========================================================================= Date: Thu, 1 Nov 2007 22:17:47 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: The underrated undergraduate subject Comments: To: Gerhard Dannemann In-Reply-To: <47279A70.4020609@gbz.hu-berlin.de> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable Dear Gerhard I believe that 'restitution' made it onto the list of core subjects in =20 January 1995, when the Law Society and Council for Legal Education =20 issued an announcement to the Law Schools, replacing the outlines of =20 the then 6 core subjects with outlines of 7 core subjects (the new 7th =20 subject was EU law), and rejigging the old outlines for contract and =20 tort with: OBLIGATIONS I The foundations governing the formation and enforceability of =20 contracts, together with their performance and discharge, including =20 the remedies available to parties and the doctrine of privity. An =20 outline of the law of restitution. OBLIGATIONS II The foundations of tortious liability (including vicarious and joint =20 liability) and the remedies in respect of torts (including damages). =20 There should be a sufficient study of the major torts (such as =20 negligence, nuisance, intentional interference with the person and =20 defamation) to exemplify the application of the general principles and =20 the defences, and to familiarise the student with the principal torts =20 and their constituent elements. As far as I'm aware very few UK law schools pay any attention at all =20 to the final sentence of Obligations I, and the very few who do stick =20 an hour's lecture or two covering the whole field at the end of their =20 contract lecture series. I am unaware of any attempts by the Law =20 Society or CLE or anyone else to enforce the requirement. The =20 politics driving the 1995 announcement were unease among the =20 professions at the perceived shortcomings of law programmes delivered =20 by post-1992 universities and others. Whatever the rights and wrongs =20 of that, tweaking the syllabus by adding UE doesn't seem to have made =20 much difference! There's a comment by Peter Birks at: =20 http://webjcli.ncl.ac.uk/articles1/birks1.html Best wishes Charles Quoting Gerhard Dannemann : > Is this a well kept secret, or am I the only one who has until today > missed out on the fact that the Law Society and the Bar Council require > all undergraduates to have been taught restitution? At least this is > what their Joint Statement tells us: > > See: > http://www.lawsociety.org.uk/documents/downloads/becomingacademicjointstat= e.pdf =20 > (p. > 5) > > "Obligations including Contract, Restitution and Tort" is commonly > "translated" in to "Obligations I: Contract" and "Obligations II: > Tort", with restitution being dropped in the process. > > Funny enough, outside their joint declaration, even Bar Council and Law > Society subscribe to this view: > > http://www.barstandardsboard.org.uk/qualifyingforthebar/whatistheacademics= tage/ > > http://www.lawsociety.org.uk/becomingasolicitor/waystoqualify/qualifying.l= aw#foundations. Can anyone illuminate me on the story =20 > behind > this? > > Best regards, > Gerhard Dannemann > > --=20 > Prof. Dr. Gerhard Dannemann > Centre for British Studies > Humboldt-Universit=E4t zu Berlin > J=E4gerstr. 10-11 > 10117 Berlin > Tel. +49 30 2093 5334 > Fax +49 30 2093 5370 > http://www2.hu-berlin.de/gbz > > ____________________________________________________________________ > 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 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 9 Nov 2007 15:14:02 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Re: The underrated undergraduate subject Comments: To: Charles Mitchell In-Reply-To: <20071101221747.lzbpy0wg5c40wow0@impmail.kcl.ac.uk> MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-15 Content-Transfer-Encoding: quoted-printable I think it was in other ways an issue of timing. Restitution/Unjust Enrichment was very prominent at the time and practitioners seemed to hav= e become increasingly aware of the potential in the subject and of their ignorance of it. Oh, and Peter Birks was involved in the revision of the list. FDR On Thu, November 1, 2007 10:17 pm, Charles Mitchell wrote: > Dear Gerhard > > I believe that 'restitution' made it onto the list of core subjects in > January 1995, when the Law Society and Council for Legal Education > issued an announcement to the Law Schools, replacing the outlines of > the then 6 core subjects with outlines of 7 core subjects (the new 7th > subject was EU law), and rejigging the old outlines for contract and > tort with: > > OBLIGATIONS I > > The foundations governing the formation and enforceability of > contracts, together with their performance and discharge, including > the remedies available to parties and the doctrine of privity. An > outline of the law of restitution. > > > OBLIGATIONS II > > The foundations of tortious liability (including vicarious and joint > liability) and the remedies in respect of torts (including damages). > There should be a sufficient study of the major torts (such as > negligence, nuisance, intentional interference with the person and > defamation) to exemplify the application of the general principles and > the defences, and to familiarise the student with the principal torts > and their constituent elements. > > > As far as I'm aware very few UK law schools pay any attention at all > to the final sentence of Obligations I, and the very few who do stick > an hour's lecture or two covering the whole field at the end of their > contract lecture series. I am unaware of any attempts by the Law > Society or CLE or anyone else to enforce the requirement. The > politics driving the 1995 announcement were unease among the > professions at the perceived shortcomings of law programmes delivered > by post-1992 universities and others. Whatever the rights and wrongs > of that, tweaking the syllabus by adding UE doesn't seem to have made > much difference! There's a comment by Peter Birks at: > http://webjcli.ncl.ac.uk/articles1/birks1.html > > Best wishes > Charles > > > > > > > > > Quoting Gerhard Dannemann : > >> Is this a well kept secret, or am I the only one who has until today >> missed out on the fact that the Law Society and the Bar Council requir= e >> all undergraduates to have been taught restitution? At least this is >> what their Joint Statement tells us: >> >> See: >> http://www.lawsociety.org.uk/documents/downloads/becomingacademicjoint= state.pdf >> (p. >> 5) >> >> "Obligations including Contract, Restitution and Tort" is commonly >> "translated" in to "Obligations I: Contract" and "Obligations II: >> Tort", with restitution being dropped in the process. >> >> Funny enough, outside their joint declaration, even Bar Council and La= w >> Society subscribe to this view: >> >> http://www.barstandardsboard.org.uk/qualifyingforthebar/whatistheacade= micstage/ >> >> http://www.lawsociety.org.uk/becomingasolicitor/waystoqualify/qualifyi= ng.law#foundations. >> Can anyone illuminate me on the story >> behind >> this? >> >> Best regards, >> Gerhard Dannemann >> >> -- >> Prof. Dr. Gerhard Dannemann >> Centre for British Studies >> Humboldt-Universit=E4t zu Berlin >> J=E4gerstr. 10-11 >> 10117 Berlin >> Tel. +49 30 2093 5334 >> Fax +49 30 2093 5370 >> http://www2.hu-berlin.de/gbz >> >> ____________________________________________________________________ >> 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, . > > > > -- > Charles Mitchell > charles.mitchell@kcl.ac.uk > > ____________________________________________________________________ > 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, . ========================================================================= Date: Fri, 9 Nov 2007 15:56:53 +0000 Reply-To: Catherine.Gleeson@CLYDECO.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Catherine Gleeson Subject: Catherine Gleeson/LDN/CLYDE_CO is out of the office. MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII I will be out of the office starting 09/11/2007 and will not return until 26/11/2007. I am currently away from the office and will be returning on Monday 26th November. Should you require any assistance in the meantime, please contact my secretary, Norma Price on extension 1353 __________________________________________________________________________ LEGAL NOTICE: This email is sent for and on behalf of Clyde & Co LLP, a UK law firm. This email and any attachments are confidential and may also be privileged. If you have received this message in error, please (a) notify the sender immediately, (b) destroy this email and any attachments, and (c) do not use, copy, store and/or disclose to any person this email and any attachments. In the event of any technical difficulty with this email and any attachments, please contact the Clyde & Co IT Department on + 44 (0) 207 623 1244 or email postmaster@clydeco.com Clyde & Co 51 Eastcheap, London, EC3M 1JP Tel: +44 (0) 207 623 1244, Fax: +44 (0) 207 623 5427 Clyde & Co Guildford Beaufort House, Chertsey Street, Guildford GU1 4HA Tel: +44 (0) 1483 555 555, Fax: +44 (0) 1483 567 330 Internet: www.clydeco.com Save where otherwise agreed in writing by a Partner in Clyde & Co LLP, all business is undertaken by us on the basis of our standard Terms and Conditions which are available on request or at www.clydeco.com/thefirm. Clyde & Co LLP is a limited liability partnership registered in England and Wales under number OC326539. Clyde & Co LLP uses the word "partner" to refer to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. Regulated by the Solicitors Regulation Authority. A list of members is at: www.clydeco.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, . ========================================================================= Date: Mon, 12 Nov 2007 15:43:22 +0000 Reply-To: Ralph Cunnington Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Ralph Cunnington Subject: Re: Devenish Nutrition MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C82542.C19630A6" ------_=_NextPart_001_01C82542.C19630A6 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Members may be interested in the recent decision of Lewison J in Devenish Nutrition v Sanofi-Aventis [2007] EWHC 2394 (Ch) concerning the assessment of damages under Article 81 of the EC Treaty. The judgment is packed full with interesting (and controversial) comments on the measure and assessment of damages, include a concise and accurate taxonomy of damages at [14].=20 =20 A point of particular interest was Lewison J's analysis of Wrotham Park and the other 'user' cases. He describes them as compensation for the invasion of the claimant's rights: 'It is precisely because he has suffered no loss that the law's response is to seek a different way to compensate him for the invasion of his rights' at [81]. It thus appears that Lewison J views Wrotham Park and the other user cases as examples of 'substitutive' or 'rights-based' compensation. But this conclusion is obscured somewhat by the fact that the discussion takes place under the heading 'Restitutionary award' (presumably because this was how it was pleaded by the claimant) and concludes, following Stoke on Trent v Wass (a user case and highly criticised at that) that 'it is not (yet) the law that a restitutionary award is available in all cases of tort' at [108]. =20 Interestingly, Lewison J also refers to Chadwick LJ's infamous [59] in WWF commenting: 'the underlying feature of each remedy is that the claimant "cannot demonstrate identifiable financial loss". If, on the other hand, the claimant can demonstrate identifiable financial loss then principle would suggest that the compensation he receives should be commensurate with the loss that he demonstrates' at [98]. This is rather unilluminating. Just because user damages and account of profits are only available where compensatory damages are inadequate does not mean that they themselves are compensatory! =20 Ralph Cunnington ____________________________________________________________________ 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, . ------_=_NextPart_001_01C82542.C19630A6 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Serhan v. Johnson & Johnson

Members may be interested in the = recent decision of Lewison J in Devenish = Nutrition v Sanofi-Aventis [2007] EWHC 2394 (Ch) concerning the = assessment of damages under Article 81 of the EC Treaty. The judgment is packed full = with interesting (and controversial) comments on the measure and assessment = of damages, include a concise and accurate taxonomy of damages at [14]. =

 

A point of particular interest was = Lewison J’s analysis of Wrotham Park and the other ‘user’ = cases. He describes them as compensation for the invasion of the = claimant’s rights: ‘It is precisely because he has suffered no loss that the = law’s response is to seek a different way to compensate him for the invasion = of his rights’ at [81]. It thus appears that Lewison J views Wrotham Park and the other user cases as = examples of ‘substitutive’ or ‘rights-based’ compensation. But this conclusion is = obscured somewhat by the fact that the discussion takes place under the heading = ‘Restitutionary award’ (presumably because this was how it was pleaded by the = claimant) and concludes, following Stoke on Trent = v Wass (a user case and highly criticised at that) that ‘it is not (yet) the = law that a restitutionary award is available in all cases of tort’ at = [108].

 

Interestingly, Lewison J also = refers to Chadwick LJ’s infamous [59] in WWF commenting: ‘the underlying feature of each remedy is that the = claimant “cannot demonstrate identifiable financial loss”. If, on the other hand, = the claimant can demonstrate identifiable financial loss then principle would suggest = that the compensation he receives should be commensurate with the loss that = he demonstrates’ at [98]. This is rather unilluminating. Just because = user damages and account of profits are only available where compensatory = damages are inadequate does not mean that they themselves are = compensatory!

 

Ralph = Cunnington

____________________________________________________________________ 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, . ------_=_NextPart_001_01C82542.C19630A6-- ========================================================================= Date: Wed, 14 Nov 2007 02:58:32 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Restitution Roundtable - 14 December 2007 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Dear all, On 14 December 2007, the Frances Lewis Law Center, of the School of Law, University of Washington and Lee, Lexington, Virginia, will host A Roundtable on Restitution and Unjust Enrichment in North America. The main point underpinning the Roundtable is to get Restitution scholars= , particularly Canadian and US scholars, together in one place, talking abo= ut current legal issues in the Law of Restitution and Unjust Enrichment. Full details are available at Please pass on this information to anyone you know who might be intereste= d. Many thanks, Eoin. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D Dr Eoin O'Dell main: +353-1-896 1125 Fellow & Senior Lecturer direct: +353-1-896 1178 Director of Research mobile: +353-87-2021120 School of Law main fax: +353-1-677 0449 Trinity College blog: http://www.cearta.ie Dublin 2 web: http://www.eoinodell.com Ireland odelle@tcd.ie \ eoin.odell@tcd.ie ------------------------------------------------------------------------ All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D ____________________________________________________________________ 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, 18 Nov 2007 10:13:34 -0500 Reply-To: Chaim Saiman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Chaim Saiman Subject: RDG -- cases of restitution for historic wrongs Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit Content-Disposition: inline Dear RDG Friends. As many of you are probably aware, in the past several years, descendants of African-American slaves have attempted to bring private rights of action for restitution/unjust enrichment against a variety of successors of civil war era corporate interests. Not surprisingly, these cases have not progress very far, and were eventually dismissed. See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, J.) By and large the courts have not engaged in the substance of the restitution claim, and have preferred to rejected the claims on procedural grounds relating to the limitations of federal jurisdiction and the doctrine of standing. And while standing is often another way to frame the substantive claim, I find it relevant that nearly all the precedents and analysis focus in on questions of federal jurisdiction rather than UJER. Stated simply, these cases are conceptualized as raising procedural rather than substantive issues. My question is whether there are any cases regarding what some have called "restitution for historic wrongs" or similar situations in the English/Commonwealth courts? I am not so much interested in whether the claims succeed (though if they do its certainly noteworthy) but more about how they are conceptualized. My intuition is that such claims are far more likely to be litigated in terms of the merits of the restitution claim that the proceduralist tones of the American courts. Any relevant cases/examples would be most welcomed. [if any of you have ideas from other areas of restitution, such examples would also be welcomed]. Thank you, 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: Sun, 18 Nov 2007 18:37:02 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: RDG -- cases of restitution for historic wrongs Comments: To: Chaim Saiman In-Reply-To: Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book, Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (2005); see http://www.utppublishing.com/pubstore/merchant.ihtml?pid=8303&step=4 Lionel On 18/11/07 10:13, "Chaim Saiman" wrote: > Dear RDG Friends. > > As many of you are probably aware, in the past several years, > descendants of African-American slaves have attempted to bring private > rights of action for restitution/unjust enrichment against a variety of > successors of civil war era corporate interests. Not surprisingly, > these cases have not progress very far, and were eventually dismissed. > See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d > 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, > J.) > > By and large the courts have not engaged in the substance of the > restitution claim, and have preferred to rejected the claims on > procedural grounds relating to the limitations of federal jurisdiction > and the doctrine of standing. And while standing is often another way to > frame the substantive claim, I find it relevant that nearly all the > precedents and analysis focus in on questions of federal jurisdiction > rather than UJER. Stated simply, these cases are conceptualized as > raising procedural rather than substantive issues. > > My question is whether there are any cases regarding what some have > called "restitution for historic wrongs" or similar situations in > the English/Commonwealth courts? I am not so much interested in whether > the claims succeed (though if they do its certainly noteworthy) but more > about how they are conceptualized. My intuition is that such claims are > far more likely to be litigated in terms of the merits of the > restitution claim that the proceduralist tones of the American courts. > > Any relevant cases/examples would be most welcomed. > > [if any of you have ideas from other areas of restitution, such > examples would also be welcomed]. > > Thank you, > > 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, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Mon, 19 Nov 2007 11:54:47 +1100 Reply-To: Neil Foster Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Foster Subject: Re: RDG -- cases of restitution for historic wrongs Comments: To: Lionel Smith In-Reply-To: MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_1esNJ8/AOmnWhoAsIaa6ug)" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --Boundary_(ID_1esNJ8/AOmnWhoAsIaa6ug) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Dear Chaim, Lionel and colleagues; While it is not precisely what Chaim is asking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimaint awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successful, and that was not subject to a limitation under SA law. An equitable "limitation" defence of laches was rejected- see [948] ff. However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution. While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Aboriginals who were under the "protection" of the State, and paid into "trust funds" which were never released. See 'Eventually They Get It All'...Government Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/2007/45.html. I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level. Regards Neil F Neil Foster Newcastle Law School Faculty of Business & Law MC159c, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 >>> Lionel Smith 19/11/07 10:37 >>> Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book, Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (2005); see http://www.utppublishing.com/pubstore/merchant.ihtml?pid=8303&step=4 Lionel On 18/11/07 10:13, "Chaim Saiman" wrote: > Dear RDG Friends. > > As many of you are probably aware, in the past several years, > descendants of African-American slaves have attempted to bring private > rights of action for restitution/unjust enrichment against a variety of > successors of civil war era corporate interests. Not surprisingly, > these cases have not progress very far, and were eventually dismissed. > See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d > 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, > J.) > > By and large the courts have not engaged in the substance of the > restitution claim, and have preferred to rejected the claims on > procedural grounds relating to the limitations of federal jurisdiction > and the doctrine of standing. And while standing is often another way to > frame the substantive claim, I find it relevant that nearly all the > precedents and analysis focus in on questions of federal jurisdiction > rather than UJER. Stated simply, these cases are conceptualized as > raising procedural rather than substantive issues. > > My question is whether there are any cases regarding what some have > called "restitution for historic wrongs" or similar situations in > the English/Commonwealth courts? I am not so much interested in whether > the claims succeed (though if they do its certainly noteworthy) but more > about how they are conceptualized. My intuition is that such claims are > far more likely to be litigated in terms of the merits of the > restitution claim that the proceduralist tones of the American courts. > > Any relevant cases/examples would be most welcomed. > > [if any of you have ideas from other areas of restitution, such > examples would also be welcomed]. > > Thank you, > > 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, . ____________________________________________________________________ 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, . --Boundary_(ID_1esNJ8/AOmnWhoAsIaa6ug) Content-type: text/html; charset=US-ASCII Content-transfer-encoding: quoted-printable Content-description: HTML
Dear = Chaim, Lionel and colleagues;
While it = is not precisely what Chaim is asking about, the recent South Australian = decision of Trevorrow v State of South Australia (No 5) [2007] = SASC 285 (1 August 2007) raises some of these issues. In Australia the = "Stolen Generations" issue refers to Aboriginal children removed from = their families and placed into the care of non-Aboriginals or institutions.= Mr Trevorrow was the first claimaint awarded significant damages for the = consequences of his removal. The action succeeded in misfeasance in public = office, false imprisonment, breach of fiduciary duty and negligence. An = extension of time was granted in those common law actions that required = it; but it was also noted that the equitable action for breach of = fiduciary duty would have been successful, and that was not subject to a = limitation under SA law. An equitable "limitation" defence of laches = was rejected- see [948] ff.
However, = the case is not quite what Chaim was looking for, of course, since the= events are not perhaps old enough to be "historic" wrongs (the removal of = Mr Trevorrow occurred in 1957, and time did not even begin to run = against him until he turned 18. And there was no action for restitution.
While I = don't know a lot about it, I know there has also been research into = the issue of money that was paid to Aboriginals who were under the = "protection" of the State, and paid into "trust funds" which were never = released. See 'Eventually They Get It All'...Government Management of = Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August = 2007) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/U= NSWLRS/2007/45.html. I am not sure whether or not this has been the = subject of litigation, or is being addressed more at a political level.
Regards
Neil = F
 
Neil Foster
Newcastle Law School
Faculty of Business & = Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW = 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931


>&= gt;> Lionel Smith <lionel.smith@MCGILL.CA> 19/11/07 10:37 >>>
Chaim,= a recent Canadian case of that kind concerned a racist "head tax"
levie= d on Chinese immigrants in the late C19 and first part of the C20,
which= was litigated quite recently; unjust enrichment was one of several
clai= ms. The claims failed on substantive grounds, the limitation point = being
left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave = to appeal
refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political = settlement was
later reached. There was a conference in 2003 that led = to a book, Dyzenhaus
and Moran, eds., Calling Power to Account: Law, = Reparations, and the Chinese
Canadian Head Tax (2005); see

http://www.utppublishing.com/pubstore/merchant.i= html?pid=3D8303&step=3D4

Lionel



On 18/11/07 10:13, = "Chaim Saiman" <Saiman@LAW.VILLANOVA.EDU> wrote:

> Dear RDG = Friends.
>
> As many of you are probably aware, in the past = several years,
> descendants of African-American slaves have = attempted to bring private
> rights of action for restitution/unjust = enrichment against a variety of
> successors of civil war era = corporate interests.  Not surprisingly,
> these cases have not = progress very far, and were eventually dismissed.
> See, In re = African-American Slave Descendants Litigation, 375 F. Supp.2d
> 721 = (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner,
> = J.)
>
> By and large the courts have not engaged in the = substance of the
> restitution claim, and have preferred to rejected = the claims on
> procedural grounds relating to the limitations of = federal jurisdiction
> and the doctrine of standing. And while = standing is often another way to
> frame the substantive claim, I = find it relevant that nearly all the
> precedents and analysis focus = in on questions of federal jurisdiction
> rather than UJER. Stated = simply, these cases are conceptualized as
> raising procedural = rather than substantive issues.
>
> My question is whether = there are any cases regarding what some have
> called "restitution = for historic wrongs" or similar situations in
> the English/Commonwea= lth courts?  I am not so much interested in whether
> the = claims succeed (though if they do its certainly noteworthy) but more
>= ; about how they are conceptualized. My intuition is that such claims = are
> far more likely to be litigated in terms of the merits of = the
> restitution claim that the proceduralist tones of the American = courts.
>
> Any relevant cases/examples would be most = welcomed.
>
> [if any of you have ideas from other areas of = restitution, such
> examples would also be welcomed].
> =
> Thank you,
>
> Chaim Saiman
>
> =
>
> Chaim Saiman
> Assistant Professor
> = Villanova Law School
> 610.519.3296
> saiman@law.villanova.edu
> = htt= p://ssrn.com/author=3D549545
>
> _________________________________= ___________________________________
>  This message was = delivered through the Restitution Discussion Group,
>  an = international internet LISTSERV devoted to all aspects of the law
>&n= bsp; 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.m= cgill.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.mcgil= l.ca&= gt;. 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 . 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_1esNJ8/AOmnWhoAsIaa6ug)-- ========================================================================= Date: Sun, 18 Nov 2007 21:19:43 -0500 Reply-To: davidcheifetz@rogers.com Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: David Cheifetz Subject: Re: RDG -- cases of restitution for historic wrongs In-Reply-To: <47417986.7C79.00F0.0@newcastle.edu.au> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0003_01C82A28.C060B1C0" This is a multi-part message in MIME format. ------=_NextPart_000_0003_01C82A28.C060B1C0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit Chaim, The actions, so long as they're framed for breach of fiduciary duty, won't be be caught by prescription period arguments here. The situation is that most (all?) of the traditional forms of limitation statute in the common jurisdicitons have been held not to apply to breach of fiduciary duty. Although they are claims for compensatory damages, not restitutionary or UE recovery, the various Indian Residential Schools class actions probably fit your description of actions brought seeking restitution, in the sense of payment, for historic wrongs. Those actions - brought against various religious orders and primarily the gov't of Canada were settled recently. Here are some links: http://www.irsr.gc.ca/english/dispute_resolution_class_action_notice.html http://www.iacobucci.gc.ca/english/pdf/Indian_Residential_Schools_Settlement _Agreement.PDF http://www.canlii.org/en/on/onsc/doc/2006/2006canlii41673/2006canlii41673.ht ml The last link is to one court decision approving the settlement which gives you some flavour. The first link is the Canada site which will take you to many links. I suspect others reading this can give you you more information. On land claims, here's the home site for the Indian Claims Commission http://www.indianclaims.ca/menu-en.asp There's a recent Ontario action which might interest you and provide leads. Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744 (CanLII) http://www.canlii.org/en/on/onca/doc/2007/2007onca744/2007onca744.html. This is the first 7 paras. which summarize the situation so that you an tell if you're interested. [1] The Crown breached its fiduciary duty to the Whitefish Lake Band of Indians 120 years ago. The issue on this appeal is whether the trial judge erred in his assessment of compensation for that breach. The facts of this case are straightforward. Its resolution is not. [2] Whitefish occupies a reserve near Sudbury. In 1886 Whitefish surrendered the timber rights on its reserve to the Crown, which then sold these rights for $316. In 2002, Whitefish sued the Crown for damages for an improvident sale. Shortly before the trial, the Crown admitted that it breached its fiduciary duty by failing to obtain a fair value for Whitefish's timber rights. [3] The trial judge, Blenus Wright J., was then asked to assess Whitefish's compensation for the Crown's admitted breach. To do so, he had to determine two issues: first, what was the fair value of the timber rights in 1886; and second, how is that fair value to be assessed in 2005, the date of trial. [4] On the first issue, the trial judge valued Whitefish's timbers right in 1886 at $31,600. He did so by choosing the highest price paid for comparable timber at a public auction. On the second issue, the trial judge assessed Whitefish's compensation at $1,095,888. In doing so he took into account that the Crown had not profited from its breach of duty and that it had no legal obligation to pay prejudgment interest until 1992. He adjusted the fair value of the timber rights for inflation between 1886 and 1992, and awarded simple interest on that adjusted amount from 1992 to 2005. [5] Whitefish appeals the trial judge's valuation on the first issue and the Crown cross-appeals. Whitefish contends that the trial judge erred by failing to accept reliable evidence from its own expert, who placed the value of the timber rights in 1886 at $50,000. The Crown contends that the trial judge erred by failing to use a weighted average of the valuations of its expert, which would have produced a figure of $16,000. [6] On the second issue, Whitefish, supported by the intervenors, contends that the trial judge erred in three related ways. First, it says that the trial judge erred by failing to compensate it in equity for its lost opportunity to have the $31,600 invested for its benefit, and to have the use of the investment income; second, it says that the trial judge erred in law by holding that he could not include compound interest as an element of equitable compensation; and, third, it says that the trial judge's finding that the sale proceeds would have been "dissipated" is contrary to the terms of the surrender, the provisions of the Indian Act, R.S.C. 1886, c. 43, and the principles of equitable compensation, and is unsupported by the evidence. Whitefish claims that an award that fairly compensates it for the Crown's breach of fiduciary duty would be in the range of $23 million. The Crown contends that the trial judge's use of inflation and simple prejudgment interest achieved a "fair, equitable and proportionate award" of compensation in an historical claim. [7] On the first issue, I would not give effect either to Whitefish's appeal or the Crown's cross-appeal. The trial judge did not err in principle in valuing the timber rights in 1886 at $31,600 and I would defer to his valuation. On the second issue, however, I agree with Whitefish's three arguments. I would allow the appeal on this issue and set aside the trial judge's award. Because the record is insufficient, this court cannot substitute its own award for that of the trial judge. I would order a new hearing to determine the equitable compensation to which Whitefish is entitled. You might also want to look at Authorson v Canada http://www.canlii.org/en/on/onca/doc/2007/2007onca501/2007onca501.html. You'll find a synopsis, here: http://www.ontariocourts.on.ca/decisions/2007/july/2007ONCA0501synopsis.htm You can get to pdf versions of the 3 court citations I've given you by changing the suffix of the URL to .pdf David Cheifetz _____ From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Neil Foster Sent: November 18, 2007 7:55 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs Dear Chaim, Lionel and colleagues; While it is not precisely what Chaim is asking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimaint awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successful, and that was not subject to a limitation under SA law. An equitable "limitation" defence of laches was rejected- see [948] ff. However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution. While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Aboriginals who were under the "protection" of the State, and paid into "trust funds" which were never released. See 'Eventually They Get It All'...Government Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/2007/45.html. I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level. Regards Neil F Neil Foster Newcastle Law School Faculty of Business & Law MC159c, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 >>> Lionel Smith 19/11/07 10:37 >>> Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book, Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (2005); see http://www.utppublishing.com/pubstore/merchant.ihtml?pid=8303 &step=4 Lionel On 18/11/07 10:13, "Chaim Saiman" wrote: > Dear RDG Friends. > > As many of you are probably aware, in the past several years, > descendants of African-American slaves have attempted to bring private > rights of action for restitution/unjust enrichment against a variety of > successors of civil war era corporate interests. Not surprisingly, > these cases have not progress very far, and were eventually dismissed. > See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d > 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, > J.) > > By and large the courts have not engaged in the substance of the > restitution claim, and have preferred to rejected the claims on > procedural grounds relating to the limitations of federal jurisdiction > and the doctrine of standing. And while standing is often another way to > frame the substantive claim, I find it relevant that nearly all the > precedents and analysis focus in on questions of federal jurisdiction > rather than UJER. Stated simply, these cases are conceptualized as > raising procedural rather than substantive issues. > > My question is whether there are any cases regarding what some have > called "restitution for historic wrongs" or similar situations in > the English/Commonwealth courts? I am not so much interested in whether > the claims succeed (though if they do its certainly noteworthy) but more > about how they are conceptualized. My intuition is that such claims are > far more likely to be litigated in terms of the merits of the > restitution claim that the proceduralist tones of the American courts. > > Any relevant cases/examples would be most welcomed. > > [if any of you have ideas from other areas of restitution, such > examples would also be welcomed]. > > Thank you, > > 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, . ____________________________________________________________________ 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, . ------=_NextPart_000_0003_01C82A28.C060B1C0 Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable
Chaim,
 
The actions, so long as they're framed for = breach of=20 fiduciary duty, won't be be caught by prescription period arguments = here. The=20 situation is that most (all?) of the traditional forms of limitation = statute in=20 the common jurisdicitons have been held not to apply to breach of = fiduciary=20 duty.
 
Although they are claims for compensatory = damages, not=20 restitutionary or UE recovery, the various Indian Residential Schools = class=20 actions probably fit your description of actions brought seeking=20 restitution, in the sense of payment, for historic wrongs.=20
 
Those actions - brought against various = religious=20 orders and primarily the gov't of Canada were = settled=20 recently. Here are some links:
 
http://www.irsr.gc.ca/english/dispute_resolution_class_action_n= otice.html
http://www.iacobucci.gc.ca/english/pdf/Indian_= Residential_Schools_Settlement_Agreement.PDF
http://www.canlii.org/en/on/onsc/doc/2006/2006canlii41673/= 2006canlii41673.html
 
The last link is to one court decision = approving the=20 settlement which gives you some flavour. The first link is the Canada = site which=20 will take you to many links.
 
I suspect others reading this can give you = you more=20 information.
 
On land claims, here's the home site for the = Indian=20 Claims Commission http://www.indianclaims.c= a/menu-en.asp
 
There's a recent Ontario action which might = interest=20 you and provide leads.
 
Here's the=20 cite: Whitefish Lake Band of Indians v. Canada (Attorney = General),=20 2007 ONCA 744 = (CanLII)
 http://www.canlii.org/en/on/onca/doc/2007/2007onca744/2007onca744.= html.=20 This is the first 7 paras. which summarize the situation so that you an = tell if=20 you're interested.
 
[1]    The Crown=20 breached its fiduciary duty to the Whitefish Lake Band of Indians 120 = years=20 ago.  The issue on this appeal is whether the trial judge erred = in his=20 assessment of compensation for that breach.  The facts of this = case are=20 straightforward.  Its resolution is not.
 
[2]  Whitefish occupies a reserve near = Sudbury.  In 1886 Whitefish surrendered the timber rights on its = reserve=20 to the Crown, which then sold these rights for $316.  In 2002, = Whitefish=20 sued the Crown for damages for an improvident sale.  Shortly = before the=20 trial, the Crown admitted that it breached its fiduciary duty by = failing to=20 obtain a fair value for Whitefish’s timber = rights.
 

[3]  =20             The trial = judge,=20 Blenus Wright J., was then asked to assess Whitefish’s = compensation for the=20 Crown’s admitted breach.  To do so, he had to determine two = issues:=20 first, what was the fair value of the timber rights in 1886; and = second, how=20 is that fair value to be assessed in 2005, the date of trial.

[4]  =20             On the = first issue,=20 the trial judge valued Whitefish’s timbers right in 1886 at = $31,600.  He=20 did so by choosing the highest price paid for comparable timber at a = public=20 auction.  On the second issue, the trial judge assessed = Whitefish’s=20 compensation at $1,095,888.  In doing so he took into account = that the=20 Crown had not profited from its breach of duty and that it had no = legal=20 obligation to pay prejudgment interest until 1992.  He adjusted = the fair=20 value of the timber rights for inflation between 1886 and 1992, and = awarded=20 simple interest on that adjusted amount from 1992 to 2005.

[5]  =20             Whitefish = appeals=20 the trial judge’s valuation on the first issue and the Crown=20 cross-appeals.  Whitefish contends that the trial judge erred by = failing=20 to accept reliable evidence from its own expert, who placed the value = of the=20 timber rights in 1886 at $50,000.  The Crown contends that the = trial=20 judge erred by failing to use a weighted average of the valuations of = its=20 expert, which would have produced a figure of $16,000.

[6]  =20             On the = second=20 issue, Whitefish, supported by the intervenors, contends that the = trial judge=20 erred in three related ways.  First, it says that the trial judge = erred=20 by failing to compensate it in equity for its lost opportunity to have = the=20 $31,600 invested for its benefit, and to have the use of the = investment=20 income; second, it says that the trial judge erred in law by holding = that he=20 could not include compound interest as an element of equitable = compensation;=20 and,  third,  it says that the trial judge’s finding = that the sale=20 proceeds would have been “dissipated” is contrary to the = terms of the=20 surrender, the provisions of the Indian Act, R.S.C. 1886, c. 43, and the = principles of=20 equitable compensation, and is unsupported by the evidence.  = Whitefish=20 claims that an award that fairly compensates it for the Crown’s = breach of=20 fiduciary duty would be in the range of $23 million.  The Crown = contends=20 that the trial judge’s use of inflation and simple prejudgment = interest=20 achieved a “fair, equitable and proportionate award” of = compensation in an=20 historical claim.

[7]  =20             On the = first issue,=20 I would not give effect either to Whitefish’s appeal or the = Crown’s=20 cross-appeal.  The trial judge did not err in principle in = valuing the=20 timber rights in 1886 at $31,600 and I would defer to his = valuation.  On=20 the second issue, however, I agree with Whitefish’s three = arguments.  I=20 would allow the appeal on this issue and set aside the trial = judge’s=20 award.  Because the record is insufficient, this court cannot = substitute=20 its own award for that of the trial judge.  I would order a new = hearing=20 to determine the equitable compensation to which Whitefish is=20 entitled.

You might also want to look at Authorson v = Canada http://www.canlii.org/en/on/onca/doc/2007/2007onca501/2007onca501.= html.
You'll find a synopsis, here: http://www.ontariocourts.on.ca/decisions/2007/july/2007ONCA05= 01synopsis.htm
 
You can get to pdf versions of the 3 court = citations=20 I've given you by changing the suffix of the URL to = .pdf
 
David Cheifetz
 

From: Enrichment - Restitution = & Unjust=20 Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On = Behalf Of=20 Neil Foster
Sent: November 18, 2007 7:55 = PM
To:=20 ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] RDG -- cases = of=20 restitution for historic wrongs

Dear = Chaim,=20 Lionel and colleagues;
While = it is not=20 precisely what Chaim is asking about, the recent South Australian = decision of=20 Trevorrow v State of South Australia (No 5) [2007] SASC 285 = (1 August=20 2007) raises some of these issues. In Australia the "Stolen = Generations" issue=20 refers to Aboriginal children removed from their families and placed = into the=20 care of non-Aboriginals or institutions. Mr Trevorrow was the first = claimaint=20 awarded significant damages for the consequences of his removal. The = action=20 succeeded in misfeasance in public office, false imprisonment, breach = of=20 fiduciary duty and negligence. An extension of time was granted in = those=20 common law actions that required it; but it was also noted that the=20 equitable action for breach of fiduciary duty would have been = successful,=20 and that was not subject to a limitation under SA law. An=20 equitable "limitation" defence of laches was rejected- see [948]=20 ff.
However, the=20 case is not quite what Chaim was looking for, of course, = since the events=20 are not perhaps old enough to be "historic" wrongs (the removal of Mr=20 Trevorrow occurred in 1957, and time did not even begin to run = against=20 him until he turned 18. And there was no action for = restitution.
While = I don't=20 know a lot about it, I know there has also been research into the = issue=20 of money that was paid to Aboriginals who were under the "protection" = of the=20 State, and paid into "trust funds" which were never released. See = 'Eventually=20 They Get It All'...Government Management of Aboriginal Trust Money in = New=20 South Wales [2007] UNSWLRS 45 (6 August 2007) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLR= S/2007/45.html.=20 I am not sure whether or not this has been the subject of litigation, = or is=20 being addressed more at a political level.
Regards
Neil=20 F
 
Neil Foster
Newcastle Law School
Faculty of Business &=20 Law
MC159c, McMullin Building
University of Newcastle
Callaghan = NSW=20 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921=20 6931


>>> Lionel Smith <lionel.smith@MCGILL.CA<= SPAN=20 style=3D"FONT: 12pt Times New Roman; COLOR: #000000">> 19/11/07 = 10:37=20 >>>
Chaim, a recent Canadian case of that kind concerned a = racist=20 "head tax"
levied on Chinese immigrants in the late C19 and first = part of=20 the C20,
which was litigated quite recently; unjust enrichment was = one of=20 several
claims. The claims failed on substantive grounds, the = limitation=20 point being
left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 = (C.A.),=20 leave to appeal
refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A = political=20 settlement was
later reached. There was a conference in 2003 that = led to a=20 book, Dyzenhaus
and Moran, eds., Calling Power to Account: Law,=20 Reparations, and the Chinese
Canadian Head Tax (2005);=20 see

http://www.utppublishing.com/pubstore/merchant.ihtml?pid=3D8= 303&step=3D4=20

Lionel



On 18/11/07 10:13, "Chaim Saiman"=20 <Saiman@LAW.VILLANOVA.EDU> = wrote:

>=20 Dear RDG Friends.
>
> As many of you are probably aware, = in the=20 past several years,
> descendants of African-American slaves = have=20 attempted to bring private
> rights of action for = restitution/unjust=20 enrichment against a variety of
> successors of civil war era = corporate=20 interests.  Not surprisingly,
> these cases have not = progress very=20 far, and were eventually dismissed.
> See, In re = African-American Slave=20 Descendants Litigation, 375 F. Supp.2d
> 721 (N.D. Ill. 2004), = aff'd,=20 471 F.3d 754 (7th Cir. 2006) (Posner,
> J.)
>
> By = and=20 large the courts have not engaged in the substance of the
> = restitution=20 claim, and have preferred to rejected the claims on
> procedural = grounds=20 relating to the limitations of federal jurisdiction
> and the = doctrine=20 of standing. And while standing is often another way to
> frame = the=20 substantive claim, I find it relevant that nearly all the
> = precedents=20 and analysis focus in on questions of federal jurisdiction
> = rather than=20 UJER. Stated simply, these cases are conceptualized as
> raising = procedural rather than substantive issues.
>
> My = question is=20 whether there are any cases regarding what some have
> called=20 "restitution for historic wrongs" or similar situations in
> the = English/Commonwealth courts?  I am not so much interested in=20 whether
> the claims succeed (though if they do its certainly=20 noteworthy) but more
> about how they are conceptualized. My = intuition=20 is that such claims are
> far more likely to be litigated in = terms of=20 the merits of the
> restitution claim that the proceduralist = tones of=20 the American courts.
>
> Any relevant cases/examples = would be=20 most welcomed.
>
> [if any of you have ideas from other = areas of=20 restitution, such
> examples would also be welcomed].
> =
>=20 Thank you,
>
> Chaim Saiman
>
>
> =
>=20 Chaim Saiman
> Assistant Professor
> Villanova Law = School
>=20 610.519.3296
> saiman@law.villanova.edu
> = http://ssrn.com/author=3D549545<= /A>
> =
>=20 = ____________________________________________________________________
&= gt; =20 This message was delivered through the Restitution Discussion=20 Group,
>  an international internet LISTSERV devoted to all = aspects=20 of the law
>  of unjust enrichment. To subscribe, send = "subscribe=20 enrichment" in
>  the body of a message to <listserv@lists.mcgill.ca>. To=20 unsubscribe,
>  send "signoff enrichment" to the same = address. To=20 make a posting to
>  all group members, send to = <enrichment@lists.mcgill.ca= >. The list=20 is
>  run by Lionel Smith of McGill University, = <lionel.smith@mcgill.ca<= SPAN=20 style=3D"FONT: 12pt Times New Roman; COLOR: = #000000">>.

___________________________________________________= _________________
This=20 message was delivered through the Restitution Discussion Group,
an=20 international internet LISTSERV devoted to all aspects of the = law
of unjust=20 enrichment. To subscribe, send "subscribe enrichment" in
the body = of a=20 message to <listserv@lists.mcgill.ca>. To=20 unsubscribe,
send "signoff enrichment" to the same address. To make = a=20 posting to
all group members, send to <enrichment@lists.mcgill.ca= >. The list = is
run by=20 Lionel Smith of McGill University, <lionel.smith@mcgill.ca<= SPAN=20 style=3D"FONT: 12pt Times New Roman; COLOR: = #000000">>.
__________________________________________= __________________________=20 This message was delivered through the Restitution Discussion Group, = an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to . To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 . The list is run by Lionel Smith of = McGill=20 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, . ------=_NextPart_000_0003_01C82A28.C060B1C0-- ========================================================================= Date: Mon, 19 Nov 2007 10:35:21 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: RDG -- cases of restitution for historic wrongs In-Reply-To: <000201c82a52$a936b9c0$0201a8c0@SPM8B66F9BCA3> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_ynXTKOUSsZkkYJonZ6kpqw)" This is a multi-part message in MIME format. --Boundary_(ID_ynXTKOUSsZkkYJonZ6kpqw) Content-type: text/plain; charset=us-ascii; format=flowed Content-transfer-encoding: 7BIT The Chippewas of Sarnia litigation might also fit the bill: http://www.usask.ca/nativelaw/factums/view.php?id=99. Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 David Cheifetz wrote: > Chaim, > > The actions, so long as they're framed for breach of fiduciary duty, > won't be be caught by prescription period arguments here. The > situation is that most (all?) of the traditional forms of limitation > statute in the common jurisdicitons have been held not to apply to > breach of fiduciary duty. > > Although they are claims for compensatory damages, not restitutionary > or UE recovery, the various Indian Residential Schools class actions > probably fit your description of actions brought seeking restitution, > in the sense of payment, for historic wrongs. > > Those actions - brought against various religious orders and primarily > the gov't of Canada were settled recently. Here are some links: > > http://www.irsr.gc.ca/english/dispute_resolution_class_action_notice.html > http://www.iacobucci.gc.ca/english/pdf/Indian_Residential_Schools_Settlement_Agreement.PDF > http://www.canlii.org/en/on/onsc/doc/2006/2006canlii41673/2006canlii41673.html > > The last link is to one court decision approving the settlement which > gives you some flavour. The first link is the Canada site which will > take you to many links. > > I suspect others reading this can give you you more information. > > On land claims, here's the home site for the Indian Claims Commission > http://www.indianclaims.ca/menu-en.asp > > There's a recent Ontario action which might interest you and provide > leads. > > Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney > General), 2007 ONCA 744 (CanLII) > http://www.canlii.org/en/on/onca/doc/2007/2007onca744/2007onca744.html. > This is the first 7 paras. which summarize the situation so that you > an tell if you're interested. > > > [1] The Crown breached its fiduciary duty to the Whitefish Lake > Band of Indians 120 years ago. The issue on this appeal is > whether the trial judge erred in his assessment of compensation > for that breach. The facts of this case are straightforward. Its > resolution is not. > > [2] Whitefish occupies a reserve near Sudbury. In 1886 Whitefish > surrendered the timber rights on its reserve to the Crown, which > then sold these rights for $316. In 2002, Whitefish sued the > Crown for damages for an improvident sale. Shortly before the > trial, the Crown admitted that it breached its fiduciary duty by > failing to obtain a fair value for Whitefish's timber rights. > > > [3] The trial judge, Blenus Wright J., was then > asked to assess Whitefish's compensation for the Crown's admitted > breach. To do so, he had to determine two issues: first, what was > the fair value of the timber rights in 1886; and second, how is > that fair value to be assessed in 2005, the date of trial. > > [4] On the first issue, the trial judge valued > Whitefish's timbers right in 1886 at $31,600. He did so by > choosing the highest price paid for comparable timber at a public > auction. On the second issue, the trial judge assessed > Whitefish's compensation at $1,095,888. In doing so he took into > account that the Crown had not profited from its breach of duty > and that it had no legal obligation to pay prejudgment interest > until 1992. He adjusted the fair value of the timber rights for > inflation between 1886 and 1992, and awarded simple interest on > that adjusted amount from 1992 to 2005. > > [5] Whitefish appeals the trial judge's valuation on > the first issue and the Crown cross-appeals. Whitefish contends > that the trial judge erred by failing to accept reliable evidence > from its own expert, who placed the value of the timber rights in > 1886 at $50,000. The Crown contends that the trial judge erred by > failing to use a weighted average of the valuations of its expert, > which would have produced a figure of $16,000. > > [6] On the second issue, Whitefish, supported by the > intervenors, contends that the trial judge erred in three related > ways. First, it says that the trial judge erred by failing to > compensate it in equity for its lost opportunity to have the > $31,600 invested for its benefit, and to have the use of the > investment income; second, it says that the trial judge erred in > law by holding that he could not include compound interest as an > element of equitable compensation; and, third, it says that the > trial judge's finding that the sale proceeds would have been > "dissipated" is contrary to the terms of the surrender, the > provisions of the Indian Act, R.S.C. 1886, c. 43, and the > principles of equitable compensation, and is unsupported by the > evidence. Whitefish claims that an award that fairly compensates > it for the Crown's breach of fiduciary duty would be in the range > of $23 million. The Crown contends that the trial judge's use of > inflation and simple prejudgment interest achieved a "fair, > equitable and proportionate award" of compensation in an > historical claim. > > [7] On the first issue, I would not give effect > either to Whitefish's appeal or the Crown's cross-appeal. The > trial judge did not err in principle in valuing the timber rights > in 1886 at $31,600 and I would defer to his valuation. On the > second issue, however, I agree with Whitefish's three arguments. > I would allow the appeal on this issue and set aside the trial > judge's award. Because the record is insufficient, this court > cannot substitute its own award for that of the trial judge. I > would order a new hearing to determine the equitable compensation > to which Whitefish is entitled. > > You might also want to look at Authorson v Canada > http://www.canlii.org/en/on/onca/doc/2007/2007onca501/2007onca501.html. > You'll find a synopsis, here: > http://www.ontariocourts.on.ca/decisions/2007/july/2007ONCA0501synopsis.htm > > You can get to pdf versions of the 3 court citations I've given you by > changing the suffix of the URL to .pdf > > David Cheifetz > > > ------------------------------------------------------------------------ > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Neil Foster > Sent: November 18, 2007 7:55 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs > > Dear Chaim, Lionel and colleagues; > While it is not precisely what Chaim is asking about, the recent > South Australian decision of Trevorrow v State of South Australia > (No 5) [2007] SASC 285 (1 August 2007) raises some of these > issues. In Australia the "Stolen Generations" issue refers to > Aboriginal children removed from their families and placed into > the care of non-Aboriginals or institutions. Mr Trevorrow was the > first claimaint awarded significant damages for the consequences > of his removal. The action succeeded in misfeasance in public > office, false imprisonment, breach of fiduciary duty and > negligence. An extension of time was granted in those common law > actions that required it; but it was also noted that the > equitable action for breach of fiduciary duty would have been > successful, and that was not subject to a limitation under SA law. > An equitable "limitation" defence of laches was rejected- see > [948] ff. > However, the case is not quite what Chaim was looking for, of > course, since the events are not perhaps old enough to be > "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, > and time did not even begin to run against him until he turned 18. > And there was no action for restitution. > While I don't know a lot about it, I know there has also been > research into the issue of money that was paid to Aboriginals who > were under the "protection" of the State, and paid into "trust > funds" which were never released. See 'Eventually They Get It > All'...Government Management of Aboriginal Trust Money in New > South Wales [2007] UNSWLRS 45 (6 August 2007) > http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/2007/45.html. > I am not sure whether or not this has been the subject of > litigation, or is being addressed more at a political level. > Regards > Neil F > > Neil Foster > Newcastle Law School > Faculty of Business & Law > MC159c, McMullin Building > University of Newcastle > Callaghan NSW 2308 > AUSTRALIA > ph 02 4921 7430 > fax 02 4921 6931 > > >>>> Lionel Smith > 19/11/07 10:37 >>> > Chaim, a recent Canadian case of that kind concerned a racist > "head tax" > levied on Chinese immigrants in the late C19 and first part of the > C20, > which was litigated quite recently; unjust enrichment was one of > several > claims. The claims failed on substantive grounds, the limitation > point being > left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave > to appeal > refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political > settlement was > later reached. There was a conference in 2003 that led to a book, > Dyzenhaus > and Moran, eds., Calling Power to Account: Law, Reparations, and > the Chinese > Canadian Head Tax (2005); see > > http://www.utppublishing.com/pubstore/merchant.ihtml?pid=8303&step=4 > > > > Lionel > > > > On 18/11/07 10:13, "Chaim Saiman" > wrote: > >> Dear RDG Friends. >> >> As many of you are probably aware, in the past several years, >> descendants of African-American slaves have attempted to bring > private >> rights of action for restitution/unjust enrichment against a > variety of >> successors of civil war era corporate interests. Not surprisingly, >> these cases have not progress very far, and were eventually > dismissed. >> See, In re African-American Slave Descendants Litigation, 375 F. > Supp.2d >> 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, >> J.) >> >> By and large the courts have not engaged in the substance of the >> restitution claim, and have preferred to rejected the claims on >> procedural grounds relating to the limitations of federal > jurisdiction >> and the doctrine of standing. And while standing is often another > way to >> frame the substantive claim, I find it relevant that nearly all the >> precedents and analysis focus in on questions of federal jurisdiction >> rather than UJER. Stated simply, these cases are conceptualized as >> raising procedural rather than substantive issues. >> >> My question is whether there are any cases regarding what some have >> called "restitution for historic wrongs" or similar situations in >> the English/Commonwealth courts? I am not so much interested in > whether >> the claims succeed (though if they do its certainly noteworthy) > but more >> about how they are conceptualized. My intuition is that such > claims are >> far more likely to be litigated in terms of the merits of the >> restitution claim that the proceduralist tones of the American > courts. >> >> Any relevant cases/examples would be most welcomed. >> >> [if any of you have ideas from other areas of restitution, such >> examples would also be welcomed]. >> >> Thank you, >> >> 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, > >. > > ____________________________________________________________________ > 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, . ____________________________________________________________________ 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_ynXTKOUSsZkkYJonZ6kpqw) Content-type: text/html; charset=us-ascii Content-transfer-encoding: 7BIT The Chippewas of Sarnia litigation might also fit the bill:  http://www.usask.ca/nativelaw/factums/view. php?id=99. 
Jason Neyers 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435


David Cheifetz wrote:
Chaim,
 
The actions, so long as they're framed for breach of fiduciary duty, won't be be caught by prescription period arguments here. The situation is that most (all?) of the traditional forms of limitation statute in the common jurisdicitons have been held not to apply to breach of fiduciary duty.
 
Although they are claims for compensatory damages, not restitutionary or UE recovery, the various Indian Residential Schools class actions probably fit your description of actions brought seeking restitution, in the sense of payment, for historic wrongs.
 
Those actions - brought against various religious orders and primarily the gov't of Canada were settled recently. Here are some links:
 
 
The last link is to one court decision approving the settlement which gives you some flavour. The first link is the Canada site which will take you to many links.
 
I suspect others reading this can give you you more information.
 
On land claims, here's the home site for the Indian Claims Commission http://www.indianclaims.ca/menu- en.asp
 
There's a recent Ontario action which might interest you and provide leads.
 
Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744 (CanLII)
 http://www.canlii.org/en /on/onca/doc/2007/2007onca744/2007onca744.html. This is the first 7 paras. which summarize the situation so that you an tell if you're interested.
 
[1]    The Crown breached its fiduciary duty to the Whitefish Lake Band of Indians 120 years ago.  The issue on this appeal is whether the trial judge erred in his assessment of compensation for that breach.  The facts of this case are straightforward.  Its resolution is not.
 
[2]  Whitefish occupies a reserve near Sudbury.  In 1886 Whitefish surrendered the timber rights on its reserve to the Crown, which then sold these rights for $316.  In 2002, Whitefish sued the Crown for damages for an improvident sale.  Shortly before the trial, the Crown admitted that it breached its fiduciary duty by failing to obtain a fair value for Whitefish’s timber rights.
 

[3]               The trial judge, Blenus Wright J., was then asked to assess Whitefish’s compensation for the Crown’s admitted breach.  To do so, he had to determine two issues: first, what was the fair value of the timber rights in 1886; and second, how is that fair value to be assessed in 2005, the date of trial.

[4]               On the first issue, the trial judge valued Whitefish’s timbers right in 1886 at $31,600.  He did so by choosing the highest price paid for comparable timber at a public auction.  On the second issue, the trial judge assessed Whitefish’s compensation at $1,095,888.  In doing so he took into account that the Crown had not profited from its breach of duty and that it had no legal obligation to pay prejudgment interest until 1992.  He adjusted the fair value of the timber rights for inflation between 1886 and 1992, and awarded simple interest on that adjusted amount from 1992 to 2005.

[5]               Whitefish appeals the trial judge’s valuation on the first issue and the Crown cross-appeals.  Whitefish contends that the trial judge erred by failing to accept reliable evidence from its own expert, who placed the value of the timber rights in 1886 at $50,000.  The Crown contends that the trial judge erred by failing to use a weighted average of the valuations of its expert, which would have produced a figure of $16,000.

[6]               On the second issue, Whitefish, supported by the intervenors, contends that the trial judge erred in three related ways.  First, it says that the trial judge erred by failing to compensate it in equity for its lost opportunity to have the $31,600 invested for its benefit, and to have the use of the investment income; second, it says that the trial judge erred in law by holding that he could not include compound interest as an element of equitable compensation; and,  third,  it says that the trial judge’s finding that the sale proceeds would have been “dissipated” is contrary to the terms of the surrender, the provisions of the Indian Act, R.S.C. 1886, c. 43, and the principles of equitable compensation, and is unsupported by the evidence.  Whitefish claims that an award that fairly compensates it for the Crown’s breach of fiduciary duty would be in the range of $23 million.  The Crown contends that the trial judge’s use of inflation and simple prejudgment interest achieved a “fair, equitable and proportionate award” of compensation in an historical claim.

[7]               On the first issue, I would not give effect either to Whitefish’s appeal or the Crown’s cross-appeal.  The trial judge did not err in principle in valuing the timber rights in 1886 at $31,600 and I would defer to his valuation.  On the second issue, however, I agree with Whitefish’s three arguments.  I would allow the appeal on this issue and set aside the trial judge’s award.  Because the record is insufficient, this court cannot substitute its own award for that of the trial judge.  I would order a new hearing to determine the equitable compensation to which Whitefish is entitled.

You might also want to look at Authorson v Canada http://www.canlii.org/en /on/onca/doc/2007/2007onca501/2007onca501.html.
 
You can get to pdf versions of the 3 court citations I've given you by changing the suffix of the URL to .pdf
 
David Cheifetz
 

From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Neil Foster
Sent: November 18, 2007 7:55 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs

Dear Chaim, Lionel and colleagues;
While it is not precisely what Chaim is asking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimaint awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successful, and that was not subject to a limitation under SA law. An equitable "limitation" defence of laches was rejected- see [948] ff.
However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution.
While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Aboriginals who were under the "protection" of the State, and paid into "trust funds" which were never released. See 'Eventually They Get It All'...Government Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007) http://www.austlii.edu.au/cgi- bin/sinodisp/au/journals/UNSWLRS/2007/45.html. I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level.
Regards
Neil F
 
Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931


>>> Lionel Smith <lionel.smith@MCGILL.CA> 19/11/07 10:37 >>>
Chaim, a recent Canadian case of that kind concerned a racist "head tax"
levied on Chinese immigrants in the late C19 and first part of the C20,
which was litigated quite recently; unjust enrichment was one of several
claims. The claims failed on substantive grounds, the limitation point being
left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal
refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was
later reached. There was a conference in 2003 that led to a book, Dyzenhaus
and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese
Canadian Head Tax (2005); see

http://www.utppublishing.c om/pubstore/merchant.ihtml?pid=8303&step=4

Lionel



On 18/11/07 10:13, "Chaim Saiman" <Saiman@LAW.VILLANOVA.EDU> wrote:

> Dear RDG Friends.
>
> As many of you are probably aware, in the past several years,
> descendants of African-American slaves have attempted to bring private
> rights of action for restitution/unjust enrichment against a variety of
> successors of civil war era corporate interests.  Not surprisingly,
> these cases have not progress very far, and were eventually dismissed.
> See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d
> 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner,
> J.)
>
> By and large the courts have not engaged in the substance of the
> restitution claim, and have preferred to rejected the claims on
> procedural grounds relating to the limitations of federal jurisdiction
> and the doctrine of standing. And while standing is often another way to
> frame the substantive claim, I find it relevant that nearly all the
> precedents and analysis focus in on questions of federal jurisdiction
> rather than UJER. Stated simply, these cases are conceptualized as
> raising procedural rather than substantive issues.
>
> My question is whether there are any cases regarding what some have
> called "restitution for historic wrongs" or similar situations in
> the English/Commonwealth courts?  I am not so much interested in whether
> the claims succeed (though if they do its certainly noteworthy) but more
> about how they are conceptualized. My intuition is that such claims are
> far more likely to be litigated in terms of the merits of the
> restitution claim that the proceduralist tones of the American courts.
>
> Any relevant cases/examples would be most welcomed.
>
> [if any of you have ideas from other areas of restitution, such
> examples would also be welcomed].
>
> Thank you,
>
> 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 <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 . 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, . --Boundary_(ID_ynXTKOUSsZkkYJonZ6kpqw)-- ========================================================================= Date: Mon, 19 Nov 2007 20:27:59 -0500 Reply-To: lrotman@UWINDSOR.CA Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Len Rotman Subject: Re: RDG -- cases of restitution for historic wrongs In-Reply-To: <4741AD39.5080308@uwo.ca> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="=_alternative 00080CF585257399_=" This is a multipart message in MIME format. --=_alternative 00080CF585257399_= Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Forgive me for jumping in late here, but my understanding is that the new=20 forms of provincial limitations (particularly, but not exclusively those=20 enacted after the 1992 Supreme Court of Canada judgment in M(K) v. M(H))=20 catch all equitable claims, including those for breach of fiduciary duty.=20 Some current limitation statutes, such as Alberta's and Ontario's, make=20 specific allowances/exceptions for certain types of claims by Aboriginal=20 peoples against the Crown, including breaches of fiduciary duty (note=20 section 2(3)(c) and (f) of the current Ontario Act and s. 13 of the=20 Alberta Act), but other limitation statutes that expressly indicate their=20 application to all common law and equitable causes of action will catch=20 breach of fiduciary duty claims. The scenario contemplated in M(K) is=20 unique because the then-current Ontario Act did not expressly apply to all = equitable causes of action. Whether this situation OUGHT to be as it is is = an entirely different matter. I consider various elements of these=20 matters in my book Fiduciary Law (Thomson/Carswell, 2005) at pp.619-31 if=20 anyone would like to follow up on this discussion further.=20 Regards to all, Len Dr. Leonard I. Rotman Professor Faculty of Law, University of Windsor Phone: (519) 253-3000, ext. 2947 Fax: (519) 973-7064 e-mail: LROTMAN@UWINDSOR.CA Jason Neyers =20 Sent by: Enrichment - Restitution & Unjust Enrichment Legal Issues=20 19/11/2007 10:42 AM Please respond to Jason Neyers To ENRICHMENT@LISTS.MCGILL.CA cc Subject Re: [RDG] RDG -- cases of restitution for historic wrongs The Chippewas of Sarnia litigation might also fit the bill: =20 http://www.usask.ca/nativelaw/factums/view.php?id=3D99.=20 Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=20 David Cheifetz wrote:=20 Chaim, =20 The actions, so long as they're framed for breach of fiduciary duty, won't = be be caught by prescription period arguments here. The situation is that=20 most (all?) of the traditional forms of limitation statute in the common=20 jurisdicitons have been held not to apply to breach of fiduciary duty. =20 Although they are claims for compensatory damages, not restitutionary or=20 UE recovery, the various Indian Residential Schools class actions probably = fit your description of actions brought seeking restitution, in the sense=20 of payment, for historic wrongs.=20 =20 Those actions - brought against various religious orders and primarily the = gov't of Canada were settled recently. Here are some links: =20 http://www.irsr.gc.ca/english/dispute=5Fresolution=5Fclass=5Faction=5Fnotic= e.html http://www.iacobucci.gc.ca/english/pdf/Indian=5FResidential=5FSchools=5FSet= tlement=5FAgreement.PDF http://www.canlii.org/en/on/onsc/doc/2006/2006canlii41673/2006canlii41673.h= tml =20 The last link is to one court decision approving the settlement which=20 gives you some flavour. The first link is the Canada site which will take=20 you to many links. =20 I suspect others reading this can give you you more information. =20 On land claims, here's the home site for the Indian Claims Commission=20 http://www.indianclaims.ca/menu-en.asp =20 There's a recent Ontario action which might interest you and provide=20 leads. =20 Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney=20 General), 2007 ONCA 744 (CanLII) http://www.canlii.org/en/on/onca/doc/2007/2007onca744/2007onca744.html.=20 This is the first 7 paras. which summarize the situation so that you an=20 tell if you're interested. =20 [1] The Crown breached its fiduciary duty to the Whitefish Lake Band of = Indians 120 years ago. The issue on this appeal is whether the trial=20 judge erred in his assessment of compensation for that breach. The facts=20 of this case are straightforward. Its resolution is not. =20 [2] Whitefish occupies a reserve near Sudbury. In 1886 Whitefish=20 surrendered the timber rights on its reserve to the Crown, which then sold = these rights for $316. In 2002, Whitefish sued the Crown for damages for=20 an improvident sale. Shortly before the trial, the Crown admitted that it = breached its fiduciary duty by failing to obtain a fair value for=20 Whitefish?s timber rights. =20 [3] The trial judge, Blenus Wright J., was then asked to=20 assess Whitefish?s compensation for the Crown?s admitted breach. To do=20 so, he had to determine two issues: first, what was the fair value of the=20 timber rights in 1886; and second, how is that fair value to be assessed=20 in 2005, the date of trial.=20 [4] On the first issue, the trial judge valued Whitefish?s=20 timbers right in 1886 at $31,600. He did so by choosing the highest price = paid for comparable timber at a public auction. On the second issue, the=20 trial judge assessed Whitefish?s compensation at $1,095,888. In doing so=20 he took into account that the Crown had not profited from its breach of=20 duty and that it had no legal obligation to pay prejudgment interest until = 1992. He adjusted the fair value of the timber rights for inflation=20 between 1886 and 1992, and awarded simple interest on that adjusted amount = from 1992 to 2005. [5] Whitefish appeals the trial judge?s valuation on the=20 first issue and the Crown cross-appeals. Whitefish contends that the=20 trial judge erred by failing to accept reliable evidence from its own=20 expert, who placed the value of the timber rights in 1886 at $50,000. The = Crown contends that the trial judge erred by failing to use a weighted=20 average of the valuations of its expert, which would have produced a=20 figure of $16,000. [6] On the second issue, Whitefish, supported by the=20 intervenors, contends that the trial judge erred in three related ways.=20 First, it says that the trial judge erred by failing to compensate it in=20 equity for its lost opportunity to have the $31,600 invested for its=20 benefit, and to have the use of the investment income; second, it says=20 that the trial judge erred in law by holding that he could not include=20 compound interest as an element of equitable compensation; and, third, it = says that the trial judge?s finding that the sale proceeds would have been = ?dissipated? is contrary to the terms of the surrender, the provisions of=20 the Indian Act, R.S.C. 1886, c. 43, and the principles of equitable=20 compensation, and is unsupported by the evidence. Whitefish claims that=20 an award that fairly compensates it for the Crown?s breach of fiduciary=20 duty would be in the range of $23 million. The Crown contends that the=20 trial judge?s use of inflation and simple prejudgment interest achieved a=20 ?fair, equitable and proportionate award? of compensation in an historical = claim. [7] On the first issue, I would not give effect either to=20 Whitefish?s appeal or the Crown?s cross-appeal. The trial judge did not=20 err in principle in valuing the timber rights in 1886 at $31,600 and I=20 would defer to his valuation. On the second issue, however, I agree with=20 Whitefish?s three arguments. I would allow the appeal on this issue and=20 set aside the trial judge?s award. Because the record is insufficient,=20 this court cannot substitute its own award for that of the trial judge. I = would order a new hearing to determine the equitable compensation to which = Whitefish is entitled. You might also want to look at Authorson v Canada=20 http://www.canlii.org/en/on/onca/doc/2007/2007onca501/2007onca501.html. You'll find a synopsis, here:=20 http://www.ontariocourts.on.ca/decisions/2007/july/2007ONCA0501synopsis.htm =20 You can get to pdf versions of the 3 court citations I've given you by=20 changing the suffix of the URL to .pdf =20 David Cheifetz =20 From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Neil Foster Sent: November 18, 2007 7:55 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs Dear Chaim, Lionel and colleagues; While it is not precisely what Chaim is asking about, the recent South=20 Australian decision of Trevorrow v State of South Australia (No 5) [2007]=20 SASC 285 (1 August 2007) raises some of these issues. In Australia the=20 "Stolen Generations" issue refers to Aboriginal children removed from=20 their families and placed into the care of non-Aboriginals or=20 institutions. Mr Trevorrow was the first claimaint awarded significant=20 damages for the consequences of his removal. The action succeeded in=20 misfeasance in public office, false imprisonment, breach of fiduciary duty = and negligence. An extension of time was granted in those common law=20 actions that required it; but it was also noted that the equitable action=20 for breach of fiduciary duty would have been successful, and that was not=20 subject to a limitation under SA law. An equitable "limitation" defence of = laches was rejected- see [948] ff. However, the case is not quite what Chaim was looking for, of course,=20 since the events are not perhaps old enough to be "historic" wrongs (the=20 removal of Mr Trevorrow occurred in 1957, and time did not even begin to=20 run against him until he turned 18. And there was no action for=20 restitution. While I don't know a lot about it, I know there has also been research=20 into the issue of money that was paid to Aboriginals who were under the=20 "protection" of the State, and paid into "trust funds" which were never=20 released. See 'Eventually They Get It All'...Government Management of=20 Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August=20 2007)=20 http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/2007/45.html . I am not sure whether or not this has been the subject of litigation, or = is being addressed more at a political level. Regards Neil F =20 Neil Foster Newcastle Law School Faculty of Business & Law MC159c, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 >>> Lionel Smith 19/11/07 10:37 >>> Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point=20 being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book,=20 Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the=20 Chinese Canadian Head Tax (2005); see http://www.utppublishing.com/pubstore/merchant.ihtml?pid=3D8303&step=3D4=20 Lionel On 18/11/07 10:13, "Chaim Saiman" wrote: > Dear RDG Friends. >=20 > As many of you are probably aware, in the past several years, > descendants of African-American slaves have attempted to bring private > rights of action for restitution/unjust enrichment against a variety of > successors of civil war era corporate interests. Not surprisingly, > these cases have not progress very far, and were eventually dismissed. > See, In re African-American Slave Descendants Litigation, 375 F. Supp.2d > 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner, > J.) >=20 > By and large the courts have not engaged in the substance of the > restitution claim, and have preferred to rejected the claims on > procedural grounds relating to the limitations of federal jurisdiction > and the doctrine of standing. And while standing is often another way to > frame the substantive claim, I find it relevant that nearly all the > precedents and analysis focus in on questions of federal jurisdiction > rather than UJER. Stated simply, these cases are conceptualized as > raising procedural rather than substantive issues. >=20 > My question is whether there are any cases regarding what some have > called "restitution for historic wrongs" or similar situations in > the English/Commonwealth courts? I am not so much interested in whether > the claims succeed (though if they do its certainly noteworthy) but more > about how they are conceptualized. My intuition is that such claims are > far more likely to be litigated in terms of the merits of the > restitution claim that the proceduralist tones of the American courts. >=20 > Any relevant cases/examples would be most welcomed. >=20 > [if any of you have ideas from other areas of restitution, such > examples would also be welcomed]. >=20 > Thank you,=20 >=20 > Chaim Saiman >=20 >=20 >=20 > Chaim Saiman > Assistant Professor > Villanova Law School > 610.519.3296 > saiman@law.villanova.edu=20 > http://ssrn.com/author=3D549545=20 >=20 > =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 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, . =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 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, . =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=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of=20 unjust enrichment. To subscribe, send "subscribe enrichment" in the body=20 of a message to . To unsubscribe, send "signoff=20 enrichment" to the same address. To make a posting to all group members,=20 send to . The list is run by Lionel Smith of=20 McGill University, .=20 =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=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of=20 unjust enrichment. To subscribe, send "subscribe enrichment" in the body=20 of a message to . To unsubscribe, send "signoff=20 enrichment" to the same address. To make a posting to all group members,=20 send to . The list is run by Lionel Smith of=20 McGill University, .=20 =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=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of=20 unjust enrichment. To subscribe, send "subscribe enrichment" in the body=20 of a message to . To unsubscribe, send "signoff=20 enrichment" to the same address. To make a posting to all group members,=20 send to . The list is run by Lionel Smith of=20 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, . --=_alternative 00080CF585257399_= Content-Type: text/html; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable
Forgive me for jumping in late here, but my understanding is that the new forms of provincial limitations (parti= cularly, but not exclusively those enacted after the 1992 Supreme Court of Canada judgment in M(K) v. M(H)) catch all equitable claims, including those for breach of fiduciary duty.  Some current limitation statutes, such as Alberta's and Ontario's, make specific allowances/exceptions for certain types of claims by Aboriginal peoples against the Crown, including breaches of fiduciary duty (note section 2(3)(c) and (f) of the current Ontario Act and s. 13 of the Alberta Act), but other limitation statutes that expre= ssly indicate their application to all common law and equitable causes of action will catch breach of fiduciary duty claims.  The scenario contemplated in M(K) is unique because the then-current Ontario Act did not expressly apply to all equitable causes of action. Whether this situation OUGHT to be as it is is an entirely different matter.  I consider various eleme= nts of these matters in my book Fiduciary Law (Thomson/Carswell, 2005) at pp.61= 9-31 if anyone would like to follow up on this discussion further.  

Regards to all,

Len

Dr. Leonard I. Rotman
Professor
Faculty of Law, University of Windsor
Phone: (519) 253-3000, ext. 2947
Fax: (519) 973-7064
e-mail: LROTMAN@UWINDSOR.CA


Jason Neyers
Sent by: Enrichment -  Restitut= ion & Unjust Enrichment Legal Issues

19/11/2007 10:42 AM
Please respond to
Jason Neyers

To
ENRICHMENT@LISTS.MCGILL.CA
cc
Subject
Re: [RDG] RDG -- cases of restitution for historic wrongs





The Chippewas of Sarnia litigation might also fit the bill:  http://www.usask.ca/nativelaw/fac= tums/view.php?id=3D99.
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435


David Cheifetz wrote:
Chaim,
 
The actions, so long as they're framed f= or breach of fiduciary duty, won't be be caught by prescription period argumen= ts here. The situation is that most (all?) of the traditional forms of limitat= ion statute in the common jurisdicitons have been held not to apply to breach of fiduciary duty.
 
Although they are claims for compensatory damages, not restitutionary or UE recovery, the various Indian Residential Schools class actions probably fit your description of actions brought seeking restitution, in the sense of payment, for historic wrongs.
 
Those actions - brought against various religious orders and primarily the gov't of Canada were settled recently. Here are some links:
 
http://= www.irsr.gc.ca/english/dispute=5Fresolution=5Fclass=5Faction=5Fnotice.html<= /u>
http://www.iacobucci.gc.ca/english/pdf/Indian=5FResidential=5FS= chools=5FSettlement=5FAgreement.PDF
http://www= .canlii.org/en/on/onsc/doc/2006/2006canlii41673/2006canlii41673.html
 
The last link is to one court decision a= pproving the settlement which gives you some flavour. The first link is the Canada site which will take you to many links.
 
I suspect others reading this can give y= ou you more information.
 
On land claims, here's the home site for the Indian Claims Commission http://www.india= nclaims.ca/menu-en.asp
 
There's a recent Ontario action which mi= ght interest you and provide leads.
 
Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744 (CanLII)
 http://www.canlii.org/en/on/onca/doc/2007/2007on= ca744/2007onca744.html. This is the first 7 paras. which summarize the situation so that you an tell if you're interested.
 
[1]    The Crown breached its f= iduciary duty to the Whitefish Lake Band of Indians 120 years ago.  The issue on this appeal is whether the trial judge erred in his assessment of compen= sation for that breach.  The facts of this case are straightforward.  Its resolution is not.
 
[2]  Whitefish occupies a reserve n= ear Sudbury.  In 1886 Whitefish surrendered the timber rights on its reser= ve to the Crown, which then sold these rights for $316.  In 2002, Whitefi= sh sued the Crown for damages for an improvident sale.  Shortly before the trial, the Crown admitted that it breached its fiduciary duty by failing to obtain a fair value for Whitefish’s timber rights.
 

[3]               The trial judge, Blenus Wright J., was then asked to assess Whitefish’s c= ompensation for the Crown’s admitted breach.  To do so, he had to determine = two issues: first, what was the fair value of the timber rights in 1886; and second, how is that fair value to be assessed in 2005, the date of trial.

[4]               On the first issue, the trial judge valued Whitefish’s timbers right in = 1886 at $31,600.  He did so by choosing the highest price paid for comparab= le timber at a public auction.  On the second issue, the trial judge assessed Whitefish’s compensation at $1,095,888.  In doing so he took into account that the Crown had not profited from its breach of duty and that it had no legal obligation to pay prejudgment interest until 1992.  He adjusted the fair value of the timber rights for inflation between 1886 and 1992, and awarded simple interest on that adjusted amount from 1992 to 2005.

[5]               Whitefish appeals the trial judge’s valuation on the first issue and the Crown = cross-appeals.  Whitefish contends that the trial judge erred by failing to accept reliable evidence from its own expert, who placed the value of the timber rights in 1886 at $50,000.  The Crown contends that the trial judge erred by failing to use a weighted average of the valuations of its expert, which would have produced a figure of $16,000.

[6]               On the second issue, Whitefish, supported by the intervenors, contends that the trial judge erred in three related ways.  First, it says that the trial judge erred by failing to compensate it in equity for its lost opportunity to have the $31,600 invested for its benefit, and to have the use of the investment income; second, it says that the trial judge erred in law by holding that he could not include compound interest as an element of equitable compensation; and,  third,  it says that the trial judge’s finding that the sale proceeds would have been “dissipa= ted” is contrary to the terms of the surrender, the provisions of the Indian Act, R.S.C. 1886, c. 43, and the principles of equitable compensation, and is unsupported by the evidence.  Whitefish claims that an award that fairly compensates it for the Crown’s breach of fiduciary duty w= ould be in the range of $23 million.  The Crown contends that the trial judge’s use of inflation and simple prejudgment interest achieved a &= #8220;fair, equitable and proportionate award” of compensation in an historical c= laim.

[7]               On the first issue, I would not give effect either to Whitefish’s appeal or the Crown’s cross-appeal.  The trial judge did not err in pri= nciple in valuing the timber rights in 1886 at $31,600 and I would defer to his valuation.  On the second issue, however, I agree with Whitefish’= ;s three arguments.  I would allow the appeal on this issue and set aside the trial judge’s award.  Because the record is insufficient, th= is court cannot substitute its own award for that of the trial judge.  I would order a new hearing to determine the equitable compensation to which Whitefish is entitled.

You might also want to look at Authorson v Canada http:/= /www.canlii.org/en/on/onca/doc/2007/2007onca501/2007onca501.html= .
You'll find a synopsis, here: http://www.ontarioco= urts.on.ca/decisions/2007/july/2007ONCA0501synopsis.htm
 
You can get to pdf versions of the 3 cou= rt citations I've given you by changing the suffix of the URL to .pdf
 
David Cheifetz
 

From: Enrichment - Restitution &a= mp; Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LI= STS.MCGILL.CA] On Behalf Of Neil Foster
Sent: November 18, 2007 7:55 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs
Dear Chaim, Lionel and colleagues;
While it is not precisely what Chaim is a= sking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimaint awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successfu= l, and that was not subject to a limitation under SA law. An equitable "l= imitation" defence of laches was rejected- see [948] ff.
However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution.
While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Abori= ginals who were under the "protection" of the State, and paid into "= ;trust funds" which were never released. See 'Eventually They Get It All'...G= overnment Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/20= 07/45.html. I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level.
Regards
Neil F
 
Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931


>>> Lionel Smith <lionel.smith@MCGILL.CA<= /font>> 19/11/07 10:37 >>>
Chaim, a recent Canadian case of that kind concerned a racist "head tax"
levied on Chinese immigrants in the late C19 and first part of the C20,
which was litigated quite recently; unjust enrichment was one of several
claims. The claims failed on substantive grounds, the limitation point being
left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal<= br> refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was
later reached. There was a conference in 2003 that led to a book, Dyzenhaus=
and Moran, eds., Calling Power to Account: Law, Reparations, and the Chines= e
Canadian Head Tax (2005); see

http= ://www.utppublishing.com/pubstore/merchant.ihtml?pid=3D8303&step=3D4

Lionel



On 18/11/07 10:13, "Chaim Saiman" <Saiman@= LAW.VILLANOVA.EDU> wrote:

