========================================================================= Date: Wed, 2 May 2007 09:13:02 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Restitution in the US In-Reply-To: Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Chaim Saiman of Villanova has published a fascinating paper on LSN called "Restitution in America: Why the U.S. Refuses to Join the Global Restitution Party" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980254 It examines the divergent paths of unjust enrichment scholarship in the Commonwealth and in the US and seeks to explain the divergence with reference to the underlying legal cultures and philosophies. Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Fri, 4 May 2007 10:12:06 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Restitution in the US Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit I post this on behalf of Chaim Saiman. LDS Dear RDG Readers: Lionel Smith recently posted a link to my draft article Restitution in America which can be downloaded at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980254 The article is a small part of a larger project comparing the legal method and theory in the US and Commonwealth, with emphasis on restitution. In particular I am interested in the relative patience and appreciation for close doctrinal reasoning-the kind found throughout the English restitution canon, which is almost nonexistent in comparable US materials. Though the present draft focuses on scholars, the next one will turn to the courts. Future projects will address the relative vitality of doctrinal approaches to private law in the Commonwealth and the decline of this mode of reasoning in US law. I am a US born and educated lawyer in my first year of law teaching. My only exposure to commonwealth law is from books. As such, I would be very interested in feedback and comments from the inhabitants of the system, either on this list or privately at saiman@law.villanova.edu. Thank you, Chaim Saiman Chaim Saiman Assistant Professor Villanova Law School 610.519.3296 saiman@law.villanova.edu ____________________________________________________________________ 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: Sun, 6 May 2007 08:25:29 -0400 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Quantum meruit in the Ont CA In-Reply-To: MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_bBg51xxNDfGHBApdRRmwAw)" This is a multi-part message in MIME format. --Boundary_(ID_bBg51xxNDfGHBApdRRmwAw) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline Colleagues: There is a discussion of quantum meruit and its relationship with contract in the recent Ont Ca decision of Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2007 ONCA 324 (http://www.ontariocourts.on.ca/decisions/2007/may/2007ONCA0324.htm). Happy Reading, -- Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --Boundary_(ID_bBg51xxNDfGHBApdRRmwAw) Content-type: text/html; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline

Colleagues:

There is a discussion of quantum meruit and its relationship with contract in the recent Ont Ca decision of Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2007 ONCA 324 (h ttp://www.ontariocourts.on.ca/decisions/2007/may/2007ONCA0324.htm).

Happy Reading,



--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <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_bBg51xxNDfGHBApdRRmwAw)-- ========================================================================= Date: Tue, 15 May 2007 14:47:31 -0400 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Presumption of Advancement Comments: To: "obligations@uwo.ca" MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_azu4D+uK2NRfFoW1Y5wGIg)" This is a multi-part message in MIME format. --Boundary_(ID_azu4D+uK2NRfFoW1Y5wGIg) Content-type: text/plain; charset=us-ascii; format=flowed Content-transfer-encoding: 7BIT Dear Colleagues: According to The Lawyer's Weekly the Supreme Court of Canada has abolished the presumption of advancement for transfers between parents and adult children (even disabled adult children) in two recent cases. See Madsen Estate v. Saylor , 2007 SCC 18 (May 3, 2007) (http://scc.lexum.umontreal.ca/en/2007/2007scc18/2007scc18.html) and Pecore v. Pecore , 2007 SCC 17 (May 3, 2007) (http://scc.lexum.umontreal.ca/en/2007/2007scc17/2007scc17.html). Happy Reading, -- Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --Boundary_(ID_azu4D+uK2NRfFoW1Y5wGIg) Content-type: text/html; charset=us-ascii Content-transfer-encoding: 7BIT Dear Colleagues:

According to The Lawyer's Weekly the Supreme Court of Canada has abolished the presumption of advancement for transfers between parents and adult children (even disabled adult children) in two recent cases. See Mads en Estate v. Saylor, 2007 SCC 18 (May 3, 2007) (http: //scc.lexum.umontreal.ca/en/2007/2007scc18/2007scc18.html) and Peco re v. Pecore, 2007 SCC 17 (May 3, 2007) (http: //scc.lexum.umontreal.ca/en/2007/2007scc17/2007scc17.html).

