl= igence might be one, perhaps not in England and Wales after Barker) the plai= ntiff’s right is only infringed if loss is caused, we might well think= that a gain-based remedy is not consonant with the extent of the right in q= uestion. Eg if loss is $20 and gain is $50, and we think that $20 is not jus= t a measure of loss but actually in some sense constitutes the violation of = the right, it is arguably hard to see how the plaintiff connects to the $50.=
Does anyone know of a theory of rights that offers an explanation for a dis= tinction between those rights that are properly said to be violated only whe= n a loss is caused, and those that can properly be said to be violated regar= dless of whether any loss is caused?
My excuse for asking such a general question is that I have been kicked out= of my office for over three weeks and all my books are in boxes somewhere..= .
Lionel


On 1/3/07 06:40, "Rotherham Craig" <Craig.Rotherham@NOTTINGHAM= .AC.UK> wrote:

It is interesting to hear how the American law is develop= ing.  There is limited English authority regarding nuisance and a certain= amount of academic resistance to the possibility.  In his Introduction= to the Law of Restitution, Peter Birks argued that a gain-based remedy shou= ld not be available for nuisance, as it is a "anti-harm wrong" and= not an "anti-enrichment" harm.  Soon after Millett, in Carr-= Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922, suggested that profi= ts would be recoverable in a case involving a nuisance by interference with = a right to light.  Birks ultimately gave up on this distinction (Civil = Wrongs - a New World (1991)) but others have continued to flirt with it. &nb= sp;
After, Saunders, in Stoke-on-Trent CC v Wass [1988] 3 All 394, the Cour= t of Appeal denied the defendant's claim for recovery for nuisance caused by= breaching the claimant's monopoly to licence markets within a particular ar= ea and Nourse LJ was rather overly hostile to the possibility of having bene= fit-based recovery in this context.  However, the facts of the case are= rather special.  There is a judicial presumption that markets breachin= g such a geographical monopoly cause harm and therefore an injunction is aut= omatically available without proof of actual harm.  However, the Court = found that, as a matter of fact, the claimant suffered no loss from the brea= ch in question.  So, it was case of a "presumed nuisance, if you l= ike, and, in this respect, not a terribly compelling case for gain-based rel= ief (on the other hand, the fact that the defendant breaches of the claimant= 's rights were knowing and repeated might have been thought sufficient to ou= tweigh this consideration).
I suspect that an English court might well find for the claimant in a= Boomer-like case but we will have to wait and see.   


 
From: Enrichment - Restitution & Un= just  Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of  Doug R= endleman
Sent: 27 February 2007 19:44
To:  ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of  tort

 
 
Hi All,
 
 I am following Calev Crossland from New Zealand about restitution &nb= sp;for nuisance and the Canadian interchange about gain-based restitution. &= nbsp; 
 
 The 4th Tentative Draft of the Restatement (Third) of Restitution, &n= bsp;section 44, illustration 14 is restitution for a nuisance, measured by t= he  value of a license.  It was based on a damages case, Boomer v.= Atlantic  Cement, and Dan Friedmann's comment in Restitution of Benefi= ts, 80 Columbia  Law Review 504, 509, n. 28 (1980).  
 
 A recent United States Court of Appeals decision on restitution for &= nbsp;nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006).  = Judge  Arnold's strong dissent says yes.  
 
Best Regards to All.
 
Doug Rendleman
 
Washington & Lee

This message has been checked for viruses but the contents of an attachment= may still contain software viruses, which could damage your computer system= : you are advised to perform your own checks. Email communications with the = University of Nottingham may be monitored as permitted by UK legislation. ____________________________________________________________________ This m= essage was delivered through the Restitution Discussion Group, an internatio= nal internet LISTSERV devoted to all aspects of the law of unjust enrichment= . To subscribe, send "subscribe enrichment" in the body of a messa= ge to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff e= nrichment" 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>.