> Dear RDG Friends.
>
> As many of you are probably aware, in the past several years,
> descendants of African-American slaves have attempted to bring private=
> rights of action for restitution/unjust enrichment against a variety of
> successors of civil war era corporate interests.  Not surprisingl= y,
> these cases have not progress very far, and were eventually dismissed.=
> See, In re African-American Slave Descendants Litigation, 375 F. Supp.= 2d
> 721 (N.D. Ill. 2004), aff'd, 471 F.3d 754 (7th Cir. 2006) (Posner,
> J.)
>
> By and large the courts have not engaged in the substance of the
> restitution claim, and have preferred to rejected the claims on
> procedural grounds relating to the limitations of federal jurisdiction=
> and the doctrine of standing. And while standing is often another way to
> frame the substantive claim, I find it relevant that nearly all the
> precedents and analysis focus in on questions of federal jurisdiction<= br> > rather than UJER. Stated simply, these cases are conceptualized as
> raising procedural rather than substantive issues.
>
> My question is whether there are any cases regarding what some have
> called "restitution for historic wrongs" or similar situatio= ns in
> the English/Commonwealth courts?  I am not so much interested in whether
> the claims succeed (though if they do its certainly noteworthy) but more
> about how they are conceptualized. My intuition is that such claims are
> far more likely to be litigated in terms of the merits of the
> restitution claim that the proceduralist tones of the American courts.=
>
> Any relevant cases/examples would be most welcomed.
>
> [if any of you have ideas from other areas of restitution, such
> examples would also be welcomed].
>
> Thank you,
>
> Chaim Saiman
>
>
>
> Chaim Saiman
> Assistant Professor
> Villanova Law School
> 610.519.3296
> saiman@law.villanova.edu
> http://ssrn.com/author=3D549545
>
> =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
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=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 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, .
=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 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, .
=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 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, . --=_alternative 00080CF585257399_=-- ========================================================================= Date: Fri, 23 Nov 2007 13:45:34 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: deceit: damages and account Comments: To: davidcheifetz@rogers.com Comments: cc: Andrew Tettenborn , obligations@uwo.ca In-Reply-To: <000501c82dc6$4b399aa0$0201a8c0@SPM8B66F9BCA3> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable Andrew, David: Thanks for pointing us to these interesting cases. On =20 the question whether a gain-based remedy should be available for the =20 tort of deceit, I always find myself asking - why not? In Renault the =20 judge did offer a reason, viz that the claimant had not only suffered =20 no loss but had in fact made a profit itself. I?m not sure whether =20 that?s necessarily a clincher, but it would be interesting to hear =20 what other people think. The judge?s other reason in Renault was that Arden LJ had previously =20 said in Murad v Al-Saraj [2005] WTLR 1573 that an account of profits =20 isn?t available to victims of deceit, but I doubt whether much weight =20 should be attached to that. At first instance in Murad the claim was =20 allowed both on the basis that the claimants could have a gain-based =20 remedy for the tort of deceit and on the basis that the defendant had =20 to disgorge the profits of his breach of fiduciary duty. The CA =20 allowed the claim on the second basis and its?s not clear to me that =20 any members of the court thought it necessary to decide whether the =20 claim based on deceit was also available. Halifax Building Society v Thomas [1996] Ch 217 also contains a dictum =20 that an account of profits isn?t available to victims of deceit - but =20 that case was actually decided on the basis that the clamant could not =20 ask for a gain-based remedy founded on the tort of deceit once it had =20 affirmed the contract which had been induced by D?s fraudulent =20 misrepresentation (a similar finding was made in the much earlier case =20 of Selway v Fogg (1839) 5 M & W 83). So it seems to me that there still isn?t any clear English authority =20 that as a general rule victims of deceit cannot claim a gain-based =20 remedy; in principle it seems to me that this wouldn?t be a good rule =20 for English law to have; and looking back there are many older cases =20 which say exactly the opposite, since they hold that a victim of =20 deceit who is fraudulently induced to part with money can waive the =20 tort and bring an action for money had and received: e.g. Hill v =20 Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B 369; =20 Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) 1 El & =20 Bl 795 at 800. Best wishes Charles Quoting David Cheifetz : > Andrew, > > Compare the opposite result - bad guys had to cough up the profit - in 3Co= m > Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.= ) > http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351.= ht > m > > The defendants obtained a cheaper price for computers from 3Com by telling > the distributor that the computers were intended for market X. They were > sold in market Y for a higher price. The evidence was also that 3Com > couldn't have sold the computers at the higher price. Defendants were held > liable for the extra profit. > > Cheers, > > David Cheifetz > > > -----Original Message----- > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] > Sent: November 23, 2007 6:27 AM > To: obligations@uwo.ca > Subject: deceit: damages and account > > A nice little case in the English QBD that may have passed list members by= . > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor [2007] EWHC 2541 > (QB).] > > The makers of Renault cars operated a discount scheme in favour of members > of BALPA (a labour union): the scheme was operated by Fleetpro, who ordere= d > the cars. Under the scheme orders were sent to the Renault > importers: they sent them to Renault in France, whereupon as and when orde= rs > came in Renault manufactured the necessary cars and shipped them. > > Fleetpro did the natural thing and ordered 217 discounted cars for ordinar= y > customers who they knew had nothing to do with BALPA. The cars were shippe= d: > the importers made a profit on them, but (because they gave a rebate to th= e > dealer involved) less than the profit they would have made on cars not > covered by the scheme. The importers sued Fleetpro for deceit, and won on > liability. On damages, however, held: > > (1) the importers had proved no loss, i.e. they hadn't proved the sales ca= me > other than as extra sales, or that they'd otherwise have persuaded custome= rs > to buy their standard (over) priced cars. (2) There was no jurisdiction, > absent a fiduciary relationship) to award an account of profits against > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. > > The latter holding seems particularly interesting. > > > Best > > A > > -- > Andrew Tettenborn MA LLB > Bracton Professor of Law > University of Exeter, England > > > Tel: 01392-263189 / +44-392-263189 (outside UK) > Cellphone: 07870-130528 / +44-7870-130528 (outside UK) > Fax: 01392-263196 / +44-392-263196 (outside UK) > > Snailmail: School of Law, > University of Exeter, > Amory Building, > Rennes Drive, > Exeter EX4 4RJ > England > > Exeter Law School homepage: http://www.law.ex.ac.uk > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml > > > > > > LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906). > > > > --=20 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 23 Nov 2007 10:45:25 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: deceit: damages and account Comments: To: Charles Mitchell Comments: cc: obligations@uwo.ca In-Reply-To: <20071123134534.u05chr4w00ooskkk@impmail.kcl.ac.uk> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_pXKV++fAYjzd3TUSObGlpQ)" This is a multi-part message in MIME format. --Boundary_(ID_pXKV++fAYjzd3TUSObGlpQ) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline Dear Charles: The answer to your question depends, of course, on the principle underlying disorgement. For those of us who buy the CJ justification for disgorgement there are good reasons why fraud will not support that remedy. Also, the older cases you mention seem more consistent with the fraud destroying the underlying juristic reason for the transaction and therefore with restitution for UE following rather than supporting for disgorgement for wrongs. Cheers, ----- Original Message ----- From: Charles Mitchell Date: Friday, November 23, 2007 8:46 am Subject: RE: deceit: damages and account To: davidcheifetz@rogers.com Cc: 'Andrew Tettenborn' , obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > Andrew, David: Thanks for pointing us to these interesting > cases. On > the question whether a gain-based remedy should be available for > the > tort of deceit, I always find myself asking - why not? In > Renault the > judge did offer a reason, viz that the claimant had not only > suffered > no loss but had in fact made a profit itself. I?m not sure > whether > that?s necessarily a clincher, but it would be interesting to > hear > what other people think. > > The judge?s other reason in Renault was that Arden LJ had > previously > said in Murad v Al-Saraj [2005] WTLR 1573 that an account of > profits > isn?t available to victims of deceit, but I doubt whether much > weight > should be attached to that. At first instance in Murad the > claim was > allowed both on the basis that the claimants could have a gain- > based > remedy for the tort of deceit and on the basis that the > defendant had > to disgorge the profits of his breach of fiduciary duty. > The CA > allowed the claim on the second basis and its?s not clear to me > that > any members of the court thought it necessary to decide whether > the > claim based on deceit was also available. > > Halifax Building Society v Thomas [1996] Ch 217 also contains a > dictum > that an account of profits isn?t available to victims of deceit - > but > that case was actually decided on the basis that the clamant > could not > ask for a gain-based remedy founded on the tort of deceit once > it had > affirmed the contract which had been induced by D?s > fraudulent > misrepresentation (a similar finding was made in the much > earlier case > of Selway v Fogg (1839) 5 M & W 83). > > So it seems to me that there still isn?t any clear English > authority > that as a general rule victims of deceit cannot claim a gain- > based > remedy; in principle it seems to me that this wouldn?t be a good > rule > for English law to have; and looking back there are many older > cases > which say exactly the opposite, since they hold that a victim > of > deceit who is fraudulently induced to part with money can waive > the > tort and bring an action for money had and received: e.g. Hill > v > Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B > 369; > Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) > 1 El & > Bl 795 at 800. > > Best wishes > Charles > > > > > > > > Quoting David Cheifetz : > > > Andrew, > > > > Compare the opposite result - bad guys had to cough up the > profit - in 3Com > > Corporation v. Zorin International Corporation, 2006 CanLII > 18351 (ON C.A.) > > > http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351.ht> m > > > > The defendants obtained a cheaper price for computers from > 3Com by telling > > the distributor that the computers were intended for market X. > They were > > sold in market Y for a higher price. The evidence was also > that 3Com > > couldn't have sold the computers at the higher price. > Defendants were held > > liable for the extra profit. > > > > Cheers, > > > > David Cheifetz > > > > > > -----Original Message----- > > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] > > Sent: November 23, 2007 6:27 AM > > To: obligations@uwo.ca > > Subject: deceit: damages and account > > > > A nice little case in the English QBD that may have passed > list members by. > > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor > [2007] EWHC 2541 > > (QB).] > > > > The makers of Renault cars operated a discount scheme in > favour of members > > of BALPA (a labour union): the scheme was operated by > Fleetpro, who ordered > > the cars. Under the scheme orders were sent to the Renault > > importers: they sent them to Renault in France, whereupon as > and when orders > > came in Renault manufactured the necessary cars and shipped them. > > > > Fleetpro did the natural thing and ordered 217 discounted cars > for ordinary > > customers who they knew had nothing to do with BALPA. The cars > were shipped: > > the importers made a profit on them, but (because they gave a > rebate to the > > dealer involved) less than the profit they would have made on > cars not > > covered by the scheme. The importers sued Fleetpro for deceit, > and won on > > liability. On damages, however, held: > > > > (1) the importers had proved no loss, i.e. they hadn't proved > the sales came > > other than as extra sales, or that they'd otherwise have > persuaded customers > > to buy their standard (over) priced cars. (2) There was no > jurisdiction,> absent a fiduciary relationship) to award an > account of profits against > > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. > > > > The latter holding seems particularly interesting. > > > > > > Best > > > > A > > > > -- > > Andrew Tettenborn MA LLB > > Bracton Professor of Law > > University of Exeter, England > > > > > > > Tel: 01392-263189 / +44-392-263189 (outside UK) > > Cellphone: 07870- > 130528 / +44-7870-130528 (outside UK) > > > Fax: 01392-263196 / +44-392-263196 (outside UK) > > > > Snailmail: School of Law, > > University of Exeter, > > Amory Building, > > Rennes Drive, > > Exeter EX4 4RJ > > England > > > > Exeter Law School homepage: http://www.law.ex.ac.uk > > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml > > > > > > > > > > > > LAWYER, n. One skilled in circumvention of the law (Ambrose > Bierce, 1906). > > > > > > > > > > > > -- > Charles Mitchell > charles.mitchell@kcl.ac.uk > > -- Jason Neyers 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_pXKV++fAYjzd3TUSObGlpQ) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EDear Charles=3A =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EThe answer to your question depends=2C of course=2C on the prin= ciple underlying disorgement=2E For those of us who buy the CJ=26nbsp=3B= justification for disgorgement=26nbsp=3Bthere are good reasons why fraud= will not support that remedy=2E =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EAlso=2C the older cases you mention seem more consistent with t= he fraud destroying the underlying juristic=26nbsp=3Breason for the tran= saction and therefore with restitution for UE=26nbsp=3Bfollowing rather = than supporting for disgorgement for wrongs=2E =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ECheers=2C =3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3EF= rom=3A Charles Mitchell =26lt=3Bcharles=2Emitchell=40kcl=2Eac=2Euk=26gt=3B= =3CBR=3EDate=3A Friday=2C November 23=2C 2007 8=3A46 am=3CBR=3ESubject=3A= RE=3A deceit=3A damages and account=3CBR=3ETo=3A davidcheifetz=40rogers= =2Ecom=3CBR=3ECc=3A =27Andrew Tettenborn=27 =26lt=3BA=2EM=2ETettenborn=40= exeter=2Eac=2Euk=26gt=3B=2C obligations=40uwo=2Eca=2C ENRICHMENT=40LISTS= =2EMCGILL=2ECA=3CBR=3E=3CBR=3E=26gt=3B Andrew=2C David=3A Thanks for poi= nting us to these interesting =3CBR=3E=26gt=3B cases=2E=26nbsp=3B On=26n= bsp=3B =3CBR=3E=26gt=3B the question whether a gain-based remedy should = be available for =3CBR=3E=26gt=3B the=26nbsp=3B =3CBR=3E=26gt=3B tort of= deceit=2C I always find myself asking - why not=3F=26nbsp=3B In =3CBR=3E= =26gt=3B Renault the=26nbsp=3B =3CBR=3E=26gt=3B judge did offer a reason= =2C viz that the claimant had not only =3CBR=3E=26gt=3B suffered=26nbsp=3B= =3CBR=3E=26gt=3B no loss but had in fact made a profit itself=2E=26nbsp= =3B I=3Fm not sure =3CBR=3E=26gt=3B whether=26nbsp=3B =3CBR=3E=26gt=3B t= hat=3Fs necessarily a clincher=2C but it would be interesting to =3CBR=3E= =26gt=3B hear=26nbsp=3B =3CBR=3E=26gt=3B what other people think=2E=3CBR= =3E=26gt=3B =3CBR=3E=26gt=3B The judge=3Fs other reason in Renault was t= hat Arden LJ=26nbsp=3Bhad =3CBR=3E=26gt=3B previously=26nbsp=3B =3CBR=3E= =26gt=3B said in Murad=26nbsp=3Bv Al-Saraj=26nbsp=3B=5B2005=5D WTLR=26nb= sp=3B1573 that an account of =3CBR=3E=26gt=3B profits=26nbsp=3B =3CBR=3E= =26gt=3B isn=3Ft available to victims of deceit=2C but I doubt whether m= uch =3CBR=3E=26gt=3B weight=26nbsp=3B =3CBR=3E=26gt=3B should be attache= d to that=2E=26nbsp=3B At first instance in Murad the =3CBR=3E=26gt=3B c= laim was=26nbsp=3B =3CBR=3E=26gt=3B allowed both on the basis that the c= laimants could have a gain-=3CBR=3E=26gt=3B based=26nbsp=3B =3CBR=3E=26g= t=3B remedy for the tort of deceit and on the basis that the =3CBR=3E=26= gt=3B defendant had=26nbsp=3B =3CBR=3E=26gt=3B to disgorge the profits o= f his breach of fiduciary duty=2E=26nbsp=3B =3CBR=3E=26gt=3B The CA=26nb= sp=3B =3CBR=3E=26gt=3B allowed the claim on the second basis and its=3Fs= not clear to me =3CBR=3E=26gt=3B that=26nbsp=3B =3CBR=3E=26gt=3B any me= mbers of the court thought it necessary to decide whether =3CBR=3E=26gt=3B= the=26nbsp=3B =3CBR=3E=26gt=3B claim based on deceit was also available= =2E=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Halifax Building Society v Thomas =5B= 1996=5D Ch 217 also contains a =3CBR=3E=26gt=3B dictum=26nbsp=3B =3CBR=3E= =26gt=3B that an account of profits isn=3Ft available to victims of dece= it -=3CBR=3E=26gt=3B but=26nbsp=3B =3CBR=3E=26gt=3B that case was actual= ly decided on the basis that the clamant =3CBR=3E=26gt=3B could not=26nb= sp=3B =3CBR=3E=26gt=3B ask for a gain-based remedy founded on the tort o= f deceit once =3CBR=3E=26gt=3B it had=26nbsp=3B =3CBR=3E=26gt=3B affirme= d the contract which had been induced by D=3Fs =3CBR=3E=26gt=3B fraudule= nt=26nbsp=3B =3CBR=3E=26gt=3B misrepresentation (a similar finding was m= ade in the much =3CBR=3E=26gt=3B earlier case=26nbsp=3B =3CBR=3E=26gt=3B= of Selway v Fogg (1839) 5 M =26amp=3B W 83)=2E=3CBR=3E=26gt=3B =3CBR=3E= =26gt=3B So it seems to me that there still isn=3Ft any clear English =3C= BR=3E=26gt=3B authority=26nbsp=3B =3CBR=3E=26gt=3B that as a general rul= e victims of deceit cannot claim a gain-=3CBR=3E=26gt=3B based=26nbsp=3B= =3CBR=3E=26gt=3B remedy=3B in principle it seems to me that this wouldn= =3Ft be a good =3CBR=3E=26gt=3B rule=26nbsp=3B =3CBR=3E=26gt=3B for Engl= ish law to have=3B and looking back there are many older =3CBR=3E=26gt=3B= cases=26nbsp=3B =3CBR=3E=26gt=3B which say exactly the opposite=2C sinc= e they hold that a victim =3CBR=3E=26gt=3B of=26nbsp=3B =3CBR=3E=26gt=3B= deceit who is fraudulently induced to part with money can waive =3CBR=3E= =26gt=3B the=26nbsp=3B =3CBR=3E=26gt=3B tort and bring an action for mon= ey had and received=3A e=2Eg=2E Hill =3CBR=3E=26gt=3B v=26nbsp=3B =3CBR=3E= =26gt=3B Perrott (1810) 3 Taunt 274=3B Abbotts v Barry (1820) 2 Brod =26= amp=3B B =3CBR=3E=26gt=3B 369=3B=26nbsp=3B =3CBR=3E=26gt=3B Edmeads v Ne= wman (1823) 1 B =26amp=3B C 418 at 422-3=3B Holt v Ely (1853) =3CBR=3E=26= gt=3B 1 El =26amp=3B=26nbsp=3B =3CBR=3E=26gt=3B Bl 795 at 800=2E=3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B Best wishes=3CBR=3E=26gt=3B Charles=3CBR=3E=26= gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B= =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Quoting David Cheife= tz =26lt=3Bdavidcheifetz=40rogers=2Ecom=26gt=3B=3A=3CBR=3E=26gt=3B =3CBR= =3E=26gt=3B =26gt=3B Andrew=2C=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B = =26gt=3B Compare the opposite result - bad guys had to cough up the =3CB= R=3E=26gt=3B profit - in 3Com=3CBR=3E=26gt=3B =26gt=3B Corporation v=2E = Zorin International Corporation=2C 2006 CanLII =3CBR=3E=26gt=3B 18351 (O= N C=2EA=2E)=3CBR=3E=26gt=3B =26gt=3B =3CBR=3E=26gt=3B http=3A//www=2Ecan= lii=2Eorg/en/on/onca/doc/2006/2006canlii18351/2006canlii18351=2Eht=26gt=3B= m=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B The defendants obta= ined a cheaper price for computers from =3CBR=3E=26gt=3B 3Com by telling= =3CBR=3E=26gt=3B =26gt=3B the distributor that the computers were intend= ed for market X=2E =3CBR=3E=26gt=3B They were=3CBR=3E=26gt=3B =26gt=3B s= old in market Y for a higher price=2E The evidence was also =3CBR=3E=26g= t=3B that 3Com=3CBR=3E=26gt=3B =26gt=3B couldn=27t have sold the compute= rs at the higher price=2E =3CBR=3E=26gt=3B Defendants were held=3CBR=3E=26= gt=3B =26gt=3B liable for the extra profit=2E=3CBR=3E=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B Cheers=2C=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B= =26gt=3B David Cheifetz=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B -----Original Message-----=3CBR=3E=26gt=3B =26= gt=3B From=3A Andrew Tettenborn =5Bmailto=3AA=2EM=2ETettenborn=40exeter=2E= ac=2Euk=5D=3CBR=3E=26gt=3B =26gt=3B Sent=3A November 23=2C 2007 6=3A27 A= M=3CBR=3E=26gt=3B =26gt=3B To=3A obligations=40uwo=2Eca=3CBR=3E=26gt=3B = =26gt=3B Subject=3A deceit=3A damages and account=3CBR=3E=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B A nice little case in the English QBD that may= have passed =3CBR=3E=26gt=3B list members by=2E=3CBR=3E=26gt=3B =26gt=3B= =5BRenault UK Ltd v=2E FleetPro Technical Services Ltd =26amp=3B Anor =3C= BR=3E=26gt=3B =5B2007=5D EWHC 2541=3CBR=3E=26gt=3B =26gt=3B (QB)=2E=5D=3C= BR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B The makers of Renault ca= rs operated a discount scheme in =3CBR=3E=26gt=3B favour of members=3CBR= =3E=26gt=3B =26gt=3B of BALPA (a labour union)=3A the scheme was operate= d by =3CBR=3E=26gt=3B Fleetpro=2C who ordered=3CBR=3E=26gt=3B =26gt=3B t= he cars=2E Under the scheme orders were sent to the Renault=3CBR=3E=26gt= =3B =26gt=3B importers=3A they sent them to Renault in France=2C whereup= on as =3CBR=3E=26gt=3B and when orders=3CBR=3E=26gt=3B =26gt=3B came in = Renault manufactured the necessary cars and shipped them=2E=3CBR=3E=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Fleetpro did the natural thing and= ordered 217 discounted cars =3CBR=3E=26gt=3B for ordinary=3CBR=3E=26gt=3B= =26gt=3B customers who they knew had nothing to do with BALPA=2E The ca= rs =3CBR=3E=26gt=3B were shipped=3A=3CBR=3E=26gt=3B =26gt=3B the importe= rs made a profit on them=2C but (because they gave a =3CBR=3E=26gt=3B re= bate to the=3CBR=3E=26gt=3B =26gt=3B dealer involved) less than the prof= it they would have made on =3CBR=3E=26gt=3B cars not=3CBR=3E=26gt=3B =26= gt=3B covered by the scheme=2E The importers sued Fleetpro for deceit=2C= =3CBR=3E=26gt=3B and won on=3CBR=3E=26gt=3B =26gt=3B liability=2E On da= mages=2C however=2C held=3A=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B (1) the importers had proved no loss=2C i=2Ee=2E they hadn=27t pro= ved =3CBR=3E=26gt=3B the sales came=3CBR=3E=26gt=3B =26gt=3B other than = as extra sales=2C or that they=27d otherwise have =3CBR=3E=26gt=3B persu= aded customers=3CBR=3E=26gt=3B =26gt=3B to buy their standard (over) pri= ced cars=2E (2) There was no =3CBR=3E=26gt=3B jurisdiction=2C=26gt=3B ab= sent a fiduciary relationship) to award an =3CBR=3E=26gt=3B account of p= rofits against=3CBR=3E=26gt=3B =26gt=3B Fleetpro=2E Hence the latter kep= t a tidy (ill-gotten=3F) profit=2E=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B The latter holding seems particularly interesting=2E=3CBR=3E= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Best= =3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B A=3CBR=3E=26gt=3B =26= gt=3B=3CBR=3E=26gt=3B =26gt=3B --=3CBR=3E=26gt=3B =26gt=3B Andrew Tetten= born MA LLB=3CBR=3E=26gt=3B =26gt=3B Bracton Professor of Law=3CBR=3E=26= gt=3B =26gt=3B University of Exeter=2C England=3CBR=3E=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B =3CBR=3E=26gt=3B Tel=3A=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B=26nbsp=3B 01392-263189=26nbsp=3B=26nbsp=3B=26nbsp=3B /=26n= bsp=3B=26nbsp=3B +44-392-263189 (outside UK)=3CBR=3E=26gt=3B =26gt=3B Ce= llphone=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B 0= 7870-=3CBR=3E=26gt=3B 130528=26nbsp=3B=26nbsp=3B /=26nbsp=3B=26nbsp=3B += 44-7870-130528 (outside UK)=3CBR=3E=26gt=3B =26gt=3B =3CBR=3E=26gt=3B Fa= x=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B 01392-263196=26nbsp=3B=26nbsp=3B=26nbsp=3B /=26nbsp=3B= =26nbsp=3B +44-392-263196 (outside UK)=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26= gt=3B =26gt=3B Snailmail=3A=26nbsp=3B=26nbsp=3B School of Law=2C=3CBR=3E= =26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Universi= ty of Exeter=2C=3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B Amory Building=2C=3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbs= p=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B Rennes Drive=2C=3CBR=3E=26gt=3B =26gt=3B=26n= bsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbs= p=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Exeter EX4 4RJ=3CBR=3E=26gt=3B = =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26n= bsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbs= p=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B England=3CBR=3E=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Exeter Law School homepage=3A ht= tp=3A//www=2Elaw=2Eex=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B My homepage=3A = http=3A//www=2Elaw=2Eex=2Eac=2Euk/staff/tettenborn=2Eshtml=3CBR=3E=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B LAWYER=2C= n=2E One skilled in circumvention of the law (Ambrose =3CBR=3E=26gt=3B = Bierce=2C 1906)=2E=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CB= R=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =3CBR=3E=26= gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B -- =3CBR=3E=26gt=3B Charles Mitc= hell=3CBR=3E=26gt=3B charles=2Emitchell=40kcl=2Eac=2Euk=3CBR=3E=26gt=3B = =3CBR=3E=26gt=3B =3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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 . 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_pXKV++fAYjzd3TUSObGlpQ)-- ========================================================================= Date: Fri, 23 Nov 2007 16:07:31 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: deceit: damages and account Comments: To: Jason Neyers Comments: cc: obligations@uwo.ca In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable I'm sorry, Jason, I know I'm being thick but I?ve been racking my =20 brains and I can't think what CJ means - in mitigation it's Friday =20 afternoon - but when you tell me I'll give myself three kicks. So far as your 2nd point goes, I don't think that it's consistent with =20 the HL's explanation of waiver of tort in United Australia Ltd v =20 Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon LC: =20 ?Where "waiving the tort" was possible, it was nothing more than a =20 choice between possible remedies [sc: for the tort] derived from a =20 time when it was not permitted to combine them or to pursue them in =20 the alternative, and when there were procedural advantages in =20 selecting the form of assumpsit.? And again at 18: ?When the =20 plaintiff "waived the tort" and brought assumpsit, he did not thereby =20 elect to be treated from that time forward on the basis that no tort =20 had been committed; indeed, if it were to be understood that no tort =20 had been committed, how could an action in assumpsit lie? It lies only =20 because the acquisition of the defendant is wrongful and there is thus =20 an obligation to make restitution.? Lord Atkin says the same at 27-9. Also as you know we do not believe in absence of juristic reason in =20 England - at any rate Lord Hoffmann does not although the higher =20 authority of P Birks and now R Stevens may yet win the day. Best wishes Charles Quoting Jason Neyers : > Dear Charles: > > The answer to your question depends, of course, on the principle =20 > underlying disorgement. For those of us who buy the CJ justification =20 > for disgorgement there are good reasons why fraud will not support =20 > that remedy. > > Also, the older cases you mention seem more consistent with the =20 > fraud destroying the underlying juristic reason for the transaction =20 > and therefore with restitution for UE following rather than =20 > supporting for disgorgement for wrongs. > > Cheers, > > ----- Original Message ----- > From: Charles Mitchell > Date: Friday, November 23, 2007 8:46 am > Subject: RE: deceit: damages and account > To: davidcheifetz@rogers.com > Cc: 'Andrew Tettenborn' , =20 > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> Andrew, David: Thanks for pointing us to these interesting >> cases. On >> the question whether a gain-based remedy should be available for >> the >> tort of deceit, I always find myself asking - why not? In >> Renault the >> judge did offer a reason, viz that the claimant had not only >> suffered >> no loss but had in fact made a profit itself. I?m not sure >> whether >> that?s necessarily a clincher, but it would be interesting to >> hear >> what other people think. >> >> The judge?s other reason in Renault was that Arden LJ had >> previously >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >> profits >> isn?t available to victims of deceit, but I doubt whether much >> weight >> should be attached to that. At first instance in Murad the >> claim was >> allowed both on the basis that the claimants could have a gain- >> based >> remedy for the tort of deceit and on the basis that the >> defendant had >> to disgorge the profits of his breach of fiduciary duty. >> The CA >> allowed the claim on the second basis and its?s not clear to me >> that >> any members of the court thought it necessary to decide whether >> the >> claim based on deceit was also available. >> >> Halifax Building Society v Thomas [1996] Ch 217 also contains a >> dictum >> that an account of profits isn?t available to victims of deceit - >> but >> that case was actually decided on the basis that the clamant >> could not >> ask for a gain-based remedy founded on the tort of deceit once >> it had >> affirmed the contract which had been induced by D?s >> fraudulent >> misrepresentation (a similar finding was made in the much >> earlier case >> of Selway v Fogg (1839) 5 M & W 83). >> >> So it seems to me that there still isn?t any clear English >> authority >> that as a general rule victims of deceit cannot claim a gain- >> based >> remedy; in principle it seems to me that this wouldn?t be a good >> rule >> for English law to have; and looking back there are many older >> cases >> which say exactly the opposite, since they hold that a victim >> of >> deceit who is fraudulently induced to part with money can waive >> the >> tort and bring an action for money had and received: e.g. Hill >> v >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >> 369; >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >> 1 El & >> Bl 795 at 800. >> >> Best wishes >> Charles >> >> >> >> >> >> >> >> Quoting David Cheifetz : >> >> > Andrew, >> > >> > Compare the opposite result - bad guys had to cough up the >> profit - in 3Com >> > Corporation v. Zorin International Corporation, 2006 CanLII >> 18351 (ON C.A.) >> > >> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351= .ht> =20 >> m >> > >> > The defendants obtained a cheaper price for computers from >> 3Com by telling >> > the distributor that the computers were intended for market X. >> They were >> > sold in market Y for a higher price. The evidence was also >> that 3Com >> > couldn't have sold the computers at the higher price. >> Defendants were held >> > liable for the extra profit. >> > >> > Cheers, >> > >> > David Cheifetz >> > >> > >> > -----Original Message----- >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> > Sent: November 23, 2007 6:27 AM >> > To: obligations@uwo.ca >> > Subject: deceit: damages and account >> > >> > A nice little case in the English QBD that may have passed >> list members by. >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> [2007] EWHC 2541 >> > (QB).] >> > >> > The makers of Renault cars operated a discount scheme in >> favour of members >> > of BALPA (a labour union): the scheme was operated by >> Fleetpro, who ordered >> > the cars. Under the scheme orders were sent to the Renault >> > importers: they sent them to Renault in France, whereupon as >> and when orders >> > came in Renault manufactured the necessary cars and shipped them. >> > >> > Fleetpro did the natural thing and ordered 217 discounted cars >> for ordinary >> > customers who they knew had nothing to do with BALPA. The cars >> were shipped: >> > the importers made a profit on them, but (because they gave a >> rebate to the >> > dealer involved) less than the profit they would have made on >> cars not >> > covered by the scheme. The importers sued Fleetpro for deceit, >> and won on >> > liability. On damages, however, held: >> > >> > (1) the importers had proved no loss, i.e. they hadn't proved >> the sales came >> > other than as extra sales, or that they'd otherwise have >> persuaded customers >> > to buy their standard (over) priced cars. (2) There was no >> jurisdiction,> absent a fiduciary relationship) to award an >> account of profits against >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> > >> > The latter holding seems particularly interesting. >> > >> > >> > Best >> > >> > A >> > >> > -- >> > Andrew Tettenborn MA LLB >> > Bracton Professor of Law >> > University of Exeter, England >> > >> > >> > >> Tel: 01392-263189 / +44-392-263189 (outside UK) >> > Cellphone: 07870- >> 130528 / +44-7870-130528 (outside UK) >> > >> Fax: 01392-263196 / +44-392-263196 (outside UK) >> > >> > Snailmail: School of Law, >> > University of Exeter, >> > Amory Building, >> > Rennes Drive, >> > Exeter EX4 4RJ >> > England >> > >> > Exeter Law School homepage: http://www.law.ex.ac.uk >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> > >> > >> > >> > >> > >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >> Bierce, 1906). >> > >> > >> > >> > >> >> >> >> -- >> Charles Mitchell >> charles.mitchell@kcl.ac.uk >> >> > > -- > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > --=20 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 23 Nov 2007 16:16:47 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: deceit: damages and account Comments: To: Tsachi Keren-Paz In-Reply-To: <001d01c82dda$db81daa0$888205a0@law70> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable Kick. Ouch. x 3. Thank you, and also to Bill Swadling. C Quoting Tsachi Keren-Paz : > CJ =3D corrective justice > > Dr. Tsachi Keren-Paz > School of Law > Keele University > Staffordshire ST5 5BG > England > Office: CBC 2.015 > Phone: 01782 584358 > Email: t.kerenpaz@law.keele.ac.uk > http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm > ----- Original Message ----- From: "Charles Mitchell" > > To: > Sent: Friday, November 23, 2007 6:07 PM > Subject: Re: [RDG] deceit: damages and account > > > I'm sorry, Jason, I know I'm being thick but I?ve been racking my > brains and I can't think what CJ means - in mitigation it's Friday > afternoon - but when you tell me I'll give myself three kicks. > > So far as your 2nd point goes, I don't think that it's consistent with > the HL's explanation of waiver of tort in United Australia Ltd v > Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon LC: > ?Where "waiving the tort" was possible, it was nothing more than a > choice between possible remedies [sc: for the tort] derived from a > time when it was not permitted to combine them or to pursue them in > the alternative, and when there were procedural advantages in > selecting the form of assumpsit.? And again at 18: ?When the > plaintiff "waived the tort" and brought assumpsit, he did not thereby > elect to be treated from that time forward on the basis that no tort > had been committed; indeed, if it were to be understood that no tort > had been committed, how could an action in assumpsit lie? It lies only > because the acquisition of the defendant is wrongful and there is thus > an obligation to make restitution.? Lord Atkin says the same at 27-9. > > Also as you know we do not believe in absence of juristic reason in > England - at any rate Lord Hoffmann does not although the higher > authority of P Birks and now R Stevens may yet win the day. > > Best wishes > Charles > > Quoting Jason Neyers : > >> Dear Charles: >> >> The answer to your question depends, of course, on the principle =20 >> underlying disorgement. For those of us who buy the CJ =20 >> justification for disgorgement there are good reasons why fraud =20 >> will not support that remedy. >> >> Also, the older cases you mention seem more consistent with the =20 >> fraud destroying the underlying juristic reason for the transaction =20 >> and therefore with restitution for UE following rather than =20 >> supporting for disgorgement for wrongs. >> >> Cheers, >> >> ----- Original Message ----- >> From: Charles Mitchell >> Date: Friday, November 23, 2007 8:46 am >> Subject: RE: deceit: damages and account >> To: davidcheifetz@rogers.com >> Cc: 'Andrew Tettenborn' , =20 >> obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >>> Andrew, David: Thanks for pointing us to these interesting >>> cases. On >>> the question whether a gain-based remedy should be available for >>> the >>> tort of deceit, I always find myself asking - why not? In >>> Renault the >>> judge did offer a reason, viz that the claimant had not only >>> suffered >>> no loss but had in fact made a profit itself. I?m not sure >>> whether >>> that?s necessarily a clincher, but it would be interesting to >>> hear >>> what other people think. >>> >>> The judge?s other reason in Renault was that Arden LJ had >>> previously >>> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >>> profits >>> isn?t available to victims of deceit, but I doubt whether much >>> weight >>> should be attached to that. At first instance in Murad the >>> claim was >>> allowed both on the basis that the claimants could have a gain- >>> based >>> remedy for the tort of deceit and on the basis that the >>> defendant had >>> to disgorge the profits of his breach of fiduciary duty. >>> The CA >>> allowed the claim on the second basis and its?s not clear to me >>> that >>> any members of the court thought it necessary to decide whether >>> the >>> claim based on deceit was also available. >>> >>> Halifax Building Society v Thomas [1996] Ch 217 also contains a >>> dictum >>> that an account of profits isn?t available to victims of deceit - >>> but >>> that case was actually decided on the basis that the clamant >>> could not >>> ask for a gain-based remedy founded on the tort of deceit once >>> it had >>> affirmed the contract which had been induced by D?s >>> fraudulent >>> misrepresentation (a similar finding was made in the much >>> earlier case >>> of Selway v Fogg (1839) 5 M & W 83). >>> >>> So it seems to me that there still isn?t any clear English >>> authority >>> that as a general rule victims of deceit cannot claim a gain- >>> based >>> remedy; in principle it seems to me that this wouldn?t be a good >>> rule >>> for English law to have; and looking back there are many older >>> cases >>> which say exactly the opposite, since they hold that a victim >>> of >>> deceit who is fraudulently induced to part with money can waive >>> the >>> tort and bring an action for money had and received: e.g. Hill >>> v >>> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >>> 369; >>> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >>> 1 El & >>> Bl 795 at 800. >>> >>> Best wishes >>> Charles >>> >>> >>> >>> >>> >>> >>> >>> Quoting David Cheifetz : >>> >>>> Andrew, >>>> >>>> Compare the opposite result - bad guys had to cough up the >>> profit - in 3Com >>>> Corporation v. Zorin International Corporation, 2006 CanLII >>> 18351 (ON C.A.) >>>> >>> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii1835= 1.ht> =20 >>> m >>>> >>>> The defendants obtained a cheaper price for computers from >>> 3Com by telling >>>> the distributor that the computers were intended for market X. >>> They were >>>> sold in market Y for a higher price. The evidence was also >>> that 3Com >>>> couldn't have sold the computers at the higher price. >>> Defendants were held >>>> liable for the extra profit. >>>> >>>> Cheers, >>>> >>>> David Cheifetz >>>> >>>> >>>> -----Original Message----- >>>> From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >>>> Sent: November 23, 2007 6:27 AM >>>> To: obligations@uwo.ca >>>> Subject: deceit: damages and account >>>> >>>> A nice little case in the English QBD that may have passed >>> list members by. >>>> [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >>> [2007] EWHC 2541 >>>> (QB).] >>>> >>>> The makers of Renault cars operated a discount scheme in >>> favour of members >>>> of BALPA (a labour union): the scheme was operated by >>> Fleetpro, who ordered >>>> the cars. Under the scheme orders were sent to the Renault >>>> importers: they sent them to Renault in France, whereupon as >>> and when orders >>>> came in Renault manufactured the necessary cars and shipped them. >>>> >>>> Fleetpro did the natural thing and ordered 217 discounted cars >>> for ordinary >>>> customers who they knew had nothing to do with BALPA. The cars >>> were shipped: >>>> the importers made a profit on them, but (because they gave a >>> rebate to the >>>> dealer involved) less than the profit they would have made on >>> cars not >>>> covered by the scheme. The importers sued Fleetpro for deceit, >>> and won on >>>> liability. On damages, however, held: >>>> >>>> (1) the importers had proved no loss, i.e. they hadn't proved >>> the sales came >>>> other than as extra sales, or that they'd otherwise have >>> persuaded customers >>>> to buy their standard (over) priced cars. (2) There was no >>> jurisdiction,> absent a fiduciary relationship) to award an >>> account of profits against >>>> Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >>>> >>>> The latter holding seems particularly interesting. >>>> >>>> >>>> Best >>>> >>>> A >>>> >>>> -- >>>> Andrew Tettenborn MA LLB >>>> Bracton Professor of Law >>>> University of Exeter, England >>>> >>>> >>>> >>> Tel: 01392-263189 / +44-392-263189 (outside UK) >>>> Cellphone: 07870- >>> 130528 / +44-7870-130528 (outside UK) >>>> >>> Fax: 01392-263196 / +44-392-263196 (outside UK) >>>> >>>> Snailmail: School of Law, >>>> University of Exeter, >>>> Amory Building, >>>> Rennes Drive, >>>> Exeter EX4 4RJ >>>> England >>>> >>>> Exeter Law School homepage: http://www.law.ex.ac.uk >>>> My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >>>> >>>> >>>> >>>> >>>> >>>> LAWYER, n. One skilled in circumvention of the law (Ambrose >>> Bierce, 1906). >>>> >>>> >>>> >>>> >>> >>> >>> >>> -- >>> Charles Mitchell >>> charles.mitchell@kcl.ac.uk >>> >>> >> >> -- >> Jason Neyers >> Associate Professor of Law >> Faculty of Law >> University of Western Ontario >> N6A 3K7 >> (519) 661-2111 x. 88435 >> > > > > --=20 > Charles Mitchell > charles.mitchell@kcl.ac.uk > > ____________________________________________________________________ > 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 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 23 Nov 2007 16:12:17 +0200 Reply-To: Tsachi Keren-Paz Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Tsachi Keren-Paz Subject: Re: deceit: damages and account Comments: To: Charles Mitchell MIME-Version: 1.0 Content-Type: text/plain; format=flowed; charset="iso-8859-1"; reply-type=response Content-Transfer-Encoding: 7bit CJ = corrective justice Dr. Tsachi Keren-Paz School of Law Keele University Staffordshire ST5 5BG England Office: CBC 2.015 Phone: 01782 584358 Email: t.kerenpaz@law.keele.ac.uk http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm ----- Original Message ----- From: "Charles Mitchell" To: Sent: Friday, November 23, 2007 6:07 PM Subject: Re: [RDG] deceit: damages and account I'm sorry, Jason, I know I'm being thick but I?ve been racking my brains and I can't think what CJ means - in mitigation it's Friday afternoon - but when you tell me I'll give myself three kicks. So far as your 2nd point goes, I don't think that it's consistent with the HL's explanation of waiver of tort in United Australia Ltd v Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon LC: ?Where "waiving the tort" was possible, it was nothing more than a choice between possible remedies [sc: for the tort] derived from a time when it was not permitted to combine them or to pursue them in the alternative, and when there were procedural advantages in selecting the form of assumpsit.? And again at 18: ?When the plaintiff "waived the tort" and brought assumpsit, he did not thereby elect to be treated from that time forward on the basis that no tort had been committed; indeed, if it were to be understood that no tort had been committed, how could an action in assumpsit lie? It lies only because the acquisition of the defendant is wrongful and there is thus an obligation to make restitution.? Lord Atkin says the same at 27-9. Also as you know we do not believe in absence of juristic reason in England - at any rate Lord Hoffmann does not although the higher authority of P Birks and now R Stevens may yet win the day. Best wishes Charles Quoting Jason Neyers : > Dear Charles: > > The answer to your question depends, of course, on the principle > underlying disorgement. For those of us who buy the CJ justification for > disgorgement there are good reasons why fraud will not support that > remedy. > > Also, the older cases you mention seem more consistent with the fraud > destroying the underlying juristic reason for the transaction and > therefore with restitution for UE following rather than supporting for > disgorgement for wrongs. > > Cheers, > > ----- Original Message ----- > From: Charles Mitchell > Date: Friday, November 23, 2007 8:46 am > Subject: RE: deceit: damages and account > To: davidcheifetz@rogers.com > Cc: 'Andrew Tettenborn' , > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> Andrew, David: Thanks for pointing us to these interesting >> cases. On >> the question whether a gain-based remedy should be available for >> the >> tort of deceit, I always find myself asking - why not? In >> Renault the >> judge did offer a reason, viz that the claimant had not only >> suffered >> no loss but had in fact made a profit itself. I?m not sure >> whether >> that?s necessarily a clincher, but it would be interesting to >> hear >> what other people think. >> >> The judge?s other reason in Renault was that Arden LJ had >> previously >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >> profits >> isn?t available to victims of deceit, but I doubt whether much >> weight >> should be attached to that. At first instance in Murad the >> claim was >> allowed both on the basis that the claimants could have a gain- >> based >> remedy for the tort of deceit and on the basis that the >> defendant had >> to disgorge the profits of his breach of fiduciary duty. >> The CA >> allowed the claim on the second basis and its?s not clear to me >> that >> any members of the court thought it necessary to decide whether >> the >> claim based on deceit was also available. >> >> Halifax Building Society v Thomas [1996] Ch 217 also contains a >> dictum >> that an account of profits isn?t available to victims of deceit - >> but >> that case was actually decided on the basis that the clamant >> could not >> ask for a gain-based remedy founded on the tort of deceit once >> it had >> affirmed the contract which had been induced by D?s >> fraudulent >> misrepresentation (a similar finding was made in the much >> earlier case >> of Selway v Fogg (1839) 5 M & W 83). >> >> So it seems to me that there still isn?t any clear English >> authority >> that as a general rule victims of deceit cannot claim a gain- >> based >> remedy; in principle it seems to me that this wouldn?t be a good >> rule >> for English law to have; and looking back there are many older >> cases >> which say exactly the opposite, since they hold that a victim >> of >> deceit who is fraudulently induced to part with money can waive >> the >> tort and bring an action for money had and received: e.g. Hill >> v >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >> 369; >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >> 1 El & >> Bl 795 at 800. >> >> Best wishes >> Charles >> >> >> >> >> >> >> >> Quoting David Cheifetz : >> >> > Andrew, >> > >> > Compare the opposite result - bad guys had to cough up the >> profit - in 3Com >> > Corporation v. Zorin International Corporation, 2006 CanLII >> 18351 (ON C.A.) >> > >> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351.ht> >> m >> > >> > The defendants obtained a cheaper price for computers from >> 3Com by telling >> > the distributor that the computers were intended for market X. >> They were >> > sold in market Y for a higher price. The evidence was also >> that 3Com >> > couldn't have sold the computers at the higher price. >> Defendants were held >> > liable for the extra profit. >> > >> > Cheers, >> > >> > David Cheifetz >> > >> > >> > -----Original Message----- >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> > Sent: November 23, 2007 6:27 AM >> > To: obligations@uwo.ca >> > Subject: deceit: damages and account >> > >> > A nice little case in the English QBD that may have passed >> list members by. >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> [2007] EWHC 2541 >> > (QB).] >> > >> > The makers of Renault cars operated a discount scheme in >> favour of members >> > of BALPA (a labour union): the scheme was operated by >> Fleetpro, who ordered >> > the cars. Under the scheme orders were sent to the Renault >> > importers: they sent them to Renault in France, whereupon as >> and when orders >> > came in Renault manufactured the necessary cars and shipped them. >> > >> > Fleetpro did the natural thing and ordered 217 discounted cars >> for ordinary >> > customers who they knew had nothing to do with BALPA. The cars >> were shipped: >> > the importers made a profit on them, but (because they gave a >> rebate to the >> > dealer involved) less than the profit they would have made on >> cars not >> > covered by the scheme. The importers sued Fleetpro for deceit, >> and won on >> > liability. On damages, however, held: >> > >> > (1) the importers had proved no loss, i.e. they hadn't proved >> the sales came >> > other than as extra sales, or that they'd otherwise have >> persuaded customers >> > to buy their standard (over) priced cars. (2) There was no >> jurisdiction,> absent a fiduciary relationship) to award an >> account of profits against >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> > >> > The latter holding seems particularly interesting. >> > >> > >> > Best >> > >> > A >> > >> > -- >> > Andrew Tettenborn MA LLB >> > Bracton Professor of Law >> > University of Exeter, England >> > >> > >> > >> Tel: 01392-263189 / +44-392-263189 (outside UK) >> > Cellphone: 07870- >> 130528 / +44-7870-130528 (outside UK) >> > >> Fax: 01392-263196 / +44-392-263196 (outside UK) >> > >> > Snailmail: School of Law, >> > University of Exeter, >> > Amory Building, >> > Rennes Drive, >> > Exeter EX4 4RJ >> > England >> > >> > Exeter Law School homepage: http://www.law.ex.ac.uk >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> > >> > >> > >> > >> > >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >> Bierce, 1906). >> > >> > >> > >> > >> >> >> >> -- >> Charles Mitchell >> charles.mitchell@kcl.ac.uk >> >> > > -- > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > -- Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Fri, 23 Nov 2007 11:28:38 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: deceit: damages and account Comments: To: Charles Mitchell Comments: cc: obligations@uwo.ca In-Reply-To: <20071123160731.pzawequvk8c8kcsk@impmail.kcl.ac.uk> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_2VCGGudNbkIZaKqd3ZvW0g)" This is a multi-part message in MIME format. --Boundary_(ID_2VCGGudNbkIZaKqd3ZvW0g) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline Dear Charles: Corrective Justice, sorry to have been so lazy. English law does believe in juristic reasons (since it is the most coherent generalization of the liability imposed) it just hasn't explicitly caught up to what is implicit in itself yet. :). Think of negligence law immediately prior to DvS. A history question (since I am painfully ignorant of these matters): when plaintiffs asked for money had and received in the 1800s cases cited were they limited to the amount that they gave (restitution for UE) or could they also get the gain from whatever source (restitution for wrongs/disgorgement)? From the winter wonderland that is London, Ontario. ----- Original Message ----- From: Charles Mitchell Date: Friday, November 23, 2007 11:10 am Subject: Re: RE: deceit: damages and account To: Jason Neyers Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > I'm sorry, Jason, I know I'm being thick but I?ve been racking > my > brains and I can't think what CJ means - in mitigation it's > Friday > afternoon - but when you tell me I'll give myself three kicks. > > So far as your 2nd point goes, I don't think that it's > consistent with > the HL's explanation of waiver of tort in United Australia Ltd > v > Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon > LC: > ?Where "waiving the tort" was possible, it was nothing more than > a > choice between possible remedies [sc: for the tort] derived from > a > time when it was not permitted to combine them or to pursue them > in > the alternative, and when there were procedural advantages > in > selecting the form of assumpsit.? And again at 18: ?When > the > plaintiff "waived the tort" and brought assumpsit, he did not > thereby > elect to be treated from that time forward on the basis that no > tort > had been committed; indeed, if it were to be understood that no > tort > had been committed, how could an action in assumpsit lie? It > lies only > because the acquisition of the defendant is wrongful and there > is thus > an obligation to make restitution.? Lord Atkin says the > same at 27-9. > > Also as you know we do not believe in absence of juristic reason > in > England - at any rate Lord Hoffmann does not although the > higher > authority of P Birks and now R Stevens may yet win the day. > > Best wishes > Charles > > Quoting Jason Neyers : > > > Dear Charles: > > > > The answer to your question depends, of course, on the > principle > > underlying disorgement. For those of us who buy the CJ > justification > > for disgorgement there are good reasons why fraud will > not support > > that remedy. > > > > Also, the older cases you mention seem more consistent with > the > > fraud destroying the underlying juristic reason for the > transaction > > and therefore with restitution for UE following rather > than > > supporting for disgorgement for wrongs. > > > > Cheers, > > > > ----- Original Message ----- > > From: Charles Mitchell > > Date: Friday, November 23, 2007 8:46 am > > Subject: RE: deceit: damages and account > > To: davidcheifetz@rogers.com > > Cc: 'Andrew Tettenborn' > , > > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > > > >> Andrew, David: Thanks for pointing us to these interesting > >> cases. On > >> the question whether a gain-based remedy should be available for > >> the > >> tort of deceit, I always find myself asking - why not? In > >> Renault the > >> judge did offer a reason, viz that the claimant had not only > >> suffered > >> no loss but had in fact made a profit itself. I?m not sure > >> whether > >> that?s necessarily a clincher, but it would be interesting to > >> hear > >> what other people think. > >> > >> The judge?s other reason in Renault was that Arden LJ had > >> previously > >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of > >> profits > >> isn?t available to victims of deceit, but I doubt whether much > >> weight > >> should be attached to that. At first instance in Murad the > >> claim was > >> allowed both on the basis that the claimants could have a > gain- > >> based > >> remedy for the tort of deceit and on the basis that the > >> defendant had > >> to disgorge the profits of his breach of fiduciary duty. > >> The CA > >> allowed the claim on the second basis and its?s not clear to me > >> that > >> any members of the court thought it necessary to decide whether > >> the > >> claim based on deceit was also available. > >> > >> Halifax Building Society v Thomas [1996] Ch 217 also contains a > >> dictum > >> that an account of profits isn?t available to victims of > deceit - > >> but > >> that case was actually decided on the basis that the clamant > >> could not > >> ask for a gain-based remedy founded on the tort of deceit once > >> it had > >> affirmed the contract which had been induced by D?s > >> fraudulent > >> misrepresentation (a similar finding was made in the much > >> earlier case > >> of Selway v Fogg (1839) 5 M & W 83). > >> > >> So it seems to me that there still isn?t any clear English > >> authority > >> that as a general rule victims of deceit cannot claim a gain- > >> based > >> remedy; in principle it seems to me that this wouldn?t be a good > >> rule > >> for English law to have; and looking back there are many older > >> cases > >> which say exactly the opposite, since they hold that a victim > >> of > >> deceit who is fraudulently induced to part with money can waive > >> the > >> tort and bring an action for money had and received: e.g. Hill > >> v > >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B > >> 369; > >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) > >> 1 El & > >> Bl 795 at 800. > >> > >> Best wishes > >> Charles > >> > >> > >> > >> > >> > >> > >> > >> Quoting David Cheifetz : > >> > >> > Andrew, > >> > > >> > Compare the opposite result - bad guys had to cough up the > >> profit - in 3Com > >> > Corporation v. Zorin International Corporation, 2006 CanLII > >> 18351 (ON C.A.) > >> > > >> > http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351.ht> > >> m > >> > > >> > The defendants obtained a cheaper price for computers from > >> 3Com by telling > >> > the distributor that the computers were intended for market X. > >> They were > >> > sold in market Y for a higher price. The evidence was also > >> that 3Com > >> > couldn't have sold the computers at the higher price. > >> Defendants were held > >> > liable for the extra profit. > >> > > >> > Cheers, > >> > > >> > David Cheifetz > >> > > >> > > >> > -----Original Message----- > >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] > >> > Sent: November 23, 2007 6:27 AM > >> > To: obligations@uwo.ca > >> > Subject: deceit: damages and account > >> > > >> > A nice little case in the English QBD that may have passed > >> list members by. > >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor > >> [2007] EWHC 2541 > >> > (QB).] > >> > > >> > The makers of Renault cars operated a discount scheme in > >> favour of members > >> > of BALPA (a labour union): the scheme was operated by > >> Fleetpro, who ordered > >> > the cars. Under the scheme orders were sent to the Renault > >> > importers: they sent them to Renault in France, whereupon as > >> and when orders > >> > came in Renault manufactured the necessary cars and shipped them. > >> > > >> > Fleetpro did the natural thing and ordered 217 discounted cars > >> for ordinary > >> > customers who they knew had nothing to do with BALPA. The cars > >> were shipped: > >> > the importers made a profit on them, but (because they gave a > >> rebate to the > >> > dealer involved) less than the profit they would have made on > >> cars not > >> > covered by the scheme. The importers sued Fleetpro for deceit, > >> and won on > >> > liability. On damages, however, held: > >> > > >> > (1) the importers had proved no loss, i.e. they hadn't proved > >> the sales came > >> > other than as extra sales, or that they'd otherwise have > >> persuaded customers > >> > to buy their standard (over) priced cars. (2) There was no > >> jurisdiction,> absent a fiduciary relationship) to award an > >> account of profits against > >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. > >> > > >> > The latter holding seems particularly interesting. > >> > > >> > > >> > Best > >> > > >> > A > >> > > >> > -- > >> > Andrew Tettenborn MA LLB > >> > Bracton Professor of Law > >> > University of Exeter, England > >> > > >> > > >> > > >> > Tel: 01392-263189 / +44-392-263189 (outside UK) > >> > Cellphone: 07870- > >> 130528 / +44-7870-130528 (outside UK) > >> > > >> > Fax: 01392-263196 / +44-392-263196 (outside UK) > >> > > >> > Snailmail: School of Law, > >> > > University of Exeter, > >> > > Amory Building, > >> > > Rennes Drive, > >> > > Exeter EX4 4RJ > >> > > England > >> > > >> > Exeter Law School homepage: http://www.law.ex.ac.uk > >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml > >> > > >> > > >> > > >> > > >> > > >> > LAWYER, n. One skilled in circumvention of the law (Ambrose > >> Bierce, 1906). > >> > > >> > > >> > > >> > > >> > >> > >> > >> -- > >> Charles Mitchell > >> charles.mitchell@kcl.ac.uk > >> > >> > > > > -- > > Jason Neyers > > Associate Professor of Law > > Faculty of Law > > University of Western Ontario > > N6A 3K7 > > (519) 661-2111 x. 88435 > > > > > > -- > Charles Mitchell > charles.mitchell@kcl.ac.uk > > -- Jason Neyers 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_2VCGGudNbkIZaKqd3ZvW0g) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EDear Charles=3A =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ECorrective Justice=2C sorry to have been so lazy=2E =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EEnglish law does believe in juristic=26nbsp=3Breasons (since it= is the most coherent generalization of the=26nbsp=3Bliability=26nbsp=3B= imposed)=26nbsp=3Bit just hasn=27t explicitly caught up to what is impli= cit=26nbsp=3Bin itself yet=2E =3A)=2E Think of negligence law immediatel= y prior to =3CEM=3EDvS=3C/EM=3E=2E =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EA history question (since I am painfully ignorant of these matt= ers)=3A when plaintiffs asked for money had and received in the 1800s ca= ses cited were they limited to the amount that they gave (restitution fo= r UE) or could they also get the gain from whatever source (restitution = for wrongs/disgorgement)=3F =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EFrom the winter wonderland that is London=2C Ontario=2E=3C/DIV=3E= =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3EF= rom=3A Charles Mitchell =26lt=3Bcharles=2Emitchell=40kcl=2Eac=2Euk=26gt=3B= =3CBR=3EDate=3A Friday=2C November 23=2C 2007 11=3A10 am=3CBR=3ESubject=3A= Re=3A RE=3A deceit=3A damages and account=3CBR=3ETo=3A Jason Neyers=26n= bsp=3B=26lt=3Bjneyers=40uwo=2Eca=26gt=3B=3CBR=3ECc=3A obligations=40uwo=2E= ca=2C ENRICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=3CBR=3E=26gt=3B I=27m sor= ry=2C Jason=2C I know I=27m being thick but I=3Fve=26nbsp=3Bbeen racking= =3CBR=3E=26gt=3B my=26nbsp=3B =3CBR=3E=26gt=3B brains and I can=27t thi= nk what CJ=26nbsp=3Bmeans - in mitigation it=27s =3CBR=3E=26gt=3B Friday= =26nbsp=3B =3CBR=3E=26gt=3B afternoon - but when you tell me I=27ll give= myself three kicks=2E=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B So far as your 2= nd point goes=2C I don=27t think that it=27s =3CBR=3E=26gt=3B consistent= with=26nbsp=3B =3CBR=3E=26gt=3B the HL=27s=26nbsp=3Bexplanation of waiv= er of tort in United Australia Ltd =3CBR=3E=26gt=3B v=26nbsp=3B =3CBR=3E= =26gt=3B Barclays=26nbsp=3BBank Ltd =5B1941=5D AC 1=2C e=2Eg=2E at 13 pe= r Viscount Simon =3CBR=3E=26gt=3B LC=3A=26nbsp=3B =3CBR=3E=26gt=3B =3FWh= ere =22waiving the tort=22 was possible=2C it was nothing more than =3CB= R=3E=26gt=3B a=26nbsp=3B =3CBR=3E=26gt=3B choice between possible remedi= es =5Bsc=3A for the tort=5D derived from =3CBR=3E=26gt=3B a=26nbsp=3B =3C= BR=3E=26gt=3B time when it was not permitted to combine them or to pursu= e them =3CBR=3E=26gt=3B in=26nbsp=3B =3CBR=3E=26gt=3B the alternative=2C= and when there were procedural advantages =3CBR=3E=26gt=3B in=26nbsp=3B= =3CBR=3E=26gt=3B selecting the form of assumpsit=2E=3F=26nbsp=3B And ag= ain at 18=3A =3FWhen =3CBR=3E=26gt=3B the=26nbsp=3B =3CBR=3E=26gt=3B pla= intiff =22waived the tort=22 and brought assumpsit=2C he did not =3CBR=3E= =26gt=3B thereby=26nbsp=3B =3CBR=3E=26gt=3B elect to be treated from tha= t time forward on the basis that no =3CBR=3E=26gt=3B tort=26nbsp=3B =3CB= R=3E=26gt=3B had been committed=3B indeed=2C if it were to be understood= that no =3CBR=3E=26gt=3B tort=26nbsp=3B =3CBR=3E=26gt=3B had been commi= tted=2C how could an action in assumpsit lie=3F It =3CBR=3E=26gt=3B lies= only=26nbsp=3B =3CBR=3E=26gt=3B because the acquisition of the defendan= t is wrongful and there =3CBR=3E=26gt=3B is thus=26nbsp=3B =3CBR=3E=26gt= =3B an obligation to make restitution=2E=3F=26nbsp=3B Lord Atkin says th= e =3CBR=3E=26gt=3B same at 27-9=2E=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Also= as you know we do not believe in absence of juristic reason =3CBR=3E=26= gt=3B in=26nbsp=3B =3CBR=3E=26gt=3B England - at any rate Lord Hoffmann = does not although the =3CBR=3E=26gt=3B higher=26nbsp=3B =3CBR=3E=26gt=3B= authority of P Birks and now R Stevens may yet win the day=2E=3CBR=3E=26= gt=3B =3CBR=3E=26gt=3B Best wishes=3CBR=3E=26gt=3B Charles=3CBR=3E=26gt=3B= =3CBR=3E=26gt=3B Quoting Jason Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B= =3A=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =26gt=3B Dear Charles=3A=3CBR=3E=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B The answer to your question depe= nds=2C of course=2C on the =3CBR=3E=26gt=3B principle=26nbsp=3B=26nbsp=3B= =3CBR=3E=26gt=3B =26gt=3B underlying disorgement=2E For those of us who= buy the CJ =3CBR=3E=26gt=3B justification=26nbsp=3B =3CBR=3E=26gt=3B =26= gt=3B=26nbsp=3B for disgorgement there are good reasons why fraud will =3C= BR=3E=26gt=3B not support=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B = that remedy=2E=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Also=2C= the older cases you mention seem more consistent with =3CBR=3E=26gt=3B = the=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B fraud destroying the u= nderlying juristic reason for the =3CBR=3E=26gt=3B transaction=26nbsp=3B= =26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B and therefore with restitution for = UE following rather =3CBR=3E=26gt=3B than=26nbsp=3B=26nbsp=3B =3CBR=3E=26= gt=3B =26gt=3B supporting for disgorgement for wrongs=2E=3CBR=3E=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Cheers=2C=3CBR=3E=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B ----- Original Message -----=3CBR=3E=26gt=3B =26g= t=3B From=3A Charles Mitchell =26lt=3Bcharles=2Emitchell=40kcl=2Eac=2Euk= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B Date=3A Friday=2C November 23=2C 2007 = 8=3A46 am=3CBR=3E=26gt=3B =26gt=3B Subject=3A RE=3A deceit=3A damages an= d account=3CBR=3E=26gt=3B =26gt=3B To=3A davidcheifetz=40rogers=2Ecom=3C= BR=3E=26gt=3B =26gt=3B Cc=3A =27Andrew Tettenborn=27 =3CBR=3E=26gt=3B =26= lt=3BA=2EM=2ETettenborn=40exeter=2Eac=2Euk=26gt=3B=2C=26nbsp=3B=26nbsp=3B= =3CBR=3E=26gt=3B =26gt=3B obligations=40uwo=2Eca=2C ENRICHMENT=40LISTS=2E= MCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B An= drew=2C David=3A Thanks for pointing us to these interesting=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B cases=2E=26nbsp=3B On=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B the question whether a gain-based remedy should be available for=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B tort= of deceit=2C I always find myself asking - why not=3F=26nbsp=3B In=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B Renault the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= judge did offer a reason=2C viz that the claimant had not only=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B suffered=3CBR=3E=26gt=3B =26gt=3B=26gt=3B no loss= but had in fact made a profit itself=2E=26nbsp=3B I=3Fm not sure=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B that=3F= s necessarily a clincher=2C but it would be interesting to=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B hear=3CBR=3E=26gt=3B =26gt=3B=26gt=3B what other peopl= e think=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B The judge=3Fs other reason in Renault was that Arden LJ had=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B previously=3CBR=3E=26gt=3B =26gt=3B=26gt=3B sa= id in Murad v Al-Saraj =5B2005=5D WTLR 1573 that an account of=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B profits=3CBR=3E=26gt=3B =26gt=3B=26gt=3B isn=3Ft = available to victims of deceit=2C but I doubt whether much=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B weight=3CBR=3E=26gt=3B =26gt=3B=26gt=3B should be atta= ched to that=2E=26nbsp=3B At first instance in Murad the=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B claim was=3CBR=3E=26gt=3B =26gt=3B=26gt=3B allowed bot= h on the basis that the claimants could have a =3CBR=3E=26gt=3B gain-=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B based=3CBR=3E=26gt=3B =26gt=3B=26gt=3B re= medy for the tort of deceit and on the basis that the=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B defendant had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B to disgorge= the profits of his breach of fiduciary duty=2E=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B The CA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B allowed the claim on th= e second basis and its=3Fs not clear to me=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B that=3CBR=3E=26gt=3B =26gt=3B=26gt=3B any members of the court thoug= ht it necessary to decide whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B the=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B claim based on deceit was also available=2E= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Halif= ax Building Society v Thomas =5B1996=5D Ch 217 also contains a=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B dictum=3CBR=3E=26gt=3B =26gt=3B=26gt=3B that an a= ccount of profits isn=3Ft available to victims of =3CBR=3E=26gt=3B decei= t -=3CBR=3E=26gt=3B =26gt=3B=26gt=3B but=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= that case was actually decided on the basis that the clamant=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B could not=3CBR=3E=26gt=3B =26gt=3B=26gt=3B ask fo= r a gain-based remedy founded on the tort of deceit once=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B it had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B affirmed the c= ontract which had been induced by D=3Fs=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= fraudulent=3CBR=3E=26gt=3B =26gt=3B=26gt=3B misrepresentation (a simila= r finding was made in the much=3CBR=3E=26gt=3B =26gt=3B=26gt=3B earlier = case=3CBR=3E=26gt=3B =26gt=3B=26gt=3B of Selway v Fogg (1839) 5 M =26amp= =3B W 83)=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B So it seems to me that there still isn=3Ft any clear English=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B authority=3CBR=3E=26gt=3B =26gt=3B=26gt=3B tha= t as a general rule victims of deceit cannot claim a gain-=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B based=3CBR=3E=26gt=3B =26gt=3B=26gt=3B remedy=3B in pr= inciple it seems to me that this wouldn=3Ft be a good=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B rule=3CBR=3E=26gt=3B =26gt=3B=26gt=3B for English law to h= ave=3B and looking back there are many older=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B cases=3CBR=3E=26gt=3B =26gt=3B=26gt=3B which say exactly the oppos= ite=2C since they hold that a victim=3CBR=3E=26gt=3B =26gt=3B=26gt=3B of= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B deceit who is fraudulently induced to = part with money can waive=3CBR=3E=26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B tort and bring an action for money had and receiv= ed=3A e=2Eg=2E Hill=3CBR=3E=26gt=3B =26gt=3B=26gt=3B v=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B Perrott (1810) 3 Taunt 274=3B Abbotts v Barry (1820) 2 Bro= d =26amp=3B B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 369=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B Edmeads v Newman (1823) 1 B =26amp=3B C 418 at 422-3=3B Ho= lt v Ely (1853)=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 1 El =26amp=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B Bl 795 at 800=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B Best wishes=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B Charles=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Quoting David Ch= eifetz =26lt=3Bdavidcheifetz=40rogers=2Ecom=26gt=3B=3A=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B Andrew=2C=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B Compare the opposite result - bad guys had to cough up the=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B profit - in 3Com=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B Corporation v=2E Zorin International Corporation=2C 2006 CanLI= I=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 18351 (ON C=2EA=2E)=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B= http=3A//www=2Ecanlii=2Eorg/en/on/onca/doc/2006/2006canlii18351/2006can= lii18351=2Eht=26gt=3B=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt= =3B m=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B The defendants obtained a cheaper price for computers = from=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 3Com by telling=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B the distributor that the computers were intended = for market X=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B They were=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B sold in market Y for a higher price=2E The ev= idence was also=3CBR=3E=26gt=3B =26gt=3B=26gt=3B that 3Com=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B couldn=27t have sold the computers at the hig= her price=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Defendants were held=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B liable for the extra profit=2E=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B Cheers=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B David Cheifetz=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B -----Original Message-----=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B From=3A Andrew Tettenborn =5Bmailto=3AA=2EM=2ETettenbo= rn=40exeter=2Eac=2Euk=5D=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B Sent=3A= November 23=2C 2007 6=3A27 AM=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= To=3A obligations=40uwo=2Eca=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B = Subject=3A deceit=3A damages and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B A nice little case i= n the English QBD that may have passed=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = list members by=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B =5BRenault = UK Ltd v=2E FleetPro Technical Services Ltd =26amp=3B Anor=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =5B2007=5D EWHC 2541=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B (QB)=2E=5D=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B The makers of Renault cars operated a di= scount scheme in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B favour of members=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B of BALPA (a labour union)=3A the s= cheme was operated by=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Fleetpro=2C who o= rdered=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B the cars=2E Under the s= cheme orders were sent to the Renault=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B importers=3A they sent them to Renault in France=2C whereupon as=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B and when orders=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B came in Renault manufactured the necessary cars and shipp= ed them=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B Fleetpro did the natural thing and ordered 217 di= scounted cars=3CBR=3E=26gt=3B =26gt=3B=26gt=3B for ordinary=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B customers who they knew had nothing to do = with BALPA=2E The cars=3CBR=3E=26gt=3B =26gt=3B=26gt=3B were shipped=3A=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B the importers made a profit on t= hem=2C but (because they gave a=3CBR=3E=26gt=3B =26gt=3B=26gt=3B rebate = to the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B dealer involved) less t= han the profit they would have made on=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = cars not=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B covered by the scheme= =2E The importers sued Fleetpro for deceit=2C=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B and won on=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B liability=2E = On damages=2C however=2C held=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B (1) the importers had proved = no loss=2C i=2Ee=2E they hadn=27t proved=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= the sales came=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B other than as = extra sales=2C or that they=27d otherwise have=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B persuaded customers=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B to b= uy their standard (over) priced cars=2E (2) There was no=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B jurisdiction=2C=26gt=3B absent a fiduciary relationshi= p) to award an=3CBR=3E=26gt=3B =26gt=3B=26gt=3B account of profits again= st=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B Fleetpro=2E Hence the latte= r kept a tidy (ill-gotten=3F) profit=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B The latter holding s= eems particularly interesting=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B Best=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B Andrew Tettenborn MA LLB=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B Bracton Professor of Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B University of Exeter=2C England=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B Tel=3A= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B 01392-263189=26nbsp=3B=26nbsp=3B=26nbsp=3B /=26= nbsp=3B=26nbsp=3B +44-392-263189 (outside UK)=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B Cellphone=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B 07870-=3CBR=3E=26gt=3B =26gt=3B=26gt=3B 130528=26nbsp=3B= =26nbsp=3B /=26nbsp=3B=26nbsp=3B +44-7870-130528 (outside UK)=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E= =26gt=3B Fax=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B 01392-263196=26nbsp=3B=26nbsp=3B=26nbsp=3B= /=26nbsp=3B=26nbsp=3B +44-392-263196 (outside UK)=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B Snailmail= =3A=26nbsp=3B=26nbsp=3B School of Law=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbs= p=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B U= niversity of Exeter=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B= =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Amory Building=2C= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Rennes Drive=2C=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B Exeter EX4 4RJ=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26= gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B England=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B Exe= ter Law School homepage=3A http=3A//www=2Elaw=2Eex=2Eac=2Euk=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B =26gt=3B My homepage=3A http=3A//www=2Elaw=2Eex=2E= ac=2Euk/staff/tettenborn=2Eshtml=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B LAWYER=2C= n=2E One skilled in circumvention of the law (Ambrose=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B Bierce=2C 1906)=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= Charles Mitchell=3CBR=3E=26gt=3B =26gt=3B=26gt=3B charles=2Emitchell=40= kcl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B --=3CB= R=3E=26gt=3B =26gt=3B Jason Neyers=3CBR=3E=26gt=3B =26gt=3B Associate Pr= ofessor of Law=3CBR=3E=26gt=3B =26gt=3B Faculty of Law=3CBR=3E=26gt=3B =26= gt=3B University of Western Ontario=3CBR=3E=26gt=3B =26gt=3B N6A 3K7=3CB= R=3E=26gt=3B =26gt=3B (519) 661-2111 x=2E 88435=3CBR=3E=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B -- =3C= BR=3E=26gt=3B Charles Mitchell=3CBR=3E=26gt=3B charles=2Emitchell=40kcl=2E= ac=2Euk=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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 . 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_2VCGGudNbkIZaKqd3ZvW0g)-- ========================================================================= Date: Fri, 23 Nov 2007 11:14:38 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: deceit: damages and account Comments: To: ODG In-Reply-To: Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3278661278_498327" > 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_3278661278_498327 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable On 23/11/07 10:45, "Jason Neyers" wrote: > For those of us who buy the CJ justification for disgorgement there are g= ood > reasons why fraud will not support that remedy. [CJ here means corrective justice.] Well, maybe not all of us. I tend to think I=B9m with Charles on this one, unless someone can show me that there is something about the right infringe= d in a case of deceit that necessarily confines recourse to the compensatory measure. But I suggest that the other point, about waiver, is a draw. Whatever Viscount Simon may have said in that context, there were many claims in assumpsit which did not depend on wrongdoing (all the common counts were assumpsit claims). 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, . --B_3278661278_498327 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Re: [RDG] deceit: damages and account
On 23/11/07 10:45, "Jason Neyers" wrote:
For those of us who buy the CJ justification for disgor= gement there are good reasons why fraud will not support that remedy.

[CJ here means corrective justice.]
Well, maybe not all of us. I tend to think I’m with Charles on this o= ne, unless someone can show me that there is something about the right infri= nged in a case of deceit that necessarily confines recourse to the compensat= ory measure.
But I suggest that the other point, about waiver, is a draw. Whatever Visco= unt Simon may have said in that context, there were many claims in assumpsit= which did not depend on wrongdoing (all the common counts were assumpsit cl= aims).