Happy Reading,  

-- 

Jason Neyers 

January Term Director 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435
____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <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_azu4D+uK2NRfFoW1Y5wGIg)-- ========================================================================= Date: Thu, 24 May 2007 03:43:09 +0100 Reply-To: Michael Rush Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Rush Subject: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 Content-Type: text/plain Content-Disposition: inline Content-Transfer-Encoding: 7bit MIME-Version: 1.0 The High Court's decision in Farah Constructions v Say-Dee was handed down this morning. http://www.austlii.edu.au/au/cases/cth/high_ct/2007/22.html Gleeson CJ, Gummow, Callinan, Heydon and Crennan J upheld the appeal and, in so doing, poured considerable scorn on the decision of the NSW Court of Appeal and any argument that a claim in knowing receipt is based on restitutionary principles. Michael ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Fri, 25 May 2007 11:33:53 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: RDG members going up in the world Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit RDG members will be as pleased as I was to learn that that Robert Stevens has been appointed to a Chair of Commercial Law at UCL, and Graham Virgo has been promoted to a personal chair at Cambridge. Bravo to both Professors! Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 30 May 2007 13:54:58 -0400 Reply-To: Chaim Saiman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Chaim Saiman Subject: Comparing the practice of precedent Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit Content-Disposition: inline Dear RDG Members (I apologize if you have already gotten this via ODG) I was hoping for some assistance/insight into the following issue: I am interested in the exploring the different practices of precedent in US and Commonwealth law. Most specifically, I am focusing on the age of the precedents used. In the typical private law case, US courts rarely reach back for a case that is more that 40 or so years old. (They rarely pierce the WWII vale) By contrast, Commonwealth courts routinely and unselfconsciously cite cases that are 100, 200 and sometimes even 300 years old. They display little, if any, of the hesitation found in US courts that do the same. I think that what underlies the US practice is the view that facts decide cases. Thus, courts look for similar transactional patterns in similar industries, as well as overall market and social conditions. For this reason, as you move too far away in time, the precedent is less compelling since the era of the case and the aura of its law is simply too removed from the question at bar. UK courts do not display this tendency. They seem to take complex commercial cases and reduce it to some core analytic structure (what I am calling the "transactional DNA") to express what legal issues this case is about. Courts tend to do so in a highly schematized fashion (A sells to B who contracts with C etc. --incidentally, one rarely finds such writing in US law anymore.) Once the court has boiled the case down to its elemental components, it searches for cases displaying similar analytical relationships. When comparing "DNA" the facts are far less important that the analytic match. Thus it does not matter much if a court compares a simple 18th C transaction for the purchase of barley or wool with a complex international derivative transaction of the 21C (e.g., Westdeutche). The core legal issue is the same and can be analyzed in each case through analytic reduction and abstraction. In Commonwealth jurisprudence legal rules easily travel across time and space. I am looking for parings of cases (preferably contract/restitution/tort cases) that display these differences well, or even UK/Commonwealth that reason in this fashion. Thus far I have found AG v. Blake, Foskett v. McKeown, Williams v. Roffey, and In re Goldcorp useful in this regard. Comparing these cases to similar US cases brings out the above mentioned points well. Secondly, I was wondering whether anyone is familiar with any academic writing discussing either the comparative age of the precedents or the broader methodological issue described. the majority of the writing on this topic seems to center around whether courts have the power to depart from precedents, but I have not found much writing addressing the issues described above. Feel free to respond off list if you deem it more appropriate Warmest regards, Chaim Saiman Chaim Saiman Assistant Professor Villanova Law School 610.519.3296 saiman@law.villanova.edu http://ssrn.com/author=549545 ____________________________________________________________________ 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, 30 May 2007 