 ____________________________________________________________________ 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>. --B_3255585489_114611-- ========================================================================= Date: Thu, 1 Mar 2007 15:21:25 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Theories of Rights Comments: To: Lionel Smith , obligations@uwo.ca In-Reply-To: MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_yG/vDPcBfFjmzXLrCFU2MQ)" This is a multi-part message in MIME format. --Boundary_(ID_yG/vDPcBfFjmzXLrCFU2MQ) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: quoted-printable Content-disposition: inline Lionel Smith wrote=3A = =3E Does anyone know of a theory of rights that offers an = =3E explanation for a =3E distinction between those rights that are properly said to be = =3E violated only =3E when a loss is caused=2C and those that can properly be said to be = =3E violatedregardless of whether any loss is caused=3F Some of Arthur Ripstein=27s work deals with this=2E You might want to st= art there=2E = ----- Original Message ----- From=3A Lionel Smith =3Clionel=2Esmith=40MCGILL=2ECA=3E Date=3A Thursday=2C March 1=2C 2007 10=3A57 am Subject=3A =5BRDG=5D Waiver of tort To=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA =3E Perhaps ironically=2C these recent Canadian cases are being argued = =3E on exactly =3E the distinction between anti-enrichment and anti-harm wrongs=2E I = =3E would be =3E interested to know how many RDG members find this distinction useful= =3F =3E On a rights-based analysis=2C if we thought that in some = =3E situations (and =3E negligence might be one=2C perhaps not in England and Wales after = =3E Barker) the =3E plaintiff=B9s right is only infringed if loss is caused=2C we might = =3E well think =3E that a gain-based remedy is not consonant with the extent of the = =3E right in =3E question=2E Eg if loss is =2420 and gain is =2450=2C and we think th= at = =3E =2420 is not =3E just a measure of loss but actually in some sense constitutes = =3E the violation =3E of the right=2C it is arguably hard to see how the plaintiff = =3E connects to the =3E =2450=2E = =3E Does anyone know of a theory of rights that offers an = =3E explanation for a =3E distinction between those rights that are properly said to be = =3E violated only =3E when a loss is caused=2C and those that can properly be said to be = =3E violatedregardless of whether any loss is caused=3F =3E My excuse for asking such a general question is that I have been = =3E kicked out =3E of my office for over three weeks and all my books are in boxes = =3E somewhere=2E=2E=2ELionel =3E = =3E = =3E On 1/3/07 06=3A40=2C =22Rotherham Craig=22 = =3E =3CCraig=2ERotherham=40NOTTINGHAM=2EAC=2EUK=3E wrote=3A =3E = =3E =3E It is interesting to hear how the American law is = =3E developing=2E There is =3E =3E limited English authority regarding nuisance and a certain = =3E amount of academic =3E =3E resistance to the possibility=2E In his Introduction to = =3E the Law of Restitution=2C =3E =3E Peter Birks argued that a gain-based remedy should not be = =3E available for =3E =3E nuisance=2C as it is a =22anti-harm wrong=22 and not an =22anti-= =3E enrichment=22 harm=2E =3E =3E Soon after Millett=2C in Carr-Saunders v Dick McNeil Associates = =3E Ltd =5B1986=5D 1 WLR =3E =3E 922=2C suggested that profits would be recoverable in a case = =3E involving a =3E =3E nuisance by interference with a right to light=2E Birks = =3E ultimately gave up on =3E =3E this distinction (Civil Wrongs - a New World (1991)) but = =3E others have continued =3E =3E to flirt with it=2E =3E =3E = =3E =3E After=2C Saunders=2C in Stoke-on-Trent CC v Wass =5B1988=5D 3 Al= l 394=2C = =3E the Court of =3E =3E Appeal denied the defendant=27s claim for recovery for nuisance = =3E caused by =3E =3E breaching the claimant=27s monopoly to licence markets within a = =3E particular area =3E =3E and Nourse LJ was rather overly hostile to the possibility of ha= ving =3E =3E benefit-based recovery in this context=2E However=2C the = =3E facts of the case are =3E =3E rather special=2E There is a judicial presumption that = =3E markets breaching such a =3E =3E geographical monopoly cause harm and therefore an injunction = =3E is automatically =3E =3E available without proof of actual harm=2E However=2C the = =3E Court found that=2C as a =3E =3E matter of fact=2C the claimant suffered no loss from the breach = =3E in question=2E =3E =3E So=2C it was case of a =22presumed nuisance=2C if you like=2C an= d=2C in = =3E this respect=2C =3E =3E not a terribly compelling case for gain-based relief (on the = =3E other hand=2C the =3E =3E fact that the defendant breaches of the claimant=27s rights were= = =3E knowing and =3E =3E repeated might have been thought sufficient to outweigh this = =3E consideration)=2E=3E = =3E =3E I suspect that an English court might well find for the = =3E claimant in a =3E =3E Boomer-like case but we will have to wait and see=2E =3E =3E = =3E =3E=3E = =3E =3E=3E = =3E =3E=3E = =3E =3E=3E From=3A Enrichment - Restitution =26 Unjust = =3E Enrichment Legal Issues =3E =3E=3E =5Bmailto=3AENRICHMENT=40LISTS=2EMCGILL=2ECA=5D On Behalf Of = Doug = =3E Rendleman=3E=3E Sent=3A 27 February 2007 19=3A44 =3E =3E=3E To=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA =3E =3E=3E Subject=3A Re=3A =5BRDG=5D ODG=3A Waiver of tort =3E =3E=3E = =3E =3E=3E = =3E =3E=3E = =3E =3E=3E Hi All=2C = =3E =3E=3E = =3E =3E=3E I am following Calev Crossland from New Zealand about = =3E restitution for =3E =3E=3E nuisance and the Canadian interchange about gain-based restit= ution=2E =3E =3E=3E = =3E =3E=3E The 4th Tentative Draft of the Restatement (Third) of = =3E Restitution=2C section =3E =3E=3E 44=2C illustration 14 is restitution for a nuisance=2C measur= ed = =3E by the value of =3E =3E=3E a license=2E It was based on a damages case=2C Boomer v=2E = =3E Atlantic Cement=2C and =3E =3E=3E Dan Friedmann=27s comment in Restitution of Benefits=2C 80 = =3E Columbia Law Review =3E =3E=3E 504=2C 509=2C n=2E 28 (1980)=2E =3E =3E=3E = =3E =3E=3E A recent United States Court of Appeals decision on = =3E restitution for =3E =3E=3E nuisance says no - Marmo v=2E Tyson=2C 457 F=2E3d 748 (8th Ci= r=2E = =3E 2006)=2E Judge =3E =3E=3E Arnold=27s strong dissent says yes=2E =3E =3E=3E = =3E =3E=3E Best Regards to All=2E =3E =3E=3E = =3E =3E=3E Doug Rendleman = =3E =3E=3E = =3E =3E=3E Washington =26 Lee =3E =3E = =3E =3E This message has been checked for viruses but the contents of = =3E an attachment =3E =3E may still contain software viruses=2C which could damage your = =3E computer system=3A =3E =3E you are advised to perform your own checks=2E Email = =3E communications with the =3E =3E University of Nottingham may be monitored as permitted by UK = =3E legislation=2E=3E = =3E =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F This =3E =3E message was delivered through the Restitution Discussion = =3E Group=2C an =3E =3E international internet LISTSERV devoted to all aspects of the = =3E law of unjust =3E =3E enrichment=2E To subscribe=2C send =22subscribe enrichment=22 in= the = =3E body of a message =3E =3E to =3Clistserv=40lists=2Emcgill=2Eca=3E=2E To unsubscribe=2C sen= d = =3E =22signoff enrichment=22 to =3E =3E the same address=2E To make a posting to all group members=2C se= nd to =3E =3E =3Cenrichment=40lists=2Emcgill=2Eca=3E=2E The list is run by Lio= nel = =3E Smith of McGill =3E =3E University=2C =3Clionel=2Esmith=40mcgill=2Eca=3E=2E =3E = =3E = =3E = =3E =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F =3E This message was delivered through the Restitution = =3E Discussion Group=2C =3E an international internet LISTSERV devoted to all aspects = =3E of the law =3E of unjust enrichment=2E To subscribe=2C send =22subscribe = =3E enrichment=22 in =3E the body of a message to =3Clistserv=40lists=2Emcgill=2Eca=3E=2E To= = =3E unsubscribe=2C send =22signoff enrichment=22 to the same address=2E = =3E To make a posting to =3E all group members=2C send to = =3E =3Cenrichment=40lists=2Emcgill=2Eca=3E=2E The list is =3E run by Lionel Smith of McGill University=2C = =3E =3Clionel=2Esmith=40mcgill=2Eca=3E=2E -- = Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x=2E 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. 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The list is run by Lionel Smith of McGill University, . --Boundary_(ID_yG/vDPcBfFjmzXLrCFU2MQ) Content-type: text/html; charset=iso-8859-1 Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3ELionel Smith wrote=3A =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3E=26gt=3B Does anyone know of a theory of rights that offers an = =3CBR=3E=26gt=3B explanation for a=3CBR=3E=26gt=3B distinction between t= hose rights that are properly said to be =3CBR=3E=26gt=3B violated only=3C= BR=3E=26gt=3B when a loss is caused=2C and those that can properly be sa= id to be =3CBR=3E=26gt=3B violatedregardless of whether any loss is caus= ed=3F=3CBR=3E=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ESome of Arthur Ripstein=27s work deals with this=2E You might w= ant to start there=2E =3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3E= From=3A Lionel Smith =26lt=3Blionel=2Esmith=40MCGILL=2ECA=26gt=3B=3CBR=3E= Date=3A Thursday=2C March 1=2C 2007 10=3A57 am=3CBR=3ESubject=3A =5BRDG=5D= Waiver of tort=3CBR=3ETo=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=3C= BR=3E=26gt=3B Perhaps ironically=2C these recent Canadian cases are bein= g argued =3CBR=3E=26gt=3B on exactly=3CBR=3E=26gt=3B the distinction bet= ween anti-enrichment and anti-harm wrongs=2E I =3CBR=3E=26gt=3B would be= =3CBR=3E=26gt=3B interested to know how many RDG members find this disti= nction useful=3F=3CBR=3E=26gt=3B On a rights-based analysis=2C if we tho= ught that in some =3CBR=3E=26gt=3B situations (and=3CBR=3E=26gt=3B negli= gence might be one=2C perhaps not in England and Wales after =3CBR=3E=26= gt=3B Barker) the=3CBR=3E=26gt=3B plaintiff=B9s right is only infringed = if loss is caused=2C we might =3CBR=3E=26gt=3B well think=3CBR=3E=26gt=3B= that a gain-based remedy is not consonant with the extent of the =3CBR=3E= =26gt=3B right in=3CBR=3E=26gt=3B question=2E Eg if loss is =2420 and ga= in is =2450=2C and we think that =3CBR=3E=26gt=3B =2420 is not=3CBR=3E=26= gt=3B just a measure of loss but actually in some sense constitutes =3CB= R=3E=26gt=3B the violation=3CBR=3E=26gt=3B of the right=2C it is arguabl= y hard to see how the plaintiff =3CBR=3E=26gt=3B connects to the=3CBR=3E= =26gt=3B =2450=2E =3CBR=3E=26gt=3B Does anyone know of a theory of right= s that offers an =3CBR=3E=26gt=3B explanation for a=3CBR=3E=26gt=3B dist= inction between those rights that are properly said to be =3CBR=3E=26gt=3B= violated only=3CBR=3E=26gt=3B when a loss is caused=2C and those that c= an properly be said to be =3CBR=3E=26gt=3B violatedregardless of whether= any loss is caused=3F=3CBR=3E=26gt=3B My excuse for asking such a gener= al question is that I have been =3CBR=3E=26gt=3B kicked out=3CBR=3E=26gt= =3B of my office for over three weeks and all my books are in boxes =3CB= R=3E=26gt=3B somewhere=2E=2E=2ELionel=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3C= BR=3E=26gt=3B On 1/3/07 06=3A40=2C =22Rotherham Craig=22 =3CBR=3E=26gt=3B= =26lt=3BCraig=2ERotherham=40NOTTINGHAM=2EAC=2EUK=26gt=3B wrote=3A=3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B =26gt=3B It is interesting to hear how the Ame= rican law is =3CBR=3E=26gt=3B developing=2E=26nbsp=3B There is=3CBR=3E=26= gt=3B =26gt=3B limited English authority regarding nuisance and a certai= n =3CBR=3E=26gt=3B amount of academic=3CBR=3E=26gt=3B =26gt=3B resistanc= e to the possibility=2E=26nbsp=3B In his Introduction to =3CBR=3E=26gt=3B= the Law of Restitution=2C=3CBR=3E=26gt=3B =26gt=3B Peter Birks argued t= hat a gain-based remedy should not be =3CBR=3E=26gt=3B available for=3CB= R=3E=26gt=3B =26gt=3B nuisance=2C as it is a =22anti-harm wrong=22 and n= ot an =22anti-=3CBR=3E=26gt=3B enrichment=22 harm=2E=3CBR=3E=26gt=3B =26= gt=3B Soon after Millett=2C in Carr-Saunders v Dick McNeil Associates =3C= BR=3E=26gt=3B Ltd =5B1986=5D 1 WLR=3CBR=3E=26gt=3B =26gt=3B 922=2C sugge= sted that profits would be recoverable in a case =3CBR=3E=26gt=3B involv= ing a=3CBR=3E=26gt=3B =26gt=3B nuisance by interference with a right to = light=2E=26nbsp=3B Birks =3CBR=3E=26gt=3B ultimately gave up on=3CBR=3E=26= gt=3B =26gt=3B this distinction (Civil Wrongs - a New World (1991)) but = =3CBR=3E=26gt=3B others have continued=3CBR=3E=26gt=3B =26gt=3B to flirt= with it=2E=3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B= After=2C Saunders=2C in Stoke-on-Trent CC v Wass =5B1988=5D 3 All 394=2C= =3CBR=3E=26gt=3B the Court of=3CBR=3E=26gt=3B =26gt=3B Appeal denied th= e defendant=27s claim for recovery for nuisance =3CBR=3E=26gt=3B caused = by=3CBR=3E=26gt=3B =26gt=3B breaching the claimant=27s monopoly to licen= ce markets within a =3CBR=3E=26gt=3B particular area=3CBR=3E=26gt=3B =26= gt=3B and Nourse LJ was rather overly hostile to the possibility of havi= ng=3CBR=3E=26gt=3B =26gt=3B benefit-based recovery in this context=2E=26= nbsp=3B However=2C the =3CBR=3E=26gt=3B facts of the case are=3CBR=3E=26= gt=3B =26gt=3B rather special=2E=26nbsp=3B There is a judicial presumpti= on that =3CBR=3E=26gt=3B markets breaching such a=3CBR=3E=26gt=3B =26gt=3B= geographical monopoly cause harm and therefore an injunction =3CBR=3E=26= gt=3B is automatically=3CBR=3E=26gt=3B =26gt=3B available without proof = of actual harm=2E=26nbsp=3B However=2C the =3CBR=3E=26gt=3B Court found = that=2C as a=3CBR=3E=26gt=3B =26gt=3B matter of fact=2C the claimant suf= fered no loss from the breach =3CBR=3E=26gt=3B in question=2E=3CBR=3E=26= gt=3B =26gt=3B So=2C it was case of a =22presumed nuisance=2C if you lik= e=2C and=2C in =3CBR=3E=26gt=3B this respect=2C=3CBR=3E=26gt=3B =26gt=3B= not a terribly compelling case for gain-based relief (on the =3CBR=3E=26= gt=3B other hand=2C the=3CBR=3E=26gt=3B =26gt=3B fact that the defendant= breaches of the claimant=27s rights were =3CBR=3E=26gt=3B knowing and=3C= BR=3E=26gt=3B =26gt=3B repeated might have been thought sufficient to ou= tweigh this =3CBR=3E=26gt=3B consideration)=2E=26gt=3B=26nbsp=3B =3CBR=3E= =26gt=3B =26gt=3B I suspect that an English court might well find for th= e =3CBR=3E=26gt=3B claimant in a=3CBR=3E=26gt=3B =26gt=3B Boomer-like ca= se but we will have to wait and see=2E=3CBR=3E=26gt=3B =26gt=3B =3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26gt= =3B=26nbsp=3B From=3A Enrichment - Restitution =26amp=3B Unjust=26nbsp=3B= =3CBR=3E=26gt=3B Enrichment Legal Issues=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =5Bmailto=3AENRICHMENT=40LISTS=2EMCGILL=2ECA=5D On Behalf Of=26nbsp=3B = Doug =3CBR=3E=26gt=3B Rendleman=26gt=3B=26gt=3B Sent=3A 27 February 2007= 19=3A44=3CBR=3E=26gt=3B =26gt=3B=26gt=3B To=3A=26nbsp=3B ENRICHMENT=40L= ISTS=2EMCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Subject=3A Re=3A =5B= RDG=5D ODG=3A Waiver of=26nbsp=3B tort=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B Hi All=2C =3CBR=3E=26g= t=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp= =3B I am following Calev Crossland from New Zealand about =3CBR=3E=26gt=3B= restitution=26nbsp=3B for=3CBR=3E=26gt=3B =26gt=3B=26gt=3B nuisance and= the Canadian interchange about gain-based restitution=2E=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B = The 4th Tentative Draft of the Restatement (Third) of =3CBR=3E=26gt=3B R= estitution=2C=26nbsp=3B section=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 44=2C i= llustration 14 is restitution for a nuisance=2C measured =3CBR=3E=26gt=3B= by the=26nbsp=3B value of=3CBR=3E=26gt=3B =26gt=3B=26gt=3B a license=2E= =26nbsp=3B It was based on a damages case=2C Boomer v=2E =3CBR=3E=26gt=3B= Atlantic=26nbsp=3B Cement=2C and=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Dan F= riedmann=27s comment in Restitution of Benefits=2C 80 =3CBR=3E=26gt=3B C= olumbia=26nbsp=3B Law Review=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 504=2C 509= =2C n=2E 28 (1980)=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26nbsp=3B A recent United States Court of Appe= als decision on =3CBR=3E=26gt=3B restitution for=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B nuisance says no - Marmo v=2E Tyson=2C 457 F=2E3d 748 (8th Cir=2E= =3CBR=3E=26gt=3B 2006)=2E=26nbsp=3B Judge=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B Arnold=27s strong dissent says yes=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B Best Regards to All=2E=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B= Doug Rendleman =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B =3CBR=3E=26g= t=3B =26gt=3B=26gt=3B Washington =26amp=3B Lee=3CBR=3E=26gt=3B =26gt=3B = =3CBR=3E=26gt=3B =26gt=3B This message has been checked for viruses but = the contents of =3CBR=3E=26gt=3B an attachment=3CBR=3E=26gt=3B =26gt=3B = may still contain software viruses=2C which could damage your =3CBR=3E=26= gt=3B computer system=3A=3CBR=3E=26gt=3B =26gt=3B you are advised to per= form your own checks=2E Email =3CBR=3E=26gt=3B communications with the=3C= BR=3E=26gt=3B =26gt=3B University of Nottingham may be monitored as perm= itted by UK =3CBR=3E=26gt=3B legislation=2E=26gt=3B =3CBR=3E=26gt=3B =5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F This=3CBR=3E=26= gt=3B =26gt=3B message was delivered through the Restitution Discussion = =3CBR=3E=26gt=3B Group=2C an=3CBR=3E=26gt=3B =26gt=3B international inte= rnet LISTSERV devoted to all aspects of the =3CBR=3E=26gt=3B law of unju= st=3CBR=3E=26gt=3B =26gt=3B enrichment=2E To subscribe=2C send =22subscr= ibe enrichment=22 in the =3CBR=3E=26gt=3B body of a message=3CBR=3E=26gt= =3B =26gt=3B to =26lt=3Blistserv=40lists=2Emcgill=2Eca=26gt=3B=2E To uns= ubscribe=2C send =3CBR=3E=26gt=3B =22signoff enrichment=22 to=3CBR=3E=26= gt=3B =26gt=3B the same address=2E To make a posting to all group member= s=2C send to=3CBR=3E=26gt=3B =26gt=3B =26lt=3Benrichment=40lists=2Emcgil= l=2Eca=26gt=3B=2E The list is run by Lionel =3CBR=3E=26gt=3B Smith of Mc= Gill=3CBR=3E=26gt=3B =26gt=3B University=2C =26lt=3Blionel=2Esmith=40mcg= ill=2Eca=26gt=3B=2E=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3C= BR=3E=26gt=3B =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F=5F= =3CBR=3E=26gt=3B =26nbsp=3BThis message was delivered through the Restit= ution =3CBR=3E=26gt=3B Discussion Group=2C=3CBR=3E=26gt=3B =26nbsp=3Ban = international internet LISTSERV devoted to all aspects =3CBR=3E=26gt=3B = of the law=3CBR=3E=26gt=3B =26nbsp=3Bof unjust enrichment=2E To subscrib= e=2C send =22subscribe =3CBR=3E=26gt=3B enrichment=22 in=3CBR=3E=26gt=3B= =26nbsp=3Bthe body of a message to =26lt=3Blistserv=40lists=2Emcgill=2E= ca=26gt=3B=2E To =3CBR=3E=26gt=3B unsubscribe=2C=26nbsp=3Bsend =22signof= f enrichment=22 to the same address=2E =3CBR=3E=26gt=3B To make a postin= g to=3CBR=3E=26gt=3B =26nbsp=3Ball group members=2C send to =3CBR=3E=26g= t=3B =26lt=3Benrichment=40lists=2Emcgill=2Eca=26gt=3B=2E The list is=3CB= R=3E=26gt=3B =26nbsp=3Brun by Lionel Smith of McGill University=2C =3CBR= =3E=26gt=3B =26lt=3Blionel=2Esmith=40mcgill=2Eca=26gt=3B=2E=3C/DIV=3E=3C= BR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =3Cbr=3EJanuary Term Director =3Cbr=3EAssociate Professor of Law =3Cbr=3EFaculty of Law =3Cbr=3EUniversity of Western Ontario =3Cbr=3EN6A 3K7 =3Cbr=3E(519) 661-2111 x=2E 88435=3C/BR=3E=3C/BR=3E ____________________________________________________________________ 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>. --Boundary_(ID_yG/vDPcBfFjmzXLrCFU2MQ)-- ========================================================================= Date: Fri, 2 Mar 2007 14:36:51 +1300 Reply-To: Kalev Crossland Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kalev Crossland Subject: Re: Waiver of tort Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C75C6B.405738A4" This is a multi-part message in MIME format. ------_=_NextPart_001_01C75C6B.405738A4 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Here is a response to Lionel's point about connecting the defendant's profit to the plaintiff where there is no loss: The rationale for a restitution for wrongs remedy in tort may applies where the claimant's right is interfered with is proprietary (nuisance and trespass being a property based tort). =20 =20 Imagine I tunnel under your property without consent to my landlocked gold mine, extract gold and then transport the gold via the tunnel and sell the gold that I could not otherwise extract but for my trespass. Now say instead of trespassing I first ask you "please may I tunnel under your land [for the stated purpose]" - you say you can but I would like a 40% royalty on all gold I sell - and we agree. =20 =20 By tunneling without consent (trespassing) I have negated your commercial leveraging power to extract a profit from your ownership of land. Now revert to the situation where we have entered into the royalty arrangement and sometime later land on your property subsides due to my tunnel collapsing causing damage to your land. I am liable to you for the value of the damage and for the royalty on gold extracted till the collapse. Go back now to the trespass situation: the land subsides causing you damage after I have made a profit from the gold extracted and transported via the illegal tunnel. Why in this situation can you not recover both compensation for loss plus an award for the unlawful access under your land or maybe for the gold? Having regard to the proprietary nature of the right infringed there is no double recovery here is there? Am I not compensating for the damage to the land and "compensating" for the loss of bargaining over the license to tunnel. =20 The restitutionary award here is analogous to the equitably remedy of account traditionally invoked for breach of a fiduciary obligation. Recall that the remedy of account is available for breaches of intellectual property rights which are regarded as tortious wrongs (though originally equitable I believe). What is being protected again are proprietary rights by reference to the wrongdoer's profits from say breach of a patent - regardless of loss.=20 =20 Kalev =20 =20 _____ =20 From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith Sent: Friday, 2 March 2007 3:18 a.m. To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG] Waiver of tort =20 Perhaps ironically, these recent Canadian cases are being argued on exactly the distinction between anti-enrichment and anti-harm wrongs. I would be interested to know how many RDG members find this distinction useful?=20 On a rights-based analysis, if we thought that in some situations (and negligence might be one, perhaps not in England and Wales after Barker) the plaintiff's right is only infringed if loss is caused, we might well think that a gain-based remedy is not consonant with the extent of the right in question. Eg if loss is $20 and gain is $50, and we think that $20 is not just a measure of loss but actually in some sense constitutes the violation of the right, it is arguably hard to see how the plaintiff connects to the $50.=20 Does anyone know of a theory of rights that offers an explanation for a distinction between those rights that are properly said to be violated only when a loss is caused, and those that can properly be said to be violated regardless of whether any loss is caused? My excuse for asking such a general question is that I have been kicked out of my office for over three weeks and all my books are in boxes somewhere... Lionel On 1/3/07 06:40, "Rotherham Craig" wrote: It is interesting to hear how the American law is developing. There is limited English authority regarding nuisance and a certain amount of academic resistance to the possibility. In his Introduction to the Law of Restitution, Peter Birks argued that a gain-based remedy should not be available for nuisance, as it is a "anti-harm wrong" and not an "anti-enrichment" harm. Soon after Millett, in Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922, suggested that profits would be recoverable in a case involving a nuisance by interference with a right to light. Birks ultimately gave up on this distinction (Civil Wrongs - a New World (1991)) but others have continued to flirt with it. =20 After, Saunders, in Stoke-on-Trent CC v Wass [1988] 3 All 394, the Court of Appeal denied the defendant's claim for recovery for nuisance caused by breaching the claimant's monopoly to licence markets within a particular area and Nourse LJ was rather overly hostile to the possibility of having benefit-based recovery in this context. However, the facts of the case are rather special. There is a judicial presumption that markets breaching such a geographical monopoly cause harm and therefore an injunction is automatically available without proof of actual harm. However, the Court found that, as a matter of fact, the claimant suffered no loss from the breach in question. So, it was case of a "presumed nuisance, if you like, and, in this respect, not a terribly compelling case for gain-based relief (on the other hand, the fact that the defendant breaches of the claimant's rights were knowing and repeated might have been thought sufficient to outweigh this consideration). I suspect that an English court might well find for the claimant in a Boomer-like case but we will have to wait and see. =20 =20 =20 _____ =20 From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Doug Rendleman Sent: 27 February 2007 19:44 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort =20 =20 Hi All,=20 =20 =20I am following Calev Crossland from New Zealand about restitution for= nuisance and the Canadian interchange about gain-based restitution. =20 =20 =20The 4th Tentative Draft of the Restatement (Third) of Restitution, section 44, illustration 14 is restitution for a nuisance, measured by the value of a license. It was based on a damages case, Boomer v. Atlantic Cement, and Dan Friedmann's comment in Restitution of Benefits, 80 Columbia Law Review 504, 509, n. 28 (1980). =20 =20 =20A recent United States Court of Appeals decision on restitution for nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006). Judge Arnold's strong dissent says yes. =20 =20 Best Regards to All. =20 Doug Rendleman=20 =20 Washington & Lee=20 This message has been checked for viruses but the contents of an attachment may still contain software viruses, which could damage your computer system: you are advised to perform your own checks. Email communications with the University of Nottingham may be monitored as permitted by UK legislation.=20 ____________________________________________________________________ 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, . =20 ____________________________________________________________________ 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 e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal For more information please visit www.marshalsoftware.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, . ------_=_NextPart_001_01C75C6B.405738A4 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Waiver of tort