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, . --B_3278661278_498327-- ========================================================================= Date: Fri, 23 Nov 2007 17:04:59 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: ODG RE: deceit: damages and account Comments: To: Jason Neyers Comments: cc: obligations@uwo.ca In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable Picking up first on Lionel?s point re waiver, of course I have to =20 agree that the C19 judges were not asking themselves whether an action =20 for money had and received following a waiver of tort was a claim for =20 the profits of wrongdoing or a claim for restitution of UE. So when we =20 look back at the cases we must say that many are susceptible to =20 alternative analysis since the plaintiff made a mistake and the =20 quantum of the remedy would have been the same either way. But I like Jason?s suggestion that looking at the award may help us to =20 eliminate the UE explanation if we can show that this looked to gains =20 in D?s hands rather than the value of the assets transferred from P =20 where those two things were different. Is Abbotts v Barry like this? =20 D orchestrated a fraud pursuant to which his creature X induced P to =20 sell X wine which X then failed to pay for; X handed the wine over to =20 D, who sold it on; P claimed the sale proceeds in D?s hands as the =20 profits accruing from the fraud and recovered them as money had and =20 received. So far as the corrective justice point goes, I happily line up with =20 Lionel - which is why I take heart from Etherton J?s findings at first =20 instance in Murad at [342]-[347], despite Arden LJ?s negative line in =20 the CA. Best wishes Charles Quoting Jason Neyers : > Dear Charles: > > Corrective Justice, sorry to have been so lazy. > > English law does believe in juristic reasons (since it is the most =20 > coherent generalization of the liability imposed) it just hasn't =20 > explicitly caught up to what is implicit in itself yet. :). Think of =20 > negligence law immediately prior to DvS. > > A history question (since I am painfully ignorant of these matters): =20 > when plaintiffs asked for money had and received in the 1800s cases =20 > cited were they limited to the amount that they gave (restitution =20 > for UE) or could they also get the gain from whatever source =20 > (restitution for wrongs/disgorgement)? > > From the winter wonderland that is London, Ontario. > > > > ----- Original Message ----- > From: Charles Mitchell > Date: Friday, November 23, 2007 11:10 am > Subject: Re: RE: deceit: damages and account > To: Jason Neyers > Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> I'm sorry, Jason, I know I'm being thick but I?ve been racking >> my >> brains and I can't think what CJ means - in mitigation it's >> Friday >> afternoon - but when you tell me I'll give myself three kicks. >> >> So far as your 2nd point goes, I don't think that it's >> consistent with >> the HL's explanation of waiver of tort in United Australia Ltd >> v >> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >> LC: >> ?Where "waiving the tort" was possible, it was nothing more than >> a >> choice between possible remedies [sc: for the tort] derived from >> a >> time when it was not permitted to combine them or to pursue them >> in >> the alternative, and when there were procedural advantages >> in >> selecting the form of assumpsit.? And again at 18: ?When >> the >> plaintiff "waived the tort" and brought assumpsit, he did not >> thereby >> elect to be treated from that time forward on the basis that no >> tort >> had been committed; indeed, if it were to be understood that no >> tort >> had been committed, how could an action in assumpsit lie? It >> lies only >> because the acquisition of the defendant is wrongful and there >> is thus >> an obligation to make restitution.? Lord Atkin says the >> same at 27-9. >> >> Also as you know we do not believe in absence of juristic reason >> in >> England - at any rate Lord Hoffmann does not although the >> higher >> authority of P Birks and now R Stevens may yet win the day. >> >> Best wishes >> Charles >> >> Quoting Jason Neyers : >> >> > Dear Charles: >> > >> > The answer to your question depends, of course, on the >> principle >> > underlying disorgement. For those of us who buy the CJ >> justification >> > for disgorgement there are good reasons why fraud will >> not support >> > that remedy. >> > >> > Also, the older cases you mention seem more consistent with >> the >> > fraud destroying the underlying juristic reason for the >> transaction >> > and therefore with restitution for UE following rather >> than >> > supporting for disgorgement for wrongs. >> > >> > Cheers, >> > >> > ----- Original Message ----- >> > From: Charles Mitchell >> > Date: Friday, November 23, 2007 8:46 am >> > Subject: RE: deceit: damages and account >> > To: davidcheifetz@rogers.com >> > Cc: 'Andrew Tettenborn' >> , >> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> > >> >> Andrew, David: Thanks for pointing us to these interesting >> >> cases. On >> >> the question whether a gain-based remedy should be available for >> >> the >> >> tort of deceit, I always find myself asking - why not? In >> >> Renault the >> >> judge did offer a reason, viz that the claimant had not only >> >> suffered >> >> no loss but had in fact made a profit itself. I?m not sure >> >> whether >> >> that?s necessarily a clincher, but it would be interesting to >> >> hear >> >> what other people think. >> >> >> >> The judge?s other reason in Renault was that Arden LJ had >> >> previously >> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >> >> profits >> >> isn?t available to victims of deceit, but I doubt whether much >> >> weight >> >> should be attached to that. At first instance in Murad the >> >> claim was >> >> allowed both on the basis that the claimants could have a >> gain- >> >> based >> >> remedy for the tort of deceit and on the basis that the >> >> defendant had >> >> to disgorge the profits of his breach of fiduciary duty. >> >> The CA >> >> allowed the claim on the second basis and its?s not clear to me >> >> that >> >> any members of the court thought it necessary to decide whether >> >> the >> >> claim based on deceit was also available. >> >> >> >> Halifax Building Society v Thomas [1996] Ch 217 also contains a >> >> dictum >> >> that an account of profits isn?t available to victims of >> deceit - >> >> but >> >> that case was actually decided on the basis that the clamant >> >> could not >> >> ask for a gain-based remedy founded on the tort of deceit once >> >> it had >> >> affirmed the contract which had been induced by D?s >> >> fraudulent >> >> misrepresentation (a similar finding was made in the much >> >> earlier case >> >> of Selway v Fogg (1839) 5 M & W 83). >> >> >> >> So it seems to me that there still isn?t any clear English >> >> authority >> >> that as a general rule victims of deceit cannot claim a gain- >> >> based >> >> remedy; in principle it seems to me that this wouldn?t be a good >> >> rule >> >> for English law to have; and looking back there are many older >> >> cases >> >> which say exactly the opposite, since they hold that a victim >> >> of >> >> deceit who is fraudulently induced to part with money can waive >> >> the >> >> tort and bring an action for money had and received: e.g. Hill >> >> v >> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >> >> 369; >> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >> >> 1 El & >> >> Bl 795 at 800. >> >> >> >> Best wishes >> >> Charles >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> Quoting David Cheifetz : >> >> >> >> > Andrew, >> >> > >> >> > Compare the opposite result - bad guys had to cough up the >> >> profit - in 3Com >> >> > Corporation v. Zorin International Corporation, 2006 CanLII >> >> 18351 (ON C.A.) >> >> > >> >> >> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006canlii18351= .ht> >> >> m >> >> > >> >> > The defendants obtained a cheaper price for computers from >> >> 3Com by telling >> >> > the distributor that the computers were intended for market X. >> >> They were >> >> > sold in market Y for a higher price. The evidence was also >> >> that 3Com >> >> > couldn't have sold the computers at the higher price. >> >> Defendants were held >> >> > liable for the extra profit. >> >> > >> >> > Cheers, >> >> > >> >> > David Cheifetz >> >> > >> >> > >> >> > -----Original Message----- >> >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> >> > Sent: November 23, 2007 6:27 AM >> >> > To: obligations@uwo.ca >> >> > Subject: deceit: damages and account >> >> > >> >> > A nice little case in the English QBD that may have passed >> >> list members by. >> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> >> [2007] EWHC 2541 >> >> > (QB).] >> >> > >> >> > The makers of Renault cars operated a discount scheme in >> >> favour of members >> >> > of BALPA (a labour union): the scheme was operated by >> >> Fleetpro, who ordered >> >> > the cars. Under the scheme orders were sent to the Renault >> >> > importers: they sent them to Renault in France, whereupon as >> >> and when orders >> >> > came in Renault manufactured the necessary cars and shipped them. >> >> > >> >> > Fleetpro did the natural thing and ordered 217 discounted cars >> >> for ordinary >> >> > customers who they knew had nothing to do with BALPA. The cars >> >> were shipped: >> >> > the importers made a profit on them, but (because they gave a >> >> rebate to the >> >> > dealer involved) less than the profit they would have made on >> >> cars not >> >> > covered by the scheme. The importers sued Fleetpro for deceit, >> >> and won on >> >> > liability. On damages, however, held: >> >> > >> >> > (1) the importers had proved no loss, i.e. they hadn't proved >> >> the sales came >> >> > other than as extra sales, or that they'd otherwise have >> >> persuaded customers >> >> > to buy their standard (over) priced cars. (2) There was no >> >> jurisdiction,> absent a fiduciary relationship) to award an >> >> account of profits against >> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> >> > >> >> > The latter holding seems particularly interesting. >> >> > >> >> > >> >> > Best >> >> > >> >> > A >> >> > >> >> > -- >> >> > Andrew Tettenborn MA LLB >> >> > Bracton Professor of Law >> >> > University of Exeter, England >> >> > >> >> > >> >> > >> >> >> Tel: 01392-263189 / +44-392-263189 (outside UK) >> >> > Cellphone: 07870- >> >> 130528 / +44-7870-130528 (outside UK) >> >> > >> >> >> Fax: 01392-263196 / +44-392-263196 (outside UK) >> >> > >> >> > Snailmail: School of Law, >> >> >> > University of Exeter, >> >> >> > Amory Building, >> >> >> > Rennes Drive, >> >> >> > Exeter EX4 4RJ >> >> >> > England >> >> > >> >> > Exeter Law School homepage: http://www.law.ex.ac.uk >> >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> >> > >> >> > >> >> > >> >> > >> >> > >> >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >> >> Bierce, 1906). >> >> > >> >> > >> >> > >> >> > >> >> >> >> >> >> >> >> -- >> >> Charles Mitchell >> >> charles.mitchell@kcl.ac.uk >> >> >> >> >> > >> > -- >> > Jason Neyers >> > Associate Professor of Law >> > Faculty of Law >> > University of Western Ontario >> > N6A 3K7 >> > (519) 661-2111 x. 88435 >> > >> >> >> >> -- >> Charles Mitchell >> charles.mitchell@kcl.ac.uk >> >> > > -- > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > --=20 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 23 Nov 2007 12:04:38 -0500 Reply-To: nguthrie@OSC.GOV.ON.CA Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Guthrie Subject: Restitution Roundtable Content-Type: multipart/alternative; boundary="=_alternative 005DCB258525739C_=" MIME-Version: 1.0 --=_alternative 005DCB258525739C_= Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable Is there any plan to make the papers from the conference available after=20 the event, by purchase or otherwise, or for a webcast? The travel budget=20 of the Ontario Securities Commission has its limits... Neil Guthrie Senior Legal Counsel General Counsel's Office Ontario Securities Commission Box 55, 19th Floor 20 Queen Street West Toronto, Ontario M5H 3S8 T 416 593 3687 This message is intended only for the use of the addressee and may contain = information that is privileged and confidential. If you are not the intende= d recipient or have received this communication in error, you are hereby no= tified that any unauthorized use or disclosure is strictly prohibited. Plea= se notify the sender immediately and delete the original without making a c= opy or disclosing its contents.=20 Le pr=E9sent message s'adresse exclusivement =E0 son destinataire et peut c= ontenir des renseignements privil=E9gi=E9s et confidentiels. Si vous n'=EAt= es pas le destinataire de ce document ou si vous l'avez re=E7u par erreur, = vous =EAtes par la pr=E9sente avis=E9 qu'il est strictement interdit de le = divulguer ou de l'utiliser sans autorisation. Veuillez en avertir l'exp=E9d= iteur imm=E9diatement et d=E9truire le message original sans le copier ou e= n r=E9v=E9ler le contenu. = ____________________________________________________________________ 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, . --=_alternative 005DCB258525739C_= Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable
Is there any plan to make the papers from the conference available after the event, by purchase or otherwise, or for a webcast?  The travel budget of the Ontario Securities Commiss= ion has its limits...


Neil= Guthrie
Senior Legal Counsel
General Counsel's Office
Ontario Sec= urities Commission
Box 55, 19th Floor
20 Queen Street West
Toronto= , Ontario
M5H 3S8

T 416 593 3687=

This message is intended only for the use of the addressee and may contain = information that is privileged and confidential. If you are not the intende= d recipient or have received this communication in error, you are hereby no= tified that any unauthorized use or disclosure is strictly prohibited. Plea= se notify the sender immediately and delete the original without making a c= opy or disclosing its contents.

Le pr=E9sent message s'adresse exclusivement =E0 son destinataire et peut c= ontenir des renseignements privil=E9gi=E9s et confidentiels. Si vous n'=EAt= es pas le destinataire de ce document ou si vous l'avez re=E7u par erreur, = vous =EAtes par la pr=E9sente avis=E9 qu'il est strictement interdit de le = divulguer ou de l'utiliser sans autorisation. Veuillez en avertir l'exp=E9d= iteur imm=E9diatement et d=E9truire le message original sans le copier ou e= n r=E9v=E9ler le contenu.

____________________________________________________________________ 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, . --=_alternative 005DCB258525739C_=-- ========================================================================= Date: Fri, 23 Nov 2007 17:26:12 -0000 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re: ODG RE: deceit: damages and account Comments: To: obligations@uwo.ca In-Reply-To: <20071123170459.723y9olrgg4488kg@impmail.kcl.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Speaking (or maybe writing) as one who does in large measure accept that the disgorgement measure reflects corrective justice, I'd be interested to know what Jason thinks the reasons why fraud doesn't support it are. I can't immediately think of them, so I too will line up with Charles & Lionel. On Abbots v Barry, I think the only answer is doesn't it depend on your view of UE. If, unlike me, you accepted Peter's explanation in his last book of interceptive subtraction, would you not say that the possession of the wine carried with it earnings opportunities and therefore the sale proceeds could also be taken by UE? In any case not being familiar with the case, was X D's agent, and if so wouldn't that make a difference? Duncan Ps I am wholly unpersuaded that English law accepts juristic reasons - the new Birksian model strikes me as flawed in a number of respects; explanations forthcoming if you like. Dr Duncan Sheehan Senior Lecturer in Law Director of Research Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom >-----Original Message----- >From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >Sent: Friday, November 23, 2007 5:05 PM >To: Jason Neyers >Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >Subject: ODG RE: deceit: damages and account > >Picking up first on Lionel?s point re waiver, of course I have to >agree that the C19 judges were not asking themselves whether >an action >for money had and received following a waiver of tort was a claim for >the profits of wrongdoing or a claim for restitution of UE. So >when we >look back at the cases we must say that many are susceptible to >alternative analysis since the plaintiff made a mistake and the >quantum of the remedy would have been the same either way. > >But I like Jason?s suggestion that looking at the award may >help us to >eliminate the UE explanation if we can show that this looked to gains >in D?s hands rather than the value of the assets transferred from P >where those two things were different. Is Abbotts v Barry >like this? >D orchestrated a fraud pursuant to which his creature X induced P to >sell X wine which X then failed to pay for; X handed the wine over to >D, who sold it on; P claimed the sale proceeds in D?s hands as the >profits accruing from the fraud and recovered them as money had and >received. > >So far as the corrective justice point goes, I happily line up with >Lionel - which is why I take heart from Etherton J?s findings >at first >instance in Murad at [342]-[347], despite Arden LJ?s negative line in >the CA. > >Best wishes >Charles > >Quoting Jason Neyers : > >> Dear Charles: >> >> Corrective Justice, sorry to have been so lazy. >> >> English law does believe in juristic reasons (since it is the most >> coherent generalization of the liability imposed) it just hasn't >> explicitly caught up to what is implicit in itself yet. :). >Think of >> negligence law immediately prior to DvS. >> >> A history question (since I am painfully ignorant of these >matters): >> when plaintiffs asked for money had and received in the >1800s cases >> cited were they limited to the amount that they gave (restitution >> for UE) or could they also get the gain from whatever source >> (restitution for wrongs/disgorgement)? >> >> From the winter wonderland that is London, Ontario. >> >> >> >> ----- Original Message ----- >> From: Charles Mitchell >> Date: Friday, November 23, 2007 11:10 am >> Subject: Re: RE: deceit: damages and account >> To: Jason Neyers >> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >>> I'm sorry, Jason, I know I'm being thick but I?ve been racking >>> my >>> brains and I can't think what CJ means - in mitigation it's >>> Friday >>> afternoon - but when you tell me I'll give myself three kicks. >>> >>> So far as your 2nd point goes, I don't think that it's >>> consistent with >>> the HL's explanation of waiver of tort in United Australia Ltd >>> v >>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >>> LC: >>> ?Where "waiving the tort" was possible, it was nothing more than >>> a >>> choice between possible remedies [sc: for the tort] derived from >>> a >>> time when it was not permitted to combine them or to pursue them >>> in >>> the alternative, and when there were procedural advantages >>> in >>> selecting the form of assumpsit.? And again at 18: ?When >>> the >>> plaintiff "waived the tort" and brought assumpsit, he did not >>> thereby >>> elect to be treated from that time forward on the basis that no >>> tort >>> had been committed; indeed, if it were to be understood that no >>> tort >>> had been committed, how could an action in assumpsit lie? It >>> lies only >>> because the acquisition of the defendant is wrongful and there >>> is thus >>> an obligation to make restitution.? Lord Atkin says the >>> same at 27-9. >>> >>> Also as you know we do not believe in absence of juristic reason >>> in >>> England - at any rate Lord Hoffmann does not although the >>> higher >>> authority of P Birks and now R Stevens may yet win the day. >>> >>> Best wishes >>> Charles >>> >>> Quoting Jason Neyers : >>> >>> > Dear Charles: >>> > >>> > The answer to your question depends, of course, on the >>> principle >>> > underlying disorgement. For those of us who buy the CJ >>> justification >>> > for disgorgement there are good reasons why fraud will >>> not support >>> > that remedy. >>> > >>> > Also, the older cases you mention seem more consistent with >>> the >>> > fraud destroying the underlying juristic reason for the >>> transaction >>> > and therefore with restitution for UE following rather >>> than >>> > supporting for disgorgement for wrongs. >>> > >>> > Cheers, >>> > >>> > ----- Original Message ----- >>> > From: Charles Mitchell >>> > Date: Friday, November 23, 2007 8:46 am >>> > Subject: RE: deceit: damages and account >>> > To: davidcheifetz@rogers.com >>> > Cc: 'Andrew Tettenborn' >>> , >>> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>> > >>> >> Andrew, David: Thanks for pointing us to these interesting >>> >> cases. On >>> >> the question whether a gain-based remedy should be available for >>> >> the >>> >> tort of deceit, I always find myself asking - why not? In >>> >> Renault the >>> >> judge did offer a reason, viz that the claimant had not only >>> >> suffered >>> >> no loss but had in fact made a profit itself. I?m not sure >>> >> whether >>> >> that?s necessarily a clincher, but it would be interesting to >>> >> hear >>> >> what other people think. >>> >> >>> >> The judge?s other reason in Renault was that Arden LJ had >>> >> previously >>> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >>> >> profits >>> >> isn?t available to victims of deceit, but I doubt whether much >>> >> weight >>> >> should be attached to that. At first instance in Murad the >>> >> claim was >>> >> allowed both on the basis that the claimants could have a >>> gain- >>> >> based >>> >> remedy for the tort of deceit and on the basis that the >>> >> defendant had >>> >> to disgorge the profits of his breach of fiduciary duty. >>> >> The CA >>> >> allowed the claim on the second basis and its?s not clear to me >>> >> that >>> >> any members of the court thought it necessary to decide whether >>> >> the >>> >> claim based on deceit was also available. >>> >> >>> >> Halifax Building Society v Thomas [1996] Ch 217 also contains a >>> >> dictum >>> >> that an account of profits isn?t available to victims of >>> deceit - >>> >> but >>> >> that case was actually decided on the basis that the clamant >>> >> could not >>> >> ask for a gain-based remedy founded on the tort of deceit once >>> >> it had >>> >> affirmed the contract which had been induced by D?s >>> >> fraudulent >>> >> misrepresentation (a similar finding was made in the much >>> >> earlier case >>> >> of Selway v Fogg (1839) 5 M & W 83). >>> >> >>> >> So it seems to me that there still isn?t any clear English >>> >> authority >>> >> that as a general rule victims of deceit cannot claim a gain- >>> >> based >>> >> remedy; in principle it seems to me that this wouldn?t be a good >>> >> rule >>> >> for English law to have; and looking back there are many older >>> >> cases >>> >> which say exactly the opposite, since they hold that a victim >>> >> of >>> >> deceit who is fraudulently induced to part with money can waive >>> >> the >>> >> tort and bring an action for money had and received: e.g. Hill >>> >> v >>> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >>> >> 369; >>> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >>> >> 1 El & >>> >> Bl 795 at 800. >>> >> >>> >> Best wishes >>> >> Charles >>> >> >>> >> >>> >> >>> >> >>> >> >>> >> >>> >> >>> >> Quoting David Cheifetz : >>> >> >>> >> > Andrew, >>> >> > >>> >> > Compare the opposite result - bad guys had to cough up the >>> >> profit - in 3Com >>> >> > Corporation v. Zorin International Corporation, 2006 CanLII >>> >> 18351 (ON C.A.) >>> >> > >>> >> >>> >http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >anlii18351.ht> >>> >> m >>> >> > >>> >> > The defendants obtained a cheaper price for computers from >>> >> 3Com by telling >>> >> > the distributor that the computers were intended for market X. >>> >> They were >>> >> > sold in market Y for a higher price. The evidence was also >>> >> that 3Com >>> >> > couldn't have sold the computers at the higher price. >>> >> Defendants were held >>> >> > liable for the extra profit. >>> >> > >>> >> > Cheers, >>> >> > >>> >> > David Cheifetz >>> >> > >>> >> > >>> >> > -----Original Message----- >>> >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >>> >> > Sent: November 23, 2007 6:27 AM >>> >> > To: obligations@uwo.ca >>> >> > Subject: deceit: damages and account >>> >> > >>> >> > A nice little case in the English QBD that may have passed >>> >> list members by. >>> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >>> >> [2007] EWHC 2541 >>> >> > (QB).] >>> >> > >>> >> > The makers of Renault cars operated a discount scheme in >>> >> favour of members >>> >> > of BALPA (a labour union): the scheme was operated by >>> >> Fleetpro, who ordered >>> >> > the cars. Under the scheme orders were sent to the Renault >>> >> > importers: they sent them to Renault in France, whereupon as >>> >> and when orders >>> >> > came in Renault manufactured the necessary cars and >shipped them. >>> >> > >>> >> > Fleetpro did the natural thing and ordered 217 discounted cars >>> >> for ordinary >>> >> > customers who they knew had nothing to do with BALPA. The cars >>> >> were shipped: >>> >> > the importers made a profit on them, but (because they gave a >>> >> rebate to the >>> >> > dealer involved) less than the profit they would have made on >>> >> cars not >>> >> > covered by the scheme. The importers sued Fleetpro for deceit, >>> >> and won on >>> >> > liability. On damages, however, held: >>> >> > >>> >> > (1) the importers had proved no loss, i.e. they hadn't proved >>> >> the sales came >>> >> > other than as extra sales, or that they'd otherwise have >>> >> persuaded customers >>> >> > to buy their standard (over) priced cars. (2) There was no >>> >> jurisdiction,> absent a fiduciary relationship) to award an >>> >> account of profits against >>> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >>> >> > >>> >> > The latter holding seems particularly interesting. >>> >> > >>> >> > >>> >> > Best >>> >> > >>> >> > A >>> >> > >>> >> > -- >>> >> > Andrew Tettenborn MA LLB >>> >> > Bracton Professor of Law >>> >> > University of Exeter, England >>> >> > >>> >> > >>> >> > >>> >> >>> Tel: 01392-263189 / +44-392-263189 >(outside UK) >>> >> > Cellphone: 07870- >>> >> 130528 / +44-7870-130528 (outside UK) >>> >> > >>> >> >>> Fax: 01392-263196 / +44-392-263196 (outside UK) >>> >> > >>> >> > Snailmail: School of Law, >>> >> >>> > University of Exeter, >>> >> >>> > Amory Building, >>> >> >>> > Rennes Drive, >>> >> >>> > Exeter EX4 4RJ >>> >> >>> > England >>> >> > >>> >> > Exeter Law School homepage: http://www.law.ex.ac.uk >>> >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >>> >> > >>> >> > >>> >> > >>> >> > >>> >> > >>> >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >>> >> Bierce, 1906). >>> >> > >>> >> > >>> >> > >>> >> > >>> >> >>> >> >>> >> >>> >> -- >>> >> Charles Mitchell >>> >> charles.mitchell@kcl.ac.uk >>> >> >>> >> >>> > >>> > -- >>> > Jason Neyers >>> > Associate Professor of Law >>> > Faculty of Law >>> > University of Western Ontario >>> > N6A 3K7 >>> > (519) 661-2111 x. 88435 >>> > >>> >>> >>> >>> -- >>> Charles Mitchell >>> charles.mitchell@kcl.ac.uk >>> >>> >> >> -- >> Jason Neyers >> Associate Professor of Law >> Faculty of Law >> University of Western Ontario >> N6A 3K7 >> (519) 661-2111 x. 88435 >> > > > >-- >Charles Mitchell >charles.mitchell@kcl.ac.uk > > ____________________________________________________________________ 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, 23 Nov 2007 13:19:24 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: ODG RE: deceit: damages and account Comments: To: Duncan.Sheehan@uea.ac.uk Comments: cc: "obligations@uwo.ca" In-Reply-To: <003101c82df5$f1739360$3198de8b@UEA.AC.UK> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_vgSLagdhaiQ5QgdwmNJ16g)" This is a multi-part message in MIME format. --Boundary_(ID_vgSLagdhaiQ5QgdwmNJ16g) Content-type: text/plain; charset=us-ascii; format=flowed Content-transfer-encoding: 7BIT Its been awhile since I thought about this in detail but as I remember the/a CJ justice view (Weinrib, "Restitutionary Damages as CJ"), gain-based remedies are available where the content of the plaintiff's right includes the right to a gain. Without such an entitlement, the fact that the defendant causally made a gain following the violation of my right is irrelevant--I am entitled to have my means restored not someone else's. So gain-based remedies are essentially available only in property tort situations because the right to property includes the right to the use, fruits and abuse of it and in situations where the wrongdoer basically has sold my right treated as property (as in the fiduciary duty situation where the wrongdoer has sold out their the duty of loyalty). Cheers, Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 Duncan Sheehan (LAW) wrote: >Speaking (or maybe writing) as one who does in large measure accept that the >disgorgement measure reflects corrective justice, I'd be interested to know >what Jason thinks the reasons why fraud doesn't support it are. I can't >immediately think of them, so I too will line up with Charles & Lionel. > >On Abbots v Barry, I think the only answer is doesn't it depend on your view >of UE. If, unlike me, you accepted Peter's explanation in his last book of >interceptive subtraction, would you not say that the possession of the wine >carried with it earnings opportunities and therefore the sale proceeds could >also be taken by UE? In any case not being familiar with the case, was X D's >agent, and if so wouldn't that make a difference? > >Duncan > >Ps I am wholly unpersuaded that English law accepts juristic reasons - the >new Birksian model strikes me as flawed in a number of respects; >explanations forthcoming if you like. > >Dr Duncan Sheehan >Senior Lecturer in Law >Director of Research >Norwich Law School >University of East Anglia >Norwich NR4 7TJ >United Kingdom > > > >>-----Original Message----- >>From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >>Sent: Friday, November 23, 2007 5:05 PM >>To: Jason Neyers >>Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >>Subject: ODG RE: deceit: damages and account >> >>Picking up first on Lionel?s point re waiver, of course I have to >>agree that the C19 judges were not asking themselves whether >>an action >>for money had and received following a waiver of tort was a claim for >>the profits of wrongdoing or a claim for restitution of UE. So >>when we >>look back at the cases we must say that many are susceptible to >>alternative analysis since the plaintiff made a mistake and the >>quantum of the remedy would have been the same either way. >> >>But I like Jason?s suggestion that looking at the award may >>help us to >>eliminate the UE explanation if we can show that this looked to gains >>in D?s hands rather than the value of the assets transferred from P >>where those two things were different. Is Abbotts v Barry >>like this? >>D orchestrated a fraud pursuant to which his creature X induced P to >>sell X wine which X then failed to pay for; X handed the wine over to >>D, who sold it on; P claimed the sale proceeds in D?s hands as the >>profits accruing from the fraud and recovered them as money had and >>received. >> >>So far as the corrective justice point goes, I happily line up with >>Lionel - which is why I take heart from Etherton J?s findings >>at first >>instance in Murad at [342]-[347], despite Arden LJ?s negative line in >>the CA. >> >>Best wishes >>Charles >> >>Quoting Jason Neyers : >> >> >> >>>Dear Charles: >>> >>>Corrective Justice, sorry to have been so lazy. >>> >>>English law does believe in juristic reasons (since it is the most >>>coherent generalization of the liability imposed) it just hasn't >>>explicitly caught up to what is implicit in itself yet. :). >>> >>> >>Think of >> >> >>> negligence law immediately prior to DvS. >>> >>>A history question (since I am painfully ignorant of these >>> >>> >>matters): >> >> >>> when plaintiffs asked for money had and received in the >>> >>> >>1800s cases >> >> >>> cited were they limited to the amount that they gave (restitution >>>for UE) or could they also get the gain from whatever source >>>(restitution for wrongs/disgorgement)? >>> >>>From the winter wonderland that is London, Ontario. >>> >>> >>> >>>----- Original Message ----- >>>From: Charles Mitchell >>>Date: Friday, November 23, 2007 11:10 am >>>Subject: Re: RE: deceit: damages and account >>>To: Jason Neyers >>>Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>> >>> >>> >>>>I'm sorry, Jason, I know I'm being thick but I?ve been racking >>>>my >>>>brains and I can't think what CJ means - in mitigation it's >>>>Friday >>>>afternoon - but when you tell me I'll give myself three kicks. >>>> >>>>So far as your 2nd point goes, I don't think that it's >>>>consistent with >>>>the HL's explanation of waiver of tort in United Australia Ltd >>>>v >>>>Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >>>>LC: >>>>?Where "waiving the tort" was possible, it was nothing more than >>>>a >>>>choice between possible remedies [sc: for the tort] derived from >>>>a >>>>time when it was not permitted to combine them or to pursue them >>>>in >>>>the alternative, and when there were procedural advantages >>>>in >>>>selecting the form of assumpsit.? And again at 18: ?When >>>>the >>>>plaintiff "waived the tort" and brought assumpsit, he did not >>>>thereby >>>>elect to be treated from that time forward on the basis that no >>>>tort >>>>had been committed; indeed, if it were to be understood that no >>>>tort >>>>had been committed, how could an action in assumpsit lie? It >>>>lies only >>>>because the acquisition of the defendant is wrongful and there >>>>is thus >>>>an obligation to make restitution.? Lord Atkin says the >>>>same at 27-9. >>>> >>>>Also as you know we do not believe in absence of juristic reason >>>>in >>>>England - at any rate Lord Hoffmann does not although the >>>>higher >>>>authority of P Birks and now R Stevens may yet win the day. >>>> >>>>Best wishes >>>>Charles >>>> >>>>Quoting Jason Neyers : >>>> >>>> >>>> >>>>>Dear Charles: >>>>> >>>>>The answer to your question depends, of course, on the >>>>> >>>>> >>>>principle >>>> >>>> >>>>>underlying disorgement. For those of us who buy the CJ >>>>> >>>>> >>>>justification >>>> >>>> >>>>> for disgorgement there are good reasons why fraud will >>>>> >>>>> >>>>not support >>>> >>>> >>>>>that remedy. >>>>> >>>>>Also, the older cases you mention seem more consistent with >>>>> >>>>> >>>>the >>>> >>>> >>>>>fraud destroying the underlying juristic reason for the >>>>> >>>>> >>>>transaction >>>> >>>> >>>>>and therefore with restitution for UE following rather >>>>> >>>>> >>>>than >>>> >>>> >>>>>supporting for disgorgement for wrongs. >>>>> >>>>>Cheers, >>>>> >>>>>----- Original Message ----- >>>>>From: Charles Mitchell >>>>>Date: Friday, November 23, 2007 8:46 am >>>>>Subject: RE: deceit: damages and account >>>>>To: davidcheifetz@rogers.com >>>>>Cc: 'Andrew Tettenborn' >>>>> >>>>> >>>>, >>>> >>>> >>>>>obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>>>> >>>>> >>>>> >>>>>>Andrew, David: Thanks for pointing us to these interesting >>>>>>cases. On >>>>>>the question whether a gain-based remedy should be available for >>>>>>the >>>>>>tort of deceit, I always find myself asking - why not? In >>>>>>Renault the >>>>>>judge did offer a reason, viz that the claimant had not only >>>>>>suffered >>>>>>no loss but had in fact made a profit itself. I?m not sure >>>>>>whether >>>>>>that?s necessarily a clincher, but it would be interesting to >>>>>>hear >>>>>>what other people think. >>>>>> >>>>>>The judge?s other reason in Renault was that Arden LJ had >>>>>>previously >>>>>>said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >>>>>>profits >>>>>>isn?t available to victims of deceit, but I doubt whether much >>>>>>weight >>>>>>should be attached to that. At first instance in Murad the >>>>>>claim was >>>>>>allowed both on the basis that the claimants could have a >>>>>> >>>>>> >>>>gain- >>>> >>>> >>>>>>based >>>>>>remedy for the tort of deceit and on the basis that the >>>>>>defendant had >>>>>>to disgorge the profits of his breach of fiduciary duty. >>>>>>The CA >>>>>>allowed the claim on the second basis and its?s not clear to me >>>>>>that >>>>>>any members of the court thought it necessary to decide whether >>>>>>the >>>>>>claim based on deceit was also available. >>>>>> >>>>>>Halifax Building Society v Thomas [1996] Ch 217 also contains a >>>>>>dictum >>>>>>that an account of profits isn?t available to victims of >>>>>> >>>>>> >>>>deceit - >>>> >>>> >>>>>>but >>>>>>that case was actually decided on the basis that the clamant >>>>>>could not >>>>>>ask for a gain-based remedy founded on the tort of deceit once >>>>>>it had >>>>>>affirmed the contract which had been induced by D?s >>>>>>fraudulent >>>>>>misrepresentation (a similar finding was made in the much >>>>>>earlier case >>>>>>of Selway v Fogg (1839) 5 M & W 83). >>>>>> >>>>>>So it seems to me that there still isn?t any clear English >>>>>>authority >>>>>>that as a general rule victims of deceit cannot claim a gain- >>>>>>based >>>>>>remedy; in principle it seems to me that this wouldn?t be a good >>>>>>rule >>>>>>for English law to have; and looking back there are many older >>>>>>cases >>>>>>which say exactly the opposite, since they hold that a victim >>>>>>of >>>>>>deceit who is fraudulently induced to part with money can waive >>>>>>the >>>>>>tort and bring an action for money had and received: e.g. Hill >>>>>>v >>>>>>Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >>>>>>369; >>>>>>Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >>>>>>1 El & >>>>>>Bl 795 at 800. >>>>>> >>>>>>Best wishes >>>>>>Charles >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>>Quoting David Cheifetz : >>>>>> >>>>>> >>>>>> >>>>>>>Andrew, >>>>>>> >>>>>>>Compare the opposite result - bad guys had to cough up the >>>>>>> >>>>>>> >>>>>>profit - in 3Com >>>>>> >>>>>> >>>>>>>Corporation v. Zorin International Corporation, 2006 CanLII >>>>>>> >>>>>>> >>>>>>18351 (ON C.A.) >>>>>> >>>>>> >>http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >>anlii18351.ht> >> >> >>>>>>m >>>>>> >>>>>> >>>>>>>The defendants obtained a cheaper price for computers from >>>>>>> >>>>>>> >>>>>>3Com by telling >>>>>> >>>>>> >>>>>>>the distributor that the computers were intended for market X. >>>>>>> >>>>>>> >>>>>>They were >>>>>> >>>>>> >>>>>>>sold in market Y for a higher price. The evidence was also >>>>>>> >>>>>>> >>>>>>that 3Com >>>>>> >>>>>> >>>>>>>couldn't have sold the computers at the higher price. >>>>>>> >>>>>>> >>>>>>Defendants were held >>>>>> >>>>>> >>>>>>>liable for the extra profit. >>>>>>> >>>>>>>Cheers, >>>>>>> >>>>>>>David Cheifetz >>>>>>> >>>>>>> >>>>>>>-----Original Message----- >>>>>>>From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >>>>>>>Sent: November 23, 2007 6:27 AM >>>>>>>To: obligations@uwo.ca >>>>>>>Subject: deceit: damages and account >>>>>>> >>>>>>>A nice little case in the English QBD that may have passed >>>>>>> >>>>>>> >>>>>>list members by. >>>>>> >>>>>> >>>>>>>[Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >>>>>>> >>>>>>> >>>>>>[2007] EWHC 2541 >>>>>> >>>>>> >>>>>>>(QB).] >>>>>>> >>>>>>>The makers of Renault cars operated a discount scheme in >>>>>>> >>>>>>> >>>>>>favour of members >>>>>> >>>>>> >>>>>>>of BALPA (a labour union): the scheme was operated by >>>>>>> >>>>>>> >>>>>>Fleetpro, who ordered >>>>>> >>>>>> >>>>>>>the cars. Under the scheme orders were sent to the Renault >>>>>>>importers: they sent them to Renault in France, whereupon as >>>>>>> >>>>>>> >>>>>>and when orders >>>>>> >>>>>> >>>>>>>came in Renault manufactured the necessary cars and >>>>>>> >>>>>>> >>shipped them. >> >> >>>>>>>Fleetpro did the natural thing and ordered 217 discounted cars >>>>>>> >>>>>>> >>>>>>for ordinary >>>>>> >>>>>> >>>>>>>customers who they knew had nothing to do with BALPA. The cars >>>>>>> >>>>>>> >>>>>>were shipped: >>>>>> >>>>>> >>>>>>>the importers made a profit on them, but (because they gave a >>>>>>> >>>>>>> >>>>>>rebate to the >>>>>> >>>>>> >>>>>>>dealer involved) less than the profit they would have made on >>>>>>> >>>>>>> >>>>>>cars not >>>>>> >>>>>> >>>>>>>covered by the scheme. The importers sued Fleetpro for deceit, >>>>>>> >>>>>>> >>>>>>and won on >>>>>> >>>>>> >>>>>>>liability. On damages, however, held: >>>>>>> >>>>>>>(1) the importers had proved no loss, i.e. they hadn't proved >>>>>>> >>>>>>> >>>>>>the sales came >>>>>> >>>>>> >>>>>>>other than as extra sales, or that they'd otherwise have >>>>>>> >>>>>>> >>>>>>persuaded customers >>>>>> >>>>>> >>>>>>>to buy their standard (over) priced cars. (2) There was no >>>>>>> >>>>>>> >>>>>>jurisdiction,> absent a fiduciary relationship) to award an >>>>>>account of profits against >>>>>> >>>>>> >>>>>>>Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >>>>>>> >>>>>>>The latter holding seems particularly interesting. >>>>>>> >>>>>>> >>>>>>>Best >>>>>>> >>>>>>>A >>>>>>> >>>>>>>-- >>>>>>>Andrew Tettenborn MA LLB >>>>>>>Bracton Professor of Law >>>>>>>University of Exeter, England >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>Tel: 01392-263189 / +44-392-263189 >>>> >>>> >>(outside UK) >> >> >>>>>>>Cellphone: 07870- >>>>>>> >>>>>>> >>>>>>130528 / +44-7870-130528 (outside UK) >>>>>> >>>>>> >>>>Fax: 01392-263196 / +44-392-263196 (outside UK) >>>> >>>> >>>>>>>Snailmail: School of Law, >>>>>>> >>>>>>> >>>>> University of Exeter, >>>>> >>>>> >>>>> Amory Building, >>>>> >>>>> >>>>> Rennes Drive, >>>>> >>>>> >>>>> Exeter EX4 4RJ >>>>> >>>>> >>>>> England >>>>> >>>>> >>>>>>>Exeter Law School homepage: http://www.law.ex.ac.uk >>>>>>>My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>>LAWYER, n. One skilled in circumvention of the law (Ambrose >>>>>>> >>>>>>> >>>>>>Bierce, 1906). >>>>>> >>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>> >>>>>>-- >>>>>>Charles Mitchell >>>>>>charles.mitchell@kcl.ac.uk >>>>>> >>>>>> >>>>>> >>>>>> >>>>> -- >>>>>Jason Neyers >>>>>Associate Professor of Law >>>>>Faculty of Law >>>>>University of Western Ontario >>>>>N6A 3K7 >>>>>(519) 661-2111 x. 88435 >>>>> >>>>> >>>>> >>>> >>>>-- >>>>Charles Mitchell >>>>charles.mitchell@kcl.ac.uk >>>> >>>> >>>> >>>> >>> -- >>>Jason Neyers >>>Associate Professor of Law >>>Faculty of Law >>>University of Western Ontario >>>N6A 3K7 >>>(519) 661-2111 x. 88435 >>> >>> >>> >> >>-- >>Charles Mitchell >>charles.mitchell@kcl.ac.uk >> >> >> >> > >____________________________________________________________________ > 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, . --Boundary_(ID_vgSLagdhaiQ5QgdwmNJ16g) Content-type: text/html; charset=us-ascii Content-transfer-encoding: 7BIT Its been awhile since I thought about this in detail but as I remember the/a CJ justice view (Weinrib, "Restitutionary Damages as CJ"), gain-based remedies are available where the content of the plaintiff's right  includes the right to a gain. Without such an entitlement, the fact that the defendant causally made a gain following the violation of my right is irrelevant--I am entitled to have my means restored not someone else's.  So gain-based remedies are essentially available only in property tort situations because the right to property includes the right to the use, fruits and abuse of it and in situations where the wrongdoer basically has sold my right treated as property (as in the fiduciary duty situation where the wrongdoer has sold out their the duty of  loyalty).

Cheers, 
Jason Neyers 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435


Duncan Sheehan (LAW) wrote: 
Speaking (or maybe writing) as one who does in large measure accept that the 

disgorgement measure reflects corrective justice, I'd be interested to know 

what Jason thinks the reasons why fraud doesn't support it are. I can't 

immediately think of them, so I too will line up with Charles & Lionel. 

 

On Abbots v Barry, I think the only answer is doesn't it depend on your view 

of UE. If, unlike me, you accepted Peter's explanation in his last book of 

interceptive subtraction, would you not say that the possession of the wine 

carried with it earnings opportunities and therefore the sale proceeds could 

also be taken by UE? In any case not being familiar with the case, was X D's 

agent, and if so wouldn't that make a difference? 

 

Duncan 

 

Ps I am wholly unpersuaded that English law accepts juristic reasons - the 

new Birksian model strikes me as flawed in a number of respects; 

explanations forthcoming if you like. 

 

Dr Duncan Sheehan 

Senior Lecturer in Law 

Director of Research 

Norwich Law School 

University of East Anglia 

Norwich NR4 7TJ 

United Kingdom 

 

  
-----Original Message----- 

From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] 

Sent: Friday, November 23, 2007 5:05 PM 

To: Jason Neyers 

Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA 

Subject: ODG RE: deceit: damages and account 

 

Picking up first on Lionel?s point re waiver, of course I have to 

agree that the C19 judges were not asking themselves whether 

an action 

for money had and received following a waiver of tort was a claim for 

the profits of wrongdoing or a claim for restitution of UE. So 

when we 

look back at the cases we must say that many are susceptible to 

alternative analysis since the plaintiff made a mistake and the 

quantum of the remedy would have been the same either way. 

 

But I like Jason?s suggestion that looking at the award may 

help us to 

eliminate the UE explanation if we can show that this looked to gains 

in D?s hands rather than the value of the assets transferred from P 

where those two things were different.  Is Abbotts v Barry 

like this? 

D orchestrated a fraud pursuant to which his creature X induced P to 

sell X wine which X then failed to pay for; X handed the wine over to 

D, who sold it on; P claimed the sale proceeds in D?s hands as the 

profits accruing from the fraud and recovered them as money had and 

received. 

 

So far as the corrective justice point goes, I happily line up with 

Lionel - which is why I take heart from Etherton J?s findings 

at first 

instance in Murad at [342]-[347], despite Arden LJ?s negative line in 

the CA. 

 

Best wishes 

Charles 

 

Quoting Jason Neyers : 

 

    
Dear Charles: 

 

Corrective Justice, sorry to have been so lazy. 

 

English law does believe in juristic reasons (since it is the most 

coherent generalization of the liability imposed) it just hasn't 

explicitly caught up to what is implicit in itself yet. :). 

      
Think of 

    
 negligence law immediately prior to DvS. 

 

A history question (since I am painfully ignorant of these 

      
matters): 

    
 when plaintiffs asked for money had and received in the 

      
1800s cases 

    
 cited were they limited to the amount that they gave (restitution 

for UE) or could they also get the gain from whatever source 

(restitution for wrongs/disgorgement)? 

 

From the winter wonderland that is London, Ontario. 

 

 

 

----- Original Message ----- 

From: Charles Mitchell  

Date: Friday, November 23, 2007 11:10 am 

Subject: Re: RE: deceit: damages and account 

To: Jason Neyers  

Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA 

 

      
I'm sorry, Jason, I know I'm being thick but I?ve been racking 

my 

brains and I can't think what CJ means - in mitigation it's 

Friday 

afternoon - but when you tell me I'll give myself three kicks. 

 

So far as your 2nd point goes, I don't think that it's 

consistent with 

the HL's explanation of waiver of tort in United Australia Ltd 

v 

Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon 

LC: 

?Where "waiving the tort" was possible, it was nothing more than 

a 

choice between possible remedies [sc: for the tort] derived from 

a 

time when it was not permitted to combine them or to pursue them 

in 

the alternative, and when there were procedural advantages 

in 

selecting the form of assumpsit.?  And again at 18: ?When 

the 

plaintiff "waived the tort" and brought assumpsit, he did not 

thereby 

elect to be treated from that time forward on the basis that no 

tort 

had been committed; indeed, if it were to be understood that no 

tort 

had been committed, how could an action in assumpsit lie? It 

lies only 

because the acquisition of the defendant is wrongful and there 

is thus 

an obligation to make restitution.?  Lord Atkin says the 

same at 27-9. 

 

Also as you know we do not believe in absence of juristic reason 

in 

England - at any rate Lord Hoffmann does not although the 

higher 

authority of P Birks and now R Stevens may yet win the day. 

 

Best wishes 

Charles 

 

Quoting Jason Neyers : 

 

        
Dear Charles: 

 

The answer to your question depends, of course, on the 

          
principle 

        
underlying disorgement. For those of us who buy the CJ 

          
justification 

        
 for disgorgement there are good reasons why fraud will 

          
not support 

        
that remedy. 

 

Also, the older cases you mention seem more consistent with 

          
the 

        
fraud destroying the underlying juristic reason for the 

          
transaction 

        
and therefore with restitution for UE following rather 

          
than 

        
supporting for disgorgement for wrongs. 

 

Cheers, 

 

----- Original Message ----- 

From: Charles Mitchell  

Date: Friday, November 23, 2007 8:46 am 

Subject: RE: deceit: damages and account 

To: davidcheifetz@rogers.com 

Cc: 'Andrew Tettenborn' 

          
, 

        
obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA 

 

          
Andrew, David: Thanks for pointing us to these interesting 

cases.  On 

the question whether a gain-based remedy should be available for 

the 

tort of deceit, I always find myself asking - why not?  In 

Renault the 

judge did offer a reason, viz that the claimant had not only 

suffered 

no loss but had in fact made a profit itself.  I?m not sure 

whether 

that?s necessarily a clincher, but it would be interesting to 

hear 

what other people think. 

 

The judge?s other reason in Renault was that Arden LJ had 

previously 

said in Murad v Al-Saraj [2005] WTLR 1573 that an account of 

profits 

isn?t available to victims of deceit, but I doubt whether much 

weight 

should be attached to that.  At first instance in Murad the 

claim was 

allowed both on the basis that the claimants could have a 

            
gain- 

        
based 

remedy for the tort of deceit and on the basis that the 

defendant had 

to disgorge the profits of his breach of fiduciary duty. 

The CA 

allowed the claim on the second basis and its?s not clear to me 

that 

any members of the court thought it necessary to decide whether 

the 

claim based on deceit was also available. 

 

Halifax Building Society v Thomas [1996] Ch 217 also contains a 

dictum 

that an account of profits isn?t available to victims of 

            
deceit - 

        
but 

that case was actually decided on the basis that the clamant 

could not 

ask for a gain-based remedy founded on the tort of deceit once 

it had 

affirmed the contract which had been induced by D?s 

fraudulent 

misrepresentation (a similar finding was made in the much 

earlier case 

of Selway v Fogg (1839) 5 M & W 83). 

 

So it seems to me that there still isn?t any clear English 

authority 

that as a general rule victims of deceit cannot claim a gain- 

based 

remedy; in principle it seems to me that this wouldn?t be a good 

rule 

for English law to have; and looking back there are many older 

cases 

which say exactly the opposite, since they hold that a victim 

of 

deceit who is fraudulently induced to part with money can waive 

the 

tort and bring an action for money had and received: e.g. Hill 

v 

Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B 

369; 

Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) 

1 El & 

Bl 795 at 800. 

 

Best wishes 

Charles 

 

 

 

 

 

 

 

Quoting David Cheifetz : 

 

            
Andrew, 

 

Compare the opposite result - bad guys had to cough up the 

              
profit - in 3Com 

            
Corporation v. Zorin International Corporation, 2006 CanLII 

              
18351 (ON C.A.) 

            
http://www.canlii.org/en/on/onca/

doc/2006/2006canlii18351/2006c 

anlii18351.ht> 

    
m 

            
The defendants obtained a cheaper price for computers from 

              
3Com by telling 

            
the distributor that the computers were intended for market X. 

              
They were 

            
sold in market Y for a higher price. The evidence was also 

              
that 3Com 

            
couldn't have sold the computers at the higher price. 

              
Defendants were held 

            
liable for the extra profit. 

 

Cheers, 

 

David Cheifetz 

 

 

-----Original Message----- 

From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] 

Sent: November 23, 2007 6:27 AM 

To: obligations@uwo.ca 

Subject: deceit: damages and account 

 

A nice little case in the English QBD that may have passed 

              
list members by. 

            
[Renault UK Ltd v. FleetPro Technical Services Ltd & Anor 

              
[2007] EWHC 2541 

            
(QB).] 

 

The makers of Renault cars operated a discount scheme in 

              
favour of members 

            
of BALPA (a labour union): the scheme was operated by 

              
Fleetpro, who ordered 

            
the cars. Under the scheme orders were sent to the Renault 

importers: they sent them to Renault in France, whereupon as 

              
and when orders 

            
came in Renault manufactured the necessary cars and 

              
shipped them. 

    
Fleetpro did the natural thing and ordered 217 discounted cars 

              
for ordinary 

            
customers who they knew had nothing to do with BALPA. The cars 

              
were shipped: 

            
the importers made a profit on them, but (because they gave a 

              
rebate to the 

            
dealer involved) less than the profit they would have made on 

              
cars not 

            
covered by the scheme. The importers sued Fleetpro for deceit, 

              
and won on 

            
liability. On damages, however, held: 

 

(1) the importers had proved no loss, i.e. they hadn't proved 

              
the sales came 

            
other than as extra sales, or that they'd otherwise have 

              
persuaded customers 

            
to buy their standard (over) priced cars. (2) There was no 

              
jurisdiction,> absent a fiduciary relationship) to award an 

account of profits against 

            
Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. 

 

The latter holding seems particularly interesting. 

 

 

Best 

 

A 

 

-- 

Andrew Tettenborn MA LLB 

Bracton Professor of Law 

University of Exeter, England 

 

 

 

              
Tel:                  01392-263189    /   +44-392-263189 

        
(outside UK) 

    
Cellphone:       07870- 

              
130528   /   +44-7870-130528 (outside UK) 

            
Fax:                 01392-263196    /   +44-392-263196 (outside UK) 

        
Snailmail:   School of Law, 

              
                   University of Exeter, 

          
                   Amory Building, 

          
                   Rennes Drive, 

          
                   Exeter EX4 4RJ 

          
                   England 

          
Exeter Law School homepage: http://www.law.ex.ac.uk 

My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml 

 

 

 

 

 

LAWYER, n. One skilled in circumvention of the law (Ambrose 

              
Bierce, 1906). 