15:21:33 -0400 Reply-To: Bob Klotz Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Bob Klotz Organization: Klotz Associates Subject: Re: Comparing the practice of precedent MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_002F_01C7A2CE.34F0D6B0" This is a multi-part message in MIME format. ------=_NextPart_000_002F_01C7A2CE.34F0D6B0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Chaim - While I cannot help you much on your question, I can offer you a = footnote, namely the leading English decision of O. Mustad & Son v. = Dosen, [1963] R.P.C. 41, [1964] 1 W.L.R. 109, [1963] 3 All E.R. 416 = (H.L.). This case was decided in 1928 but not reported until 35 years later. = Presumably this is an example of the various U.K. editors' consensus, in = three different reporting series, that even a 35 year old case would be = of current relevance to the legal profession so as to warrant = publication. I am unaware of any longer gap. =20 Best regards, Bob Klotz=20 ... Robert A. (Bob) Klotz Klotz Associates, Barristers & Solicitors 405 - 121 Richmond Street West Toronto, Ontario M5H 2K1 Canada =20 Phone: (416) 360-4500 x206. Fax: (416) 360-4501 Email: bobklotz@klotzassociates.com Website: http://www.klotzassociates.com ----- Original Message -----=20 From: Chaim Saiman=20 To: ENRICHMENT@LISTS.MCGILL.CA=20 Sent: Wednesday, May 30, 2007 01:54 PM Subject: [RDG] Comparing the practice of precedent Dear RDG Members=20 (I apologize if you have already gotten this via ODG) I was hoping for some assistance/insight into the following issue: I am interested in the exploring the different practices of precedent in US and Commonwealth law. Most specifically, I am focusing on the = age of the precedents used. In the typical private law case, US courts rarely reach back for a case that is more that 40 or so years old. = (They rarely pierce the WWII vale) By contrast, Commonwealth courts = routinely and unselfconsciously cite cases that are 100, 200 and sometimes even 300 years old. They display little, if any, of the hesitation found in US courts that do the same. I think that what underlies the US practice is the view that facts decide cases. Thus, courts look for similar transactional patterns in similar industries, as well as overall market and social conditions. = For this reason, as you move too far away in time, the precedent is less compelling since the era of the case and the aura of its law is simply too removed from the question at bar.=20 UK courts do not display this tendency. They seem to take complex commercial cases and reduce it to some core analytic structure (what I am calling the "transactional DNA") to express what legal issues this case is about. Courts tend to do so in a highly schematized = fashion (A sells to B who contracts with C etc. --incidentally, one rarely = finds such writing in US law anymore.) Once the court has boiled the case = down to its elemental components, it searches for cases displaying similar analytical relationships. When comparing "DNA" the facts are far less important that the analytic match. Thus it does not matter much if a court compares a simple 18th C transaction for the purchase of barley = or wool with a complex international derivative transaction of the 21C (e.g., Westdeutche). The core legal issue is the same and can be analyzed in each case through analytic reduction and abstraction. In Commonwealth jurisprudence legal rules easily travel across time and space. I am looking for parings of cases (preferably = contract/restitution/tort cases) that display these differences well, or even UK/Commonwealth = that reason in this fashion. Thus far I have found AG v. Blake, Foskett v. McKeown, Williams v. Roffey, and In re Goldcorp useful in this regard. Comparing these cases to similar US cases brings out the above = mentioned points well.=20 Secondly, I was wondering whether anyone is familiar with any academic writing discussing either the comparative age of the precedents or the broader methodological issue described. the majority of the writing on this topic seems to center around whether courts have the power to depart from precedents, but I have not found much writing addressing = the issues described above.=20 Feel free to respond off list if you deem it more appropriate Warmest regards, Chaim Saiman Chaim Saiman Assistant Professor=20 Villanova Law School 610.519.3296 saiman@law.villanova.edu http://ssrn.com/author=3D549545 ____________________________________________________________________ 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_000_002F_01C7A2CE.34F0D6B0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Chaim - While I cannot help you much on = your=20 question, I can offer you a footnote, namely the leading = English=20 decision of O. Mustad & Son v. Dosen, [1963] R.P.C. 41, = [1964] 1=20 W.L.R. 109, [1963] 3 All E.R. 416 (H.L.).
 