From: Enrich= ment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] O= n Behalf Of Lionel Smith
Sent: Friday, 2 March 2007= =203:18 a.m.
To: ENRICHMENT@LISTS.MCGIL= L.CA
Subject: [RDG] Waiver of t= ort

 

Perhaps ironically, these r= ecent Canadian cases are being argued on exactly the distinction between anti-enrichment and anti-harm wrongs. I would be interested to know how m= any RDG members find this distinction useful?
On a rights-based analysis, if we thought that in some situations (and negligence might be one, perhaps not in England and Wales after Barker) t= he plaintiff’s right is only infringed if loss is caused, we might wel= l think that a gain-based remedy is not consonant with the extent of the ri= ght in question. Eg if loss is $20 and gain is $50, and we think that $20 is not= =20just a measure of loss but actually in some sense constitutes the violation of= =20the right, it is arguably hard to see how the plaintiff connects to the $50. =
Does anyone know of a theory of rights that offers an explanation for a distinction between those rights that are properly said to be violated on= ly when a loss is caused, and those that can properly be said to be violated= regardless of whether any loss is caused?
My excuse for asking such a general question is that I have been kicked o= ut of my office for over three weeks and all my books are in boxes somewhere...=
Lionel


On 1/3/07 06:40, "Rotherham Craig" <Craig.Rotherham@NOTTINGH= AM.AC.UK> wrote:

It is interesting to hear= =20how the American law is developing.  There is limited English authority regarding nuisance and a certain amount of academic resistance to the possibility.  In his Introduction to the Law of Restitution, Peter B= irks argued that a gain-based remedy should not be available for nuisance, as = it is a "anti-harm wrong" and not an "anti-enrichment" harm= .  Soon after Millett, in Carr-Saunders v Dick McNeil Associates Ltd [= 1986] 1 WLR 922, suggested that profits would be recoverable in a case involvin= g a nuisance by interference with a right to light.  Birks ultimately ga= ve up on this distinction (Civil Wrongs - a New World (1991)) but others have continued to flirt with it.  