            
 

 

 

              
 

 

-- 

Charles Mitchell 

charles.mitchell@kcl.ac.uk 

 

 

            
 -- 

Jason Neyers 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435 

 

          
 

 

-- 

Charles Mitchell 

charles.mitchell@kcl.ac.uk 

 

 

        
 -- 

Jason Neyers 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435 

 

      
 

 

-- 

Charles Mitchell 

charles.mitchell@kcl.ac.uk 

 

 

    
 

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____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --Boundary_(ID_vgSLagdhaiQ5QgdwmNJ16g)-- ========================================================================= Date: Fri, 23 Nov 2007 13:47:34 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: ODG RE: deceit: damages and account Comments: To: Jason Neyers , Duncan.Sheehan@uea.ac.uk Comments: cc: ODG In-Reply-To: <474719AC.20904@uwo.ca> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3278670455_128651" > 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_3278670455_128651 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable The question indeed is whether the plaintiff=B9s right includes a right to an= y gain derived from breach, but the suggestion that this is only true in property tort cases is not at all clear. All my rights are mine in some sense. What is special about property rights? Depending on which of its man= y meanings one is using, the most obvious answer is that they are exigible against lots of people. I have never understood the argument that exigibility-against-many has any necessary connection to entitlement to gains acquired through breach (the argument that it has was explicitly rejected in Blake). In my own view, bringing in fiduciary law only weakens the claim that gain-based claims are confined to property claims. A duty of loyalty is a right-duty relationship, not a property relationship (assuming still that w= e are using =8Cproperty=B9 to mean exigibile-against-many). So the availability o= f gain-based remedies for breach of fiduciary obligation tells against any argument that such remedies are about property rights. If we start saying i= t is =8Clike=B9 property then we have abandoned the initial premise, that this is confined to property, and the question remains unanswered, which rights allow gain-based remedies for infringement? Lionel On 23/11/07 13:19, "Jason Neyers" wrote: > Its been awhile since I thought about this in detail but as I remember th= e/a > CJ justice view (Weinrib, "Restitutionary Damages as CJ"), gain-based rem= edies > are available where the content of the plaintiff's right includes the ri= ght > to a gain. Without such an entitlement, the fact that the defendant causa= lly > made a gain following the violation of my right is irrelevant--I am entit= led > to have my means restored not someone else's. So gain-based remedies are > essentially available only in property tort situations because the right = to > property includes the right to the use, fruits and abuse of it and in > situations where the wrongdoer basically has sold my right treated as pro= perty > (as in the fiduciary duty situation where the wrongdoer has sold out thei= r the > duty of loyalty). >=20 > Cheers,=20 > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 >=20 >=20 > Duncan Sheehan (LAW) wrote: >> =20 >> Speaking (or maybe writing) as one who does in large measure accept that= the >> disgorgement measure reflects corrective justice, I'd be interested to k= now >> what Jason thinks the reasons why fraud doesn't support it are. I can't >> immediately think of them, so I too will line up with Charles & Lionel. >>=20 >> On Abbots v Barry, I think the only answer is doesn't it depend on your = view >> of UE. If, unlike me, you accepted Peter's explanation in his last book = of >> interceptive subtraction, would you not say that the possession of the w= ine >> carried with it earnings opportunities and therefore the sale proceeds c= ould >> also be taken by UE? In any case not being familiar with the case, was X= D's >> agent, and if so wouldn't that make a difference? >>=20 >> Duncan =20 >>=20 >> Ps I am wholly unpersuaded that English law accepts juristic reasons - t= he >> new Birksian model strikes me as flawed in a number of respects; >> explanations forthcoming if you like. >>=20 >> Dr Duncan Sheehan >> Senior Lecturer in Law >> Director of Research >> Norwich Law School >> University of East Anglia >> Norwich NR4 7TJ >> United Kingdom=20 >>=20 >> =20 >> =20 >>> =20 >>> -----Original Message----- >>> From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >>> Sent: Friday, November 23, 2007 5:05 PM >>> To: Jason Neyers >>> Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >>> Subject: ODG RE: deceit: damages and account >>>=20 >>> Picking up first on Lionel?s point re waiver, of course I have to >>> agree that the C19 judges were not asking themselves whether >>> an action =20 >>> for money had and received following a waiver of tort was a claim for >>> the profits of wrongdoing or a claim for restitution of UE. So >>> when we =20 >>> look back at the cases we must say that many are susceptible to >>> alternative analysis since the plaintiff made a mistake and the >>> quantum of the remedy would have been the same either way. >>>=20 >>> But I like Jason?s suggestion that looking at the award may >>> help us to =20 >>> eliminate the UE explanation if we can show that this looked to gains >>> in D?s hands rather than the value of the assets transferred from P >>> where those two things were different. Is Abbotts v Barry >>> like this? =20 >>> D orchestrated a fraud pursuant to which his creature X induced P to >>> sell X wine which X then failed to pay for; X handed the wine over to >>> D, who sold it on; P claimed the sale proceeds in D?s hands as the >>> profits accruing from the fraud and recovered them as money had and >>> received. >>>=20 >>> So far as the corrective justice point goes, I happily line up with >>> Lionel - which is why I take heart from Etherton J?s findings >>> at first =20 >>> instance in Murad at [342]-[347], despite Arden LJ?s negative line in >>> the CA. >>>=20 >>> Best wishes >>> Charles >>>=20 >>> Quoting Jason Neyers : >>>=20 >>> =20 >>> =20 >>>> =20 >>>> Dear Charles: >>>>=20 >>>> Corrective Justice, sorry to have been so lazy. >>>>=20 >>>> English law does believe in juristic reasons (since it is the most >>>> coherent generalization of the liability imposed) it just hasn't >>>> explicitly caught up to what is implicit in itself yet. :). >>>> =20 >>>> =20 >>> =20 >>> Think of =20 >>> =20 >>> =20 >>>> =20 >>>> negligence law immediately prior to DvS. >>>>=20 >>>> A history question (since I am painfully ignorant of these >>>> =20 >>>> =20 >>> =20 >>> matters): =20 >>> =20 >>> =20 >>>> =20 >>>> when plaintiffs asked for money had and received in the >>>> =20 >>>> =20 >>> =20 >>> 1800s cases =20 >>> =20 >>> =20 >>>> =20 >>>> cited were they limited to the amount that they gave (restitution >>>> for UE) or could they also get the gain from whatever source >>>> (restitution for wrongs/disgorgement)? >>>>=20 >>>> From the winter wonderland that is London, Ontario. >>>>=20 >>>>=20 >>>>=20 >>>> ----- Original Message ----- >>>> From: Charles Mitchell >>>> >>>> Date: Friday, November 23, 2007 11:10 am >>>> Subject: Re: RE: deceit: damages and account >>>> To: Jason Neyers >>>> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>>>=20 >>>> =20 >>>> =20 >>>>> =20 >>>>> I'm sorry, Jason, I know I'm being thick but I?ve been racking >>>>> my >>>>> brains and I can't think what CJ means - in mitigation it's >>>>> Friday >>>>> afternoon - but when you tell me I'll give myself three kicks. >>>>>=20 >>>>> So far as your 2nd point goes, I don't think that it's >>>>> consistent with >>>>> the HL's explanation of waiver of tort in United Australia Ltd >>>>> v >>>>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >>>>> LC: >>>>> ?Where "waiving the tort" was possible, it was nothing more than >>>>> a >>>>> choice between possible remedies [sc: for the tort] derived from >>>>> a >>>>> time when it was not permitted to combine them or to pursue them >>>>> in >>>>> the alternative, and when there were procedural advantages >>>>> in >>>>> selecting the form of assumpsit.? And again at 18: ?When >>>>> the >>>>> plaintiff "waived the tort" and brought assumpsit, he did not >>>>> thereby >>>>> elect to be treated from that time forward on the basis that no >>>>> tort >>>>> had been committed; indeed, if it were to be understood that no >>>>> tort >>>>> had been committed, how could an action in assumpsit lie? It >>>>> lies only >>>>> because the acquisition of the defendant is wrongful and there >>>>> is thus >>>>> an obligation to make restitution.? Lord Atkin says the >>>>> same at 27-9. >>>>>=20 >>>>> Also as you know we do not believe in absence of juristic reason >>>>> in >>>>> England - at any rate Lord Hoffmann does not although the >>>>> higher >>>>> authority of P Birks and now R Stevens may yet win the day. >>>>>=20 >>>>> Best wishes >>>>> Charles >>>>>=20 >>>>> Quoting Jason Neyers : >>>>>=20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> Dear Charles: >>>>>>=20 >>>>>> The answer to your question depends, of course, on the >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> principle >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> underlying disorgement. For those of us who buy the CJ >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> justification >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> for disgorgement there are good reasons why fraud will >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> not support >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> that remedy. >>>>>>=20 >>>>>> Also, the older cases you mention seem more consistent with >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> the >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> fraud destroying the underlying juristic reason for the >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> transaction >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> and therefore with restitution for UE following rather >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> than >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> supporting for disgorgement for wrongs. >>>>>>=20 >>>>>> Cheers, >>>>>>=20 >>>>>> ----- Original Message ----- >>>>>> From: Charles Mitchell >>>>>> >>>>>> Date: Friday, November 23, 2007 8:46 am >>>>>> Subject: RE: deceit: damages and account >>>>>> To: davidcheifetz@rogers.com >>>>>> Cc: 'Andrew Tettenborn' >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> , >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>>>>>=20 >>>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> Andrew, David: Thanks for pointing us to these interesting >>>>>>> cases. On >>>>>>> the question whether a gain-based remedy should be available for >>>>>>> the >>>>>>> tort of deceit, I always find myself asking - why not? In >>>>>>> Renault the >>>>>>> judge did offer a reason, viz that the claimant had not only >>>>>>> suffered >>>>>>> no loss but had in fact made a profit itself. I?m not sure >>>>>>> whether >>>>>>> that?s necessarily a clincher, but it would be interesting to >>>>>>> hear >>>>>>> what other people think. >>>>>>>=20 >>>>>>> The judge?s other reason in Renault was that Arden LJ had >>>>>>> previously >>>>>>> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >>>>>>> profits >>>>>>> isn?t available to victims of deceit, but I doubt whether much >>>>>>> weight >>>>>>> should be attached to that. At first instance in Murad the >>>>>>> claim was >>>>>>> allowed both on the basis that the claimants could have a >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> gain- >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> based >>>>>>> remedy for the tort of deceit and on the basis that the >>>>>>> defendant had >>>>>>> to disgorge the profits of his breach of fiduciary duty. >>>>>>> The CA >>>>>>> allowed the claim on the second basis and its?s not clear to me >>>>>>> that >>>>>>> any members of the court thought it necessary to decide whether >>>>>>> the >>>>>>> claim based on deceit was also available. >>>>>>>=20 >>>>>>> Halifax Building Society v Thomas [1996] Ch 217 also contains a >>>>>>> dictum >>>>>>> that an account of profits isn?t available to victims of >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> deceit - >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> but >>>>>>> that case was actually decided on the basis that the clamant >>>>>>> could not >>>>>>> ask for a gain-based remedy founded on the tort of deceit once >>>>>>> it had >>>>>>> affirmed the contract which had been induced by D?s >>>>>>> fraudulent >>>>>>> misrepresentation (a similar finding was made in the much >>>>>>> earlier case >>>>>>> of Selway v Fogg (1839) 5 M & W 83). >>>>>>>=20 >>>>>>> So it seems to me that there still isn?t any clear English >>>>>>> authority >>>>>>> that as a general rule victims of deceit cannot claim a gain- >>>>>>> based >>>>>>> remedy; in principle it seems to me that this wouldn?t be a good >>>>>>> rule >>>>>>> for English law to have; and looking back there are many older >>>>>>> cases >>>>>>> which say exactly the opposite, since they hold that a victim >>>>>>> of >>>>>>> deceit who is fraudulently induced to part with money can waive >>>>>>> the >>>>>>> tort and bring an action for money had and received: e.g. Hill >>>>>>> v >>>>>>> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B >>>>>>> 369; >>>>>>> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >>>>>>> 1 El & >>>>>>> Bl 795 at 800. >>>>>>>=20 >>>>>>> Best wishes >>>>>>> Charles >>>>>>>=20 >>>>>>>=20 >>>>>>>=20 >>>>>>>=20 >>>>>>>=20 >>>>>>>=20 >>>>>>>=20 >>>>>>> Quoting David Cheifetz >>>>>>> : >>>>>>>=20 >>>>>>> =20 >>>>>>> =20 =20 Andrew, Compare the opposite result - bad guys had to cough up the =20 =20 >>>>>>> =20 >>>>>>> profit - in 3Com >>>>>>> =20 >>>>>>> =20 =20 Corporation v. Zorin International Corporation, 2006 CanLII =20 =20 >>>>>>> =20 >>>>>>> 18351 (ON C.A.) >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >>> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >>> anlii18351.ht> >>> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> m >>>>>>> =20 >>>>>>> =20 =20 The defendants obtained a cheaper price for computers from =20 =20 >>>>>>> =20 >>>>>>> 3Com by telling >>>>>>> =20 >>>>>>> =20 =20 the distributor that the computers were intended for market X. =20 =20 >>>>>>> =20 >>>>>>> They were >>>>>>> =20 >>>>>>> =20 =20 sold in market Y for a higher price. The evidence was also =20 =20 >>>>>>> =20 >>>>>>> that 3Com >>>>>>> =20 >>>>>>> =20 =20 couldn't have sold the computers at the higher price. =20 =20 >>>>>>> =20 >>>>>>> Defendants were held >>>>>>> =20 >>>>>>> =20 =20 liable for the extra profit. Cheers, David Cheifetz -----Original Message----- From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] Sent: November 23, 2007 6:27 AM To: obligations@uwo.ca Subject: deceit: damages and account A nice little case in the English QBD that may have passed =20 =20 >>>>>>> =20 >>>>>>> list members by. >>>>>>> =20 >>>>>>> =20 =20 [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor =20 =20 >>>>>>> =20 >>>>>>> [2007] EWHC 2541 >>>>>>> =20 >>>>>>> =20 =20 (QB).] The makers of Renault cars operated a discount scheme in =20 =20 >>>>>>> =20 >>>>>>> favour of members >>>>>>> =20 >>>>>>> =20 =20 of BALPA (a labour union): the scheme was operated by =20 =20 >>>>>>> =20 >>>>>>> Fleetpro, who ordered >>>>>>> =20 >>>>>>> =20 =20 the cars. Under the scheme orders were sent to the Renault importers: they sent them to Renault in France, whereupon as =20 =20 >>>>>>> =20 >>>>>>> and when orders >>>>>>> =20 >>>>>>> =20 =20 came in Renault manufactured the necessary cars and =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >>> shipped them. >>> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 Fleetpro did the natural thing and ordered 217 discounted cars =20 =20 >>>>>>> =20 >>>>>>> for ordinary >>>>>>> =20 >>>>>>> =20 =20 customers who they knew had nothing to do with BALPA. The cars =20 =20 >>>>>>> =20 >>>>>>> were shipped: >>>>>>> =20 >>>>>>> =20 =20 the importers made a profit on them, but (because they gave a =20 =20 >>>>>>> =20 >>>>>>> rebate to the >>>>>>> =20 >>>>>>> =20 =20 dealer involved) less than the profit they would have made on =20 =20 >>>>>>> =20 >>>>>>> cars not >>>>>>> =20 >>>>>>> =20 =20 covered by the scheme. The importers sued Fleetpro for deceit, =20 =20 >>>>>>> =20 >>>>>>> and won on >>>>>>> =20 >>>>>>> =20 =20 liability. On damages, however, held: (1) the importers had proved no loss, i.e. they hadn't proved =20 =20 >>>>>>> =20 >>>>>>> the sales came >>>>>>> =20 >>>>>>> =20 =20 other than as extra sales, or that they'd otherwise have =20 =20 >>>>>>> =20 >>>>>>> persuaded customers >>>>>>> =20 >>>>>>> =20 =20 to buy their standard (over) priced cars. (2) There was no =20 =20 >>>>>>> =20 >>>>>>> jurisdiction,> absent a fiduciary relationship) to award an >>>>>>> account of profits against >>>>>>> =20 >>>>>>> =20 =20 Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. The latter holding seems particularly interesting. Best A -- Andrew Tettenborn MA LLB Bracton Professor of Law University of Exeter, England =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> Tel: 01392-263189 / +44-392-263189 >>>>> =20 >>>>> =20 >>>> =20 >>> =20 >>> (outside UK) >>> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 Cellphone: 07870- =20 =20 >>>>>>> =20 >>>>>>> 130528 / +44-7870-130528 (outside UK) >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> Fax: 01392-263196 / +44-392-263196 (outside UK) >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 Snailmail: School of Law, =20 =20 >>>>>>> =20 >>>>>> =20 >>>>>> University of Exeter, >>>>>> =20 >>>>>> =20 >>>>>> Amory Building, >>>>>> =20 >>>>>> =20 >>>>>> Rennes Drive, >>>>>> =20 >>>>>> =20 >>>>>> Exeter EX4 4RJ >>>>>> =20 >>>>>> =20 >>>>>> England >>>>>> =20 >>>>>> =20 >>>>>>> =20 =20 Exeter Law School homepage: http://www.law.ex.ac.uk My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml LAWYER, n. One skilled in circumvention of the law (Ambrose =20 =20 >>>>>>> =20 >>>>>>> Bierce, 1906). >>>>>>> =20 >>>>>>> =20 =20 =20 =20 >>>>>>> =20 >>>>>>>=20 >>>>>>>=20 >>>>>>> -- >>>>>>> Charles Mitchell >>>>>>> charles.mitchell@kcl.ac.uk >>>>>>>=20 >>>>>>>=20 >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>>> -- >>>>>> Jason Neyers >>>>>> Associate Professor of Law >>>>>> Faculty of Law >>>>>> University of Western Ontario >>>>>> N6A 3K7 >>>>>> (519) 661-2111 x. 88435 >>>>>>=20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>>=20 >>>>>=20 >>>>> -- >>>>> Charles Mitchell >>>>> charles.mitchell@kcl.ac.uk >>>>>=20 >>>>>=20 >>>>> =20 >>>>> =20 >>>> =20 >>>> -- >>>> Jason Neyers >>>> Associate Professor of Law >>>> Faculty of Law >>>> University of Western Ontario >>>> N6A 3K7 >>>> (519) 661-2111 x. 88435 >>>>=20 >>>> =20 >>>> =20 >>> =20 >>>=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, . --B_3278670455_128651 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Re: [RDG] ODG RE: deceit: damages and account The q= uestion indeed is whether the plaintiff’s right includes a right to an= y gain derived from breach, but the suggestion that this is only true in pro= perty tort cases is not at all clear. All my rights are mine in some sense. = What is special about property rights? Depending on which of its many meanin= gs one is using, the most obvious answer is that they are exigible against l= ots of people. I have never understood the argument that exigibility-against= -many has any necessary connection to entitlement to gains acquired through = breach (the argument that it has was explicitly rejected in Blake).
In my own view, bringing in fiduciary law only weakens the claim that gain-= based claims are confined to property claims. A duty of loyalty is a right-d= uty relationship, not a property relationship (assuming still that we are us= ing ‘property’ to mean exigibile-against-many). So the availabil= ity of gain-based remedies for breach of fiduciary obligation tells against = any argument that such remedies are about property rights. If we start sayin= g it is ‘like’ property then we have abandoned the initial premi= se, that this is confined to property, and the question remains unanswered, = which rights allow gain-based remedies for infringement?
Lionel



On 23/11/07 13:19, "Jason Neyers" wrote:
Its been awhile since I thought about this in detail bu= t as I remember the/a CJ justice view (Weinrib, "Restitutionary Damages= as CJ"), gain-based remedies are available where the content of the pl= aintiff's right  includes the right to a gain. Without such an entitlem= ent, the fact that the defendant causally made a gain following the violatio= n of my right is irrelevant--I am entitled to have my means restored not som= eone else's.  So gain-based remedies are essentially available only in = property tort situations because the right to property includes the right to= the use, fruits and abuse of it and in situations where the wrongdoer basic= ally has sold my right treated as property (as in the fiduciary duty situati= on where the wrongdoer has sold out their the duty of  loyalty).

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


Duncan Sheehan (LAW) wrote:

Speaking (or maybe writing) as one who does in large measure accept that th= e
disgorgement measure reflects corrective justice, I'd be interested to know=
what Jason thinks the reasons why fraud doesn't support it are. I can't
immediately think of them, so I too will line up with Charles & Lionel.=

On Abbots v Barry, I think the only answer is doesn't it depend on your vie= w
of UE. If, unlike me, you accepted Peter's explanation in his last book of<= BR> interceptive subtraction, would you not say that the possession of the wine=
carried with it earnings opportunities and therefore the sale proceeds coul= d
also be taken by UE? In any case not being familiar with the case, was X D'= s
agent, and if so wouldn't that make a difference?

Duncan  

Ps I am wholly unpersuaded that English law accepts juristic reasons - the<= BR> new Birksian model strikes me as flawed in a number of respects;
explanations forthcoming if you like.

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

  
 

-----Original Message-----
From: Charles Mitchell [mailto= :charles.mitchell@kcl.ac.uk]
Sent: Friday, November 23, 2007 5:05 PM
To: Jason Neyers
Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA
Subject: ODG RE: deceit: damages and account

Picking up first on Lionel?s point re waiver, of course I have to   agree that the C19 judges were not asking themselves whether
an action  
for money had and received following a waiver of tort was a claim for  = ;
the profits of wrongdoing or a claim for restitution of UE. So
when we  
look back at the cases we must say that many are susceptible to  
alternative analysis since the plaintiff made a mistake and the  
quantum of the remedy would have been the same either way.

But I like Jason?s suggestion that looking at the award may
help us to  
eliminate the UE explanation if we can show that this looked to gains  = ;
in D?s hands rather than the value of the assets transferred from P  <= BR> where those two things were different.  Is Abbotts v Barry
like this?   
D orchestrated a fraud pursuant to which his creature X induced P to  =
sell X wine which X then failed to pay for; X handed the wine over to  = ;
D, who sold it on; P claimed the sale proceeds in D?s hands as the   profits accruing from the fraud and recovered them as money had and  <= BR> received.

So far as the corrective justice point goes, I happily line up with  <= BR> Lionel - which is why I take heart from Etherton J?s findings
at first  
instance in Murad at [342]-[347], despite Arden LJ?s negative line in  = ;
the CA.

Best wishes
Charles

Quoting Jason Neyers :

    
 

Dear Charles:

Corrective Justice, sorry to have been so lazy.

English law does believe in juristic reasons (since it is the most  &n= bsp;
coherent generalization of the liability imposed) it just hasn't  &nbs= p;
explicitly caught up to what is implicit in itself yet. :).
      
 

Think of  
    
 

 negligence law immediately prior to DvS.

A history question (since I am painfully ignorant of these
      
 

matters):  
    
 

 when plaintiffs asked for money had and received in the
      
 

1800s cases  
    
 

 cited were they limited to the amount that they gave (restitution &nb= sp; 
for UE) or could they also get the gain from whatever source    (restitution for wrongs/disgorgement)?

From the winter wonderland that is London, Ontario.



----- Original Message -----
From: Charles Mitchell Date: Friday, November 23, 2007 11:10 am
Subject: Re: RE: deceit: damages and account
To: Jason Neyers <= ;mailto:jneyers@uwo.ca>
Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA

      
 

I'm sorry, Jason, I know I'm being thick but I?ve been racking
my
brains and I can't think what CJ means - in mitigation it's
Friday
afternoon - but when you tell me I'll give myself three kicks.

So far as your 2nd point goes, I don't think that it's
consistent with
the HL's explanation of waiver of tort in United Australia Ltd
v
Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon
LC:
?Where "waiving the tort" was possible, it was nothing more than<= BR> a
choice between possible remedies [sc: for the tort] derived from
a
time when it was not permitted to combine them or to pursue them
in
the alternative, and when there were procedural advantages
in
selecting the form of assumpsit.?  And again at 18: ?When
the
plaintiff "waived the tort" and brought assumpsit, he did not
thereby
elect to be treated from that time forward on the basis that no
tort
had been committed; indeed, if it were to be understood that no
tort
had been committed, how could an action in assumpsit lie? It
lies only
because the acquisition of the defendant is wrongful and there
is thus
an obligation to make restitution.?  Lord Atkin says the
same at 27-9.

Also as you know we do not believe in absence of juristic reason
in
England - at any rate Lord Hoffmann does not although the
higher
authority of P Birks and now R Stevens may yet win the day.

Best wishes
Charles

Quoting Jason Neyers :

        
 

Dear Charles:

The answer to your question depends, of course, on the
          
 

principle
        
 

underlying disorgement. For those of us who buy the CJ
          
 

justification
        
 

 for disgorgement there are good reasons why fraud will
          
 

not support
        
 

that remedy.

Also, the older cases you mention seem more consistent with
          
 

the
        
 

fraud destroying the underlying juristic reason for the
          
 

transaction
        
 

and therefore with restitution for UE following rather
          
 

than
        
 

supporting for disgorgement for wrongs.

Cheers,

----- Original Message -----
From: Charles Mitchell Date: Friday, November 23, 2007 8:46 am
Subject: RE: deceit: damages and account
To: davidcheifetz@rogers.com
Cc: 'Andrew Tettenborn'
          
 

,
        
 

obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA

          
 

Andrew, David: Thanks for pointing us to these interesting
cases.  On
the question whether a gain-based remedy should be available for
the
tort of deceit, I always find myself asking - why not?  In
Renault the
judge did offer a reason, viz that the claimant had not only
suffered
no loss but had in fact made a profit itself.  I?m not sure
whether
that?s necessarily a clincher, but it would be interesting to
hear
what other people think.

The judge?s other reason in Renault was that Arden LJ had
previously
said in Murad v Al-Saraj [2005] WTLR 1573 that an account of
profits
isn?t available to victims of deceit, but I doubt whether much
weight
should be attached to that.  At first instance in Murad the
claim was
allowed both on the basis that the claimants could have a
              


gain-
        
 


based
remedy for the tort of deceit and on the basis that the
defendant had
to disgorge the profits of his breach of fiduciary duty.
The CA
allowed the claim on the second basis and its?s not clear to me
that
any members of the court thought it necessary to decide whether
the
claim based on deceit was also available.

Halifax Building Society v Thomas [1996] Ch 217 also contains a
dictum
that an account of profits isn?t available to victims of
              


deceit -
        
 


but
that case was actually decided on the basis that the clamant
could not
ask for a gain-based remedy founded on the tort of deceit once
it had
affirmed the contract which had been induced by D?s
fraudulent
misrepresentation (a similar finding was made in the much
earlier case
of Selway v Fogg (1839) 5 M & W 83).

So it seems to me that there still isn?t any clear English
authority
that as a general rule victims of deceit cannot claim a gain-
based
remedy; in principle it seems to me that this wouldn?t be a good
rule
for English law to have; and looking back there are many older
cases
which say exactly the opposite, since they hold that a victim
of
deceit who is fraudulently induced to part with money can waive
the
tort and bring an action for money had and received: e.g. Hill
v
Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B
369;
Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853)
1 El &
Bl 795 at 800.

Best wishes
Charles







Quoting David Cheifetz :

              

Andrew,

Compare the opposite result - bad guys had to cough up the
            &nb= sp; 
 
<= BLOCKQUOTE>

profit - in 3Com
              

Corporation v. Zorin International Corporation, 2006 CanLII
            &nb= sp; 
 
<= BLOCKQUOTE>

18351 (ON C.A.)
              




h= ttp://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c
anlii18351.ht>
    
 




m
              

The defendants obtained a cheaper price for computers from
            &nb= sp; 
 
<= BLOCKQUOTE>

3Com by telling
              

the distributor that the computers were intended for market X.
            &nb= sp; 
 
<= BLOCKQUOTE>

They were
              

sold in market Y for a higher price. The evidence was also
            &nb= sp; 
 
<= BLOCKQUOTE>

that 3Com
              

couldn't have sold the computers at the higher price.
            &nb= sp; 
 
<= BLOCKQUOTE>

Defendants were held
              

liable for the extra profit.

Cheers,

David Cheifetz


-----Original Message-----
From: Andrew Tettenborn [mail= to:A.M.Tettenborn@exeter.ac.uk]
Sent: November 23, 2007 6:27 AM
To: obligations@uwo.ca
Subject: deceit: damages and account

A nice little case in the English QBD that may have passed
            &nb= sp; 
 
<= BLOCKQUOTE>

list members by.
              

[Renault UK Ltd v. FleetPro Technical Services Ltd & Anor
            &nb= sp; 
 
<= BLOCKQUOTE>

[2007] EWHC 2541
              

(QB).]

The makers of Renault cars operated a discount scheme in
            &nb= sp; 
 
<= BLOCKQUOTE>

favour of members
              

of BALPA (a labour union): the scheme was operated by
            &nb= sp; 
 
<= BLOCKQUOTE>

Fleetpro, who ordered
              

the cars. Under the scheme orders were sent to the Renault
importers: they sent them to Renault in France, whereupon as
            &nb= sp; 
 
<= BLOCKQUOTE>

and when orders
              

came in Renault manufactured the necessary cars and
            &nb= sp; 
 
<= BLOCKQUOTE>





shipped them.
    
 





Fleetpro did the natural thing and ordered 217 discounted cars
            &nb= sp; 
 
<= BLOCKQUOTE>

for ordinary
              

customers who they knew had nothing to do with BALPA. The cars
            &nb= sp; 
 
<= BLOCKQUOTE>

were shipped:
              

the importers made a profit on them, but (because they gave a
            &nb= sp; 
 
<= BLOCKQUOTE>

rebate to the
              

dealer involved) less than the profit they would have made on
            &nb= sp; 
 
<= BLOCKQUOTE>

cars not
              

covered by the scheme. The importers sued Fleetpro for deceit,
            &nb= sp; 
 
<= BLOCKQUOTE>

and won on
              

liability. On damages, however, held:

(1) the importers had proved no loss, i.e. they hadn't proved
            &nb= sp; 
 
<= BLOCKQUOTE>

the sales came
              

other than as extra sales, or that they'd otherwise have
            &nb= sp; 
 
<= BLOCKQUOTE>

persuaded customers
              

to buy their standard (over) priced cars. (2) There was no
            &nb= sp; 
 
<= BLOCKQUOTE>

jurisdiction,> absent a fiduciary relationship) to award an
account of profits against
              

Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit.

The latter holding seems particularly interesting.


Best

A

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England



            &nb= sp; 
 
<= BLOCKQUOTE>



Tel:            &nbs= p;     01392-263189    /   = ;+44-392-263189
        
 


(outside UK)
    
 





Cellphone:       07870-
            &nb= sp; 
 
<= BLOCKQUOTE>

130528   /   +44-7870-130528 (outside UK)
              


Fax:            &nbs= p;    01392-263196    /   +44-3= 92-263196 (outside UK)
        
 



Snailmail:   School of Law,
            &nb= sp; 
 
<= BLOCKQUOTE>


            &nb= sp;      University of Exeter,
          
 
            &nb= sp;      Amory Building,
          
 
            &nb= sp;      Rennes Drive,
          
 
            &nb= sp;      Exeter EX4 4RJ
          
 
            &nb= sp;      England
          
 


Exeter Law School homepage: http://www.la= w.ex.ac.uk
My homepage: http:= //www.law.ex.ac.uk/staff/tettenborn.shtml





LAWYER, n. One skilled in circumvention of the law (Ambrose
            &nb= sp; 
 
<= BLOCKQUOTE>

Bierce, 1906).
              




            &nb= sp; 
 
<= BLOCKQUOTE>



--
Charles Mitchell
charles.mitchell@kcl.ac.uk


              

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

          
 



--
Charles Mitchell
charles.mitchell@kcl.ac.uk


        
 

 --
Jason Neyers
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, . --B_3278670455_128651-- ========================================================================= Date: Fri, 23 Nov 2007 14:20:05 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: ODG RE: deceit: damages and account Comments: To: Lionel Smith , "obligations@uwo.ca" In-Reply-To: MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_NHmgWhZUCOUZ7hURJuosnw)" This is a multi-part message in MIME format. --Boundary_(ID_NHmgWhZUCOUZ7hURJuosnw) Content-type: text/plain; charset=us-ascii; format=flowed Content-transfer-encoding: 7BIT Colleagues: I'm not sure "property-like" is a concept that is vacuous or without content, and in any event Weinrib deals with this possible objection in the CJ paper for those that are interested. I had always thought that it was the nature of acquisition which set apart property and gave its owner the entitlement to the use, fruit and abuse: becuase after acquisition it is now their means/thing. I would add also that the property owner is entitled to the gain/fruits even without a breach by anyone, so the entitlement comes from the primary right not the secondary right; so the explanation is not as question-begging as Lionel makes it appear. Cheers, Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 Lionel Smith wrote: > The question indeed is whether the plaintiff's right includes a right > to any gain derived from breach, but the suggestion that this is only > true in property tort cases is not at all clear. All my rights are > mine in some sense. What is special about property rights? Depending > on which of its many meanings one is using, the most obvious answer is > that they are exigible against lots of people. I have never understood > the argument that exigibility-against-many has any necessary > connection to entitlement to gains acquired through breach (the > argument that it has was explicitly rejected in Blake). > In my own view, bringing in fiduciary law only weakens the claim that > gain-based claims are confined to property claims. A duty of loyalty > is a right-duty relationship, not a property relationship (assuming > still that we are using 'property' to mean exigibile-against-many). So > the availability of gain-based remedies for breach of fiduciary > obligation tells against any argument that such remedies are about > property rights. If we start saying it is 'like' property then we have > abandoned the initial premise, that this is confined to property, and > the question remains unanswered, which rights allow gain-based > remedies for infringement? > Lionel > > > > On 23/11/07 13:19, "Jason Neyers" wrote: > > Its been awhile since I thought about this in detail but as I > remember the/a CJ justice view (Weinrib, "Restitutionary Damages > as CJ"), gain-based remedies are available where the content of > the plaintiff's right includes the right to a gain. Without such > an entitlement, the fact that the defendant causally made a gain > following the violation of my right is irrelevant--I am entitled > to have my means restored not someone else's. So gain-based > remedies are essentially available only in property tort > situations because the right to property includes the right to the > use, fruits and abuse of it and in situations where the wrongdoer > basically has sold my right treated as property (as in the > fiduciary duty situation where the wrongdoer has sold out their > the duty of loyalty). > > Cheers, > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > > > Duncan Sheehan (LAW) wrote: > > > Speaking (or maybe writing) as one who does in large measure > accept that the > disgorgement measure reflects corrective justice, I'd be > interested to know > what Jason thinks the reasons why fraud doesn't support it > are. I can't > immediately think of them, so I too will line up with Charles > & Lionel. > > On Abbots v Barry, I think the only answer is doesn't it > depend on your view > of UE. If, unlike me, you accepted Peter's explanation in his > last book of > interceptive subtraction, would you not say that the > possession of the wine > carried with it earnings opportunities and therefore the sale > proceeds could > also be taken by UE? In any case not being familiar with the > case, was X D's > agent, and if so wouldn't that make a difference? > > Duncan > > Ps I am wholly unpersuaded that English law accepts juristic > reasons - the > new Birksian model strikes me as flawed in a number of respects; > explanations forthcoming if you like. > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > > > > > -----Original Message----- > From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] > > Sent: Friday, November 23, 2007 5:05 PM > To: Jason Neyers > Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA > Subject: ODG RE: deceit: damages and account > > Picking up first on Lionel?s point re waiver, of course I > have to > agree that the C19 judges were not asking themselves whether > an action > for money had and received following a waiver of tort was > a claim for > the profits of wrongdoing or a claim for restitution of > UE. So > when we > look back at the cases we must say that many are > susceptible to > alternative analysis since the plaintiff made a mistake > and the > quantum of the remedy would have been the same either way. > > But I like Jason?s suggestion that looking at the award may > help us to > eliminate the UE explanation if we can show that this > looked to gains > in D?s hands rather than the value of the assets > transferred from P > where those two things were different. Is Abbotts v Barry > like this? > D orchestrated a fraud pursuant to which his creature X > induced P to > sell X wine which X then failed to pay for; X handed the > wine over to > D, who sold it on; P claimed the sale proceeds in D?s > hands as the > profits accruing from the fraud and recovered them as > money had and > received. > > So far as the corrective justice point goes, I happily > line up with > Lionel - which is why I take heart from Etherton J?s findings > at first > instance in Murad at [342]-[347], despite Arden LJ?s > negative line in > the CA. > > Best wishes > Charles > > Quoting Jason Neyers > : > > > > > > Dear Charles: > > Corrective Justice, sorry to have been so lazy. > > English law does believe in juristic reasons (since it > is the most > coherent generalization of the liability imposed) it > just hasn't > explicitly caught up to what is implicit in itself > yet. :). > > > > > Think of > > > > > negligence law immediately prior to DvS. > > A history question (since I am painfully ignorant of > these > > > > > matters): > > > > > when plaintiffs asked for money had and received in the > > > > > 1800s cases > > > > > cited were they limited to the amount that they gave > (restitution > for UE) or could they also get the gain from whatever > source > (restitution for wrongs/disgorgement)? > > From the winter wonderland that is London, Ontario. > > > > ----- Original Message ----- > From: Charles Mitchell > > Date: Friday, November 23, 2007 11:10 am > Subject: Re: RE: deceit: damages and account > To: Jason Neyers > Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > > > > > > I'm sorry, Jason, I know I'm being thick but I?ve > been racking > my > brains and I can't think what CJ means - in > mitigation it's > Friday > afternoon - but when you tell me I'll give myself > three kicks. > > So far as your 2nd point goes, I don't think that it's > consistent with > the HL's explanation of waiver of tort in United > Australia Ltd > v > Barclays Bank Ltd [1941] AC 1, e.g. at 13 per > Viscount Simon > LC: > ?Where "waiving the tort" was possible, it was > nothing more than > a > choice between possible remedies [sc: for the > tort] derived from > a > time when it was not permitted to combine them or > to pursue them > in > the alternative, and when there were procedural > advantages > in > selecting the form of assumpsit.? And again at > 18: ?When > the > plaintiff "waived the tort" and brought assumpsit, > he did not > thereby > elect to be treated from that time forward on the > basis that no > tort > had been committed; indeed, if it were to be > understood that no > tort > had been committed, how could an action in > assumpsit lie? It > lies only > because the acquisition of the defendant is > wrongful and there > is thus > an obligation to make restitution.? Lord Atkin > says the > same at 27-9. > > Also as you know we do not believe in absence of > juristic reason > in > England - at any rate Lord Hoffmann does not > although the > higher > authority of P Birks and now R Stevens may yet win > the day. > > Best wishes > Charles > > Quoting Jason Neyers > : > > > > > > Dear Charles: > > The answer to your question depends, of > course, on the > > > > > principle > > > > > underlying disorgement. For those of us who > buy the CJ > > > > > justification > > > > > for disgorgement there are good reasons why > fraud will > > > > > not support > > > > > that remedy. > > Also, the older cases you mention seem more > consistent with > > > > > the > > > > > fraud destroying the underlying juristic > reason for the > > > > > transaction > > > > > and therefore with restitution for UE > following rather > > > > > than > > > > > supporting for disgorgement for wrongs. > > Cheers, > > ----- Original Message ----- > From: Charles Mitchell > > > Date: Friday, November 23, 2007 8:46 am > Subject: RE: deceit: damages and account > To: davidcheifetz@rogers.com > Cc: 'Andrew Tettenborn' > > > > > > , > > > > > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > > > > > > Andrew, David: Thanks for pointing us to > these interesting > cases. On > the question whether a gain-based remedy > should be available for > the > tort of deceit, I always find myself > asking - why not? In > Renault the > judge did offer a reason, viz that the > claimant had not only > suffered > no loss but had in fact made a profit > itself. I?m not sure > whether > that?s necessarily a clincher, but it > would be interesting to > hear > what other people think. > > The judge?s other reason in Renault was > that Arden LJ had > previously > said in Murad v Al-Saraj [2005] WTLR 1573 > that an account of > profits > isn?t available to victims of deceit, but > I doubt whether much > weight > should be attached to that. At first > instance in Murad the > claim was > allowed both on the basis that the > claimants could have a > > > > > > gain- > > > > > > based > remedy for the tort of deceit and on the > basis that the > defendant had > to disgorge the profits of his breach of > fiduciary duty. > The CA > allowed the claim on the second basis and > its?s not clear to me > that > any members of the court thought it > necessary to decide whether > the > claim based on deceit was also available. > > Halifax Building Society v Thomas [1996] > Ch 217 also contains a > dictum > that an account of profits isn?t available > to victims of > > > > > > deceit - > > > > > > but > that case was actually decided on the > basis that the clamant > could not > ask for a gain-based remedy founded on the > tort of deceit once > it had > affirmed the contract which had been > induced by D?s > fraudulent > misrepresentation (a similar finding was > made in the much > earlier case > of Selway v Fogg (1839) 5 M & W 83). > > So it seems to me that there still isn?t > any clear English > authority > that as a general rule victims of deceit > cannot claim a gain- > based > remedy; in principle it seems to me that > this wouldn?t be a good > rule > for English law to have; and looking back > there are many older > cases > which say exactly the opposite, since they > hold that a victim > of > deceit who is fraudulently induced to part > with money can waive > the > tort and bring an action for money had and > received: e.g. Hill > v > Perrott (1810) 3 Taunt 274; Abbotts v > Barry (1820) 2 Brod & B > 369; > Edmeads v Newman (1823) 1 B & C 418 at > 422-3; Holt v Ely (1853) > 1 El & > Bl 795 at 800. > > Best wishes > Charles > > > > > > > > Quoting David Cheifetz > > : > > > > > > Andrew, > > Compare the opposite result - bad guys had to cough up the > > > > > profit - in 3Com > > > > > Corporation v. Zorin International Corporation, 2006 CanLII > > > > > 18351 (ON C.A.) > > > > > > > > http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c > anlii18351.ht> > > > > > > > > m > > > > > The defendants obtained a cheaper price for computers from > > > > > 3Com by telling > > > > > the distributor that the computers were intended for market X. > > > > > They were > > > > > sold in market Y for a higher price. The evidence was also > > > > > that 3Com > > > > > couldn't have sold the computers at the higher price. > > > > > Defendants were held > > > > > liable for the extra profit. > > Cheers, > > David Cheifetz > > > -----Original Message----- > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] > > Sent: November 23, 2007 6:27 AM > To: obligations@uwo.ca > Subject: deceit: damages and account > > A nice little case in the English QBD that may have passed > > > > > list members by. > > > > > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor > > > > > [2007] EWHC 2541 > > > > > (QB).] > > The makers of Renault cars operated a discount scheme in > > > > > favour of members > > > > > of BALPA (a labour union): the scheme was operated by > > > > > Fleetpro, who ordered > > > > > the cars. Under the scheme orders were sent to the Renault > importers: they sent them to Renault in France, whereupon as > > > > > and when orders > > > > > came in Renault manufactured the necessary cars and > > > > > > > > > shipped them. > > > > > > > > > Fleetpro did the natural thing and ordered 217 discounted cars > > > > > for ordinary > > > > > customers who they knew had nothing to do with BALPA. The cars > > > > > were shipped: > > > > > the importers made a profit on them, but (because they gave a > > > > > rebate to the > > > > > dealer involved) less than the profit they would have made on > > > > > cars not > > > > > covered by the scheme. The importers sued Fleetpro for deceit, > > > > > and won on > > > > > liability. On damages, however, held: > > (1) the importers had proved no loss, i.e. they hadn't proved > > > > > the sales came > > > > > other than as extra sales, or that they'd otherwise have > > > > > persuaded customers > > > > > to buy their standard (over) priced cars. (2) There was no > > > > > jurisdiction,> absent a fiduciary > relationship) to award an > account of profits against > > > > > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. > > The latter holding seems particularly interesting. > > > Best > > A > > -- > Andrew Tettenborn MA LLB > Bracton Professor of Law > University of Exeter, England > > > > > > > > > > Tel: 01392-263189 / > +44-392-263189 > > > > > > (outside UK) > > > > > > > > > Cellphone: 07870- > > > > > 130528 / +44-7870-130528 (outside UK) > > > > > > Fax: 01392-263196 / > +44-392-263196 (outside UK) > > > > > > > Snailmail: School of Law, > > > > > > University of Exeter, > > > Amory Building, > > > Rennes Drive, > > > Exeter EX4 4RJ > > > England > > > > > > Exeter Law School homepage: http://www.law.ex.ac.uk > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml > > > > > > LAWYER, n. One skilled in circumvention of the law (Ambrose > > > > > Bierce, 1906). > > > > > > > > > > > > > > -- > Charles Mitchell > charles.mitchell@kcl.ac.uk > > > > > > > -- > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 > > > > > > > > -- > Charles Mitchell > charles.mitchell@kcl.ac.uk > > > > > > > -- > Jason Neyers > 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_NHmgWhZUCOUZ7hURJuosnw) Content-type: text/html; charset=us-ascii Content-transfer-encoding: 7BIT Colleagues:

I'm not sure "property-like" is a concept that is vacuous or without content, and in any event Weinrib deals with this possible objection in the CJ paper for those that are interested.

I had always thought that it was the nature of acquisition which set apart property and gave its owner the entitlement to the use, fruit and abuse: becuase after acquisition it is now their means/thing. I would add also that the property owner is entitled to the gain/fruits even without a breach by anyone, so the entitlement comes from the primary right not the secondary right; so the explanation is not as question-begging as Lionel makes it appear.

Cheers, 
Jason Neyers 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435


Lionel Smith wrote:
Re: [RDG] ODG RE: deceit: damages and account The question indeed is whether the plaintiff’s right includes a right to any gain derived from breach, but the suggestion that this is only true in property tort cases is not at all clear. All my rights are mine in some sense. What is special about property rights? Depending on which of its many meanings one is using, the most obvious answer is that they are exigible against lots of people. I have never understood the argument that exigibility-against-many has any necessary connection to entitlement to gains acquired through breach (the argument that it has was explicitly rejected in Blake).
In my own view, bringing in fiduciary law only weakens the claim that gain-based claims are confined to property claims. A duty of loyalty is a right-duty relationship, not a property relationship (assuming still that we are using ‘property’ to mean exigibile-against-many). So the availability of gain-based remedies for breach of fiduciary obligation tells against any argument that such remedies are about property rights. If we start saying it is ‘like’ property then we have abandoned the initial premise, that this is confined to property, and the question remains unanswered, which rights allow gain-based remedies for infringement?
Lionel



On 23/11/07 13:19, "Jason Neyers" wrote:
Its been awhile since I thought about this in detail but as I remember the/a CJ justice view (Weinrib, "Restitutionary Damages as CJ"), gain-based remedies are available where the content of the plaintiff's right  includes the right to a gain. Without such an entitlement, the fact that the defendant causally made a gain following the violation of my right is irrelevant--I am entitled to have my means restored not someone else's.  So gain-based remedies are essentially available only in property tort situations because the right to property includes the right to the use, fruits and abuse of it and in situations where the wrongdoer basically has sold my right treated as property (as in the fiduciary duty situation where the wrongdoer has sold out their the duty of  loyalty).

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


Duncan Sheehan (LAW) wrote:

Speaking (or maybe writing) as one who does in large measure accept that the
disgorgement measure reflects corrective justice, I'd be interested to know
what Jason thinks the reasons why fraud doesn't support it are. I can't
immediately think of them, so I too will line up with Charles & Lionel.

On Abbots v Barry, I think the only answer is doesn't it depend on your view
of UE. If, unlike me, you accepted Peter's explanation in his last book of
interceptive subtraction, would you not say that the possession of the wine
carried with it earnings opportunities and therefore the sale proceeds could
also be taken by UE? In any case not being familiar with the case, was X D's
agent, and if so wouldn't that make a difference?

Duncan  

Ps I am wholly unpersuaded that English law accepts juristic reasons - the
new Birksian model strikes me as flawed in a number of respects;
explanations forthcoming if you like.

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

  
 

-----Original Message-----
From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk]
Sent: Friday, November 23, 2007 5:05 PM
To: Jason Neyers
Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA
Subject: ODG RE: deceit: damages and account

Picking up first on Lionel?s point re waiver, of course I have to  
agree that the C19 judges were not asking themselves whether
an action  
for money had and received following a waiver of tort was a claim for  
the profits of wrongdoing or a claim for restitution of UE. So
when we  
look back at the cases we must say that many are susceptible to  
alternative analysis since the plaintiff made a mistake and the  
quantum of the remedy would have been the same either way.

But I like Jason?s suggestion that looking at the award may
help us to  
eliminate the UE explanation if we can show that this looked to gains  
in D?s hands rather than the value of the assets transferred from P  
where those two things were different.  Is Abbotts v Barry
like this?   
D orchestrated a fraud pursuant to which his creature X induced P to  
sell X wine which X then failed to pay for; X handed the wine over to  
D, who sold it on; P claimed the sale proceeds in D?s hands as the  
profits accruing from the fraud and recovered them as money had and  
received.

So far as the corrective justice point goes, I happily line up with  
Lionel - which is why I take heart from Etherton J?s findings
at first  
instance in Murad at [342]-[347], despite Arden LJ?s negative line in  
the CA.

Best wishes
Charles

Quoting Jason Neyers :

    
 

Dear Charles:

Corrective Justice, sorry to have been so lazy.

English law does believe in juristic reasons (since it is the most   
coherent generalization of the liability imposed) it just hasn't   
explicitly caught up to what is implicit in itself yet. :).
      
 

Think of  
    
 

 negligence law immediately prior to DvS.

A history question (since I am painfully ignorant of these
      
 

matters):  
    
 

 when plaintiffs asked for money had and received in the
      
 

1800s cases  
    
 

 cited were they limited to the amount that they gave (restitution   
for UE) or could they also get the gain from whatever source   
(restitution for wrongs/disgorgement)?

From the winter wonderland that is London, Ontario.



----- Original Message -----
From: Charles Mitchell
Date: Friday, November 23, 2007 11:10 am
Subject: Re: RE: deceit: damages and account
To: Jason Neyers
Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA

      
 

I'm sorry, Jason, I know I'm being thick but I?ve been racking
my
brains and I can't think what CJ means - in mitigation it's
Friday
afternoon - but when you tell me I'll give myself three kicks.

So far as your 2nd point goes, I don't think that it's
consistent with
the HL's explanation of waiver of tort in United Australia Ltd
v
Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon
LC:
?Where "waiving the tort" was possible, it was nothing more than
a
choice between possible remedies [sc: for the tort] derived from
a
time when it was not permitted to combine them or to pursue them
in
the alternative, and when there were procedural advantages
in
selecting the form of assumpsit.?  And again at 18: ?When
the
plaintiff "waived the tort" and brought assumpsit, he did not
thereby
elect to be treated from that time forward on the basis that no
tort
had been committed; indeed, if it were to be understood that no
tort
had been committed, how could an action in assumpsit lie? It
lies only
because the acquisition of the defendant is wrongful and there
is thus
an obligation to make restitution.?  Lord Atkin says the
same at 27-9.

Also as you know we do not believe in absence of juristic reason
in
England - at any rate Lord Hoffmann does not although the
higher
authority of P Birks and now R Stevens may yet win the day.

Best wishes
Charles

Quoting Jason Neyers :

        
 

Dear Charles:

The answer to your question depends, of course, on the
          
 

principle
        
 

underlying disorgement. For those of us who buy the CJ
          
 

justification
        
 

 for disgorgement there are good reasons why fraud will
          
 

not support
        
 

that remedy.

Also, the older cases you mention seem more consistent with
          
 

the
        
 

fraud destroying the underlying juristic reason for the
          
 

transaction
        
 

and therefore with restitution for UE following rather
          
 

than
        
 

supporting for disgorgement for wrongs.

Cheers,

----- Original Message -----
From: Charles Mitchell
Date: Friday, November 23, 2007 8:46 am
Subject: RE: deceit: damages and account
To: davidcheifetz@rogers.com
Cc: 'Andrew Tettenborn'
          
 

,
        
 

obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA

          
 

Andrew, David: Thanks for pointing us to these interesting
cases.  On
the question whether a gain-based remedy should be available for
the
tort of deceit, I always find myself asking - why not?  In
Renault the
judge did offer a reason, viz that the claimant had not only
suffered
no loss but had in fact made a profit itself.  I?m not sure
whether
that?s necessarily a clincher, but it would be interesting to
hear
what other people think.

The judge?s other reason in Renault was that Arden LJ had
previously
said in Murad v Al-Saraj [2005] WTLR 1573 that an account of
profits
isn?t available to victims of deceit, but I doubt whether much
weight
should be attached to that.  At first instance in Murad the
claim was
allowed both on the basis that the claimants could have a
            
 


gain-
        
 


based
remedy for the tort of deceit and on the basis that the
defendant had
to disgorge the profits of his breach of fiduciary duty.
The CA
allowed the claim on the second basis and its?s not clear to me
that
any members of the court thought it necessary to decide whether
the
claim based on deceit was also available.

Halifax Building Society v Thomas [1996] Ch 217 also contains a
dictum
that an account of profits isn?t available to victims of
            
 


deceit -
        
 


but
that case was actually decided on the basis that the clamant
could not
ask for a gain-based remedy founded on the tort of deceit once
it had
affirmed the contract which had been induced by D?s
fraudulent
misrepresentation (a similar finding was made in the much
earlier case
of Selway v Fogg (1839) 5 M & W 83).

So it seems to me that there still isn?t any clear English
authority
that as a general rule victims of deceit cannot claim a gain-
based
remedy; in principle it seems to me that this wouldn?t be a good
rule
for English law to have; and looking back there are many older
cases
which say exactly the opposite, since they hold that a victim
of
deceit who is fraudulently induced to part with money can waive
the
tort and bring an action for money had and received: e.g. Hill
v
Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B
369;
Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853)
1 El &
Bl 795 at 800.

Best wishes
Charles







Quoting David Cheifetz :

            
 

Andrew,

Compare the opposite result - bad guys had to cough up the
              
 

profit - in 3Com
            
 

Corporation v. Zorin International Corporation, 2006 CanLII
              
 

18351 (ON C.A.)
            
 




http://www.canlii.org/en/on/onca/ doc/2006/2006canlii18351/2006c
anlii18351.ht>
    
 




m
            
 

The defendants obtained a cheaper price for computers from
              
 

3Com by telling
            
 

the distributor that the computers were intended for market X.
              
 

They were
            
 

sold in market Y for a higher price. The evidence was also
              
 

that 3Com
            
 

couldn't have sold the computers at the higher price.
              
 

Defendants were held
            
 

liable for the extra profit.

Cheers,

David Cheifetz


-----Original Message-----
From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
Sent: November 23, 2007 6:27 AM
To: obligations@uwo.ca
Subject: deceit: damages and account

A nice little case in the English QBD that may have passed
              
 

list members by.
            
 

[Renault UK Ltd v. FleetPro Technical Services Ltd & Anor
              
 

[2007] EWHC 2541
            
 

(QB).]

The makers of Renault cars operated a discount scheme in
              
 

favour of members
            
 

of BALPA (a labour union): the scheme was operated by
              
 

Fleetpro, who ordered
            
 

the cars. Under the scheme orders were sent to the Renault
importers: they sent them to Renault in France, whereupon as
              
 

and when orders
            
 

came in Renault manufactured the necessary cars and
              
 





shipped them.
    