This case was decided in = 1928 but not=20 reported until 35 years later.  Presumably this is an example of = the=20 various U.K. editors' consensus, in three different reporting = series, that=20 even a 35 year old case would be of current relevance to the legal=20 profession so as to warrant publication.  I am unaware of any = longer=20 gap. 
 
Best regards,
 
    Bob Klotz =
 
   ... Robert A. (Bob)=20 Klotz
       Klotz Associates, = Barristers &=20 Solicitors
       405 - 121 Richmond = Street=20 West
       Toronto, Ontario  M5H=20 2K1
      =20 Canada
 
       Phone:  = (416)=20 360-4500 x206.  Fax:  (416)=20 360-4501
       Email:  bobklotz@klotzassociates.com=
      =20 Website:  http://www.klotzassociates.com
----- Original Message -----
From:=20 Chaim=20 Saiman
Sent: Wednesday, May 30, 2007 = 01:54=20 PM
Subject: [RDG] Comparing the = practice of=20 precedent

Dear RDG Members
(I apologize if you have already = gotten=20 this via ODG)

I was hoping for some assistance/insight into the = following issue:

I am interested in the exploring the different = practices of precedent
in US and Commonwealth law.  Most = specifically,=20 I am focusing on the age
of the precedents used. In the typical = private law=20 case, US courts
rarely reach back for a case that is more that 40 = or so=20 years old. (They
rarely pierce the WWII vale)  By contrast,=20 Commonwealth courts routinely
and unselfconsciously cite cases that = are=20 100, 200 and sometimes even
300 years old. They display little, if = any, of=20 the hesitation found in
US courts that do the same.

I think = that=20 what underlies the US practice is the view that facts
decide cases. = Thus,=20 courts look for similar transactional patterns in
similar = industries, as=20 well as overall market and social conditions. For
this reason, as = you move=20 too far away in time, the precedent is less
compelling since the = era of the=20 case and the aura of its law is simply
too removed from the = question at=20 bar.

UK courts do not display this tendency.  They seem = to take=20 complex
commercial cases and reduce it to some core analytic = structure=20 (what I
am calling the "transactional DNA") to express what legal=20 issues
this case is about. Courts tend to do so in a highly = schematized=20 fashion
(A sells to B who contracts with C etc. --incidentally, one = rarely=20 finds
such writing in US law anymore.) Once the court has boiled = the case=20 down
to its elemental components, it searches for cases displaying=20 similar
analytical relationships. When comparing "DNA" the facts = are far=20 less
important that the analytic match. Thus it does not matter = much if=20 a
court compares a simple 18th C transaction for the purchase of = barley=20 or
wool with a complex international derivative transaction of the=20 21C
(e.g., Westdeutche).  The core legal issue is the same and = can=20 be
analyzed in each case through analytic reduction and = abstraction.=20 In
Commonwealth jurisprudence legal rules easily travel across time = and
space.

I am looking for parings of cases (preferably=20 contract/restitution/tort
cases) that display these differences = well, or=20 even UK/Commonwealth that
reason in this fashion.  Thus far I = have=20 found AG v. Blake, Foskett v.
McKeown, Williams v. Roffey, and In = re=20 Goldcorp useful in this regard.
Comparing these cases to similar US = cases=20 brings out the above mentioned
points well.

Secondly, I was = wondering whether anyone is familiar with any academic
writing = discussing=20 either the comparative age of the precedents or the
broader = methodological=20 issue described. the majority of the writing on
this topic seems to = center=20 around whether courts have the power to
depart from precedents, but = I have=20 not found much writing addressing the
issues described above. =

Feel=20 free to respond off list if you deem it more = appropriate

Warmest=20 regards,

Chaim Saiman


Chaim Saiman
Assistant = Professor=20
Villanova Law School
610.519.3296
saiman@law.villanova.edu
= http://ssrn.com/author=3D549545<= /A> ____________________________________________________________________ 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_000_002F_01C7A2CE.34F0D6B0--