After, Saunders, in St= oke-on-Trent CC v Wass [1988] 3 All 394, the Court of Appeal denied the defendant's cl= aim for recovery for nuisance caused by breaching the claimant's monopoly to licence markets within a particular area and Nourse LJ was rather overly hostile to the possibility of having benefit-based recovery in this conte= xt.  However, the facts of the case are rather special.  There is a= judicial presumption that markets breaching such a geographical monopoly = cause harm and therefore an injunction is automatically available without proof= =20of actual harm.  However, the Court found that, as a matter of fact, th= e claimant suffered no loss from the breach in question.  So, it was c= ase of a "presumed nuisance, if you like, and, in this respect, not a terri= bly compelling case for gain-based relief (on the other hand, the fact that t= he defendant breaches of the claimant's rights were knowing and repeated mig= ht have been thought sufficient to outweigh this consideration).

I suspect that an English court might well find for= =20the claimant in a Boomer-like case but we will have to wait and see.  &n= bsp;


 

From: Enrichm= ent - Restitution & Unjust  Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCG= ILL.CA] On Behalf Of  Doug Re= ndleman
Sent: 27 February 2007 19:= 44
To:  ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Wa= iver of  tort

 
 
Hi All,
 
 I am following Calev Crossland from New Zealand about restitution  for nuisance and the Canadian interchange about gain-based restitut= ion.   
 
 The 4th Tentative Draft of the Restatement (Third) of Restitution,  section 44, illustration 14 is restitution for a nuisance, measured= =20by the  value of a license.  It was based on a damages case, Boome= r v. Atlantic  Cement, and Dan Friedmann's comment in Restitution of Bene= fits, 80 Columbia  Law Review 504, 509, n. 28 (1980).  
 
 A recent United States Court of Appeals decision on restitution for=  nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006).  Judge  Arnold's strong dissent says yes.  
 
Best Regards to All.
 
Doug Rendleman
 
Washington & Lee


This message has been checked for viruses but the contents of an attachme= nt may still contain software viruses, which could damage your computer system: = you are advised to perform your own checks. Email communications with the University of Nott= ingham may be monitored as permitted by UK legislation.
____________________________________________________________________ This= message was delivered through the Restitution Discussion Group, an intern= ational internet LISTSERV devoted to all aspects of the law of unjust enrichment.= =20To subscribe, send "subscribe enrichment" in the body of a message= =20to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group memb= ers, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smi= th of McGill University, <lionel.smith@mcgill.ca>.

 

This e-mail message has been scanned for Viruses and Content and cleared = by=20 MailMarshal -=20 For more information please visit =20 =20 www.marshalsoftware.com=20
____________________________________________________________________ =20This message was delivered through the Restitution Discussion Group, =20an international internet LISTSERV devoted to all aspects of the law =20of unjust enrichment. To subscribe, send "subscribe enrichment" in =20the body of a message to <listserv@lists.mcgill.ca>. To unsubscr= ibe, =20send "signoff enrichment" to the same address. To make a posting to =20all group members, send to <enrichment@lists.mcgill.ca>. The lis= t is =20run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca&g= t;. ____________________________________________________________________ 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_01C75C6B.405738A4-- ========================================================================= Date: Tue, 6 Mar 2007 16:46:03 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Lord Scott on Damages Comments: cc: obligations@uwo.ca In-Reply-To: Content-Type: text/plain Content-Disposition: inline Content-Transfer-Encoding: 7bit MIME-Version: 1.0 A lecture by Lord Scott I missed when it was given last year http://www.chba.org.uk/downloads/LordScottlectureonDamages.doc For what it is worth, I think he is broadly right, and that it is worth reading. Robert Stevens ____________________________________________________________________ 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 Mar 2007 17:49:41 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: ODG: Lord Scott on Damages Comments: cc: obligations@uwo.ca In-Reply-To: <20070306164603.ED1E487049@webmail223.herald.ox.ac.uk> Content-Type: text/plain Content-Disposition: inline Content-Transfer-Encoding: 7bit MIME-Version: 1.0 Sorry everyone, the link I posted was defective http://www.chba.org.uk/downloads/Lord%20Scott%20lecture%20on%20Damages.doc RS ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 14 Mar 2007 11:47:52 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Comments: To: obligations@uwo.ca Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_612885140==_.ALT" --=====================_612885140==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Members of both the ODG and the RDG will find things to interest them in O'Brien v Independent Assessor [2007] UKHL 10, where the majority hold that when assessing damages for loss of earnings by a claimant who has been wrongfully imprisoned, a deduction should be made to reflect the fact that he has received a benefit from the prison service in the shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html Lord Rodger dissents, invoking the principle in 'lost years' cases that when calculating damages for lost earnings the courts should not concern themselves with what claimants would have spent their earnings on, and asserting that: 'justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.' CM Professor Charles Mitchell School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 ____________________________________________________________________ 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, . --=====================_612885140==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Members of both the ODG and the RDG will find things to interest them in O'Brien v Independent Assessor [2007] UKHL 10, where the majority hold that when assessing damages for loss of earnings by a claimant who has been wrongfully imprisoned, a deduction should be made to reflect the fact that he has received a benefit from the prison service in the shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html  Lord Rodger dissents, invoking the principle in 'lost years' cases that when calculating damages for lost earnings the courts should not concern themselves with what claimants would have spent their earnings on, and asserting that: 'justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.'  CM



Professor Charles Mitchell
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465 ____________________________________________________________________ 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>. --=====================_612885140==_.ALT-- ========================================================================= Date: Wed, 14 Mar 2007 11:41:46 -0400 Reply-To: axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: axelrod Comments: To: Charles Mitchell In-Reply-To: <5.1.0.14.2.20070314113128.01375490@pop.kcl.ac.uk> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------080301040706080708000507" This is a multi-part message in MIME format. --------------080301040706080708000507 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit in wrongful death actions, defendant should certainly get a nice credit for the joy which suffuses the about-to-be deceased, when he realizes that his family will be getting a nice chunk of money without his having to work for it Charles Mitchell wrote: > Members of both the ODG and the RDG will find things to interest them > in O'Brien v Independent Assessor [2007] UKHL 10, where the majority > hold that when assessing damages for loss of earnings by a claimant > who has been wrongfully imprisoned, a deduction should be made to > reflect the fact that he has received a benefit from the prison > service in the shape of food and lodging: > http://www.bailii.org/uk/cases/UKHL/2007/10.html Lord Rodger > dissents, invoking the principle in 'lost years' cases that when > calculating damages for lost earnings the courts should not concern > themselves with what claimants would have spent their earnings on, and > asserting that: 'justice, reasonableness and public policy surely > dictate that no allowance should be made for so-called savings which > the appellants were supposedly making while they were actually > enduring the appalling wrong for which they are to be compensated.' CM > > > > Professor Charles Mitchell > School of Law > King's College London > Strand > London WC2R 2LS > > tel: 020 7848 2290 > fax: 020 7848 > 2465____________________________________________________________________ > 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, . --------------080301040706080708000507 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit  in wrongful death actions, defendant should certainly get a nice credit for the joy which suffuses the about-to-be deceased, when he realizes that his family will be getting a nice chunk of money without his having to work for it

Charles Mitchell wrote:

Members of both the ODG and the RDG will find things to interest them in O'Brien v Independent Assessor [2007] UKHL 10, where the majority hold that when assessing damages for loss of earnings by a claimant who has been wrongfully imprisoned, a deduction should be made to reflect the fact that he has received a benefit from the prison service in the shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html  Lord Rodger dissents, invoking the principle in 'lost years' cases that when calculating damages for lost earnings the courts should not concern themselves with what claimants would have spent their earnings on, and asserting that: 'justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.'  CM



Professor Charles Mitchell
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465____________________________________________________________________ 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>.