 





Fleetpro did the natural thing and ordered 217 discounted cars
              
 

for ordinary
            
 

customers who they knew had nothing to do with BALPA. The cars
              
 

were shipped:
            
 

the importers made a profit on them, but (because they gave a
              
 

rebate to the
            
 

dealer involved) less than the profit they would have made on
              
 

cars not
            
 

covered by the scheme. The importers sued Fleetpro for deceit,
              
 

and won on
            
 

liability. On damages, however, held:

(1) the importers had proved no loss, i.e. they hadn't proved
              
 

the sales came
            
 

other than as extra sales, or that they'd otherwise have
              
 

persuaded customers
            
 

to buy their standard (over) priced cars. (2) There was no
              
 

jurisdiction,> absent a fiduciary relationship) to award an
account of profits against
            
 

Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit.

The latter holding seems particularly interesting.


Best

A

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England



              
 



Tel:                   01392-263189    /   +44-392-263189
        
 


(outside UK)
    
 





Cellphone:       07870-
              
 

130528   /   +44-7870-130528 (outside UK)
            
 


Fax:                  01392-263196    /   +44-392-263196 (outside UK)
        
 



Snailmail:   School of Law,
              
 


                    University of Exeter,
          
 
                    Amory Building,
          
 
                    Rennes Drive,
          
 
                    Exeter EX4 4RJ
          
 
                    England
          
 


Exeter Law School homepage: http://www.law.ex.ac.uk
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml





LAWYER, n. One skilled in circumvention of the law (Ambrose
              
 

Bierce, 1906).
            
 




              
 



--
Charles Mitchell
charles.mitchell@kcl.ac.uk


            
 

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

          
 



--
Charles Mitchell
charles.mitchell@kcl.ac.uk


        
 

 --
Jason Neyers
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_NHmgWhZUCOUZ7hURJuosnw)-- ========================================================================= Date: Fri, 23 Nov 2007 15:07:32 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: ODG RE: deceit: damages and account Comments: To: Jason Neyers , ODG In-Reply-To: <474727E5.1040207@uwo.ca> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3278675252_425102" > 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_3278675252_425102 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable But Jason, I don=B9t think I said it was vacuous or without content, and I don=B9t think I said =8Cproperty-like=B9. I said =8Cproperty=B9 has lots of meanings, and then I picked one. My objections are not only to your email but to Professor Weinrib=B9s arguments, in the article you mention and his more recent one on disgorgement for breach of contract. I still don=B9t see that the distinction between =8Cproperty=B9 and =8Cother rights=B9, with fiduciary obligations on the side of =8Cproperty=B9, has been justified as a basis for determining the availability of gain-based remedies for infringements. Rules about fruits are answers to a similar question, namely the scope of the rights. But first, the answer to who gets non-wrongfully-generated fruits does not tell us what should happen in the case of infringements; we are talking about the results of infringement, not claims to enforce a primary right. The Kentucky Caves case would not be controversial if the defendant had simply taken apples from the plaintiff=B9s tree. Secondly, it i= s arguable that the holder of a personal right is sometimes entitled to fruits. But that is a long story, depending partly on what fruits are in this context, which perhaps belongs better to the FVDG (Fruit and Vegetable Discussion Group). Lionel On 23/11/07 14:20, "Jason Neyers" wrote: > Colleagues:=20 >=20 > I'm not sure "property-like" is a concept that is vacuous or without cont= ent, > and in any event Weinrib deals with this possible objection in the CJ pap= er > for those that are interested. >=20 > I had always thought that it was the nature of acquisition which set apar= t > property and gave its owner the entitlement to the use, fruit and abuse: > becuase after acquisition it is now their means/thing. I would add also t= hat > the property owner is entitled to the gain/fruits even without a breach b= y > anyone, so the entitlement comes from the primary right not the secondary > right; so the explanation is not as question-begging as Lionel makes it > appear.=20 >=20 > Cheers,=20 > Jason Neyers > Associate Professor of Law > Faculty of Law > University of Western Ontario > N6A 3K7 > (519) 661-2111 x. 88435 >=20 >=20 > Lionel Smith wrote: >> Re: [RDG] ODG RE: deceit: damages and account The question indeed is wh= ether >> the plaintiff=B9s right includes a right to any gain derived from breach, = but >> the suggestion that this is only true in property tort cases is not at a= ll >> clear. All my rights are mine in some sense. What is special about prope= rty >> rights? Depending on which of its many meanings one is using, the most >> obvious answer is that they are exigible against lots of people. I have = never >> understood the argument that exigibility-against-many has any necessary >> connection to entitlement to gains acquired through breach (the argument= that >> it has was explicitly rejected in Blake). >> In my own view, bringing in fiduciary law only weakens the claim that >> gain-based claims are confined to property claims. A duty of loyalty is = a >> right-duty relationship, not a property relationship (assuming still tha= t we >> are using =8Cproperty=B9 to mean exigibile-against-many). So the availabilit= y of >> gain-based remedies for breach of fiduciary obligation tells against any >> argument that such remedies are about property rights. If we start sayin= g it >> is =8Clike=B9 property then we have abandoned the initial premise, that this= is >> confined to property, and the question remains unanswered, which rights = allow >> gain-based remedies for infringement? >> Lionel >> =20 >> =20 >> =20 >> On 23/11/07 13:19, "Jason Neyers" >> wrote: >> =20 >> =20 >>> Its been awhile since I thought about this in detail but as I remember = the/a >>> CJ justice view (Weinrib, "Restitutionary Damages as CJ"), gain-based >>> remedies are available where the content of the plaintiff's right incl= udes >>> the right to a gain. Without such an entitlement, the fact that the >>> defendant causally made a gain following the violation of my right is >>> irrelevant--I am entitled to have my means restored not someone else's.= So >>> gain-based remedies are essentially available only in property tort >>> situations because the right to property includes the right to the use, >>> fruits and abuse of it and in situations where the wrongdoer basically = has >>> sold my right treated as property (as in the fiduciary duty situation w= here >>> the wrongdoer has sold out their the duty of loyalty). >>> =20 >>> Cheers,=20 >>> Jason Neyers >>> Associate Professor of Law >>> Faculty of Law >>> University of Western Ontario >>> N6A 3K7 >>> (519) 661-2111 x. 88435 >>> =20 >>> =20 >>> Duncan Sheehan (LAW) wrote: >>> =20 >>>> =20 >>>> Speaking (or maybe writing) as one who does in large measure accept th= at >>>> the >>>> disgorgement measure reflects corrective justice, I'd be interested to= know >>>> what Jason thinks the reasons why fraud doesn't support it are. I can'= t >>>> immediately think of them, so I too will line up with Charles & Lionel= . >>>> =20 >>>> On Abbots v Barry, I think the only answer is doesn't it depend on you= r >>>> view >>>> of UE. If, unlike me, you accepted Peter's explanation in his last boo= k of >>>> interceptive subtraction, would you not say that the possession of the= wine >>>> carried with it earnings opportunities and therefore the sale proceeds >>>> could >>>> also be taken by UE? In any case not being familiar with the case, was= X >>>> D's >>>> agent, and if so wouldn't that make a difference? >>>> =20 >>>> Duncan =20 >>>> =20 >>>> Ps I am wholly unpersuaded that English law accepts juristic reasons -= the >>>> new Birksian model strikes me as flawed in a number of respects; >>>> explanations forthcoming if you like. >>>> =20 >>>> Dr Duncan Sheehan >>>> Senior Lecturer in Law >>>> Director of Research >>>> Norwich Law School >>>> University of East Anglia >>>> Norwich NR4 7TJ >>>> United Kingdom >>>> =20 >>>> =20 >>>> =20 >>>> =20 >>>>> =20 >>>>> -----Original Message----- >>>>> From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >>>>> >>>>> Sent: Friday, November 23, 2007 5:05 PM >>>>> To: Jason Neyers >>>>> Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >>>>> Subject: ODG RE: deceit: damages and account >>>>> =20 >>>>> Picking up first on Lionel?s point re waiver, of course I have to >>>>> agree that the C19 judges were not asking themselves whether >>>>> an action =20 >>>>> for money had and received following a waiver of tort was a claim for >>>>> the profits of wrongdoing or a claim for restitution of UE. So >>>>> when we =20 >>>>> look back at the cases we must say that many are susceptible to >>>>> alternative analysis since the plaintiff made a mistake and the >>>>> quantum of the remedy would have been the same either way. >>>>> =20 >>>>> But I like Jason?s suggestion that looking at the award may >>>>> help us to =20 >>>>> eliminate the UE explanation if we can show that this looked to gains >>>>> in D?s hands rather than the value of the assets transferred from P >>>>> where those two things were different. Is Abbotts v Barry >>>>> like this? =20 >>>>> D orchestrated a fraud pursuant to which his creature X induced P to >>>>> sell X wine which X then failed to pay for; X handed the wine over to >>>>> D, who sold it on; P claimed the sale proceeds in D?s hands as the >>>>> profits accruing from the fraud and recovered them as money had and >>>>> received. >>>>> =20 >>>>> So far as the corrective justice point goes, I happily line up with >>>>> Lionel - which is why I take heart from Etherton J?s findings >>>>> at first =20 >>>>> instance in Murad at [342]-[347], despite Arden LJ?s negative line in >>>>> the CA. >>>>> =20 >>>>> Best wishes >>>>> Charles >>>>> =20 >>>>> Quoting Jason Neyers >>>>> : >>>>> =20 >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> Dear Charles: >>>>>> =20 >>>>>> Corrective Justice, sorry to have been so lazy. >>>>>> =20 >>>>>> English law does believe in juristic reasons (since it is the most >>>>>> coherent generalization of the liability imposed) it just hasn't >>>>>> explicitly caught up to what is implicit in itself yet. :). >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> Think of =20 >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> negligence law immediately prior to DvS. >>>>>> =20 >>>>>> A history question (since I am painfully ignorant of these >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> matters): =20 >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> when plaintiffs asked for money had and received in the >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> 1800s cases =20 >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> cited were they limited to the amount that they gave (restitution >>>>>> for UE) or could they also get the gain from whatever source >>>>>> (restitution for wrongs/disgorgement)? >>>>>> =20 >>>>>> From the winter wonderland that is London, Ontario. >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>> ----- Original Message ----- >>>>>> From: Charles Mitchell >>>>>> >>>>>> Date: Friday, November 23, 2007 11:10 am >>>>>> Subject: Re: RE: deceit: damages and account >>>>>> To: Jason Neyers >>>>>> >>>>>> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> I'm sorry, Jason, I know I'm being thick but I?ve been racking >>>>>>> my >>>>>>> brains and I can't think what CJ means - in mitigation it's >>>>>>> Friday >>>>>>> afternoon - but when you tell me I'll give myself three kicks. >>>>>>> =20 >>>>>>> So far as your 2nd point goes, I don't think that it's >>>>>>> consistent with >>>>>>> the HL's explanation of waiver of tort in United Australia Ltd >>>>>>> v >>>>>>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >>>>>>> LC: >>>>>>> ?Where "waiving the tort" was possible, it was nothing more than >>>>>>> a >>>>>>> choice between possible remedies [sc: for the tort] derived from >>>>>>> a >>>>>>> time when it was not permitted to combine them or to pursue them >>>>>>> in >>>>>>> the alternative, and when there were procedural advantages >>>>>>> in >>>>>>> selecting the form of assumpsit.? And again at 18: ?When >>>>>>> the >>>>>>> plaintiff "waived the tort" and brought assumpsit, he did not >>>>>>> thereby >>>>>>> elect to be treated from that time forward on the basis that no >>>>>>> tort >>>>>>> had been committed; indeed, if it were to be understood that no >>>>>>> tort >>>>>>> had been committed, how could an action in assumpsit lie? It >>>>>>> lies only >>>>>>> because the acquisition of the defendant is wrongful and there >>>>>>> is thus >>>>>>> an obligation to make restitution.? Lord Atkin says the >>>>>>> same at 27-9. >>>>>>> =20 >>>>>>> Also as you know we do not believe in absence of juristic reason >>>>>>> in >>>>>>> England - at any rate Lord Hoffmann does not although the >>>>>>> higher >>>>>>> authority of P Birks and now R Stevens may yet win the day. >>>>>>> =20 >>>>>>> Best wishes >>>>>>> Charles >>>>>>> =20 >>>>>>> Quoting Jason Neyers >>>>>>> : >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 Dear Charles: =20 The answer to your question depends, of course, on the =20 =20 =20 >>>>>>> =20 >>>>>>> principle >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 underlying disorgement. For those of us who buy the CJ =20 =20 =20 >>>>>>> =20 >>>>>>> justification >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 for disgorgement there are good reasons why fraud will =20 =20 =20 >>>>>>> =20 >>>>>>> not support >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 that remedy. =20 Also, the older cases you mention seem more consistent with =20 =20 =20 >>>>>>> =20 >>>>>>> the >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 fraud destroying the underlying juristic reason for the =20 =20 =20 >>>>>>> =20 >>>>>>> transaction >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 and therefore with restitution for UE following rather =20 =20 =20 >>>>>>> =20 >>>>>>> than >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 supporting for disgorgement for wrongs. =20 Cheers, =20 ----- Original Message ----- From: Charles Mitchell Date: Friday, November 23, 2007 8:46 am Subject: RE: deceit: damages and account To: davidcheifetz@rogers.com Cc: 'Andrew Tettenborn' =20 =20 =20 >>>>>>> =20 >>>>>>> >>>>>>> , >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA =20 =20 =20 =20 =20 Andrew, David: Thanks for pointing us to these interesting cases. On the question whether a gain-based remedy should be available for the tort of deceit, I always find myself asking - why not? In Renault the judge did offer a reason, viz that the claimant had not only suffered no loss but had in fact made a profit itself. I?m not sure whether that?s necessarily a clincher, but it would be interesting to hear what other people think. =20 The judge?s other reason in Renault was that Arden LJ had previously said in Murad v Al-Saraj [2005] WTLR 1573 that an account of profits isn?t available to victims of deceit, but I doubt whether much weight should be attached to that. At first instance in Murad the claim was allowed both on the basis that the claimants could have a =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> gain- >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 based remedy for the tort of deceit and on the basis that the defendant had to disgorge the profits of his breach of fiduciary duty. The CA allowed the claim on the second basis and its?s not clear to me that any members of the court thought it necessary to decide whether the claim based on deceit was also available. =20 Halifax Building Society v Thomas [1996] Ch 217 also contains a dictum that an account of profits isn?t available to victims of =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> deceit - >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 but that case was actually decided on the basis that the clamant could not ask for a gain-based remedy founded on the tort of deceit once it had affirmed the contract which had been induced by D?s fraudulent misrepresentation (a similar finding was made in the much earlier case of Selway v Fogg (1839) 5 M & W 83). =20 So it seems to me that there still isn?t any clear English authority that as a general rule victims of deceit cannot claim a gain- based remedy; in principle it seems to me that this wouldn?t be a good rule for English law to have; and looking back there are many older cases which say exactly the opposite, since they hold that a victim of deceit who is fraudulently induced to part with money can waive the tort and bring an action for money had and received: e.g. Hill v Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B 369; Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) 1 El & Bl 795 at 800. =20 Best wishes Charles =20 =20 =20 =20 =20 =20 =20 Quoting David Cheifetz : =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Andrew, >> =20 >> Compare the opposite result - bad guys had to cough up the >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 profit - in 3Com =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Corporation v. Zorin International Corporation, 2006 CanLII >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 18351 (ON C.A.) =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >>>>> anlii18351.ht> >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 m =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> The defendants obtained a cheaper price for computers from >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 3Com by telling =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> the distributor that the computers were intended for market X. >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 They were =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> sold in market Y for a higher price. The evidence was also >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 that 3Com =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> couldn't have sold the computers at the higher price. >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 Defendants were held =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> liable for the extra profit. >> =20 >> Cheers, >> =20 >> David Cheifetz >> =20 >> =20 >> -----Original Message----- >> From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> >> Sent: November 23, 2007 6:27 AM >> To: obligations@uwo.ca >> Subject: deceit: damages and account >> =20 >> A nice little case in the English QBD that may have passed >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 list members by. =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 [2007] EWHC 2541 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> (QB).] >> =20 >> The makers of Renault cars operated a discount scheme in >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 favour of members =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> of BALPA (a labour union): the scheme was operated by >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 Fleetpro, who ordered =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> the cars. Under the scheme orders were sent to the Renault >> importers: they sent them to Renault in France, whereupon as >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 and when orders =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> came in Renault manufactured the necessary cars and >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> shipped them. >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Fleetpro did the natural thing and ordered 217 discounted cars >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 for ordinary =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> customers who they knew had nothing to do with BALPA. The cars >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 were shipped: =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> the importers made a profit on them, but (because they gave a >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 rebate to the =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> dealer involved) less than the profit they would have made on >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 cars not =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> covered by the scheme. The importers sued Fleetpro for deceit, >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 and won on =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> liability. On damages, however, held: >> =20 >> (1) the importers had proved no loss, i.e. they hadn't proved >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 the sales came =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> other than as extra sales, or that they'd otherwise have >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 persuaded customers =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> to buy their standard (over) priced cars. (2) There was no >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 jurisdiction,> absent a fiduciary relationship) to award an account of profits against =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> =20 >> The latter holding seems particularly interesting. >> =20 >> =20 >> Best >> =20 >> A >> =20 >> -- >> Andrew Tettenborn MA LLB >> Bracton Professor of Law >> University of Exeter, England >> =20 >> =20 >> =20 >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> Tel: 01392-263189 / +44-392-263189 >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> (outside UK) >>>>> =20 >>>>> =20 >>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Cellphone: 07870- >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 130528 / +44-7870-130528 (outside UK) =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> Fax: 01392-263196 / +44-392-263196 (outside UK= ) >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Snailmail: School of Law, >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 University of Exeter, =20 =20 Amory Building, =20 =20 Rennes Drive, =20 =20 Exeter EX4 4RJ =20 =20 England =20 =20 =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> Exeter Law School homepage: http://www.law.ex.ac.uk >> My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> =20 >> =20 >> =20 >> =20 >> =20 >> LAWYER, n. One skilled in circumvention of the law (Ambrose >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 Bierce, 1906). =20 =20 =20 =20 >>>>>>> =20 >>>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> =20 >> =20 >> =20 >> =20 >> =20 >> =20 >>> =20 >>>> =20 >>>>> =20 >>>>>> =20 >>>>>>> =20 =20 =20 =20 =20 -- Charles Mitchell charles.mitchell@kcl.ac.uk =20 =20 =20 =20 =20 =20 -- Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 =20 =20 =20 =20 >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>>> -- >>>>>>> Charles Mitchell >>>>>>> charles.mitchell@kcl.ac.uk >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>>> =20 >>>>>> =20 >>>>>> -- >>>>>> Jason Neyers >>>>>> Associate Professor of Law >>>>>> Faculty of Law >>>>>> University of Western Ontario >>>>>> N6A 3K7 >>>>>> (519) 661-2111 x. 88435 >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>>> =20 >>>>> =20 >>>>> =20 >>>>> =20 >>>> =20 >>> =20 >> =20 >> =20 >=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, . --B_3278675252_425102 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Re: [RDG] ODG RE: deceit: damages and account But J= ason, I don’t think I said it was vacuous or without content, and I do= n’t think I said ‘property-like’. I said ‘property&#= 8217; has lots of meanings, and then I picked one.
My objections are not only to your email but to Professor Weinrib’s a= rguments, in the article you mention and his more recent one on disgorgement= for breach of contract. I still don’t see that the distinction betwee= n ‘property’ and ‘other rights’, with fiduciary o= bligations on the side of ‘property’, has been justified as = a basis for determining the availability of gain-based remedies for infringe= ments.
Rules about fruits are answers to a similar question, namely the scope of t= he rights. But first, the answer to who gets non-wrongfully-generated fruits= does not tell us what should happen in the case of infringements; we are ta= lking about the results of infringement, not claims to enforce a primary rig= ht. The Kentucky Caves case would not be controversial if the defendant had = simply taken apples from the plaintiff’s tree. Secondly, it is arguabl= e that the holder of a personal right is sometimes entitled to fruits. But t= hat is a long story, depending partly on what fruits are in this context, wh= ich perhaps belongs better to the FVDG (Fruit and Vegetable Discussion Group= ).
Lionel



On 23/11/07 14:20, "Jason Neyers" wrote:
Colleagues:

I'm not sure "property-like" is a concept that is vacuous or with= out content, and in any event Weinrib deals with this possible objection in = the CJ paper for those that are interested.

I had always thought that it was the nature of acquisition which set apart = property and gave its owner the entitlement to the use, fruit and abuse: bec= uase after acquisition it is now their means/thing. I would add also that th= e property owner is entitled to the gain/fruits even without a breach by any= one, so the entitlement comes from the primary right not the secondary right= ; so the explanation is not as question-begging as Lionel makes it appear. <= BR>
Cheers,
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435


Lionel Smith wrote:
Re: [RDG] ODG RE: deceit: damages and account The ques= tion indeed is whether the plaintiff’s right includes a right to any g= ain derived from breach, but the suggestion that this is only true in proper= ty tort cases is not at all clear. All my rights are mine in some sense. Wha= t is special about property rights? Depending on which of its many meanings = one is using, the most obvious answer is that they are exigible against lots= of people. I have never understood the argument that exigibility-against-ma= ny has any necessary connection to entitlement to gains acquired through bre= ach (the argument that it has was explicitly rejected in Blake).
In my own view, bringing in fiduciary law only weakens the claim that gain-= based claims are confined to property claims. A duty of loyalty is a right-d= uty relationship, not a property relationship (assuming still that we are us= ing ‘property’ to mean exigibile-against-many). So the availabil= ity of gain-based remedies for breach of fiduciary obligation tells against = any argument that such remedies are about property rights. If we start sayin= g it is ‘like’ property then we have abandoned the initial premi= se, that this is confined to property, and the question remains unanswered, = which rights allow gain-based remedies for infringement?
Lionel
 
 
 
On 23/11/07 13:19, "Jason Neyers"  wrote:
 
  
Its been awhile since I thought about this in detail bu= t as I remember the/a CJ justice view (Weinrib, "Restitutionary Damages= as CJ"), gain-based remedies are available where the content of the pl= aintiff's right  includes the right to a gain. Without such an entitlem= ent, the fact that the defendant causally made a gain following the violatio= n of my right is irrelevant--I am entitled to have my means restored not som= eone else's.  So gain-based remedies are essentially available only in = property tort situations because the right to property includes the right to= the use, fruits and abuse of it and in situations where the wrongdoer basic= ally has sold my right treated as property (as in the fiduciary duty situati= on where the wrongdoer has sold out their the duty of  loyalty).
 
Cheers,
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
 
 
Duncan Sheehan (LAW) wrote:
  

Speaking (or maybe writing) as one who does in large measure accept that th= e
disgorgement measure reflects corrective justice, I'd be interested to know=
what Jason thinks the reasons why fraud doesn't support it are. I can't
immediately think of them, so I too will line up with Charles & Lionel.=
 
On Abbots v Barry, I think the only answer is doesn't it depend on your vie= w
of UE. If, unlike me, you accepted Peter's explanation in his last book of<= BR> interceptive subtraction, would you not say that the possession of the wine=
carried with it earnings opportunities and therefore the sale proceeds coul= d
also be taken by UE? In any case not being familiar with the case, was X D'= s
agent, and if so wouldn't that make a difference?
 
Duncan  
 
Ps I am wholly unpersuaded that English law accepts juristic reasons - the<= BR> new Birksian model strikes me as flawed in a number of respects;
explanations forthcoming if you like.
 
Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom
 
  
 
  

-----Original Message-----
From: Charles Mitchell [mailto= :charles.mitchell@kcl.ac.uk]  
Sent: Friday, November 23, 2007 5:05 PM
To: Jason Neyers
Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA
Subject: ODG RE: deceit: damages and account
 
Picking up first on Lionel?s point re waiver, of course I have to   agree that the C19 judges were not asking themselves whether
an action  
for money had and received following a waiver of tort was a claim for  = ;
the profits of wrongdoing or a claim for restitution of UE. So
when we  
look back at the cases we must say that many are susceptible to  
alternative analysis since the plaintiff made a mistake and the  
quantum of the remedy would have been the same either way.
 
But I like Jason?s suggestion that looking at the award may
help us to  
eliminate the UE explanation if we can show that this looked to gains  = ;
in D?s hands rather than the value of the assets transferred from P  <= BR> where those two things were different.  Is Abbotts v Barry
like this?   
D orchestrated a fraud pursuant to which his creature X induced P to  =
sell X wine which X then failed to pay for; X handed the wine over to  = ;
D, who sold it on; P claimed the sale proceeds in D?s hands as the   profits accruing from the fraud and recovered them as money had and  <= BR> received.
 
So far as the corrective justice point goes, I happily line up with  <= BR> Lionel - which is why I take heart from Etherton J?s findings
at first  
instance in Murad at [342]-[347], despite Arden LJ?s negative line in  = ;
the CA.
 
Best wishes
Charles
 
Quoting Jason Neyers  <= ;mailto:jneyers@uwo.ca> :
 
    
 
  

Dear Charles:
 
Corrective Justice, sorry to have been so lazy.
 
English law does believe in juristic reasons (since it is the most  &n= bsp;
coherent generalization of the liability imposed) it just hasn't  &nbs= p;
explicitly caught up to what is implicit in itself yet. :).
      
 
 
 
Think of  
    
 
  

 negligence law immediately prior to DvS.
 
A history question (since I am painfully ignorant of these
      
 
 
 
matters):  
    
 
  

 when plaintiffs asked for money had and received in the
      
 
 
 
1800s cases  
    
 
  

 cited were they limited to the amount that they gave (restitution &nb= sp; 
for UE) or could they also get the gain from whatever source    (restitution for wrongs/disgorgement)?
 
From the winter wonderland that is London, Ontario.
 
 
 
----- Original Message -----
From: Charles Mitchell &nb= sp;
Date: Friday, November 23, 2007 11:10 am
Subject: Re: RE: deceit: damages and account
To: Jason Neyers <= ;mailto:jneyers@uwo.ca>  
Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA
 
      
 
  

I'm sorry, Jason, I know I'm being thick but I?ve been racking
my
brains and I can't think what CJ means - in mitigation it's
Friday
afternoon - but when you tell me I'll give myself three kicks.
 
So far as your 2nd point goes, I don't think that it's
consistent with
the HL's explanation of waiver of tort in United Australia Ltd
v
Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon
LC:
?Where "waiving the tort" was possible, it was nothing more than<= BR> a
choice between possible remedies [sc: for the tort] derived from
a
time when it was not permitted to combine them or to pursue them
in
the alternative, and when there were procedural advantages
in
selecting the form of assumpsit.?  And again at 18: ?When
the
plaintiff "waived the tort" and brought assumpsit, he did not
thereby
elect to be treated from that time forward on the basis that no
tort
had been committed; indeed, if it were to be understood that no
tort
had been committed, how could an action in assumpsit lie? It
lies only
because the acquisition of the defendant is wrongful and there
is thus
an obligation to make restitution.?  Lord Atkin says the
same at 27-9.
 
Also as you know we do not believe in absence of juristic reason
in
England - at any rate Lord Hoffmann does not although the
higher
authority of P Birks and now R Stevens may yet win the day.
 
Best wishes
Charles
 
Quoting Jason Neyers  <= ;mailto:jneyers@uwo.ca> :
 
        
 
  

Dear Charles:
 
The answer to your question depends, of course, on the
          
 
 
<= BLOCKQUOTE>
 
principle
        
 
  

underlying disorgement. For those of us who buy the CJ
          
 
 
<= BLOCKQUOTE>
 
justification
        
 
  

 for disgorgement there are good reasons why fraud will
          
 
 
<= BLOCKQUOTE>
 
not support
        
 
  

that remedy.
 
Also, the older cases you mention seem more consistent with
          
 
 
<= BLOCKQUOTE>
 
the
        
 
  

fraud destroying the underlying juristic reason for the
          
 
 
<= BLOCKQUOTE>
 
transaction
        
 
  

and therefore with restitution for UE following rather
          
 
 
<= BLOCKQUOTE>
 
than
        
 
  

supporting for disgorgement for wrongs.
 
Cheers,
 
----- Original Message -----
From: Charles Mitchell &nb= sp;
Date: Friday, November 23, 2007 8:46 am
Subject: RE: deceit: damages and account
To: davidcheifetz@rogers.com
Cc: 'Andrew Tettenborn'
          
 
 
<= BLOCKQUOTE>
 
  ,=
        
 
  

obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA
 
          
 
  
 
Andrew, David: Thanks for pointing us to these interesting
cases.  On
the question whether a gain-based remedy should be available for
the
tort of deceit, I always find myself asking - why not?  In
Renault the
judge did offer a reason, viz that the claimant had not only
suffered
no loss but had in fact made a profit itself.  I?m not sure
whether
that?s necessarily a clincher, but it would be interesting to
hear
what other people think.
 
The judge?s other reason in Renault was that Arden LJ had
previously
said in Murad v Al-Saraj [2005] WTLR 1573 that an account of
profits
isn?t available to victims of deceit, but I doubt whether much
weight
should be attached to that.  At first instance in Murad the
claim was
allowed both on the basis that the claimants could have a
              
 
  
 
<= BLOCKQUOTE>
 
gain-
        
 
  

  
 
based
remedy for the tort of deceit and on the basis that the
defendant had
to disgorge the profits of his breach of fiduciary duty.
The CA
allowed the claim on the second basis and its?s not clear to me
that
any members of the court thought it necessary to decide whether
the
claim based on deceit was also available.
 
Halifax Building Society v Thomas [1996] Ch 217 also contains a
dictum
that an account of profits isn?t available to victims of
              
 
  
 
<= BLOCKQUOTE>
 
deceit -
        
 
  

  
 
but
that case was actually decided on the basis that the clamant
could not
ask for a gain-based remedy founded on the tort of deceit once
it had
affirmed the contract which had been induced by D?s
fraudulent
misrepresentation (a similar finding was made in the much
earlier case
of Selway v Fogg (1839) 5 M & W 83).
 
So it seems to me that there still isn?t any clear English
authority
that as a general rule victims of deceit cannot claim a gain-
based
remedy; in principle it seems to me that this wouldn?t be a good
rule
for English law to have; and looking back there are many older
cases
which say exactly the opposite, since they hold that a victim
of
deceit who is fraudulently induced to part with money can waive
the
tort and bring an action for money had and received: e.g. Hill
v
Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod & B
369;
Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853)
1 El &
Bl 795 at 800.
 
Best wishes
Charles
 
 
 
 
 
 
 
Quoting David Cheifetz   :
 
              
 
 
<= BLOCKQUOTE>





 
Andrew,
 
Compare the opposite result - bad guys had to cough up the
            &nb= sp; 
 
  






 
profit - in 3Com
              
 
 
<= BLOCKQUOTE>





 
Corporation v. Zorin International Corporation, 2006 CanLII
            &nb= sp; 
 
  






 
18351 (ON C.A.)
              
 
  
 
<= BLOCKQUOTE>
 
 
 
 
 
 http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c
anlii18351.ht>
    
 
  

  

  

  
 
m
              
 
 
<= BLOCKQUOTE>





 
The defendants obtained a cheaper price for computers from
            &nb= sp; 
 
  






 
3Com by telling
              
 
 
<= BLOCKQUOTE>





 
the distributor that the computers were intended for market X.
            &nb= sp; 
 
  






 
They were
              
 
 
<= BLOCKQUOTE>





 
sold in market Y for a higher price. The evidence was also
            &nb= sp; 
 
  






 
that 3Com
              
 
 
<= BLOCKQUOTE>





 
couldn't have sold the computers at the higher price.
            &nb= sp; 
 
  






 
Defendants were held
              
 
 
<= BLOCKQUOTE>





 
liable for the extra profit.
 
Cheers,
 
David Cheifetz
 
 
-----Original Message-----
From: Andrew Tettenborn [mail= to:A.M.Tettenborn@exeter.ac.uk]
Sent: November 23, 2007 6:27 AM
To: obligations@uwo.ca
Subject: deceit: damages and account
 
A nice little case in the English QBD that may have passed
            &nb= sp; 
 
  






 
list members by.
              
 
 
<= BLOCKQUOTE>





 
[Renault UK Ltd v. FleetPro Technical Services Ltd & Anor
            &nb= sp; 
 
  






 
[2007] EWHC 2541
              
 
 
<= BLOCKQUOTE>





 
(QB).]
 
The makers of Renault cars operated a discount scheme in
            &nb= sp; 
 
  






 
favour of members
              
 
 
<= BLOCKQUOTE>





 
of BALPA (a labour union): the scheme was operated by
            &nb= sp; 
 
  






 
Fleetpro, who ordered
              
 
 
<= BLOCKQUOTE>





 
the cars. Under the scheme orders were sent to the Renault
importers: they sent them to Renault in France, whereupon as
            &nb= sp; 
 
  






 
and when orders
              
 
 
<= BLOCKQUOTE>





 
came in Renault manufactured the necessary cars and
            &nb= sp; 
 
  






 
 
  
 
<= BLOCKQUOTE>
 
 
 
 
 
shipped them.
    
 
  

  

  

  
 
 
 
<= BLOCKQUOTE>





 
Fleetpro did the natural thing and ordered 217 discounted cars
            &nb= sp; 
 
  






 
for ordinary
              
 
 
<= BLOCKQUOTE>





 
customers who they knew had nothing to do with BALPA. The cars
            &nb= sp; 
 
  






 
were shipped:
              
 
 
<= BLOCKQUOTE>





 
the importers made a profit on them, but (because they gave a
            &nb= sp; 
 
  






 
rebate to the
              
 
 
<= BLOCKQUOTE>





 
dealer involved) less than the profit they would have made on
            &nb= sp; 
 
  






 
cars not
              
 
 
<= BLOCKQUOTE>





 
covered by the scheme. The importers sued Fleetpro for deceit,
            &nb= sp; 
 
  






 
and won on
              
 
 
<= BLOCKQUOTE>





 
liability. On damages, however, held:
 
(1) the importers had proved no loss, i.e. they hadn't proved
            &nb= sp; 
 
  






 
the sales came
              
 
 
<= BLOCKQUOTE>





 
other than as extra sales, or that they'd otherwise have
            &nb= sp; 
 
  






 
persuaded customers
              
 
 
<= BLOCKQUOTE>





 
to buy their standard (over) priced cars. (2) There was no
            &nb= sp; 
 
  






 
jurisdiction,> absent a fiduciary relationship) to award an
account of profits against
              
 
 
<= BLOCKQUOTE>





 
Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit.
 
The latter holding seems particularly interesting.
 
 
Best
 
A
 
--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England
 
 
 
            &nb= sp; 
 
  






 
 
  
 
<= BLOCKQUOTE>
 
Tel:            &nbs= p;     01392-263189    /   = ;+44-392-263189
        
 
 
 
 
 
(outside UK)
    
 
  

  

  

  
 
 
 
<= BLOCKQUOTE>





 
Cellphone:       07870-
            &nb= sp; 
 
  






 
130528   /   +44-7870-130528 (outside UK)
              
 
  
 
<= BLOCKQUOTE>
 
Fax:            &nbs= p;    01392-263196    /   +44-3= 92-263196 (outside UK)
        
 
  

  
 
 
 
<= BLOCKQUOTE>





 
Snailmail:   School of Law,
            &nb= sp; 
 
  






 
 
  
            &nb= sp;      University of Exeter,
          
 
            &nb= sp;      Amory Building,
          
 
            &nb= sp;      Rennes Drive,
          
 
            &nb= sp;      Exeter EX4 4RJ
          
 
            &nb= sp;      England
          
 
  
 
 
 
<= BLOCKQUOTE>





 
Exeter Law School homepage: http://www.la= w.ex.ac.uk
My homepage: http:= //www.law.ex.ac.uk/staff/tettenborn.shtml
 
 
 
 
 
LAWYER, n. One skilled in circumvention of the law (Ambrose
            &nb= sp; 
 
  






 
Bierce, 1906).
              
 
 
<= BLOCKQUOTE>





 
 
 
 
            &nb= sp; 
 
  






 
 
 
--
Charles Mitchell
charles.mitchell@kcl.ac.uk
 
 
              
 
  
 --
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
 
          
 
 
<= BLOCKQUOTE>
 
 
 
--
Charles Mitchell
charles.mitchell@kcl.ac.uk
 
 
        
 
 