____________________________________________________________________ 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>. --------------080301040706080708000507-- ========================================================================= Date: Wed, 14 Mar 2007 17:32:22 -0000 Reply-To: A.M.Tettenborn@EXETER.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: A.M.Tettenborn@EXETER.AC.UK Subject: [Fwd: [RDG]] MIME-Version: 1.0 Content-Type: multipart/mixed;boundary="----=_20070314173222_83528" ------=_20070314173222_83528 Content-Type: text/plain; charset="iso-8859-15" Content-Transfer-Encoding: 8bit ---------------------------- Original Message ---------------------------- Subject: [RDG] From: "axelrod" Date: Wed, 14 March, 2007 3:41 pm To: ENRICHMENT@LISTS.MCGILL.CA -------------------------------------------------------------------------- in wrongful death actions, defendant should certainly get a nice credit for the joy which suffuses the about-to-be deceased, when he realizes that his family will be getting a nice chunk of money without his having to work for it ... not to mention the funeral expenses which they'd otherwise have had to pay out of their inheritance, but which the defendant - nice person that he / she is - will now pick up the tab for. Andrew Charles Mitchell wrote: > Members of both the ODG and the RDG will find things to interest them > in O'Brien v Independent Assessor [2007] UKHL 10, where the majority > hold that when assessing damages for loss of earnings by a claimant > who has been wrongfully imprisoned, a deduction should be made to > reflect the fact that he has received a benefit from the prison > service in the shape of food and lodging: > http://www.bailii.org/uk/cases/UKHL/2007/10.html Lord Rodger > dissents, invoking the principle in 'lost years' cases that when > calculating damages for lost earnings the courts should not concern > themselves with what claimants would have spent their earnings on, and > asserting that: 'justice, reasonableness and public policy surely > dictate that no allowance should be made for so-called savings which > the appellants were supposedly making while they were actually > enduring the appalling wrong for which they are to be compensated.' CM > > > > Professor Charles Mitchell > School of Law > King's College London > Strand > London WC2R 2LS > > tel: 020 7848 2290 > fax: 020 7848 > 2465____________________________________________________________________ > 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, . ------=_20070314173222_83528 Content-Type: text/html; name="untitled-2" Content-Transfer-Encoding: 8bit Content-Disposition: attachment; filename="untitled-2"  in wrongful death actions, defendant should certainly get a nice credit for the joy which suffuses the about-to-be deceased, when he realizes that his family will be getting a nice chunk of money without his having to work for it

Charles Mitchell wrote:
Members of both the ODG and the RDG will find things to interest them in O'Brien v Independent Assessor [2007] UKHL 10, where the majority hold that when assessing damages for loss of earnings by a claimant who has been wrongfully imprisoned, a deduction should be made to reflect the fact that he has received a benefit from the prison service in the shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html  Lord Rodger dissents, invoking the principle in 'lost years' cases that when calculating damages for lost earnings the courts should not concern themselves with what claimants would have spent their earnings on, and asserting that: 'justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.'  CM



Professor Charles Mitchell
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465____________________________________________________________________ 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>.

____________________________________________________________________ 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>. ____________________________________________________________________ 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>. ------=_20070314173222_83528-- ========================================================================= Date: Wed, 14 Mar 2007 11:23:17 -0700 Reply-To: DAVID CHEIFETZ Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: DAVID CHEIFETZ Subject: Re: [Fwd: [RDG]] Comments: To: A.M.Tettenborn@EXETER.AC.UK MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="0-1183617878-1173896597=:99255" --0-1183617878-1173896597=:99255 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable ah ... but we alll know that a case can't "be quoted for a proposition that= may seem to follow logically from it. Such a mode of reasoning assumes tha= t the law is necessarily a logical code, whereas every lawyer must acknowle= dge that the law is not always logical at all.=94 (Quinn v. Leathem , [1901= ] A.C. 495 at 506, Lord Halsbury)=0A=0A=0A----- Original Message ----=0AFr= om: "A.M.Tettenborn@EXETER.AC.UK" =0ATo: ENRIC= HMENT@LISTS.MCGILL.CA=0ASent: Wednesday, March 14, 2007 1:32:22 PM=0ASubjec= t: [RDG] [Fwd: [RDG]]=0A=0A=0A---------------------------- Original Message= ----------------------------=0ASubject: [RDG]=0AFrom: "axelrod" =0ADate: Wed, 14 March, 2007 3:41 pm=0ATo: = ENRICHMENT@LISTS.MCGILL.CA=0A----------------------------------------------= ----------------------------=0A=0Ain wrongful death actions, defendant shou= ld certainly get a nice credit=0Afor the joy which suffuses the about-to-be= deceased, when he realizes=0Athat his family will be getting a nice chunk = of money without his having=0Ato work for it=0A=0A... not to mention the fu= neral expenses which they'd otherwise have had to=0Apay out of their inheri= tance, but which the defendant - nice person that=0Ahe / she is - will now = pick up the tab for.=0A=0AAndrew=0A=0A=0A=0ACharles Mitchell wrote:=0A=0A> = Members of both the ODG and the RDG will find things to interest them=0A> i= n O'Brien v Independent Assessor [2007] UKHL 10, where the majority=0A> hol= d that when assessing damages for loss of earnings by a claimant=0A> who ha= s been wrongfully imprisoned, a deduction should be made to=0A> reflect the= fact that he has received a benefit from the prison=0A> service in the sha= pe of food and lodging:=0A> http://www.bailii.org/uk/cases/UKHL/2007/10.htm= l Lord Rodger=0A> dissents, invoking the principle in 'lost years' cases t= hat when=0A> calculating damages for lost earnings the courts should not co= ncern=0A> themselves with what claimants would have spent their earnings on= , and=0A> asserting that: 'justice, reasonableness and public policy surely= =0A> dictate that no allowance should be made for so-called savings which= =0A> the appellants were supposedly making while they were actually=0A> end= uring the appalling wrong for which they are to be compensated.' CM=0A>=0A= >=0A>=0A> Professor Charles Mitchell=0A> School of Law=0A> King's College L= ondon=0A> Strand=0A> London WC2R 2LS=0A>=0A> tel: 020 7848 2290=0A> fax: 02= 0 7848=0A> 2465____________________________________________________________= ________=0A> This message was delivered through the Restitution Discussion = Group,=0A> an international internet LISTSERV devoted to all aspects of the= law=0A> of unjust enrichment. To subscribe, send "subscribe enrichment" in= the=0A> body of a message to . To unsubscribe, s= end=0A> "signoff enrichment" to the same address. To make a posting to all= =0A> group members, send to . The list is run= =0A> by Lionel Smith of McGill University, .=0A>=0A= =0A____________________________________________________________________=0AT= his message was delivered through the Restitution Discussion Group,=0Aan in= ternational internet LISTSERV devoted to all aspects of the law=0Aof unjust= enrichment. To subscribe, send "subscribe enrichment" in=0Athe body of a m= essage to . To unsubscribe,=0Asend "signoff enric= hment" to the same address. To make a posting to=0Aall group members, send = to . The list is=0Arun by Lionel Smith of McGil= l University, .=0A=0A______________________________= ______________________________________=0AThis message was delivered through= the Restitution Discussion Group,=0Aan international internet LISTSERV dev= oted to all aspects of the law=0Aof unjust enrichment. To subscribe, send "= subscribe enrichment" in=0Athe body of a message to . To unsubscribe,=0Asend "signoff enrichment" to the same address. To ma= ke a posting to=0Aall group members, send to . = The list is=0Arun by Lionel Smith of McGill University, .=0A in wrongful death actions, defendant should certainly get a nice = credit for the joy which suffuses the about-to-be deceased, when he realize= s that his family will be getting a nice chunk of money without his having = to work for it =0A=0ACharles Mitchell wrote:=0A=0AMembers of both the ODG a= nd the RDG will find things to interest them in O'Brien v Independent Asses= sor [2007] UKHL 10, where the majority hold that when assessing damages for= loss of earnings by a claimant who has been wrongfully imprisoned, a deduc= tion should be made to reflect the fact that he has received a benefit from= the prison service in the shape of food and lodging: http://www.bailii.org= /uk/cases/UKHL/2007/10.html Lord Rodger dissents, invoking the principle i= n 'lost years' cases that when calculating damages for lost earnings the co= urts should not concern themselves with what claimants would have spent the= ir earnings on, and asserting that: 'justice, reasonableness and public pol= icy surely dictate that no allowance should be made for so-called savings w= hich the appellants were supposedly making while they were actually endurin= g the appalling wrong for which they are to be compensated.' CM=0A=0A=0A= =0A=0AProfessor Charles Mitchell=0ASchool of Law=0AKing's College London=0A= Strand=0ALondon WC2R 2LS=0A=0Atel: 020 7848 2290=0Afax: 020 7848 2465______= ______________________________________________________________ This message= was delivered through the Restitution Discussion Group, an international i= nternet 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, . =0A_______________________________________________________= _____________ This message was delivered through the Restitution Discussion= Group, an international internet LISTSERV devoted to all aspects of the la= w of unjust enrichment. To subscribe, send "subscribe enrichment" in the bo= dy of a message to . To unsubscribe, send "signof= f enrichment" to the same address. To make a posting to all group members, = send to . The list is run by Lionel Smith of Mc= Gill University, . ________________________________= ____________________________________ This message was delivered through the= Restitution Discussion Group, an international internet LISTSERV devoted t= o all aspects of the law of unjust enrichment. To subscribe, send "subscrib= e enrichment" in the body of a message to . To un= subscribe, 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 Un= iversity, . ____________________________________________________________________ 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, . --0-1183617878-1173896597=:99255 Content-Type: text/html; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable
ah ... but we alll know that a case can= 't "be quoted for a proposition that may seem to follow logically from it. = Such a mode of reasoning assumes that the law is necessarily a logical code= , whereas every lawyer must acknowledge that the law is not always logical = at all.=94 (Quinn v. Leathem , [1901] A.C. 495 at 506,  Lord Halsbury)=
=0A

 
=0A
----- Original Message ----=
From: "A.M.Tettenborn@EXETER.AC.UK" <A.M.Tettenborn@EXETER.AC.UK>=
To: ENRICHMENT@LISTS.MCGILL.CA
Sent: Wednesday, March 14, 2007 1:32:= 22 PM
Subject: [RDG] [Fwd: [RDG]]

=0A
-----------------------= ----- Original Message ----------------------------
Subject: [RDG]
Fr= om:    "axelrod" <axelrod@ANDROMEDA.RUTGERS.EDU><= BR>Date:    Wed, 14 March, 2007 3:41 pm
To: &nb= sp;    ENRICHMENT@LISTS.MCGILL.CA
------------------= --------------------------------------------------------

in wrongful= death actions, defendant should certainly get a nice credit
for the joy= which suffuses the about-to-be deceased, when he realizes
that his fami= ly will be getting a nice chunk of money without his having
to work for = it

... not to mention the funeral expenses which they'd otherwise ha= ve had to
pay out of their inheritance, but which the defendant - nice p= erson that
he / she is - will now pick up the tab for.

Andrew
=


Charles Mitchell wrote:

> Members of both the ODG and= the RDG will find things to interest them
> in O'Brien v Independent Assessor [2007] UKHL 10, where the majority
> = hold that when assessing damages for loss of earnings by a claimant
>= who has been wrongfully imprisoned, a deduction should be made to
> = reflect the fact that he has received a benefit from the prison
> ser= vice in the shape of food and lodging:
> http://www.bailii.org/uk/c= ases/UKHL/2007/10.html  Lord Rodger
> dissents, invokin= g the principle in 'lost years' cases that when
> calculating damages= for lost earnings the courts should not concern
> themselves with wh= at claimants would have spent their earnings on, and
> asserting that= : 'justice, reasonableness and public policy surely
> dictate that no= allowance should be made for so-called savings which
> the appellant= s were supposedly making while they were actually
> enduring the appa= lling wrong for which they are to be compensated.'  CM
>
>
>> Professor Charles Mitchell
> School of Law
> King's Coll= ege London
> Strand
> London WC2R 2LS
>
> tel: 020 = 7848 2290
> fax: 020 7848
> 2465_______________________________= _____________________________________
> This message was delivered th= rough the Restitution Discussion Group,
> an international internet L= ISTSERV 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 enr= ichment" to the same address. To make a posting to all
> group member= s, send to <enrichment@lists.mcgill.ca>. The list is run
> by L= ionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>
____________________________________________________________________<= BR>This message was delivered through the Restitution Discussion Group,
an inte= rnational internet LISTSERV devoted to all aspects of the law
of unjust = enrichment. To subscribe, send "subscribe enrichment" in
the body of a m= essage to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signof= f enrichment" to the same address. To make a posting to
all group member= s, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel= Smith of McGill University, <lionel.smith@mcgill.ca>.

_______= _____________________________________________________________
This messa= ge was delivered through the Restitution Discussion Group,
an internatio= nal internet LISTSERV devoted to all aspects of the law
of unjust enrich= ment. To subscribe, send "subscribe enrichment" in
the body of a message= to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enri= chment" to the same address. To make a posting to
all group members, sen= d to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of = McGill University, <lionel.smith@mcgill.ca>.
 in wrongful d= eath actions, defendant should certainly get a nice credit for the joy whic= h suffuses the about-to-be deceased, when he realizes that his family will = be getting a nice chunk of money without his having to work for it

= Charles Mitchell wrote:
=0A
Members of both the= ODG and the RDG will find things to interest them in O'Brien v Independ= ent Assessor [2007] UKHL 10, where the majority hold that when assessin= g damages for loss of earnings by a claimant who has been wrongfully impris= oned, a deduction should be made to reflect the fact that he has received a= benefit from the prison service in the shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html  Lord= Rodger dissents, invoking the principle in 'lost years' cases that when ca= lculating damages for lost earnings the courts should not concern themselve= s with what claimants would have spent their earnings on, and asserting tha= t: 'justice, reasonableness and public policy surely dictate that no allowa= nce should be made for so-called savings which the appellants were supposed= ly making while they were actually enduring the appalling wrong for which they are to be compensated.'  CM


=0A

Professor Charles Mitchell
School of Law
King's College Lo= ndon
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 784= 8 2465____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an int= ernational internet LISTSERV devoted to all aspects of the law of unjust en= richment. To subscribe, send "subscribe enrichment" in the body of a messag= e to <listserv@lists.mcgill.ca>. To= unsubscribe, send "signoff enrichment" to the same address. To make a post= ing to all group members, send to <enric= hment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill Un= iversity, <lionel.smith@mcgill.ca>.

______= ______________________________________________________________ This message= was delivered through the Restitution Discussion Group, an international i= nternet LISTSERV devoted to all aspects of the law of unjust enrichment. To= subscribe, send "subscribe enrichment" in the body of a message to <lis= tserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the= same address. To make a posting to all group members, send to <enrichme= nt@lists.mcgill.ca>. The list is run by Lionel Smith of McGill Universit= y, <lionel.smith@mcgill.ca>. ________________________________________= ____________________________ This message was delivered through the Restitu= tion Discussion Group, an international internet LISTSERV devoted to all as= pects of the law of unjust enrichment. To subscribe, send "subscribe enrich= ment" in the body of a message to <listserv@lists.mcgill.ca>. To unsu= bscribe, send "signoff enrichment" to the same address. To make a posting to all group m= embers, send to <enrichment@lists.mcgill.ca>. The list is run by Lion= el Smith of McGill University, <lionel.smith@mcgill.ca>.
=0A
____________________________________________________________________ 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>. --0-1183617878-1173896597=:99255-- ========================================================================= Date: Wed, 14 Mar 2007 17:35:48 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Logic In-Reply-To: <58764.99255.qm@web88315.mail.re4.yahoo.com> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3256738548_1833453" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --B_3256738548_1833453 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable But we also know that "As there were no quales but only tales, it follows that there were not tales because you cannot have a tales without a quales.= " Lord Goddard CJ in R. v. Solomon, [1958] 1 Q.B. 203, 208. And so say all of us. Lionel On 14/3/07 14:23, "DAVID CHEIFETZ" wrote: > ah ... but we alll know that a case can't "be quoted for a proposition th= at > may seem to follow logically from it. Such a mode of reasoning assumes th= at > the law is necessarily a logical code, whereas every lawyer must acknowle= dge > that the law is not always logical at all.=B2 (Quinn v. Leathem , [1901] A.= C. > 495 at 506, Lord Halsbury) >=20 > =20 > ----- Original Message ---- > From: "A.M.Tettenborn@EXETER.AC.UK" > To: ENRICHMENT@LISTS.MCGILL.CA > Sent: Wednesday, March 14, 2007 1:32:22 PM > Subject: [RDG] [Fwd: [RDG]] >=20 > ---------------------------- Original Message ---------------------------= - > Subject: [RDG] > From: "axelrod" > Date: Wed, 14 March, 2007 3:41 pm > To: ENRICHMENT@LISTS.MCGILL.CA > -------------------------------------------------------------------------= - >=20 > in wrongful death actions, defendant should certainly get a nice credit > for the joy which suffuses the about-to-be deceased, when he realizes > that his family will be getting a nice chunk of money without his having > to work for it >=20 > ... not to mention the funeral expenses which they'd otherwise have had t= o > pay out of their inheritance, but which the defendant - nice person that > he / she is - will now pick up the tab for. >=20 > Andrew >=20 >=20 >=20 > Charles Mitchell wrote: >=20 >> > Members of both the ODG and the RDG will find things to interest them >> > in O'Brien v Independent Assessor [2007] UKHL 10, where the majority >> > hold that when assessing damages for loss of earnings by a claimant >> > who has been wrongfully imprisoned, a deduction should be made to >> > reflect the fact that he has received a benefit from the prison >> > service in the shape of food and lodging: >> > http://www.bailii.org/uk/cases/UKHL/2007/10.html Lord Rodger >> > dissents, invoking the principle in 'lost years' cases that when >> > calculating damages for lost earnings the courts should not concern >> > themselves with what claimants would have spent their earnings on, and >> > asserting that: 'justice, reasonableness and public policy surely >> > dictate that no allowance should be made for so-called savings which >> > the appellants were supposedly making while they were actually >> > enduring the appalling wrong for which they are to be compensated.' C= M >> > >> > >> > >> > Professor Charles Mitchell >> > School of Law >> > King's College London >> > Strand >> > London WC2R 2LS >> > >> > tel: 020 7848 2290 >> > fax: 020 7848 >> > 2465__________________________________________________________________= __ >> > 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, . >> > >=20 > ____________________________________________________________________ > 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, . >=20 > ____________________________________________________________________ > 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, . > in wrongful death actions, defendant should certainly get a nice credit = for > the joy which suffuses the about-to-be deceased, when he realizes that hi= s > family will be getting a nice chunk of money without his having to work f= or it >=20 > Charles Mitchell wrote: >> Members of both the ODG and the RDG will find things to interest them in >> O'Brien v Independent Assessor [2007] UKHL 10, where the majority hold t= hat >> when assessing damages for loss of earnings by a claimant who has been >> wrongfully imprisoned, a deduction should be made to reflect the fact th= at he >> has received a benefit from the prison service in the shape of food and >> lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html Lord Rodger >> dissents, invoking the principle in 'lost years' cases that when calcula= ting >> damages for lost earnings the courts should not concern themselves with = what >> claimants would have spent their earnings on, and asserting that: 'justi= ce, >> reasonableness and public policy surely dictate that no allowance should= be >> made for so-called savings which the appellants were supposedly making w= hile >> they were actually enduring the appalling wrong for which they are to be >> compensated.' CM >>=20 >>=20 >>=20 >>=20 >> Professor Charles Mitchell >> School of Law >> King's College London >> Strand >> London WC2R 2LS >>=20 >> tel: 020 7848 2290 >> fax: 020 7848=20 >> 2465____________________________________________________________________= This >> message was delivered through the Restitution Discussion Group, an >> international internet LISTSERV devoted to all aspects of the law of unj= ust >> 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 po= sting >> 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 unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > 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 unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > 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, . >=20 > ____________________________________________________________________ This > message was delivered through the Restitution Discussion Group, an > international internet LISTSERV devoted to all aspects of the law of unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > 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, . --B_3256738548_1833453 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Logic But w= e also know that "As there were no quales but only tales, it follows th= at there were not tales because you cannot have a tales without a quales.&qu= ot; Lord Goddard CJ in R. v. Solomon, [1958] 1 Q.B. 203, 208.