 
 --
Jason Neyers
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, . --B_3278675252_425102-- ========================================================================= Date: Fri, 23 Nov 2007 18:44:32 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: ODG RE: deceit: damages and account Comments: To: Duncan.Sheehan@uea.ac.uk In-Reply-To: <003101c82df5$f1739360$3198de8b@UEA.AC.UK> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_tpir734nukXDGYonX6xyIQ)" This is a multi-part message in MIME format. --Boundary_(ID_tpir734nukXDGYonX6xyIQ) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline "Ps I am wholly unpersuaded that English law accepts juristic reasons - the new Birksian model strikes me as flawed in a number of respects; explanations forthcoming if you like. " Duncan, I would be interested in your take on the flaws. ----- Original Message ----- From: "Duncan Sheehan (LAW)" Date: Friday, November 23, 2007 12:29 pm Subject: Re: [RDG] ODG RE: deceit: damages and account To: ENRICHMENT@LISTS.MCGILL.CA > Speaking (or maybe writing) as one who does in large measure > accept that the > disgorgement measure reflects corrective justice, I'd be > interested to know > what Jason thinks the reasons why fraud doesn't support it are. > I can't > immediately think of them, so I too will line up with Charles & > Lionel. > > On Abbots v Barry, I think the only answer is doesn't it depend > on your view > of UE. If, unlike me, you accepted Peter's explanation in his > last book of > interceptive subtraction, would you not say that the possession > of the wine > carried with it earnings opportunities and therefore the sale > proceeds could > also be taken by UE? In any case not being familiar with the > case, was X D's > agent, and if so wouldn't that make a difference? > > Duncan > > Ps I am wholly unpersuaded that English law accepts juristic > reasons - the > new Birksian model strikes me as flawed in a number of respects; > explanations forthcoming if you like. > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > >-----Original Message----- > >From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] > >Sent: Friday, November 23, 2007 5:05 PM > >To: Jason Neyers > >Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA > >Subject: ODG RE: deceit: damages and account > > > >Picking up first on Lionel?s point re waiver, of course I have > to > >agree that the C19 judges were not asking themselves whether > >an action > >for money had and received following a waiver of tort was a > claim for > >the profits of wrongdoing or a claim for restitution of UE. So > >when we > >look back at the cases we must say that many are susceptible > to > >alternative analysis since the plaintiff made a mistake and > the > >quantum of the remedy would have been the same either way. > > > >But I like Jason?s suggestion that looking at the award may > >help us to > >eliminate the UE explanation if we can show that this looked to > gains > >in D?s hands rather than the value of the assets transferred > from P > >where those two things were different. Is Abbotts v Barry > >like this? > >D orchestrated a fraud pursuant to which his creature X induced > P to > >sell X wine which X then failed to pay for; X handed the wine > over to > >D, who sold it on; P claimed the sale proceeds in D?s hands as > the > >profits accruing from the fraud and recovered them as money had > and > >received. > > > >So far as the corrective justice point goes, I happily line up > with > >Lionel - which is why I take heart from Etherton J?s findings > >at first > >instance in Murad at [342]-[347], despite Arden LJ?s negative > line in > >the CA. > > > >Best wishes > >Charles > > > >Quoting Jason Neyers : > > > >> Dear Charles: > >> > >> Corrective Justice, sorry to have been so lazy. > >> > >> English law does believe in juristic reasons (since it is the > most > >> coherent generalization of the liability imposed) it just > hasn't > >> explicitly caught up to what is implicit in itself yet. :). > >Think of > >> negligence law immediately prior to DvS. > >> > >> A history question (since I am painfully ignorant of these > >matters): > >> when plaintiffs asked for money had and received in the > >1800s cases > >> cited were they limited to the amount that they gave > (restitution > >> for UE) or could they also get the gain from whatever > source > >> (restitution for wrongs/disgorgement)? > >> > >> From the winter wonderland that is London, Ontario. > >> > >> > >> > >> ----- Original Message ----- > >> From: Charles Mitchell > >> Date: Friday, November 23, 2007 11:10 am > >> Subject: Re: RE: deceit: damages and account > >> To: Jason Neyers > >> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> > >>> I'm sorry, Jason, I know I'm being thick but I?ve been racking > >>> my > >>> brains and I can't think what CJ means - in mitigation it's > >>> Friday > >>> afternoon - but when you tell me I'll give myself three kicks. > >>> > >>> So far as your 2nd point goes, I don't think that it's > >>> consistent with > >>> the HL's explanation of waiver of tort in United Australia Ltd > >>> v > >>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon > >>> LC: > >>> ?Where "waiving the tort" was possible, it was nothing more than > >>> a > >>> choice between possible remedies [sc: for the tort] derived from > >>> a > >>> time when it was not permitted to combine them or to pursue them > >>> in > >>> the alternative, and when there were procedural advantages > >>> in > >>> selecting the form of assumpsit.? And again at 18: ?When > >>> the > >>> plaintiff "waived the tort" and brought assumpsit, he did not > >>> thereby > >>> elect to be treated from that time forward on the basis that no > >>> tort > >>> had been committed; indeed, if it were to be understood that no > >>> tort > >>> had been committed, how could an action in assumpsit lie? It > >>> lies only > >>> because the acquisition of the defendant is wrongful and there > >>> is thus > >>> an obligation to make restitution.? Lord Atkin says the > >>> same at 27-9. > >>> > >>> Also as you know we do not believe in absence of juristic reason > >>> in > >>> England - at any rate Lord Hoffmann does not although the > >>> higher > >>> authority of P Birks and now R Stevens may yet win the day. > >>> > >>> Best wishes > >>> Charles > >>> > >>> Quoting Jason Neyers : > >>> > >>> > Dear Charles: > >>> > > >>> > The answer to your question depends, of course, on the > >>> principle > >>> > underlying disorgement. For those of us who buy the CJ > >>> justification > >>> > for disgorgement there are good reasons why fraud will > >>> not support > >>> > that remedy. > >>> > > >>> > Also, the older cases you mention seem more consistent with > >>> the > >>> > fraud destroying the underlying juristic reason for the > >>> transaction > >>> > and therefore with restitution for UE following rather > >>> than > >>> > supporting for disgorgement for wrongs. > >>> > > >>> > Cheers, > >>> > > >>> > ----- Original Message ----- > >>> > From: Charles Mitchell > >>> > Date: Friday, November 23, 2007 8:46 am > >>> > Subject: RE: deceit: damages and account > >>> > To: davidcheifetz@rogers.com > >>> > Cc: 'Andrew Tettenborn' > >>> , > >>> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >>> > > >>> >> Andrew, David: Thanks for pointing us to these interesting > >>> >> cases. On > >>> >> the question whether a gain-based remedy should be > available for > >>> >> the > >>> >> tort of deceit, I always find myself asking - why > not? In > >>> >> Renault the > >>> >> judge did offer a reason, viz that the claimant had not only > >>> >> suffered > >>> >> no loss but had in fact made a profit itself. I?m > not sure > >>> >> whether > >>> >> that?s necessarily a clincher, but it would be > interesting to > >>> >> hear > >>> >> what other people think. > >>> >> > >>> >> The judge?s other reason in Renault was that Arden LJ had > >>> >> previously > >>> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of > >>> >> profits > >>> >> isn?t available to victims of deceit, but I doubt whether much > >>> >> weight > >>> >> should be attached to that. At first instance in > Murad the > >>> >> claim was > >>> >> allowed both on the basis that the claimants could have a > >>> gain- > >>> >> based > >>> >> remedy for the tort of deceit and on the basis that the > >>> >> defendant had > >>> >> to disgorge the profits of his breach of fiduciary duty. > >>> >> The CA > >>> >> allowed the claim on the second basis and its?s not clear > to me > >>> >> that > >>> >> any members of the court thought it necessary to decide whether > >>> >> the > >>> >> claim based on deceit was also available. > >>> >> > >>> >> Halifax Building Society v Thomas [1996] Ch 217 also > contains a > >>> >> dictum > >>> >> that an account of profits isn?t available to victims of > >>> deceit - > >>> >> but > >>> >> that case was actually decided on the basis that the clamant > >>> >> could not > >>> >> ask for a gain-based remedy founded on the tort of deceit once > >>> >> it had > >>> >> affirmed the contract which had been induced by D?s > >>> >> fraudulent > >>> >> misrepresentation (a similar finding was made in the much > >>> >> earlier case > >>> >> of Selway v Fogg (1839) 5 M & W 83). > >>> >> > >>> >> So it seems to me that there still isn?t any clear English > >>> >> authority > >>> >> that as a general rule victims of deceit cannot claim a > gain- > >>> >> based > >>> >> remedy; in principle it seems to me that this wouldn?t be > a good > >>> >> rule > >>> >> for English law to have; and looking back there are many older > >>> >> cases > >>> >> which say exactly the opposite, since they hold that a victim > >>> >> of > >>> >> deceit who is fraudulently induced to part with money can waive > >>> >> the > >>> >> tort and bring an action for money had and received: e.g. Hill > >>> >> v > >>> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod > & B > >>> >> 369; > >>> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) > >>> >> 1 El & > >>> >> Bl 795 at 800. > >>> >> > >>> >> Best wishes > >>> >> Charles > >>> >> > >>> >> > >>> >> > >>> >> > >>> >> > >>> >> > >>> >> > >>> >> Quoting David Cheifetz : > >>> >> > >>> >> > Andrew, > >>> >> > > >>> >> > Compare the opposite result - bad guys had to cough up the > >>> >> profit - in 3Com > >>> >> > Corporation v. Zorin International Corporation, 2006 CanLII > >>> >> 18351 (ON C.A.) > >>> >> > > >>> >> > >>> > >http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c > >anlii18351.ht> > >>> >> m > >>> >> > > >>> >> > The defendants obtained a cheaper price for computers from > >>> >> 3Com by telling > >>> >> > the distributor that the computers were intended for > market X. > >>> >> They were > >>> >> > sold in market Y for a higher price. The evidence was also > >>> >> that 3Com > >>> >> > couldn't have sold the computers at the higher price. > >>> >> Defendants were held > >>> >> > liable for the extra profit. > >>> >> > > >>> >> > Cheers, > >>> >> > > >>> >> > David Cheifetz > >>> >> > > >>> >> > > >>> >> > -----Original Message----- > >>> >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] > >>> >> > Sent: November 23, 2007 6:27 AM > >>> >> > To: obligations@uwo.ca > >>> >> > Subject: deceit: damages and account > >>> >> > > >>> >> > A nice little case in the English QBD that may have passed > >>> >> list members by. > >>> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor > >>> >> [2007] EWHC 2541 > >>> >> > (QB).] > >>> >> > > >>> >> > The makers of Renault cars operated a discount scheme in > >>> >> favour of members > >>> >> > of BALPA (a labour union): the scheme was operated by > >>> >> Fleetpro, who ordered > >>> >> > the cars. Under the scheme orders were sent to the Renault > >>> >> > importers: they sent them to Renault in France, > whereupon as > >>> >> and when orders > >>> >> > came in Renault manufactured the necessary cars and > >shipped them. > >>> >> > > >>> >> > Fleetpro did the natural thing and ordered 217 > discounted cars > >>> >> for ordinary > >>> >> > customers who they knew had nothing to do with BALPA. > The cars > >>> >> were shipped: > >>> >> > the importers made a profit on them, but (because they > gave a > >>> >> rebate to the > >>> >> > dealer involved) less than the profit they would have > made on > >>> >> cars not > >>> >> > covered by the scheme. The importers sued Fleetpro for > deceit,>>> >> and won on > >>> >> > liability. On damages, however, held: > >>> >> > > >>> >> > (1) the importers had proved no loss, i.e. they hadn't proved > >>> >> the sales came > >>> >> > other than as extra sales, or that they'd otherwise have > >>> >> persuaded customers > >>> >> > to buy their standard (over) priced cars. (2) There was no > >>> >> jurisdiction,> absent a fiduciary relationship) to award an > >>> >> account of profits against > >>> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. > >>> >> > > >>> >> > The latter holding seems particularly interesting. > >>> >> > > >>> >> > > >>> >> > Best > >>> >> > > >>> >> > A > >>> >> > > >>> >> > -- > >>> >> > Andrew Tettenborn MA LLB > >>> >> > Bracton Professor of Law > >>> >> > University of Exeter, England > >>> >> > > >>> >> > > >>> >> > > >>> >> > >>> > Tel: 01392-263189 / +44-392-263189 > >(outside UK) > >>> >> > Cellphone: 07870- > >>> >> 130528 / +44-7870-130528 (outside UK) > >>> >> > > >>> >> > >>> > Fax: 01392-263196 / +44-392-263196 (outside UK) > >>> >> > > >>> >> > Snailmail: School of Law, > >>> >> > >>> > > University of Exeter, > >>> >> > >>> > > Amory Building, > >>> >> > >>> > > Rennes Drive, > >>> >> > >>> > > Exeter EX4 4RJ > >>> >> > >>> > > England > >>> >> > > >>> >> > Exeter Law School homepage: http://www.law.ex.ac.uk > >>> >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml > >>> >> > > >>> >> > > >>> >> > > >>> >> > > >>> >> > > >>> >> > LAWYER, n. One skilled in circumvention of the law (Ambrose > >>> >> Bierce, 1906). > >>> >> > > >>> >> > > >>> >> > > >>> >> > > >>> >> > >>> >> > >>> >> > >>> >> -- > >>> >> Charles Mitchell > >>> >> charles.mitchell@kcl.ac.uk > >>> >> > >>> >> > >>> > > >>> > -- > >>> > Jason Neyers > >>> > Associate Professor of Law > >>> > Faculty of Law > >>> > University of Western Ontario > >>> > N6A 3K7 > >>> > (519) 661-2111 x. 88435 > >>> > > >>> > >>> > >>> > >>> -- > >>> Charles Mitchell > >>> charles.mitchell@kcl.ac.uk > >>> > >>> > >> > >> -- > >> Jason Neyers > >> Associate Professor of Law > >> Faculty of Law > >> University of Western Ontario > >> N6A 3K7 > >> (519) 661-2111 x. 88435 > >> > > > > > > > >-- > >Charles Mitchell > >charles.mitchell@kcl.ac.uk > > > > > > ____________________________________________________________________ > 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, > . -- Jason Neyers 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_tpir734nukXDGYonX6xyIQ) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3E=22Ps I am wholly unpersuaded that English law accepts juristic= reasons - the=3CBR=3Enew Birksian model strikes me as flawed in a numbe= r of respects=3B=3CBR=3Eexplanations forthcoming if you like=2E =22=3CBR= =3E=3C/DIV=3E =3CDIV=3EDuncan=2C I would be interested in your take on the flaws=2E=3C= /DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3E=3CBR=3E----- Original Message -----=3CBR=3EFrom=3A =22Duncan S= heehan (LAW)=22 =26lt=3BDuncan=2ESheehan=40uea=2Eac=2Euk=26gt=3B=3CBR=3E= Date=3A Friday=2C November 23=2C 2007 12=3A29 pm=3CBR=3ESubject=3A Re=3A= =5BRDG=5D ODG RE=3A deceit=3A damages and account=3CBR=3ETo=3A ENRICHME= NT=40LISTS=2EMCGILL=2ECA=3CBR=3E=3CBR=3E=26gt=3B Speaking (or maybe writ= ing) as one who does in large measure =3CBR=3E=26gt=3B accept that the=3C= BR=3E=26gt=3B disgorgement measure reflects corrective justice=2C I=27d = be =3CBR=3E=26gt=3B interested to know=3CBR=3E=26gt=3B what Jason thinks= the reasons why fraud doesn=27t support it are=2E =3CBR=3E=26gt=3B I ca= n=27t=3CBR=3E=26gt=3B immediately think of them=2C so I too will line up= with Charles =26amp=3B =3CBR=3E=26gt=3B Lionel=2E =3CBR=3E=26gt=3B =3CB= R=3E=26gt=3B On Abbots v Barry=2C I think the only answer is doesn=27t i= t depend =3CBR=3E=26gt=3B on your view=3CBR=3E=26gt=3B of UE=2E If=2C un= like me=2C you accepted Peter=27s explanation in his =3CBR=3E=26gt=3B la= st book of=3CBR=3E=26gt=3B interceptive subtraction=2C would you not say= that the possession =3CBR=3E=26gt=3B of the wine=3CBR=3E=26gt=3B carrie= d with it earnings opportunities and therefore the sale =3CBR=3E=26gt=3B= proceeds could=3CBR=3E=26gt=3B also be taken by UE=3F In any case not b= eing familiar with the =3CBR=3E=26gt=3B case=2C was X D=27s=3CBR=3E=26gt= =3B agent=2C and if so wouldn=27t that make a difference=3F =3CBR=3E=26g= t=3B =3CBR=3E=26gt=3B Duncan=26nbsp=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B= Ps I am wholly unpersuaded that English law accepts juristic =3CBR=3E=26= gt=3B reasons - the=3CBR=3E=26gt=3B new Birksian model strikes me as fla= wed in a number of respects=3B=3CBR=3E=26gt=3B explanations forthcoming = if you like=2E =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Dr Duncan Sheehan=3CBR=3E= =26gt=3B Senior Lecturer in Law=3CBR=3E=26gt=3B Director of Research=3CB= R=3E=26gt=3B Norwich Law School=3CBR=3E=26gt=3B University of East Angli= a=3CBR=3E=26gt=3B Norwich NR4 7TJ=3CBR=3E=26gt=3B United Kingdom =3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B =26gt=3B-----Original Message-----=3CBR=3E=26g= t=3B =26gt=3BFrom=3A Charles Mitchell =5Bmailto=3Acharles=2Emitchell=40k= cl=2Eac=2Euk=5D =3CBR=3E=26gt=3B =26gt=3BSent=3A Friday=2C November 23=2C= 2007 5=3A05 PM=3CBR=3E=26gt=3B =26gt=3BTo=3A Jason Neyers=3CBR=3E=26gt=3B= =26gt=3BCc=3A obligations=40uwo=2Eca=3B ENRICHMENT=40LISTS=2EMCGILL=2EC= A=3CBR=3E=26gt=3B =26gt=3BSubject=3A ODG RE=3A deceit=3A damages and acc= ount=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BPicking up first o= n Lionel=3Fs point re waiver=2C of course I have =3CBR=3E=26gt=3B to=26n= bsp=3B =3CBR=3E=26gt=3B =26gt=3Bagree that the C19 judges were not askin= g themselves whether =3CBR=3E=26gt=3B =26gt=3Ban action=26nbsp=3B =3CBR=3E= =26gt=3B =26gt=3Bfor money had and received following a waiver of tort w= as a =3CBR=3E=26gt=3B claim for=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bthe p= rofits of wrongdoing or a claim for restitution of UE=2E So =3CBR=3E=26g= t=3B =26gt=3Bwhen we=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Blook back at the= cases we must say that many are susceptible =3CBR=3E=26gt=3B to=26nbsp=3B= =3CBR=3E=26gt=3B =26gt=3Balternative analysis since the plaintiff made = a mistake and =3CBR=3E=26gt=3B the=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bqu= antum of the remedy would have been the same either way=2E=3CBR=3E=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3BBut I like Jason=3Fs suggestion that l= ooking at the award may =3CBR=3E=26gt=3B =26gt=3Bhelp us to=26nbsp=3B =3C= BR=3E=26gt=3B =26gt=3Beliminate the UE explanation if we can show that t= his looked to =3CBR=3E=26gt=3B gains=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B= in D=3Fs hands rather than the value of the assets transferred =3CBR=3E=26= gt=3B from P=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bwhere those two things w= ere different=2E=26nbsp=3B Is Abbotts v Barry =3CBR=3E=26gt=3B =26gt=3Bl= ike this=3F=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3BD orchestrated = a fraud pursuant to which his creature X induced =3CBR=3E=26gt=3B P to=26= nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bsell X wine which X then failed to pay = for=3B X handed the wine =3CBR=3E=26gt=3B over to=26nbsp=3B =3CBR=3E=26g= t=3B =26gt=3BD=2C who sold it on=3B P claimed the sale proceeds in D=3Fs= hands as =3CBR=3E=26gt=3B the=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bprofit= s accruing from the fraud and recovered them as money had =3CBR=3E=26gt=3B= and=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Breceived=2E=3CBR=3E=26gt=3B =26g= t=3B=3CBR=3E=26gt=3B =26gt=3BSo far as the corrective justice point goes= =2C I happily line up =3CBR=3E=26gt=3B with=26nbsp=3B =3CBR=3E=26gt=3B =26= gt=3BLionel - which is why I take heart from Etherton J=3Fs findings =3C= BR=3E=26gt=3B =26gt=3Bat first=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Binstan= ce in Murad at =5B342=5D-=5B347=5D=2C despite Arden LJ=3Fs negative =3CB= R=3E=26gt=3B line in=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3Bthe CA=2E=3CBR=3E= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BBest wishes=3CBR=3E=26gt=3B =26= gt=3BCharles=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BQuoting Ja= son Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B=3A=3CBR=3E=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B Dear Charles=3A=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Corrective Justice=2C sorry to= have been so lazy=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B English law does believe in juristic reasons (since it is = the =3CBR=3E=26gt=3B most=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26= gt=3B coherent generalization of the liability imposed) it just =3CBR=3E= =26gt=3B hasn=27t=26nbsp=3B=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B = explicitly caught up to what is implicit in itself yet=2E =3A)=2E =3CBR=3E= =26gt=3B =26gt=3BThink of=26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= nbsp=3B negligence law immediately prior to DvS=2E=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B A history question (since I= am painfully ignorant of these =3CBR=3E=26gt=3B =26gt=3Bmatters)=3A=26n= bsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B when plaintiffs asked= for money had and received in the =3CBR=3E=26gt=3B =26gt=3B1800s cases=26= nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B cited were they limi= ted to the amount that they gave =3CBR=3E=26gt=3B (restitution=26nbsp=3B= =26nbsp=3B =3CBR=3E=26gt=3B =26gt=3B=26gt=3B for UE) or could they also = get the gain from whatever =3CBR=3E=26gt=3B source=26nbsp=3B=26nbsp=3B =3C= BR=3E=26gt=3B =26gt=3B=26gt=3B (restitution for wrongs/disgorgement)=3F=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B From the= winter wonderland that is London=2C Ontario=2E=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B ----- Original Message -----=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B From=3A Charles Mitchell =26lt=3Bcharles=2Emitche= ll=40kcl=2Eac=2Euk=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Date=3A Frid= ay=2C November 23=2C 2007 11=3A10 am=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Su= bject=3A Re=3A RE=3A deceit=3A damages and account=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B To=3A Jason Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B Cc=3A obligations=40uwo=2Eca=2C ENRICHMENT=40L= ISTS=2EMCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=26gt=3B I=27m sorry=2C Jason=2C I know I=27m being thick bu= t I=3Fve been racking=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B my=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B brains and I can=27t think what CJ mea= ns - in mitigation it=27s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B Frida= y=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B afternoon - but when you tell= me I=27ll give myself three kicks=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B So far as your 2nd point = goes=2C I don=27t think that it=27s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26g= t=3B consistent with=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B the HL=27s= explanation of waiver of tort in United Australia Ltd=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B v=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B Barclay= s Bank Ltd =5B1941=5D AC 1=2C e=2Eg=2E at 13 per Viscount Simon=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B LC=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =3FWhere =22waiving the tort=22 was possible=2C it was nothing mor= e than=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B a=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B choice between possible remedies =5Bsc=3A for the tort=5D= derived from=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B a=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B time when it was not permitted to combine them= or to pursue them=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B in=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B the alternative=2C and when there were pr= ocedural advantages=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B in=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B selecting the form of assumpsit=2E=3F=26n= bsp=3B And again at 18=3A =3FWhen=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B plaintiff =22waived the to= rt=22 and brought assumpsit=2C he did not=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B thereby=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B elect to be tr= eated from that time forward on the basis that no=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B tort=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B had been = committed=3B indeed=2C if it were to be understood that no=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B tort=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B = had been committed=2C how could an action in assumpsit lie=3F It=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B lies only=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B=26gt=3B because the acquisition of the defendant is wrongful and th= ere=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B is thus=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B an obligation to make restitution=2E=3F=26nbsp=3B = Lord Atkin says the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B same at 27-= 9=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B Also as you know we do not believe in absence of juristic = reason=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B in=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B=26gt=3B England - at any rate Lord Hoffmann does not althoug= h the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B higher=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B authority of P Birks and now R Stevens may yet win= the day=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B Best wishes=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= Charles=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B Quoting Jason Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B= =3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B Dear Charles=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B The ans= wer to your question depends=2C of course=2C on the=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=26gt=3B principle=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B underlying disorgement=2E For those of us who buy the CJ=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B justification=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26nbsp=3B for disgorgement there are good reas= ons why fraud will=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B not support=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B that remedy=2E=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B Also=2C the older cases you mention seem more consiste= nt with=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B fraud destroying the underlying juristic = reason for the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B transaction=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B and therefore with restitu= tion for UE following rather=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B th= an=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B supporting for disg= orgement for wrongs=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Cheers=2C=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B ----- Original Message -----=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B=26gt=3B =26gt=3B From=3A Charles Mitchell =26lt=3Bcharles=2Emitchel= l=40kcl=2Eac=2Euk=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B Date=3A Friday=2C November 23=2C 2007 8=3A46 am=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B Subject=3A RE=3A deceit=3A damages and acc= ount=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B To=3A davidcheife= tz=40rogers=2Ecom=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Cc=3A= =27Andrew Tettenborn=27=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26lt=3B= A=2EM=2ETettenborn=40exeter=2Eac=2Euk=26gt=3B=2C=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B obligations=40uwo=2Eca=2C ENRICHMENT=40LISTS=2E= MCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Andrew=2C David=3A Thank= s for pointing us to these interesting=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B cases=2E=26nbsp=3B On=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B the question whether a gain-based remedy = should be =3CBR=3E=26gt=3B available for=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B tort of deceit=2C I always find myself asking - why =3CBR=3E= =26gt=3B not=3F=26nbsp=3B In=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B Renault the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B judge did offer a reason=2C viz that the claimant had not on= ly=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B suffered=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B no loss but had = in fact made a profit itself=2E=26nbsp=3B I=3Fm =3CBR=3E=26gt=3B not sur= e=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B whether=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that=3Fs necessari= ly a clincher=2C but it would be =3CBR=3E=26gt=3B interesting to=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B hear=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B what other people think=2E=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B The judge=3Fs other reason in Ren= ault was that Arden LJ had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B previously=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B said in Murad v Al-Saraj =5B2005=5D WTLR 1573 that an account o= f=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B profits=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B isn=3Ft available = to victims of deceit=2C but I doubt whether much=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B weight=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B should be attached to that=2E=26nbsp=3B At fir= st instance in =3CBR=3E=26gt=3B Murad the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B claim was=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26g= t=3B =26gt=3B=26gt=3B allowed both on the basis that the claimants could= have a=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B gain-=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B based=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B remedy for the tort of deceit and on the = basis that the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= defendant had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= to disgorge the profits of his breach of fiduciary duty=2E=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B The CA=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B allowed the claim on the second b= asis and its=3Fs not clear =3CBR=3E=26gt=3B to me=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B that=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B any members of the court thought it necessary to = decide whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B claim bas= ed on deceit was also available=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt= =3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B Halifax Building Society v Thomas =5B1996=5D Ch 217 also =3CBR=3E=26= gt=3B contains a=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= dictum=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that a= n account of profits isn=3Ft available to victims of=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B deceit -=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B=26gt=3B but=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B that case was actually decided on the basis that the clamant=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B could not=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B ask for a gain-based reme= dy founded on the tort of deceit once=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B it had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B affirmed the contract which had been induced by D=3Fs=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B fraudulent=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B misrepresentation (a = similar finding was made in the much=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B earlier case=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26g= t=3B =26gt=3B=26gt=3B of Selway v Fogg (1839) 5 M =26amp=3B W 83)=2E=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B So it seems to me that there stil= l isn=3Ft any clear English=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B authority=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B that as a general rule victims of deceit cannot claim a =3CBR=3E= =26gt=3B gain-=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= based=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B remedy=3B= in principle it seems to me that this wouldn=3Ft be =3CBR=3E=26gt=3B a = good=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B rule=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B for English law to= have=3B and looking back there are many older=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B cases=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B which say exactly the opposite=2C since they hold= that a victim=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= of=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B deceit who= is fraudulently induced to part with money can waive=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B=26gt=3B =26gt=3B=26gt=3B tort and bring an action for money had and = received=3A e=2Eg=2E Hill=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B v=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = Perrott (1810) 3 Taunt 274=3B Abbotts v Barry (1820) 2 Brod =3CBR=3E=26g= t=3B =26amp=3B B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= 369=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Edmead= s v Newman (1823) 1 B =26amp=3B C 418 at 422-3=3B Holt v Ely (1853)=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B 1 El =26amp=3B=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Bl 795 at 800=2E=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Best wishes=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Charles=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = Quoting David Cheifetz =26lt=3Bdavidcheifetz=40rogers=2Ecom=26gt=3B=3A=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Andrew=2C=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Compare the opposite = result - bad guys had to cough up the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B profit - in 3Com=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B Corporation v=2E Zorin International = Corporation=2C 2006 CanLII=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B 18351 (ON C=2EA=2E)=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26= gt=3Bhttp=3A//www=2Ecanlii=2Eorg/en/on/onca/doc/2006/2006canlii18351/200= 6c=3CBR=3E=26gt=3B =26gt=3Banlii18351=2Eht=26gt=3B=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B m=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B =26gt=3B The defendants obtained a cheaper price for c= omputers from=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = 3Com by telling=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B the distributor that the computers were intended for =3CBR=3E=26= gt=3B market X=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B They were=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = =26gt=3B sold in market Y for a higher price=2E The evidence was also=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that 3Com=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B couldn=27t h= ave sold the computers at the higher price=2E=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B Defendants were held=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B liable for the extra prof= it=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Chee= rs=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Davi= d Cheifetz=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B ----= -Original Message-----=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B From=3A Andrew Tettenborn =5Bmailto=3AA=2EM=2ETettenbo= rn=40exeter=2Eac=2Euk=5D=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B Sent=3A November 23=2C 2007 6=3A27 AM=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B To=3A obligations=40u= wo=2Eca=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= Subject=3A deceit=3A damages and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt= =3B =26gt=3B=26gt=3B =26gt=3B A nice little case in the English QBD that= may have passed=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= list members by=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B =5BRenault UK Ltd v=2E FleetPro Technical Services Ltd =26= amp=3B Anor=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =5B= 2007=5D EWHC 2541=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B (QB)=2E=5D=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B The makers of Renault cars operated a discount scheme in=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B favour of member= s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B of = BALPA (a labour union)=3A the scheme was operated by=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Fleetpro=2C who ordered=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B the cars=2E Und= er the scheme orders were sent to the Renault=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B importers=3A they sent them to R= enault in France=2C =3CBR=3E=26gt=3B whereupon as=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B and when orders=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B came in Renault manufactured = the necessary cars and =3CBR=3E=26gt=3B =26gt=3Bshipped them=2E=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Fleetpro did the nat= ural thing and ordered 217 =3CBR=3E=26gt=3B discounted cars=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B for ordinary=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B customers who they k= new had nothing to do with BALPA=2E =3CBR=3E=26gt=3B The cars=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B were shipped=3A=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B the importers m= ade a profit on them=2C but (because they =3CBR=3E=26gt=3B gave a=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B rebate to the=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B dealer invol= ved) less than the profit they would have =3CBR=3E=26gt=3B made on=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B cars not=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B covered by the sc= heme=2E The importers sued Fleetpro for =3CBR=3E=26gt=3B deceit=2C=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B and won on=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B liability=2E On damages=2C howev= er=2C held=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt= =3B (1) the importers had proved no loss=2C i=2Ee=2E they hadn=27t prove= d=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B the sales ca= me=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B ot= her than as extra sales=2C or that they=27d otherwise have=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B persuaded customers=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B to buy their st= andard (over) priced cars=2E (2) There was no=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B jurisdiction=2C=26gt=3B absent a fiduciar= y relationship) to award an=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B account of profits against=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B Fleetpro=2E Hence the latter kept a t= idy (ill-gotten=3F) profit=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B The latter holding seems particularly interesting=2E=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Best=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B A=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B Andrew Tettenborn MA LLB=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Bracton Professor= of Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= University of Exeter=2C England=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3CBR=3E=26gt=3B Tel=3A=26nbsp= =3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B 01392-263189=26nbsp=3B=26nbsp=3B=26nbsp=3B /=26nbsp=3B= =26nbsp=3B +44-392-263189 =3CBR=3E=26gt=3B =26gt=3B(outside UK)=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Cellphone=3A=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B 07870-=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B 130528=26nbsp=3B=26nb= sp=3B /=26nbsp=3B=26nbsp=3B +44-7870-130528 (outside UK)=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =3CBR=3E=26gt=3B Fax=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B 01392-263196=26nbsp=3B=26n= bsp=3B=26nbsp=3B /=26nbsp=3B=26nbsp=3B +44-392-263196 (outside UK)=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Snailmail=3A=26nb= sp=3B=26nbsp=3B School of Law=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3CBR=3E=26gt= =3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B University of = Exeter=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Amory Building=2C=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B Rennes Drive=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Exeter EX4 4RJ=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B England=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B Exeter Law School homepage=3A http=3A//www=2Elaw=2Eex=2Eac=2Eu= k=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B My = homepage=3A http=3A//www=2Elaw=2Eex=2Eac=2Euk/staff/tettenborn=2Eshtml=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B LAWYER=2C n=2E One skilled in circ= umvention of the law (Ambrose=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B Bierce=2C 1906)=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B Charles Mitchell=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B charles=2Emitchell=40kcl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26nbsp=3B --=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B Jason Neyers=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B Associate Professor of Law=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B Faculty of Law=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B University of Western Ontario=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B N6A 3K7=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B (519) 661-2111 x=2E 88435=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26= gt=3B Charles Mitchell=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B charles=2E= mitchell=40kcl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=26nbsp=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = Jason Neyers=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Associate Professor of Law= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B Faculty of Law=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B University of Western Ontario=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = N6A 3K7=3CBR=3E=26gt=3B =26gt=3B=26gt=3B (519) 661-2111 x=2E 88435=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt= =3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B-- =3CBR=3E=26gt=3B= =26gt=3BCharles Mitchell=3CBR=3E=26gt=3B =26gt=3Bcharles=2Emitchell=40k= cl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26= gt=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=3CBR=3E=26gt=3B =26nbsp=3BThis message was delivered through t= he Restitution =3CBR=3E=26gt=3B Discussion Group=2C=3CBR=3E=26gt=3B =26n= bsp=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= subscribe=2C send =22subscribe =3CBR=3E=26gt=3B enrichment=22 in=3CBR=3E= =26gt=3B =26nbsp=3Bthe body of a message to =26lt=3Blistserv=40lists=2Em= cgill=2Eca=26gt=3B=2E To =3CBR=3E=26gt=3B unsubscribe=2C=26nbsp=3Bsend =22= signoff enrichment=22 to the same address=2E =3CBR=3E=26gt=3B To make a = posting to=3CBR=3E=26gt=3B =26nbsp=3Ball group members=2C send to =3CBR=3E= =26gt=3B =26lt=3Benrichment=40lists=2Emcgill=2Eca=26gt=3B=2E The list is= =3CBR=3E=26gt=3B =26nbsp=3Brun by Lionel Smith of McGill University=2C =3C= BR=3E=26gt=3B =26lt=3Blionel=2Esmith=40mcgill=2Eca=26gt=3B=2E=3C/DIV=3E=3C= BR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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. 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The list is run by Lionel Smith of McGill University, . --Boundary_(ID_tpir734nukXDGYonX6xyIQ)-- ========================================================================= Date: Sat, 24 Nov 2007 17:51:23 -0500 Reply-To: axelrod@ANDROMEDA.RUTGERS.EDU Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: Re: ODG RE: deceit: damages and account Comments: To: Lionel Smith In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-1 Content-Transfer-Encoding: 8bit >standard usage in contemporary US legal talk derives from an article from calabresi in which he names rules which lead to loss-based awards against a wrong-doer as damage rules, and those which lead to gain-based awards as property rules: the article and proposed usage was addressed to the US law-and economics community, which greeted the differentiation as a world-class discovery and the naming with awe ____________________________________________________________________ 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, 25 Nov 2007 14:39:46 -0000 Reply-To: Duncan.Sheehan@UEA.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: ODG RE: deceit: damages and account Comments: To: Jason Neyers In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-1 Content-Transfer-Encoding: 8bit Well essentially it comes down to this. Bear in mind that my target here is the new Birksian model in particular - I can go after Garland and Pacific National Investments with equal gusto though. The Supreme Court of Canada hasn't, I think, fully thought this one through. The scheme treats unlike cases alike - which is much more obvious when you look at how other jurisdictions deal with the cases. So in all systems which seem to have a condictio-style system (in Scotland and South Africa the actions attract that label, but I'd also include the German Leistungskondiktion under this) the transfer requires a putative purpose. This means that when Peter said cases of total ignorance where there is no purpose at all were a fortiori, he's simply not talking about the same type of case. There are no cases of which I'm aware where a Civilian system deals with "takings" in the same way as transfers with a putative purpose. This gets Peter into all sorts of trouble with cases like Edinburgh Tramways v Courtenay. It is counter-intuitive to say the least to say that the downstairs flat owner gifts rising heat to his upstairs neighbour. The only sensible answer is the one the Scots gave which is that there is no enrichment at the expense of the downstairs person. Similarly cases of improvements to property believing you own it are not transfer cases - Scots law, I think, relies directly on the mistake. If we resort to mistake here - why not always... That I accept does not mean that the whole system cannot be made to work, but the following objection does. Contracts terminable for breach get sucked into the Birksian scheme. Whether you think (like Gerard) that treating terminable contracts like voidable ones is iffy, or that the argument is circular, it is not true to the internal logic of the system. So in German law the unwinding is done via contract law. In Scotland and South Africa there are strong arguments likewise. When I pay money under a terminable contract, I do so to discharge a debt. That debt IS discharged. My purpose IS fulfilled. Unjust enrichment doesn't get a look in. Now that doesn't mean you can't have restitution, you can, but it has to be within contract. In Scotland the argument goes (as a critique of Connelly v Simpson) that the mutuality principle demands restitution. That, as I understand it, is essentially a principle of bilateral conditionality - your retention of my money is conditional on performance; after termination that is no longer forthcoming. It's a reciprocity principle; however, so is consideration. I wonder whether properly reconfigured, the model doesn't require the introduction of a new contract principle, which is only going to get confused with consideration as a condition for validity. Duncan > "Ps I am wholly unpersuaded that English law accepts juristic reasons - > the > new Birksian model strikes me as flawed in a number of respects; > explanations forthcoming if you like. " > > Duncan, I would be interested in your take on the flaws. > > > ----- Original Message ----- > From: "Duncan Sheehan (LAW)" > Date: Friday, November 23, 2007 12:29 pm > Subject: Re: [RDG] ODG RE: deceit: damages and account > To: ENRICHMENT@LISTS.MCGILL.CA > >> Speaking (or maybe writing) as one who does in large measure >> accept that the >> disgorgement measure reflects corrective justice, I'd be >> interested to know >> what Jason thinks the reasons why fraud doesn't support it are. >> I can't >> immediately think of them, so I too will line up with Charles & >> Lionel. >> >> On Abbots v Barry, I think the only answer is doesn't it depend >> on your view >> of UE. If, unlike me, you accepted Peter's explanation in his >> last book of >> interceptive subtraction, would you not say that the possession >> of the wine >> carried with it earnings opportunities and therefore the sale >> proceeds could >> also be taken by UE? In any case not being familiar with the >> case, was X D's >> agent, and if so wouldn't that make a difference? >> >> Duncan >> >> Ps I am wholly unpersuaded that English law accepts juristic >> reasons - the >> new Birksian model strikes me as flawed in a number of respects; >> explanations forthcoming if you like. >> >> Dr Duncan Sheehan >> Senior Lecturer in Law >> Director of Research >> Norwich Law School >> University of East Anglia >> Norwich NR4 7TJ >> United Kingdom >> >> >-----Original Message----- >> >From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >> >Sent: Friday, November 23, 2007 5:05 PM >> >To: Jason Neyers >> >Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >> >Subject: ODG RE: deceit: damages and account >> > >> >Picking up first on Lionel?s point re waiver, of course I have >> to >> >agree that the C19 judges were not asking themselves whether >> >an action >> >for money had and received following a waiver of tort was a >> claim for >> >the profits of wrongdoing or a claim for restitution of UE. So >> >when we >> >look back at the cases we must say that many are susceptible >> to >> >alternative analysis since the plaintiff made a mistake and >> the >> >quantum of the remedy would have been the same either way. >> > >> >But I like Jason?s suggestion that looking at the award may >> >help us to >> >eliminate the UE explanation if we can show that this looked to >> gains >> >in D?s hands rather than the value of the assets transferred >> from P >> >where those two things were different. Is Abbotts v Barry >> >like this? >> >D orchestrated a fraud pursuant to which his creature X induced >> P to >> >sell X wine which X then failed to pay for; X handed the wine >> over to >> >D, who sold it on; P claimed the sale proceeds in D?s hands as >> the >> >profits accruing from the fraud and recovered them as money had >> and >> >received. >> > >> >So far as the corrective justice point goes, I happily line up >> with >> >Lionel - which is why I take heart from Etherton J?s findings >> >at first >> >instance in Murad at [342]-[347], despite Arden LJ?s negative >> line in >> >the CA. >> > >> >Best wishes >> >Charles >> > >> >Quoting Jason Neyers : >> > >> >> Dear Charles: >> >> >> >> Corrective Justice, sorry to have been so lazy. >> >> >> >> English law does believe in juristic reasons (since it is the >> most >> >> coherent generalization of the liability imposed) it just >> hasn't >> >> explicitly caught up to what is implicit in itself yet. :). >> >Think of >> >> negligence law immediately prior to DvS. >> >> >> >> A history question (since I am painfully ignorant of these >> >matters): >> >> when plaintiffs asked for money had and received in the >> >1800s cases >> >> cited were they limited to the amount that they gave >> (restitution >> >> for UE) or could they also get the gain from whatever >> source >> >> (restitution for wrongs/disgorgement)? >> >> >> >> From the winter wonderland that is London, Ontario. >> >> >> >> >> >> >> >> ----- Original Message ----- >> >> From: Charles Mitchell >> >> Date: Friday, November 23, 2007 11:10 am >> >> Subject: Re: RE: deceit: damages and account >> >> To: Jason Neyers >> >> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >> >> >>> I'm sorry, Jason, I know I'm being thick but I?ve been racking >> >>> my >> >>> brains and I can't think what CJ means - in mitigation it's >> >>> Friday >> >>> afternoon - but when you tell me I'll give myself three kicks. >> >>> >> >>> So far as your 2nd point goes, I don't think that it's >> >>> consistent with >> >>> the HL's explanation of waiver of tort in United Australia Ltd >> >>> v >> >>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >> >>> LC: >> >>> ?Where "waiving the tort" was possible, it was nothing more than >> >>> a >> >>> choice between possible remedies [sc: for the tort] derived from >> >>> a >> >>> time when it was not permitted to combine them or to pursue them >> >>> in >> >>> the alternative, and when there were procedural advantages >> >>> in >> >>> selecting the form of assumpsit.? And again at 18: ?When >> >>> the >> >>> plaintiff "waived the tort" and brought assumpsit, he did not >> >>> thereby >> >>> elect to be treated from that time forward on the basis that no >> >>> tort >> >>> had been committed; indeed, if it were to be understood that no >> >>> tort >> >>> had been committed, how could an action in assumpsit lie? It >> >>> lies only >> >>> because the acquisition of the defendant is wrongful and there >> >>> is thus >> >>> an obligation to make restitution.? Lord Atkin says the >> >>> same at 27-9. >> >>> >> >>> Also as you know we do not believe in absence of juristic reason >> >>> in >> >>> England - at any rate Lord Hoffmann does not although the >> >>> higher >> >>> authority of P Birks and now R Stevens may yet win the day. >> >>> >> >>> Best wishes >> >>> Charles >> >>> >> >>> Quoting Jason Neyers : >> >>> >> >>> > Dear Charles: >> >>> > >> >>> > The answer to your question depends, of course, on the >> >>> principle >> >>> > underlying disorgement. For those of us who buy the CJ >> >>> justification >> >>> > for disgorgement there are good reasons why fraud will >> >>> not support >> >>> > that remedy. >> >>> > >> >>> > Also, the older cases you mention seem more consistent with >> >>> the >> >>> > fraud destroying the underlying juristic reason for the >> >>> transaction >> >>> > and therefore with restitution for UE following rather >> >>> than >> >>> > supporting for disgorgement for wrongs. >> >>> > >> >>> > Cheers, >> >>> > >> >>> > ----- Original Message ----- >> >>> > From: Charles Mitchell >> >>> > Date: Friday, November 23, 2007 8:46 am >> >>> > Subject: RE: deceit: damages and account >> >>> > To: davidcheifetz@rogers.com >> >>> > Cc: 'Andrew Tettenborn' >> >>> , >> >>> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >>> > >> >>> >> Andrew, David: Thanks for pointing us to these interesting >> >>> >> cases. On >> >>> >> the question whether a gain-based remedy should be >> available for >> >>> >> the >> >>> >> tort of deceit, I always find myself asking - why >> not? In >> >>> >> Renault the >> >>> >> judge did offer a reason, viz that the claimant had not only >> >>> >> suffered >> >>> >> no loss but had in fact made a profit itself. I?m >> not sure >> >>> >> whether >> >>> >> that?s necessarily a clincher, but it would be >> interesting to >> >>> >> hear >> >>> >> what other people think. >> >>> >> >> >>> >> The judge?s other reason in Renault was that Arden LJ had >> >>> >> previously >> >>> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >> >>> >> profits >> >>> >> isn?t available to victims of deceit, but I doubt whether much >> >>> >> weight >> >>> >> should be attached to that. At first instance in >> Murad the >> >>> >> claim was >> >>> >> allowed both on the basis that the claimants could have a >> >>> gain- >> >>> >> based >> >>> >> remedy for the tort of deceit and on the basis that the >> >>> >> defendant had >> >>> >> to disgorge the profits of his breach of fiduciary duty. >> >>> >> The CA >> >>> >> allowed the claim on the second basis and its?s not clear >> to me >> >>> >> that >> >>> >> any members of the court thought it necessary to decide whether >> >>> >> the >> >>> >> claim based on deceit was also available. >> >>> >> >> >>> >> Halifax Building Society v Thomas [1996] Ch 217 also >> contains a >> >>> >> dictum >> >>> >> that an account of profits isn?t available to victims of >> >>> deceit - >> >>> >> but >> >>> >> that case was actually decided on the basis that the clamant >> >>> >> could not >> >>> >> ask for a gain-based remedy founded on the tort of deceit once >> >>> >> it had >> >>> >> affirmed the contract which had been induced by D?s >> >>> >> fraudulent >> >>> >> misrepresentation (a similar finding was made in the much >> >>> >> earlier case >> >>> >> of Selway v Fogg (1839) 5 M & W 83). >> >>> >> >> >>> >> So it seems to me that there still isn?t any clear English >> >>> >> authority >> >>> >> that as a general rule victims of deceit cannot claim a >> gain- >> >>> >> based >> >>> >> remedy; in principle it seems to me that this wouldn?t be >> a good >> >>> >> rule >> >>> >> for English law to have; and looking back there are many older >> >>> >> cases >> >>> >> which say exactly the opposite, since they hold that a victim >> >>> >> of >> >>> >> deceit who is fraudulently induced to part with money can waive >> >>> >> the >> >>> >> tort and bring an action for money had and received: e.g. Hill >> >>> >> v >> >>> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod >> & B >> >>> >> 369; >> >>> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely (1853) >> >>> >> 1 El & >> >>> >> Bl 795 at 800. >> >>> >> >> >>> >> Best wishes >> >>> >> Charles >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> Quoting David Cheifetz : >> >>> >> >> >>> >> > Andrew, >> >>> >> > >> >>> >> > Compare the opposite result - bad guys had to cough up the >> >>> >> profit - in 3Com >> >>> >> > Corporation v. Zorin International Corporation, 2006 CanLII >> >>> >> 18351 (ON C.A.) >> >>> >> > >> >>> >> >> >>> >> >http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >> >anlii18351.ht> >> >>> >> m >> >>> >> > >> >>> >> > The defendants obtained a cheaper price for computers from >> >>> >> 3Com by telling >> >>> >> > the distributor that the computers were intended for >> market X. >> >>> >> They were >> >>> >> > sold in market Y for a higher price. The evidence was also >> >>> >> that 3Com >> >>> >> > couldn't have sold the computers at the higher price. >> >>> >> Defendants were held >> >>> >> > liable for the extra profit. >> >>> >> > >> >>> >> > Cheers, >> >>> >> > >> >>> >> > David Cheifetz >> >>> >> > >> >>> >> > >> >>> >> > -----Original Message----- >> >>> >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> >>> >> > Sent: November 23, 2007 6:27 AM >> >>> >> > To: obligations@uwo.ca >> >>> >> > Subject: deceit: damages and account >> >>> >> > >> >>> >> > A nice little case in the English QBD that may have passed >> >>> >> list members by. >> >>> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> >>> >> [2007] EWHC 2541 >> >>> >> > (QB).] >> >>> >> > >> >>> >> > The makers of Renault cars operated a discount scheme in >> >>> >> favour of members >> >>> >> > of BALPA (a labour union): the scheme was operated by >> >>> >> Fleetpro, who ordered >> >>> >> > the cars. Under the scheme orders were sent to the Renault >> >>> >> > importers: they sent them to Renault in France, >> whereupon as >> >>> >> and when orders >> >>> >> > came in Renault manufactured the necessary cars and >> >shipped them. >> >>> >> > >> >>> >> > Fleetpro did the natural thing and ordered 217 >> discounted cars >> >>> >> for ordinary >> >>> >> > customers who they knew had nothing to do with BALPA. >> The cars >> >>> >> were shipped: >> >>> >> > the importers made a profit on them, but (because they >> gave a >> >>> >> rebate to the >> >>> >> > dealer involved) less than the profit they would have >> made on >> >>> >> cars not >> >>> >> > covered by the scheme. The importers sued Fleetpro for >> deceit,>>> >> and won on >> >>> >> > liability. On damages, however, held: >> >>> >> > >> >>> >> > (1) the importers had proved no loss, i.e. they hadn't proved >> >>> >> the sales came >> >>> >> > other than as extra sales, or that they'd otherwise have >> >>> >> persuaded customers >> >>> >> > to buy their standard (over) priced cars. (2) There was no >> >>> >> jurisdiction,> absent a fiduciary relationship) to award an >> >>> >> account of profits against >> >>> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> >>> >> > >> >>> >> > The latter holding seems particularly interesting. >> >>> >> > >> >>> >> > >> >>> >> > Best >> >>> >> > >> >>> >> > A >> >>> >> > >> >>> >> > -- >> >>> >> > Andrew Tettenborn MA LLB >> >>> >> > Bracton Professor of Law >> >>> >> > University of Exeter, England >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> >> >>> >> Tel: 01392-263189 / +44-392-263189 >> >(outside UK) >> >>> >> > Cellphone: 07870- >> >>> >> 130528 / +44-7870-130528 (outside UK) >> >>> >> > >> >>> >> >> >>> >> Fax: 01392-263196 / +44-392-263196 (outside UK) >> >>> >> > >> >>> >> > Snailmail: School of Law, >> >>> >> >> >>> >> > University of Exeter, >> >>> >> >> >>> >> > Amory Building, >> >>> >> >> >>> >> > Rennes Drive, >> >>> >> >> >>> >> > Exeter EX4 4RJ >> >>> >> >> >>> >> > England >> >>> >> > >> >>> >> > Exeter Law School homepage: http://www.law.ex.ac.uk >> >>> >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >> >>> >> Bierce, 1906). >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> >> >>> >> >> >>> >> >> >>> >> -- >> >>> >> Charles Mitchell >> >>> >> charles.mitchell@kcl.ac.uk >> >>> >> >> >>> >> >> >>> > >> >>> > -- >> >>> > Jason Neyers >> >>> > Associate Professor of Law >> >>> > Faculty of Law >> >>> > University of Western Ontario >> >>> > N6A 3K7 >> >>> > (519) 661-2111 x. 88435 >> >>> > >> >>> >> >>> >> >>> >> >>> -- >> >>> Charles Mitchell >> >>> charles.mitchell@kcl.ac.uk >> >>> >> >>> >> >> >> >> -- >> >> Jason Neyers >> >> Associate Professor of Law >> >> Faculty of Law >> >> University of Western Ontario >> >> N6A 3K7 >> >> (519) 661-2111 x. 88435 >> >> >> > >> > >> > >> >-- >> >Charles Mitchell >> >charles.mitchell@kcl.ac.uk >> > >> > >> >> ____________________________________________________________________ >> 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, >> . > > -- > Jason Neyers > 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, . ========================================================================= Date: Sun, 25 Nov 2007 09:47:44 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: deceit: damages and account Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit [I post the following on behalf of Bill Swadling:] As a property lawyer, it is hardly 'awe' in which I hold Calabresi and Melamed, for their nomenclature causes nothing but confusion. Given, for example, that the legal system redresses interferences with the right to the exclusive possession of goods with an award of damages, we would end up having to describe this undoubted enforcement of a property right as not being an instance of a court invoking a 'property rule'. By contrast, because it is possible to specifically enforce a contractual licence to occupy land, an undoubted personal right, we would have to see that as involving the application of a 'property' rule. The word 'property' is normally used to distinguish different sorts of rights, those which are generally exigible against third parties as opposed to those which are not. This is now how the authors use it, and in that sense their terminology is unhelpful, so much so that it is nowadays difficult to have an intelligent conversation about property with a US lawyer. Calabresi and Melamed may have stumbled across something inspiring awe, but they should have thought more carefully about what to call it. To talk of 'specific recovery rules' and 'damages rules' would have been fine, but not 'property rules' and 'damages rules'. If we are to make sense of the law, we should never confuse the nature of the right and the means by which it is enforced. Bill Swadling ____________________________________________________________________ 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, 25 Nov 2007 22:48:22 -0000 Reply-To: Peter Jaffey Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Peter Jaffey Subject: Re: ODG RE: deceit: damages and account Comments: To: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable As I recall the Weinrib article mentioned by Jason, it doesn't offer a = corrective justice account of disgorgement. To me there is a case of = disgorgement where the reason why D's profit is removed is the principle = that a wrongdoer should not be allowed to profit through his wrongs. = This is presumably the principle at stake in Andrew's case. In Weinrib's = article if I remember rightly his view is that disgorgement in this = sense should never be available. He was offering a defence of a = different type of case. The main example was where the owner of property = claims against an unauthorised user of his property for "licence fee" = damages, normally some fraction of the benefit made. I agree with = Weinrib that this is quite different from disgorgement, because here, as = I would put it, the rationale is to secure to the owner the right to the = use value of his property, not to prevent the defendant from profiting = from a wrong. My understanding is that these two types of claim were = always regarded as quite distinct until they were brought together as = cases of "restitution for wrongs", and now in the line of cases = following Blake. If I could be permitted a plug, I offer an analysis of = these issues in Private Law and Property Claims (Hart, 2007). =20 But I agree with Jason that in waiver of tort cases the alternative to = compensation for the tort is not disgorgement but restitution of the = transfer. The cases of waiver discussed in United Australia are all = concerned with wrongs that cause transfers, and why should this be on = the disgorgement approach? Also surely if disgorgement was in issue one = would expect some reference to the principle against profiting by a = wrongdoer. This is always prominent in the true disgorgement cases in = equity. =20 Peter. =20 =20 ________________________________ From: Enrichment - Restitution & Unjust Enrichment Legal Issues on = behalf of Duncan Sheehan Sent: Sun 25/11/2007 14:39 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG RE: deceit: damages and account Well essentially it comes down to this. Bear in mind that my target here is the new Birksian model in particular - I can go after Garland and Pacific National Investments with equal gusto though. The Supreme Court = of Canada hasn't, I think, fully thought this one through. The scheme treats unlike cases alike - which is much more obvious when = you look at how other jurisdictions deal with the cases. So in all systems which seem to have a condictio-style system (in Scotland and South = Africa the actions attract that label, but I'd also include the German Leistungskondiktion under this) the transfer requires a putative = purpose. This means that when Peter said cases of total ignorance where there is = no purpose at all were a fortiori, he's simply not talking about the same type of case. There are no cases of which I'm aware where a Civilian system deals with "takings" in the same way as transfers with a putative purpose. This gets Peter into all sorts of trouble with cases like Edinburgh Tramways v Courtenay. It is counter-intuitive to say the least to say that the downstairs flat owner gifts rising heat to his upstairs neighbour. The only sensible answer is the one the Scots gave which is that there is no enrichment at the expense of the downstairs person. Similarly cases of improvements to property believing you own it are not transfer cases - Scots law, I think, relies directly on the mistake. If = we resort to mistake here - why not always... That I accept does not mean that the whole system cannot be made to = work, but the following objection does. Contracts terminable for breach get sucked into the Birksian scheme. Whether you think (like Gerard) that treating terminable contracts like voidable ones is iffy, or that the argument is circular, it is not true to the internal logic of the = system. So in German law the unwinding is done via contract law. In Scotland and South Africa there are strong arguments likewise. When I pay money under = a terminable contract, I do so to discharge a debt. That debt IS = discharged. My purpose IS fulfilled. Unjust enrichment doesn't get a look in. Now = that doesn't mean you can't have restitution, you can, but it has to be = within contract. In Scotland the argument goes (as a critique of Connelly v Simpson) that the mutuality principle demands restitution. That, as I understand it, is essentially a principle of bilateral conditionality - your retention of my money is conditional on performance; after termination that is no longer forthcoming. It's a reciprocity principle; however, so is consideration. I wonder whether properly reconfigured, = the model doesn't require the introduction of a new contract principle, = which is only going to get confused with consideration as a condition for validity. Duncan > "Ps I am wholly unpersuaded that English law accepts juristic reasons = - > the > new Birksian model strikes me as flawed in a number of respects; > explanations forthcoming if you like. " > > Duncan, I would be interested in your take on the flaws. > > > ----- Original Message ----- > From: "Duncan Sheehan (LAW)" > Date: Friday, November 23, 2007 12:29 pm > Subject: Re: [RDG] ODG RE: deceit: damages and account > To: ENRICHMENT@LISTS.MCGILL.CA > >> Speaking (or maybe writing) as one who does in large measure >> accept that the >> disgorgement measure reflects corrective justice, I'd be >> interested to know >> what Jason thinks the reasons why fraud doesn't support it are. >> I can't >> immediately think of them, so I too will line up with Charles & >> Lionel. >> >> On Abbots v Barry, I think the only answer is doesn't it depend >> on your view >> of UE. If, unlike me, you accepted Peter's explanation in his >> last book of >> interceptive subtraction, would you not say that the possession >> of the wine >> carried with it earnings opportunities and therefore the sale >> proceeds could >> also be taken by UE? In any case not being familiar with the >> case, was X D's >> agent, and if so wouldn't that make a difference? >> >> Duncan >> >> Ps I am wholly unpersuaded that English law accepts juristic >> reasons - the >> new Birksian model strikes me as flawed in a number of respects; >> explanations forthcoming if you like. >> >> Dr Duncan Sheehan >> Senior Lecturer in Law >> Director of Research >> Norwich Law School >> University of East Anglia >> Norwich NR4 7TJ >> United Kingdom >> >> >-----Original Message----- >> >From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] >> >Sent: Friday, November 23, 2007 5:05 PM >> >To: Jason Neyers >> >Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA >> >Subject: ODG RE: deceit: damages and account >> > >> >Picking up first on Lionel?s point re waiver, of course I have >> to >> >agree that the C19 judges were not asking themselves whether >> >an action >> >for money had and received following a waiver of tort was a >> claim for >> >the profits of wrongdoing or a claim for restitution of UE. So >> >when we >> >look back at the cases we must say that many are susceptible >> to >> >alternative analysis since the plaintiff made a mistake and >> the >> >quantum of the remedy would have been the same either way. >> > >> >But I like Jason?s suggestion that looking at the award may >> >help us to >> >eliminate the UE explanation if we can show that this looked to >> gains >> >in D?s hands rather than the value of the assets transferred >> from P >> >where those two things were