And so say all of us.
Lionel


On 14/3/07 14:23, "DAVID CHEIFETZ" <davidcheifetz@rogers.com&g= t; wrote:

ah ... but we alll know that a case can't "be quot= ed for a proposition that may seem to follow logically from it. Such a mode = of reasoning assumes that the law is necessarily a logical code, whereas eve= ry lawyer must acknowledge that the law is not always logical at all.”= (Quinn v. Leathem , [1901] A.C. 495 at 506,  Lord Halsbury)

 
----- Original Message ----
From: "A.M.Tettenborn@EXETER.AC.UK" <A.M.Tettenborn@EXETER.AC.= UK>
To: ENRICHMENT@LISTS.MCGILL.CA
Sent: Wednesday, March 14, 2007 1:32:22 PM
Subject: [RDG] [Fwd: [RDG]]

---------------------------- Original Message ----------------------------<= BR> Subject: [RDG]
From:    "axelrod" <axelrod@ANDROMEDA.RUTGERS.E= DU>
Date:    Wed, 14 March, 2007 3:41 pm
To:      ENRICHMENT@LISTS.MCGILL.CA
--------------------------------------------------------------------------<= BR>
in wrongful death actions, defendant should certainly get a nice credit
for the joy which suffuses the about-to-be deceased, when he realizes
that his family will be getting a nice chunk of money without his having to work for it

... not to mention the funeral expenses which they'd otherwise have had to<= BR> pay out of their inheritance, but which the defendant - nice person that he / she is - will now pick up the tab for.

Andrew



Charles Mitchell wrote:

> Members of both the ODG and the RDG will find things to interest them<= BR> > in O'Brien v Independent Assessor [2007] UKHL 10, where the majority > hold that when assessing damages for loss of earnings by a claimant > who has been wrongfully imprisoned, a deduction should be made to
> reflect the fact that he has received a benefit from the prison
> service in the shape of food and lodging:
> http://www.= bailii.org/uk/cases/UKHL/2007/10.html  Lord Rodger
> dissents, invoking the principle in 'lost years' cases that when
> calculating damages for lost earnings the courts should not concern > themselves with what claimants would have spent their earnings on, and=
> asserting that: 'justice, reasonableness and public policy surely
> dictate that no allowance should be made for so-called savings which > the appellants were supposedly making while they were actually
> enduring the appalling wrong for which they are to be compensated.' &n= bsp;CM
>
>
>
> Professor Charles Mitchell
> School of Law
> King's College London
> Strand
> London WC2R 2LS
>
> tel: 020 7848 2290
> fax: 020 7848
> 2465__________________________________________________________________= __
> 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&qu= ot; 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>.<= BR> >

____________________________________________________________________
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" i= n
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,<= BR> send "signoff enrichment" to the same address. To make a posting = to
all group members, send to <enrichment@lists.mcgill.ca>. The list is<= BR> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
____________________________________________________________________
This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" i= n
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,<= BR> send "signoff enrichment" to the same address. To make a posting = to
all group members, send to <enrichment@lists.mcgill.ca>. The list is<= BR> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.  in wrongful death actions, defendant should certainly get a nice cred= it for the joy which suffuses the about-to-be deceased, when he realizes tha= t his family will be getting a nice chunk of money without his having to wor= k for it

Charles Mitchell wrote:
Members of both the ODG and the RDG will find things to= interest them in O'Brien v Independent Assessor [2007] UKHL 10, wher= e the majority hold that when assessing damages for loss of earnings by a cl= aimant who has been wrongfully imprisoned, a deduction should be made to ref= lect the fact that he has received a benefit from the prison service in the = shape of food and lodging: http://www.bailii.org/uk/cases/UKHL/2007/10.html  Lord Ro= dger dissents, invoking the principle in 'lost years' cases that when calcul= ating damages for lost earnings the courts should not concern themselves wit= h what claimants would have spent their earnings on, and asserting that: 'ju= stice, reasonableness and public policy surely dictate that no allowance sho= uld be made for so-called savings which the appellants were supposedly makin= g while they were actually enduring the appalling wrong for which they are t= o be compensated.'  CM




Professor Charles Mitchell
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465_________________________________________________________= ___________ This message was delivered through the Restitution Discussion Gr= oup, an international internet LISTSERV devoted to all aspects of the law of= unjust enrichment. To subscribe, send "subscribe enrichment" in t= he body of a message to <listserv@lists.mcgill.ca> <mailto:listserv@lists.mcgill.ca> . To unsu= bscribe, send "signoff enrichment" to the same address. To make a = posting to all group members, send to <enrichment@lists.mcgill.ca> <mailto:enrichment@lists.mcgill.= ca> . The list is run by Lionel Smith of McGill University, <lione= l.smith@mcgill.ca> <mailto:lio= nel.smith@mcgill.ca> .
______________________________________________________= ______________ This message was delivered through the Restitution Discussion= Group, an international internet LISTSERV devoted to all aspects of the law= of unjust enrichment. To subscribe, send "subscribe enrichment" i= n 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 i= s run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. = ____________________________________________________________________ This me= ssage was delivered through the Restitution Discussion Group, an internation= al internet LISTSERV devoted to all aspects of the law of unjust enrichment.= To subscribe, send "subscribe enrichment" in the body of a messag= e to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff en= richment" 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>.

____________________________________________________________________ This m= essage was delivered through the Restitution Discussion Group, an internatio= nal internet LISTSERV devoted to all aspects of the law of unjust enrichment= . To subscribe, send "subscribe enrichment" in the body of a messa= ge to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff e= nrichment" 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>.

 ____________________________________________________________________ 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>. --B_3256738548_1833453-- ========================================================================= Date: Sat, 31 Mar 2007 23:27:29 -0400 Reply-To: axelrod@ANDROMEDA.RUTGERS.EDU Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: [Fwd: Court of Restitution Appeals Reports now available] MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-1 Content-Transfer-Encoding: 8bit ---------------------------- Original Message ---------------------------- FYI. The Harvard Law School Library has completed digitizing the twelve volumes of opinions and other documents of the two courts handling appeals of restitution claims within the American Zone from 1951-1966 by those whose businesses, houses or other property was illegally expropriated by the Nazi regime. Court of Restitution Appeals Reports: United States High Commission for Germany http://www.law.harvard.edu/library/collections/digital/court_of_restitution.php Professor Carol A. Roehrenbeck Associate Dean for Library and Information Resources Rutgers School of Law 123 Washington Street Newark, NJ 07102 973-353-3152 ____________________________________________________________________ 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, .