different. Is Abbotts v Barry >> >like this? >> >D orchestrated a fraud pursuant to which his creature X induced >> P to >> >sell X wine which X then failed to pay for; X handed the wine >> over to >> >D, who sold it on; P claimed the sale proceeds in D?s hands as >> the >> >profits accruing from the fraud and recovered them as money had >> and >> >received. >> > >> >So far as the corrective justice point goes, I happily line up >> with >> >Lionel - which is why I take heart from Etherton J?s findings >> >at first >> >instance in Murad at [342]-[347], despite Arden LJ?s negative >> line in >> >the CA. >> > >> >Best wishes >> >Charles >> > >> >Quoting Jason Neyers : >> > >> >> Dear Charles: >> >> >> >> Corrective Justice, sorry to have been so lazy. >> >> >> >> English law does believe in juristic reasons (since it is the >> most >> >> coherent generalization of the liability imposed) it just >> hasn't >> >> explicitly caught up to what is implicit in itself yet. :). >> >Think of >> >> negligence law immediately prior to DvS. >> >> >> >> A history question (since I am painfully ignorant of these >> >matters): >> >> when plaintiffs asked for money had and received in the >> >1800s cases >> >> cited were they limited to the amount that they gave >> (restitution >> >> for UE) or could they also get the gain from whatever >> source >> >> (restitution for wrongs/disgorgement)? >> >> >> >> From the winter wonderland that is London, Ontario. >> >> >> >> >> >> >> >> ----- Original Message ----- >> >> From: Charles Mitchell >> >> Date: Friday, November 23, 2007 11:10 am >> >> Subject: Re: RE: deceit: damages and account >> >> To: Jason Neyers >> >> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >> >> >>> I'm sorry, Jason, I know I'm being thick but I?ve been racking >> >>> my >> >>> brains and I can't think what CJ means - in mitigation it's >> >>> Friday >> >>> afternoon - but when you tell me I'll give myself three kicks. >> >>> >> >>> So far as your 2nd point goes, I don't think that it's >> >>> consistent with >> >>> the HL's explanation of waiver of tort in United Australia Ltd >> >>> v >> >>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon >> >>> LC: >> >>> ?Where "waiving the tort" was possible, it was nothing more than >> >>> a >> >>> choice between possible remedies [sc: for the tort] derived from >> >>> a >> >>> time when it was not permitted to combine them or to pursue them >> >>> in >> >>> the alternative, and when there were procedural advantages >> >>> in >> >>> selecting the form of assumpsit.? And again at 18: ?When >> >>> the >> >>> plaintiff "waived the tort" and brought assumpsit, he did not >> >>> thereby >> >>> elect to be treated from that time forward on the basis that no >> >>> tort >> >>> had been committed; indeed, if it were to be understood that no >> >>> tort >> >>> had been committed, how could an action in assumpsit lie? It >> >>> lies only >> >>> because the acquisition of the defendant is wrongful and there >> >>> is thus >> >>> an obligation to make restitution.? Lord Atkin says the >> >>> same at 27-9. >> >>> >> >>> Also as you know we do not believe in absence of juristic reason >> >>> in >> >>> England - at any rate Lord Hoffmann does not although the >> >>> higher >> >>> authority of P Birks and now R Stevens may yet win the day. >> >>> >> >>> Best wishes >> >>> Charles >> >>> >> >>> Quoting Jason Neyers : >> >>> >> >>> > Dear Charles: >> >>> > >> >>> > The answer to your question depends, of course, on the >> >>> principle >> >>> > underlying disorgement. For those of us who buy the CJ >> >>> justification >> >>> > for disgorgement there are good reasons why fraud will >> >>> not support >> >>> > that remedy. >> >>> > >> >>> > Also, the older cases you mention seem more consistent with >> >>> the >> >>> > fraud destroying the underlying juristic reason for the >> >>> transaction >> >>> > and therefore with restitution for UE following rather >> >>> than >> >>> > supporting for disgorgement for wrongs. >> >>> > >> >>> > Cheers, >> >>> > >> >>> > ----- Original Message ----- >> >>> > From: Charles Mitchell >> >>> > Date: Friday, November 23, 2007 8:46 am >> >>> > Subject: RE: deceit: damages and account >> >>> > To: davidcheifetz@rogers.com >> >>> > Cc: 'Andrew Tettenborn' >> >>> , >> >>> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA >> >>> > >> >>> >> Andrew, David: Thanks for pointing us to these interesting >> >>> >> cases. On >> >>> >> the question whether a gain-based remedy should be >> available for >> >>> >> the >> >>> >> tort of deceit, I always find myself asking - why >> not? In >> >>> >> Renault the >> >>> >> judge did offer a reason, viz that the claimant had not only >> >>> >> suffered >> >>> >> no loss but had in fact made a profit itself. I?m >> not sure >> >>> >> whether >> >>> >> that?s necessarily a clincher, but it would be >> interesting to >> >>> >> hear >> >>> >> what other people think. >> >>> >> >> >>> >> The judge?s other reason in Renault was that Arden LJ had >> >>> >> previously >> >>> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an account of >> >>> >> profits >> >>> >> isn?t available to victims of deceit, but I doubt whether much >> >>> >> weight >> >>> >> should be attached to that. At first instance in >> Murad the >> >>> >> claim was >> >>> >> allowed both on the basis that the claimants could have a >> >>> gain- >> >>> >> based >> >>> >> remedy for the tort of deceit and on the basis that the >> >>> >> defendant had >> >>> >> to disgorge the profits of his breach of fiduciary duty. >> >>> >> The CA >> >>> >> allowed the claim on the second basis and its?s not clear >> to me >> >>> >> that >> >>> >> any members of the court thought it necessary to decide = whether >> >>> >> the >> >>> >> claim based on deceit was also available. >> >>> >> >> >>> >> Halifax Building Society v Thomas [1996] Ch 217 also >> contains a >> >>> >> dictum >> >>> >> that an account of profits isn?t available to victims of >> >>> deceit - >> >>> >> but >> >>> >> that case was actually decided on the basis that the clamant >> >>> >> could not >> >>> >> ask for a gain-based remedy founded on the tort of deceit once >> >>> >> it had >> >>> >> affirmed the contract which had been induced by D?s >> >>> >> fraudulent >> >>> >> misrepresentation (a similar finding was made in the much >> >>> >> earlier case >> >>> >> of Selway v Fogg (1839) 5 M & W 83). >> >>> >> >> >>> >> So it seems to me that there still isn?t any clear English >> >>> >> authority >> >>> >> that as a general rule victims of deceit cannot claim a >> gain- >> >>> >> based >> >>> >> remedy; in principle it seems to me that this wouldn?t be >> a good >> >>> >> rule >> >>> >> for English law to have; and looking back there are many older >> >>> >> cases >> >>> >> which say exactly the opposite, since they hold that a victim >> >>> >> of >> >>> >> deceit who is fraudulently induced to part with money can = waive >> >>> >> the >> >>> >> tort and bring an action for money had and received: e.g. Hill >> >>> >> v >> >>> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod >> & B >> >>> >> 369; >> >>> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v Ely = (1853) >> >>> >> 1 El & >> >>> >> Bl 795 at 800. >> >>> >> >> >>> >> Best wishes >> >>> >> Charles >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> >> >>> >> Quoting David Cheifetz : >> >>> >> >> >>> >> > Andrew, >> >>> >> > >> >>> >> > Compare the opposite result - bad guys had to cough up the >> >>> >> profit - in 3Com >> >>> >> > Corporation v. Zorin International Corporation, 2006 CanLII >> >>> >> 18351 (ON C.A.) >> >>> >> > >> >>> >> >> >>> >> >http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c >> >anlii18351.ht> >> >>> >> m >> >>> >> > >> >>> >> > The defendants obtained a cheaper price for computers from >> >>> >> 3Com by telling >> >>> >> > the distributor that the computers were intended for >> market X. >> >>> >> They were >> >>> >> > sold in market Y for a higher price. The evidence was also >> >>> >> that 3Com >> >>> >> > couldn't have sold the computers at the higher price. >> >>> >> Defendants were held >> >>> >> > liable for the extra profit. >> >>> >> > >> >>> >> > Cheers, >> >>> >> > >> >>> >> > David Cheifetz >> >>> >> > >> >>> >> > >> >>> >> > -----Original Message----- >> >>> >> > From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk] >> >>> >> > Sent: November 23, 2007 6:27 AM >> >>> >> > To: obligations@uwo.ca >> >>> >> > Subject: deceit: damages and account >> >>> >> > >> >>> >> > A nice little case in the English QBD that may have passed >> >>> >> list members by. >> >>> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor >> >>> >> [2007] EWHC 2541 >> >>> >> > (QB).] >> >>> >> > >> >>> >> > The makers of Renault cars operated a discount scheme in >> >>> >> favour of members >> >>> >> > of BALPA (a labour union): the scheme was operated by >> >>> >> Fleetpro, who ordered >> >>> >> > the cars. Under the scheme orders were sent to the Renault >> >>> >> > importers: they sent them to Renault in France, >> whereupon as >> >>> >> and when orders >> >>> >> > came in Renault manufactured the necessary cars and >> >shipped them. >> >>> >> > >> >>> >> > Fleetpro did the natural thing and ordered 217 >> discounted cars >> >>> >> for ordinary >> >>> >> > customers who they knew had nothing to do with BALPA. >> The cars >> >>> >> were shipped: >> >>> >> > the importers made a profit on them, but (because they >> gave a >> >>> >> rebate to the >> >>> >> > dealer involved) less than the profit they would have >> made on >> >>> >> cars not >> >>> >> > covered by the scheme. The importers sued Fleetpro for >> deceit,>>> >> and won on >> >>> >> > liability. On damages, however, held: >> >>> >> > >> >>> >> > (1) the importers had proved no loss, i.e. they hadn't = proved >> >>> >> the sales came >> >>> >> > other than as extra sales, or that they'd otherwise have >> >>> >> persuaded customers >> >>> >> > to buy their standard (over) priced cars. (2) There was no >> >>> >> jurisdiction,> absent a fiduciary relationship) to award an >> >>> >> account of profits against >> >>> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) profit. >> >>> >> > >> >>> >> > The latter holding seems particularly interesting. >> >>> >> > >> >>> >> > >> >>> >> > Best >> >>> >> > >> >>> >> > A >> >>> >> > >> >>> >> > -- >> >>> >> > Andrew Tettenborn MA LLB >> >>> >> > Bracton Professor of Law >> >>> >> > University of Exeter, England >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> >> >>> >> Tel: 01392-263189 / +44-392-263189 >> >(outside UK) >> >>> >> > Cellphone: 07870- >> >>> >> 130528 / +44-7870-130528 (outside UK) >> >>> >> > >> >>> >> >> >>> >> Fax: 01392-263196 / +44-392-263196 (outside UK) >> >>> >> > >> >>> >> > Snailmail: School of Law, >> >>> >> >> >>> >> > University of Exeter, >> >>> >> >> >>> >> > Amory Building, >> >>> >> >> >>> >> > Rennes Drive, >> >>> >> >> >>> >> > Exeter EX4 4RJ >> >>> >> >> >>> >> > England >> >>> >> > >> >>> >> > Exeter Law School homepage: http://www.law.ex.ac.uk = =20 >> >>> >> > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > LAWYER, n. One skilled in circumvention of the law (Ambrose >> >>> >> Bierce, 1906). >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> >> >>> >> >> >>> >> >> >>> >> -- >> >>> >> Charles Mitchell >> >>> >> charles.mitchell@kcl.ac.uk >> >>> >> >> >>> >> >> >>> > >> >>> > -- >> >>> > Jason Neyers >> >>> > Associate Professor of Law >> >>> > Faculty of Law >> >>> > University of Western Ontario >> >>> > N6A 3K7 >> >>> > (519) 661-2111 x. 88435 >> >>> > >> >>> >> >>> >> >>> >> >>> -- >> >>> Charles Mitchell >> >>> charles.mitchell@kcl.ac.uk >> >>> >> >>> >> >> >> >> -- >> >> Jason Neyers >> >> Associate Professor of Law >> >> Faculty of Law >> >> University of Western Ontario >> >> N6A 3K7 >> >> (519) 661-2111 x. 88435 >> >> >> > >> > >> > >> >-- >> >Charles Mitchell >> >charles.mitchell@kcl.ac.uk >> > >> > >> >> ____________________________________________________________________ >> 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, >> . > > -- > Jason Neyers > 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, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Mon, 26 Nov 2007 07:13:24 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: ODG RE: deceit: damages and account Comments: To: Duncan.Sheehan@uea.ac.uk In-Reply-To: <1139.79.66.96.231.1196001586.squirrel@webmail.uea.ac.uk> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_kWFiAxsu+H2zzJTrE/+l+Q)" This is a multi-part message in MIME format. --Boundary_(ID_kWFiAxsu+H2zzJTrE/+l+Q) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline Dear Duncan: Thanks for this. I realize that what you say are valid criticisms of Birks but are they valid criticisms of a lack of juristic reason approach (which I know was not your point to prove)? For example, it does not destroy the approach to say that the best view of cases like Courtenayis that they are explained on the enrichment/expense of part of the cause of action. Likewise, I would agree that restitution after breach has little to do with UE (since as you point out there is a reason for the enrichment) and is rather a remedy for breach of contract (a sub-set of reliance). But this doesn't destroy the juristic reason approach either. So I would be interested if you have further criticisms of a pure lack of juristic reasons approach (by pure I mean minus the Garland reasonable expectations and policy mumbo jumbo). Cheers, ----- Original Message ----- From: Duncan.Sheehan@uea.ac.uk Date: Sunday, November 25, 2007 9:39 am Subject: Re: [RDG] ODG RE: deceit: damages and account To: Jason Neyers Cc: enrichment@lists.mcgill.ca > Well essentially it comes down to this. Bear in mind that my > target here > is the new Birksian model in particular - I can go after Garland and > Pacific National Investments with equal gusto though. The > Supreme Court of > Canada hasn't, I think, fully thought this one through. > > The scheme treats unlike cases alike - which is much more > obvious when you > look at how other jurisdictions deal with the cases. So in all systems > which seem to have a condictio-style system (in Scotland and > South Africa > the actions attract that label, but I'd also include the German > Leistungskondiktion under this) the transfer requires a putative > purpose.This means that when Peter said cases of total ignorance > where there is no > purpose at all were a fortiori, he's simply not talking about > the same > type of case. There are no cases of which I'm aware where a Civilian > system deals with "takings" in the same way as transfers with a > putativepurpose. This gets Peter into all sorts of trouble with > cases like > Edinburgh Tramways v Courtenay. It is counter-intuitive to say > the least > to say that the downstairs flat owner gifts rising heat to his > upstairsneighbour. The only sensible answer is the one the Scots > gave which is > that there is no enrichment at the expense of the downstairs person. > Similarly cases of improvements to property believing you own it > are not > transfer cases - Scots law, I think, relies directly on the > mistake. If we > resort to mistake here - why not always... > > That I accept does not mean that the whole system cannot be made > to work, > but the following objection does. Contracts terminable for > breach get > sucked into the Birksian scheme. Whether you think (like Gerard) that > treating terminable contracts like voidable ones is iffy, or > that the > argument is circular, it is not true to the internal logic of > the system. > So in German law the unwinding is done via contract law. In > Scotland and > South Africa there are strong arguments likewise. When I pay > money under a > terminable contract, I do so to discharge a debt. That debt IS > discharged.My purpose IS fulfilled. Unjust enrichment doesn't > get a look in. Now that > doesn't mean you can't have restitution, you can, but it has to > be within > contract. In Scotland the argument goes (as a critique of > Connelly v > Simpson) that the mutuality principle demands restitution. That, > as I > understand it, is essentially a principle of bilateral > conditionality - > your retention of my money is conditional on performance; after > termination that is no longer forthcoming. It's a reciprocity > principle;however, so is consideration. I wonder whether > properly reconfigured, the > model doesn't require the introduction of a new contract > principle, which > is only going to get confused with consideration as a condition for > validity. > > Duncan > > > > > > > > "Ps I am wholly unpersuaded that English law accepts juristic > reasons - > > the > > new Birksian model strikes me as flawed in a number of respects; > > explanations forthcoming if you like. " > > > > Duncan, I would be interested in your take on the flaws. > > > > > > ----- Original Message ----- > > From: "Duncan Sheehan (LAW)" > > Date: Friday, November 23, 2007 12:29 pm > > Subject: Re: [RDG] ODG RE: deceit: damages and account > > To: ENRICHMENT@LISTS.MCGILL.CA > > > >> Speaking (or maybe writing) as one who does in large measure > >> accept that the > >> disgorgement measure reflects corrective justice, I'd be > >> interested to know > >> what Jason thinks the reasons why fraud doesn't support it are. > >> I can't > >> immediately think of them, so I too will line up with Charles & > >> Lionel. > >> > >> On Abbots v Barry, I think the only answer is doesn't it depend > >> on your view > >> of UE. If, unlike me, you accepted Peter's explanation in his > >> last book of > >> interceptive subtraction, would you not say that the possession > >> of the wine > >> carried with it earnings opportunities and therefore the sale > >> proceeds could > >> also be taken by UE? In any case not being familiar with the > >> case, was X D's > >> agent, and if so wouldn't that make a difference? > >> > >> Duncan > >> > >> Ps I am wholly unpersuaded that English law accepts juristic > >> reasons - the > >> new Birksian model strikes me as flawed in a number of respects; > >> explanations forthcoming if you like. > >> > >> Dr Duncan Sheehan > >> Senior Lecturer in Law > >> Director of Research > >> Norwich Law School > >> University of East Anglia > >> Norwich NR4 7TJ > >> United Kingdom > >> > >> >-----Original Message----- > >> >From: Charles Mitchell [mailto:charles.mitchell@kcl.ac.uk] > >> >Sent: Friday, November 23, 2007 5:05 PM > >> >To: Jason Neyers > >> >Cc: obligations@uwo.ca; ENRICHMENT@LISTS.MCGILL.CA > >> >Subject: ODG RE: deceit: damages and account > >> > > >> >Picking up first on Lionel?s point re waiver, of course I have > >> to > >> >agree that the C19 judges were not asking themselves whether > >> >an action > >> >for money had and received following a waiver of tort was a > >> claim for > >> >the profits of wrongdoing or a claim for restitution of UE. So > >> >when we > >> >look back at the cases we must say that many are susceptible > >> to > >> >alternative analysis since the plaintiff made a mistake and > >> the > >> >quantum of the remedy would have been the same either way. > >> > > >> >But I like Jason?s suggestion that looking at the award may > >> >help us to > >> >eliminate the UE explanation if we can show that this looked to > >> gains > >> >in D?s hands rather than the value of the assets transferred > >> from P > >> >where those two things were different. Is Abbotts v Barry > >> >like this? > >> >D orchestrated a fraud pursuant to which his creature X induced > >> P to > >> >sell X wine which X then failed to pay for; X handed the wine > >> over to > >> >D, who sold it on; P claimed the sale proceeds in D?s hands as > >> the > >> >profits accruing from the fraud and recovered them as money had > >> and > >> >received. > >> > > >> >So far as the corrective justice point goes, I happily line up > >> with > >> >Lionel - which is why I take heart from Etherton J?s findings > >> >at first > >> >instance in Murad at [342]-[347], despite Arden LJ?s negative > >> line in > >> >the CA. > >> > > >> >Best wishes > >> >Charles > >> > > >> >Quoting Jason Neyers : > >> > > >> >> Dear Charles: > >> >> > >> >> Corrective Justice, sorry to have been so lazy. > >> >> > >> >> English law does believe in juristic reasons (since it is the > >> most > >> >> coherent generalization of the liability imposed) it just > >> hasn't > >> >> explicitly caught up to what is implicit in itself yet. :). > >> >Think of > >> >> negligence law immediately prior to DvS. > >> >> > >> >> A history question (since I am painfully ignorant of these > >> >matters): > >> >> when plaintiffs asked for money had and received in the > >> >1800s cases > >> >> cited were they limited to the amount that they gave > >> (restitution > >> >> for UE) or could they also get the gain from whatever > >> source > >> >> (restitution for wrongs/disgorgement)? > >> >> > >> >> From the winter wonderland that is London, Ontario. > >> >> > >> >> > >> >> > >> >> ----- Original Message ----- > >> >> From: Charles Mitchell > >> >> Date: Friday, November 23, 2007 11:10 am > >> >> Subject: Re: RE: deceit: damages and account > >> >> To: Jason Neyers > >> >> Cc: obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> >> > >> >>> I'm sorry, Jason, I know I'm being thick but I?ve been racking > >> >>> my > >> >>> brains and I can't think what CJ means - in mitigation it's > >> >>> Friday > >> >>> afternoon - but when you tell me I'll give myself three kicks. > >> >>> > >> >>> So far as your 2nd point goes, I don't think that it's > >> >>> consistent with > >> >>> the HL's explanation of waiver of tort in United > Australia Ltd > >> >>> v > >> >>> Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon > >> >>> LC: > >> >>> ?Where "waiving the tort" was possible, it was nothing > more than > >> >>> a > >> >>> choice between possible remedies [sc: for the tort] > derived from > >> >>> a > >> >>> time when it was not permitted to combine them or to > pursue them > >> >>> in > >> >>> the alternative, and when there were procedural advantages > >> >>> in > >> >>> selecting the form of assumpsit.? And again at 18: ?When > >> >>> the > >> >>> plaintiff "waived the tort" and brought assumpsit, he did not > >> >>> thereby > >> >>> elect to be treated from that time forward on the basis > that no > >> >>> tort > >> >>> had been committed; indeed, if it were to be understood > that no > >> >>> tort > >> >>> had been committed, how could an action in assumpsit lie? It > >> >>> lies only > >> >>> because the acquisition of the defendant is wrongful and there > >> >>> is thus > >> >>> an obligation to make restitution.? Lord Atkin says the > >> >>> same at 27-9. > >> >>> > >> >>> Also as you know we do not believe in absence of juristic > reason>> >>> in > >> >>> England - at any rate Lord Hoffmann does not although the > >> >>> higher > >> >>> authority of P Birks and now R Stevens may yet win the day. > >> >>> > >> >>> Best wishes > >> >>> Charles > >> >>> > >> >>> Quoting Jason Neyers : > >> >>> > >> >>> > Dear Charles: > >> >>> > > >> >>> > The answer to your question depends, of course, on the > >> >>> principle > >> >>> > underlying disorgement. For those of us who buy the CJ > >> >>> justification > >> >>> > for disgorgement there are good reasons why fraud will > >> >>> not support > >> >>> > that remedy. > >> >>> > > >> >>> > Also, the older cases you mention seem more consistent with > >> >>> the > >> >>> > fraud destroying the underlying juristic reason for the > >> >>> transaction > >> >>> > and therefore with restitution for UE following rather > >> >>> than > >> >>> > supporting for disgorgement for wrongs. > >> >>> > > >> >>> > Cheers, > >> >>> > > >> >>> > ----- Original Message ----- > >> >>> > From: Charles Mitchell > >> >>> > Date: Friday, November 23, 2007 8:46 am > >> >>> > Subject: RE: deceit: damages and account > >> >>> > To: davidcheifetz@rogers.com > >> >>> > Cc: 'Andrew Tettenborn' > >> >>> , > >> >>> > obligations@uwo.ca, ENRICHMENT@LISTS.MCGILL.CA > >> >>> > > >> >>> >> Andrew, David: Thanks for pointing us to these interesting > >> >>> >> cases. On > >> >>> >> the question whether a gain-based remedy should be > >> available for > >> >>> >> the > >> >>> >> tort of deceit, I always find myself asking - why > >> not? In > >> >>> >> Renault the > >> >>> >> judge did offer a reason, viz that the claimant had > not only > >> >>> >> suffered > >> >>> >> no loss but had in fact made a profit itself. I?m > >> not sure > >> >>> >> whether > >> >>> >> that?s necessarily a clincher, but it would be > >> interesting to > >> >>> >> hear > >> >>> >> what other people think. > >> >>> >> > >> >>> >> The judge?s other reason in Renault was that Arden LJ had > >> >>> >> previously > >> >>> >> said in Murad v Al-Saraj [2005] WTLR 1573 that an > account of > >> >>> >> profits > >> >>> >> isn?t available to victims of deceit, but I doubt > whether much > >> >>> >> weight > >> >>> >> should be attached to that. At first instance in > >> Murad the > >> >>> >> claim was > >> >>> >> allowed both on the basis that the claimants could > have a > >> >>> gain- > >> >>> >> based > >> >>> >> remedy for the tort of deceit and on the basis that the > >> >>> >> defendant had > >> >>> >> to disgorge the profits of his breach of fiduciary duty. > >> >>> >> The CA > >> >>> >> allowed the claim on the second basis and its?s not clear > >> to me > >> >>> >> that > >> >>> >> any members of the court thought it necessary to > decide whether > >> >>> >> the > >> >>> >> claim based on deceit was also available. > >> >>> >> > >> >>> >> Halifax Building Society v Thomas [1996] Ch 217 also > >> contains a > >> >>> >> dictum > >> >>> >> that an account of profits isn?t available to victims of > >> >>> deceit - > >> >>> >> but > >> >>> >> that case was actually decided on the basis that the clamant > >> >>> >> could not > >> >>> >> ask for a gain-based remedy founded on the tort of > deceit once > >> >>> >> it had > >> >>> >> affirmed the contract which had been induced by D?s > >> >>> >> fraudulent > >> >>> >> misrepresentation (a similar finding was made in the much > >> >>> >> earlier case > >> >>> >> of Selway v Fogg (1839) 5 M & W 83). > >> >>> >> > >> >>> >> So it seems to me that there still isn?t any clear English > >> >>> >> authority > >> >>> >> that as a general rule victims of deceit cannot claim a > >> gain- > >> >>> >> based > >> >>> >> remedy; in principle it seems to me that this wouldn?t be > >> a good > >> >>> >> rule > >> >>> >> for English law to have; and looking back there are > many older > >> >>> >> cases > >> >>> >> which say exactly the opposite, since they hold that a > victim>> >>> >> of > >> >>> >> deceit who is fraudulently induced to part with money > can waive > >> >>> >> the > >> >>> >> tort and bring an action for money had and received: > e.g. Hill > >> >>> >> v > >> >>> >> Perrott (1810) 3 Taunt 274; Abbotts v Barry (1820) 2 Brod > >> & B > >> >>> >> 369; > >> >>> >> Edmeads v Newman (1823) 1 B & C 418 at 422-3; Holt v > Ely (1853) > >> >>> >> 1 El & > >> >>> >> Bl 795 at 800. > >> >>> >> > >> >>> >> Best wishes > >> >>> >> Charles > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> Quoting David Cheifetz : > >> >>> >> > >> >>> >> > Andrew, > >> >>> >> > > >> >>> >> > Compare the opposite result - bad guys had to cough > up the > >> >>> >> profit - in 3Com > >> >>> >> > Corporation v. Zorin International Corporation, 2006 > CanLII>> >>> >> 18351 (ON C.A.) > >> >>> >> > > >> >>> >> > >> >>> > >> >http://www.canlii.org/en/on/onca/doc/2006/2006canlii18351/2006c > >> >anlii18351.ht> > >> >>> >> m > >> >>> >> > > >> >>> >> > The defendants obtained a cheaper price for > computers from > >> >>> >> 3Com by telling > >> >>> >> > the distributor that the computers were intended for > >> market X. > >> >>> >> They were > >> >>> >> > sold in market Y for a higher price. The evidence > was also > >> >>> >> that 3Com > >> >>> >> > couldn't have sold the computers at the higher price. > >> >>> >> Defendants were held > >> >>> >> > liable for the extra profit. > >> >>> >> > > >> >>> >> > Cheers, > >> >>> >> > > >> >>> >> > David Cheifetz > >> >>> >> > > >> >>> >> > > >> >>> >> > -----Original Message----- > >> >>> >> > From: Andrew Tettenborn > [mailto:A.M.Tettenborn@exeter.ac.uk]>> >>> >> > Sent: November > 23, 2007 6:27 AM > >> >>> >> > To: obligations@uwo.ca > >> >>> >> > Subject: deceit: damages and account > >> >>> >> > > >> >>> >> > A nice little case in the English QBD that may have passed > >> >>> >> list members by. > >> >>> >> > [Renault UK Ltd v. FleetPro Technical Services Ltd & Anor > >> >>> >> [2007] EWHC 2541 > >> >>> >> > (QB).] > >> >>> >> > > >> >>> >> > The makers of Renault cars operated a discount > scheme in > >> >>> >> favour of members > >> >>> >> > of BALPA (a labour union): the scheme was operated by > >> >>> >> Fleetpro, who ordered > >> >>> >> > the cars. Under the scheme orders were sent to the Renault > >> >>> >> > importers: they sent them to Renault in France, > >> whereupon as > >> >>> >> and when orders > >> >>> >> > came in Renault manufactured the necessary cars and > >> >shipped them. > >> >>> >> > > >> >>> >> > Fleetpro did the natural thing and ordered 217 > >> discounted cars > >> >>> >> for ordinary > >> >>> >> > customers who they knew had nothing to do with BALPA. > >> The cars > >> >>> >> were shipped: > >> >>> >> > the importers made a profit on them, but (because they > >> gave a > >> >>> >> rebate to the > >> >>> >> > dealer involved) less than the profit they would have > >> made on > >> >>> >> cars not > >> >>> >> > covered by the scheme. The importers sued Fleetpro for > >> deceit,>>> >> and won on > >> >>> >> > liability. On damages, however, held: > >> >>> >> > > >> >>> >> > (1) the importers had proved no loss, i.e. they > hadn't proved > >> >>> >> the sales came > >> >>> >> > other than as extra sales, or that they'd otherwise have > >> >>> >> persuaded customers > >> >>> >> > to buy their standard (over) priced cars. (2) There > was no > >> >>> >> jurisdiction,> absent a fiduciary relationship) to > award an > >> >>> >> account of profits against > >> >>> >> > Fleetpro. Hence the latter kept a tidy (ill-gotten?) > profit.>> >>> >> > > >> >>> >> > The latter holding seems particularly interesting. > >> >>> >> > > >> >>> >> > > >> >>> >> > Best > >> >>> >> > > >> >>> >> > A > >> >>> >> > > >> >>> >> > -- > >> >>> >> > Andrew Tettenborn MA LLB > >> >>> >> > Bracton Professor of Law > >> >>> >> > University of Exeter, England > >> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > >> >>> > >> > Tel: 01392-263189 / +44-392-263189 > >> >(outside UK) > >> >>> >> > Cellphone: 07870- > >> >>> >> 130528 / +44-7870-130528 > (outside UK) > >> >>> >> > > >> >>> >> > >> >>> > >> > Fax: 01392-263196 / +44-392-263196 (outside UK) > >> >>> >> > > >> >>> >> > Snailmail: School of Law, > >> >>> >> > >> >>> > >> > > University of Exeter, > >> >>> >> > >> >>> > >> > > Amory Building, > >> >>> >> > >> >>> > >> > > Rennes Drive, > >> >>> >> > >> >>> > >> > > Exeter EX4 4RJ > >> >>> >> > >> >>> > >> > > England > >> >>> >> > > >> >>> >> > Exeter Law School homepage: http://www.law.ex.ac.uk > >> >>> >> > My homepage: > http://www.law.ex.ac.uk/staff/tettenborn.shtml>> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > LAWYER, n. One skilled in circumvention of the law > (Ambrose>> >>> >> Bierce, 1906). > >> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > > >> >>> >> > >> >>> >> > >> >>> >> > >> >>> >> -- > >> >>> >> Charles Mitchell > >> >>> >> charles.mitchell@kcl.ac.uk > >> >>> >> > >> >>> >> > >> >>> > > >> >>> > -- > >> >>> > Jason Neyers > >> >>> > Associate Professor of Law > >> >>> > Faculty of Law > >> >>> > University of Western Ontario > >> >>> > N6A 3K7 > >> >>> > (519) 661-2111 x. 88435 > >> >>> > > >> >>> > >> >>> > >> >>> > >> >>> -- > >> >>> Charles Mitchell > >> >>> charles.mitchell@kcl.ac.uk > >> >>> > >> >>> > >> >> > >> >> -- > >> >> Jason Neyers > >> >> Associate Professor of Law > >> >> Faculty of Law > >> >> University of Western Ontario > >> >> N6A 3K7 > >> >> (519) 661-2111 x. 88435 > >> >> > >> > > >> > > >> > > >> >-- > >> >Charles Mitchell > >> >charles.mitchell@kcl.ac.uk > >> > > >> > > >> > >> > ____________________________________________________________________>> 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, > >> . > > > > -- > > Jason Neyers > > Associate Professor of Law > > Faculty of Law > > University of Western Ontario > > N6A 3K7 > > (519) 661-2111 x. 88435 > > > > > -- Jason Neyers 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_kWFiAxsu+H2zzJTrE/+l+Q) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EDear Duncan=3A=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EThanks for this=2E I realize that what you say are valid critic= isms of Birks=26nbsp=3Bbut are they valid criticisms of a lack of jurist= ic=26nbsp=3Breason approach (which I know was not your point to prove)=3F= For example=2C it does not destroy the approach to say that the best vi= ew of cases like =3CEM=3ECourtenay=3C/EM=3Eis that they are explained on= the enrichment/expense of part of the cause of action=2E=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ELikewise=2C I would agree that restitution after breach has lit= tle to do with UE=26nbsp=3B(since as you point out there is a reason for= the enrichment)=26nbsp=3Band is rather a remedy for breach of contract = (a sub-set of reliance)=2E But this doesn=27t destroy the juristic=26nbs= p=3Breason approach either=2E=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ESo I would be interested if=26nbsp=3Byou have further criticism= s of a pure lack of juristic=26nbsp=3Breasons approach (by pure I mean m= inus the =3CEM=3EGarland=3C/EM=3E reasonable expectations and policy mum= bo=26nbsp=3Bjumbo)=2E =3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ECheers=2C =3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3EF= rom=3A Duncan=2ESheehan=40uea=2Eac=2Euk=3CBR=3EDate=3A Sunday=2C Novembe= r 25=2C 2007 9=3A39 am=3CBR=3ESubject=3A Re=3A =5BRDG=5D ODG=26nbsp=3BRE= =3A deceit=3A damages and account=3CBR=3ETo=3A Jason Neyers=26nbsp=3B=26= lt=3Bjneyers=40uwo=2Eca=26gt=3B=3CBR=3ECc=3A enrichment=40lists=2Emcgill= =2Eca=3CBR=3E=3CBR=3E=26gt=3B Well essentially it comes down to this=2E = Bear in mind that my =3CBR=3E=26gt=3B target here=3CBR=3E=26gt=3B is the= new Birksian=26nbsp=3Bmodel in particular - I can go after Garland and=3C= BR=3E=26gt=3B Pacific National Investments with equal gusto though=2E Th= e =3CBR=3E=26gt=3B Supreme Court of=3CBR=3E=26gt=3B Canada hasn=27t=2C I= think=2C fully thought this one through=2E=3CBR=3E=26gt=3B =3CBR=3E=26g= t=3B The scheme treats unlike cases alike - which is much more =3CBR=3E=26= gt=3B obvious when you=3CBR=3E=26gt=3B look at how other jurisdictions d= eal with the cases=2E So in all systems=3CBR=3E=26gt=3B which seem to ha= ve a condictio-style system (in Scotland and =3CBR=3E=26gt=3B South Afri= ca=3CBR=3E=26gt=3B the actions attract that label=2C but I=27d also incl= ude the German=3CBR=3E=26gt=3B Leistungskondiktion=26nbsp=3Bunder this) = the transfer requires a putative =3CBR=3E=26gt=3B purpose=2EThis means t= hat when Peter said cases of total ignorance =3CBR=3E=26gt=3B where ther= e is no=3CBR=3E=26gt=3B purpose at all were a fortiori=2C he=27s simply = not talking about =3CBR=3E=26gt=3B the same=3CBR=3E=26gt=3B type of case= =2E There are no cases of which I=27m aware where a Civilian=3CBR=3E=26g= t=3B system deals with =22takings=22 in the same way as transfers with a= =3CBR=3E=26gt=3B putativepurpose=2E This gets Peter into all sorts of t= rouble with =3CBR=3E=26gt=3B cases like=3CBR=3E=26gt=3B Edinburgh Tramwa= ys v Courtenay=2E It is counter-intuitive to say =3CBR=3E=26gt=3B the le= ast=3CBR=3E=26gt=3B to say that the downstairs flat owner gifts rising h= eat to his =3CBR=3E=26gt=3B upstairsneighbour=2E The only sensible answe= r is the one the Scots =3CBR=3E=26gt=3B gave which is=3CBR=3E=26gt=3B th= at there is no enrichment at the expense of the downstairs person=2E=3CB= R=3E=26gt=3B Similarly cases of improvements to property believing you o= wn it =3CBR=3E=26gt=3B are not=3CBR=3E=26gt=3B transfer cases - Scots la= w=2C I think=2C relies directly on the =3CBR=3E=26gt=3B mistake=2E If we= =3CBR=3E=26gt=3B resort to mistake here - why not always=2E=2E=2E=3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B That I accept does not mean that the whole sys= tem cannot be made =3CBR=3E=26gt=3B to work=2C=3CBR=3E=26gt=3B but the f= ollowing objection does=2E Contracts terminable for =3CBR=3E=26gt=3B bre= ach get=3CBR=3E=26gt=3B sucked into the Birksian scheme=2E Whether you t= hink (like Gerard) that=3CBR=3E=26gt=3B treating terminable contracts li= ke voidable ones is iffy=2C or =3CBR=3E=26gt=3B that the=3CBR=3E=26gt=3B= argument is circular=2C it is not true to the internal logic of =3CBR=3E= =26gt=3B the system=2E=3CBR=3E=26gt=3B So in German law the unwinding is= done via contract law=2E In =3CBR=3E=26gt=3B Scotland and=3CBR=3E=26gt=3B= South Africa there are strong arguments likewise=2E When I pay =3CBR=3E= =26gt=3B money under a=3CBR=3E=26gt=3B terminable contract=2C I do so to= discharge a debt=2E That debt IS =3CBR=3E=26gt=3B discharged=2EMy purpo= se IS fulfilled=2E Unjust enrichment doesn=27t =3CBR=3E=26gt=3B get a lo= ok in=2E Now that=3CBR=3E=26gt=3B doesn=27t mean you can=27t have restit= ution=2C you can=2C but it has to =3CBR=3E=26gt=3B be within=3CBR=3E=26g= t=3B contract=2E In Scotland the argument goes (as a critique of =3CBR=3E= =26gt=3B Connelly v=3CBR=3E=26gt=3B Simpson) that the mutuality principl= e demands restitution=2E That=2C =3CBR=3E=26gt=3B as I=3CBR=3E=26gt=3B u= nderstand it=2C is essentially a principle of bilateral =3CBR=3E=26gt=3B= conditionality -=3CBR=3E=26gt=3B your retention of my money is conditio= nal on performance=3B after=3CBR=3E=26gt=3B termination that is no longe= r forthcoming=2E It=27s a reciprocity =3CBR=3E=26gt=3B principle=3Bhowev= er=2C so is consideration=2E I wonder whether =3CBR=3E=26gt=3B properly = reconfigured=2C the=3CBR=3E=26gt=3B model doesn=27t require the introduc= tion of a new contract =3CBR=3E=26gt=3B principle=2C which=3CBR=3E=26gt=3B= is only going to get confused with consideration as a condition for=3CB= R=3E=26gt=3B validity=2E=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Duncan=3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26g= t=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =26gt=3B =22Ps I am wholly unpers= uaded that English law accepts juristic =3CBR=3E=26gt=3B reasons -=3CBR=3E= =26gt=3B =26gt=3B the=3CBR=3E=26gt=3B =26gt=3B new Birksian model strike= s me as flawed in a number of respects=3B=3CBR=3E=26gt=3B =26gt=3B expla= nations forthcoming if you like=2E =22=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26= gt=3B =26gt=3B Duncan=2C I would be interested in your take on the flaws= =2E=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26= gt=3B ----- Original Message -----=3CBR=3E=26gt=3B =26gt=3B From=3A =22D= uncan Sheehan (LAW)=22 =26lt=3BDuncan=2ESheehan=40uea=2Eac=2Euk=26gt=3B=3C= BR=3E=26gt=3B =26gt=3B Date=3A Friday=2C November 23=2C 2007 12=3A29 pm=3C= BR=3E=26gt=3B =26gt=3B Subject=3A Re=3A =5BRDG=5D ODG RE=3A deceit=3A da= mages and account=3CBR=3E=26gt=3B =26gt=3B To=3A ENRICHMENT=40LISTS=2EMC= GILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Spea= king (or maybe writing) as one who does in large measure=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B accept that the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B disgo= rgement measure reflects corrective justice=2C I=27d be=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B interested to know=3CBR=3E=26gt=3B =26gt=3B=26gt=3B wha= t Jason thinks the reasons why fraud doesn=27t support it are=2E=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B I can=27t=3CBR=3E=26gt=3B =26gt=3B=26gt=3B imm= ediately think of them=2C so I too will line up with Charles =26amp=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B Lionel=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B On Abbots v Barry=2C I think the only = answer is doesn=27t it depend=3CBR=3E=26gt=3B =26gt=3B=26gt=3B on your v= iew=3CBR=3E=26gt=3B =26gt=3B=26gt=3B of UE=2E If=2C unlike me=2C you acc= epted Peter=27s explanation in his=3CBR=3E=26gt=3B =26gt=3B=26gt=3B last= book of=3CBR=3E=26gt=3B =26gt=3B=26gt=3B interceptive subtraction=2C wo= uld you not say that the possession=3CBR=3E=26gt=3B =26gt=3B=26gt=3B of = the wine=3CBR=3E=26gt=3B =26gt=3B=26gt=3B carried with it earnings oppor= tunities and therefore the sale=3CBR=3E=26gt=3B =26gt=3B=26gt=3B proceed= s could=3CBR=3E=26gt=3B =26gt=3B=26gt=3B also be taken by UE=3F In any c= ase not being familiar with the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B case=2C= was X D=27s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B agent=2C and if so wouldn=27= t that make a difference=3F=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B Duncan=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B Ps I am wholly unpersuaded that English law accep= ts juristic=3CBR=3E=26gt=3B =26gt=3B=26gt=3B reasons - the=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B new Birksian model strikes me as flawed in a number of= respects=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B explanations forthcoming i= f you like=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B Dr Duncan Sheehan=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Senior Lecturer= in Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Director of Research=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B Norwich Law School=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= University of East Anglia=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Norwich NR4 = 7TJ=3CBR=3E=26gt=3B =26gt=3B=26gt=3B United Kingdom=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B-----Original Mess= age-----=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BFrom=3A Charles Mitche= ll =5Bmailto=3Acharles=2Emitchell=40kcl=2Eac=2Euk=5D=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3BSent=3A Friday=2C November 23=2C 2007 5=3A05 PM=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BTo=3A Jason Neyers=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3BCc=3A obligations=40uwo=2Eca=3B ENRICHMENT=40L= ISTS=2EMCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BSubject=3A O= DG RE=3A deceit=3A damages and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BPicking up first on Li= onel=3Fs point re waiver=2C of course I have=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B to=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bagree that the C19 jud= ges were not asking themselves whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3Ban action=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bfor money had= and received following a waiver of tort was a=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B claim for=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bthe profits of = wrongdoing or a claim for restitution of UE=2E So=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3Bwhen we=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Blook b= ack at the cases we must say that many are susceptible=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B to=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Balternative an= alysis since the plaintiff made a mistake and=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bquantum of the remedy= would have been the same either way=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BBut I like Jason=3Fs = suggestion that looking at the award may=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3Bhelp us to=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Beliminate t= he UE explanation if we can show that this looked to=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B gains=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bin D=3Fs ha= nds rather than the value of the assets transferred=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B from P=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bwhere those= two things were different=2E=26nbsp=3B Is Abbotts v Barry=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3Blike this=3F=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3BD orchestrated a fraud pursuant to which his creature X induced=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B P to=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3Bsell X wine which X then failed to pay for=3B X handed the wine=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B over to=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3BD=2C who sold it on=3B P claimed the sale proceeds in D=3Fs hands a= s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3Bprofits accruing from the fraud and recovered them as money had=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B and=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3Breceived=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3BSo far as the corrective justice point goes=2C= I happily line up=3CBR=3E=26gt=3B =26gt=3B=26gt=3B with=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3BLionel - which is why I take heart from Ethert= on J=3Fs findings=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bat first=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Binstance in Murad at =5B342=5D-=5B3= 47=5D=2C despite Arden LJ=3Fs negative=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = line in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bthe CA=2E=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BBest= wishes=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BCharles=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BQuot= ing Jason Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B=3A=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= Dear Charles=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B Corrective Justice=2C sorry t= o have been so lazy=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B English law does beli= eve in juristic reasons (since it is the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= most=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B coherent general= ization of the liability imposed) it just=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= hasn=27t=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B explicitly c= aught up to what is implicit in itself yet=2E =3A)=2E=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3BThink of=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26nbsp=3B negligence law immediately prior to DvS=2E=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B A history question (since I am painfully ignorant of t= hese=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bmatters)=3A=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B when plaintiffs asked for m= oney had and received in the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B18= 00s cases=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B ci= ted were they limited to the amount that they gave=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B (restitution=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= for UE) or could they also get the gain from whatever=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B source=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B (= restitution for wrongs/disgorgement)=3F=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B From= the winter wonderland that is London=2C Ontario=2E=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B ----- Original Message -----=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B From=3A Charles Mitchell =26lt=3B= charles=2Emitchell=40kcl=2Eac=2Euk=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B Date=3A Friday=2C November 23=2C 2007 11=3A10 am=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B Subject=3A Re=3A RE=3A d= eceit=3A damages and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B To=3A Jason Neyers =26lt=3Bjneyers=40uwo=2Eca=26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B Cc=3A obligations=40uwo=2Eca=2C EN= RICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B I=27m= sorry=2C Jason=2C I know I=27m being thick but I=3Fve been racking=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B my=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B brains and I can=27t think wh= at CJ means - in mitigation it=27s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B Friday=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B afternoon - but when you tell me I=27ll give myself three = kicks=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B So far as your 2nd po= int goes=2C I don=27t think that it=27s=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B consistent with=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B the HL=27s explanation of waiver of tort in Un= ited =3CBR=3E=26gt=3B Australia Ltd=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B v=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B Barclays Bank Ltd =5B1941=5D AC 1=2C e=2Eg=2E at 13 per Viscoun= t Simon=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B LC=3A=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =3FWhere =22waiv= ing the tort=22 was possible=2C it was nothing =3CBR=3E=26gt=3B more tha= n=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B a=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B choice between possible = remedies =5Bsc=3A for the tort=5D =3CBR=3E=26gt=3B derived from=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B a=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B time when it was not permitted to comb= ine them or to =3CBR=3E=26gt=3B pursue them=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B =26gt=3B=26gt=3B=26gt=3B in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B the alternative=2C and when there were procedural advan= tages=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B in=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B selecting the form of= assumpsit=2E=3F=26nbsp=3B And again at 18=3A =3FWhen=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B plaintiff =22waived the tort=22 and brought= assumpsit=2C he did not=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B thereby=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= elect to be treated from that time forward on the basis =3CBR=3E=26gt=3B= that no=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B tort=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B had been committ= ed=3B indeed=2C if it were to be understood =3CBR=3E=26gt=3B that no=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B tort=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B had been committed=2C how = could an action in assumpsit lie=3F It=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B lies only=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B because the acquisition of the defendant is wrongfu= l and there=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B is= thus=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B an oblig= ation to make restitution=2E=3F=26nbsp=3B Lord Atkin says the=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B same at 27-9=2E=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B Also as you know we do not believe in = absence of juristic =3CBR=3E=26gt=3B reason=26gt=3B=26gt=3B =26gt=3B=26g= t=3B=26gt=3B in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= England - at any rate Lord Hoffmann does not although the=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B higher=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B authority of P Birks and now R Stevens= may yet win the day=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B Best = wishes=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B Charles= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B Quoting Jason Neyers =26lt=3B= jneyers=40uwo=2Eca=26gt=3B=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B Dear Charles=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt= =3B =26gt=3B The answer to your question depends=2C of course=2C on the=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B principle=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B underlying d= isorgement=2E For those of us who buy the CJ=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B justification=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26nbsp=3B for disgorgement there= are good reasons why fraud will=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B not support=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B that remedy=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B Also=2C the older cases you mention seem more = consistent with=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B = fraud destroying the underlying juristic reason for the=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B transaction=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B and therefore with resti= tution for UE following rather=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B than=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B supporting for disgorgement for wrongs=2E=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Cheers=2C=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B ----- Original Message --= ---=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B F= rom=3A Charles Mitchell =26lt=3Bcharles=2Emitchell=40kcl=2Eac=2Euk=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Date= =3A Friday=2C November 23=2C 2007 8=3A46 am=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Subject=3A RE=3A deceit=3A damage= s and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B To=3A davidcheifetz=40rogers=2Ecom=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Cc=3A =27Andrew Tettenborn=27=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26lt=3BA=2EM=2ET= ettenborn=40exeter=2Eac=2Euk=26gt=3B=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B obligations=40uwo=2Eca=2C ENRICHMENT=40= LISTS=2EMCGILL=2ECA=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B Andrew=2C David=3A Thanks for pointing us to these int= eresting=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B cases=2E=26nbsp=3B On=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B the question whether a gain-based r= emedy should be=3CBR=3E=26gt=3B =26gt=3B=26gt=3B available for=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B the=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = tort of deceit=2C I always find myself asking - why=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B not=3F=26nbsp=3B In=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B Renault the=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B judge did offer a reason= =2C viz that the claimant had =3CBR=3E=26gt=3B not only=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B suffered=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B n= o loss but had in fact made a profit itself=2E=26nbsp=3B I=3Fm=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B not sure=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that=3Fs necessarily a clinch= er=2C but it would be=3CBR=3E=26gt=3B =26gt=3B=26gt=3B interesting to=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= hear=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B what other people think=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B The judge=3Fs other reason in = Renault was that Arden LJ had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B previously=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B said in Murad v Al-Saraj =5B2= 005=5D WTLR 1573 that an =3CBR=3E=26gt=3B account of=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B profits=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B isn=3Ft= available to victims of deceit=2C but I doubt =3CBR=3E=26gt=3B whether = much=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B weight=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B should be attached to that=2E=26nbsp=3B At first instance = in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Murad the=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B claim was=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B allowed both= on the basis that the claimants could =3CBR=3E=26gt=3B have a=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B gain-=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B based=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B remedy = for the tort of deceit and on the basis that the=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B defendant had=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B to d= isgorge the profits of his breach of fiduciary duty=2E=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B The CA=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B allowed= the claim on the second basis and its=3Fs not clear=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B to me=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B that=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B any members of the court thought it neces= sary to =3CBR=3E=26gt=3B decide whether=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B claim based on deceit wa= s also available=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B Halifax Building Society v Thomas =5B1996=5D C= h 217 also=3CBR=3E=26gt=3B =26gt=3B=26gt=3B contains a=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B dictum=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that an= account of profits isn=3Ft available to victims of=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B deceit -=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B but=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that case was act= ually decided on the basis that the clamant=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B could not=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B ask for a ga= in-based remedy founded on the tort of =3CBR=3E=26gt=3B deceit once=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B i= t had=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B affirmed the contract which had been induced by D=3Fs=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B fraudul= ent=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B misrepresentation (a similar finding was made in the much=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B earlier= case=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B of Selway v Fogg (1839) 5 M =26amp=3B W 83)=2E=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B So it seems = to me that there still isn=3Ft any clear English=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B authority=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B that as = a general rule victims of deceit cannot claim a=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B gain-=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B based=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B remedy=3B in principle it seems to me that thi= s wouldn=3Ft be=3CBR=3E=26gt=3B =26gt=3B=26gt=3B a good=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B rule=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B for Eng= lish law to have=3B and looking back there are =3CBR=3E=26gt=3B many old= er=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B cases=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B which say exactly the opposite=2C since they hold that a =3C= BR=3E=26gt=3B victim=26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B of=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B deceit who is fraudulently induced to part with money =3CBR=3E= =26gt=3B can waive=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26g= t=3B =26gt=3B=26gt=3B the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt= =3B=26gt=3B =26gt=3B=26gt=3B tort and bring an action for money had and = received=3A =3CBR=3E=26gt=3B e=2Eg=2E Hill=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B v=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Perrott (1810) 3 Taun= t 274=3B Abbotts v Barry (1820) 2 Brod=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26amp=3B B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B 369=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B Edmeads v Newman (1823) 1 B =26amp=3B C 418 at 42= 2-3=3B Holt v =3CBR=3E=26gt=3B Ely (1853)=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B 1 El =26amp=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Bl 795 at 80= 0=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B Best wishes=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B Charles=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Quoting David Cheifet= z =26lt=3Bdavidcheifetz=40rogers=2Ecom=26gt=3B=3A=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt= =3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Andrew=2C= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B Compare the opposite result - bad guys had to cou= gh =3CBR=3E=26gt=3B up the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26g= t=3B=26gt=3B =26gt=3B=26gt=3B profit - in 3Com=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Corporation v=2E= Zorin International Corporation=2C 2006 =3CBR=3E=26gt=3B CanLII=26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B 18351 (ON C=2EA=2E)=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bhttp=3A//www=2Ecanlii=2Eorg/en/on= /onca/doc/2006/2006canlii18351/2006c=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3Banlii18351=2Eht=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B m=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B The defendants ob= tained a cheaper price for =3CBR=3E=26gt=3B computers from=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B 3Com by tell= ing=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B the distributor that the computers were intended for=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B market X=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B They were=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B sold in= market Y for a higher price=2E The evidence =3CBR=3E=26gt=3B was also=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= that 3Com=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B couldn=27t have sold the computers at the higher = price=2E=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B Defendants were held=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B liable for the extra profit=2E= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B Cheers=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B David Cheifetz=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B =26gt=3B -----Original Message-----=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Fro= m=3A Andrew Tettenborn =3CBR=3E=26gt=3B =5Bmailto=3AA=2EM=2ETettenborn=40= exeter=2Eac=2Euk=5D=26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B Sent=3A November =3CBR=3E=26gt=3B 23=2C 2007 6=3A27 AM=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B To=3A obligations=40uwo=2Eca=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Subject=3A deceit=3A = damages and account=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B A nice little case in the Eng= lish QBD that may have passed=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B list members by=2E=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B =5BRenault U= K Ltd v=2E FleetPro Technical Services Ltd =26amp=3B Anor=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =5B2007=5D E= WHC 2541=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt= =3B=26gt=3B =26gt=3B (QB)=2E=5D=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B The makers of Ren= ault cars operated a discount =3CBR=3E=26gt=3B scheme in=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B favour of me= mbers=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B of BALPA (a labour union)=3A the scheme was operated b= y=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26g= t=3B Fleetpro=2C who ordered=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B the cars=2E Under the scheme ord= ers were sent to the Renault=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B importers=3A they sent them to R= enault in France=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B whereupon as=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B and = when orders=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B came in Renault manufactured the necessary cars a= nd=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bshipped them=2E=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B Fleetpro did the natural thing and ordered 217=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B discounted cars=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B for ordinary=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B customers wh= o they knew had nothing to do with BALPA=2E=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B The cars=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B = =26gt=3B=26gt=3B were shipped=3A=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B the importers made a profit o= n them=2C but (because they=3CBR=3E=26gt=3B =26gt=3B=26gt=3B gave a=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B r= ebate to the=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B dealer involved) less than the profit they would = have=3CBR=3E=26gt=3B =26gt=3B=26gt=3B made on=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B cars not=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B cov= ered by the scheme=2E The importers sued Fleetpro for=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B deceit=2C=26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B and won= on=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B liability=2E On damages=2C however=2C held=3A=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B (1) the importers had proved no loss=2C i=2Ee=2E they =3CBR= =3E=26gt=3B hadn=27t proved=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B the sales came=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B other than as e= xtra sales=2C or that they=27d otherwise have=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B persuaded customers=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26= gt=3B to buy their standard (over) priced cars=2E (2) There =3CBR=3E=26g= t=3B was no=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B jurisdiction=2C=26gt=3B absent a fiduciary relationship) t= o =3CBR=3E=26gt=3B award an=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B=26gt=3B account of profits against=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Fle= etpro=2E Hence the latter kept a tidy (ill-gotten=3F) =3CBR=3E=26gt=3B p= rofit=2E=26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B The latter holding seems particularly interesting=2E=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt= =3B =26gt=3B=26gt=3B =26gt=3B Best=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B A=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B = =26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B Andrew Tettenborn MA LLB=3CBR=3E=26gt=3B =26gt=3B= =26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Bracton Prof= essor of Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B University of Exeter=2C England=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt= =3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B Tel=3A=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B 01392-263189=26nbsp=3B=26nbsp=3B=26nbsp=3B /=26nbsp=3B=26n= bsp=3B +44-392-263189=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B(outside = UK)=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B Cellphone=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B 07870-=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B 130528=26nbsp=3B=26nbsp=3B /=26nbsp=3B=26nbsp=3B= +44-7870-130528 =3CBR=3E=26gt=3B (outside UK)=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =3CBR=3E=26gt=3B Fax=3A=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B 01392-263196=26nbsp=3B=26n= bsp=3B=26nbsp=3B /=26nbsp=3B=26nbsp=3B +44-392-263196 (outside UK)=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26= gt=3B =26gt=3B Snailmail=3A=26nbsp=3B=26nbsp=3B School of Law=2C=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26= gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp= =3B=26nbsp=3B University of Exeter=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B= =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Amory Building=2C= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26n= bsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbs= p=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B Rennes Drive=2C=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =3CBR=3E=26gt=3B= =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B Exeter EX4 4RJ=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B= =26gt=3B=26gt=3B =3CBR=3E=26gt=3B =26gt=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B= =26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26= nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nbsp=3B=26nb= sp=3B=26nbsp=3B England=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B Exeter Law School homepag= e=3A http=3A//www=2Elaw=2Eex=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B My homepage=3A =3CBR=3E= =26gt=3B http=3A//www=2Elaw=2Eex=2Eac=2Euk/staff/tettenborn=2Eshtml=26gt= =3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B LAWYER=2C n=2E One skille= d in circumvention of the law =3CBR=3E=26gt=3B (Ambrose=26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Bierce=2C 1906)=2E=3CBR=3E=26g= t=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt= =3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26= gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26g= t=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B --=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B Charles Mitchell=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B char= les=2Emitchell=40kcl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26= gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B=26nbsp=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B = =26gt=3B=26gt=3B=26gt=3B =26gt=3B Jason Neyers=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Associate Professor of Law=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Faculty of L= aw=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B Un= iversity of Western Ontario=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26= gt=3B=26gt=3B =26gt=3B N6A 3K7=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B =26gt=3B (519) 661-2111 x=2E 88435=3CBR=3E=26gt=3B =26g= t=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B= =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B= =3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B --=3CBR=3E=26= gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B Charles Mitchell=3CBR=3E= =26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B charles=2Emitchell=40= kcl=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=26gt=3B=3CBR=3E=26gt=3B = =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt= =3B=26gt=3B=26nbsp=3B --=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B= Jason Neyers=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B Associat= e Professor of Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B Fac= ulty of Law=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B University= of Western Ontario=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B N6= A 3K7=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B (519) 661-2111 x= =2E 88435=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt= =3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B= =26gt=3B--=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3BCharles Mitchell=3C= BR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3Bcharles=2Emitchell=40kcl=2Eac=2Eu= k=3CBR=3E=26gt=3B =26gt=3B=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26g= t=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=3CBR=3E=26gt=3B =26gt=3B=26= gt=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=26gt=3B=26gt=3B=26nbsp=3B This message was delivered through t= he Restitution=3CBR=3E=26gt=3B =26gt=3B=26gt=3B Discussion Group=2C=3CBR= =3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B an international internet LISTSER= V devoted to all aspects=3CBR=3E=26gt=3B =26gt=3B=26gt=3B of the law=3CB= R=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B of unjust enrichment=2E To subsc= ribe=2C send =22subscribe=3CBR=3E=26gt=3B =26gt=3B=26gt=3B enrichment=22= in=3CBR=3E=26gt=3B =26gt=3B=26gt=3B=26nbsp=3B the body of a message to = 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=3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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. 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The list is run by Lionel Smith of McGill University, . --Boundary_(ID_kWFiAxsu+H2zzJTrE/+l+Q)-- ========================================================================= Date: Mon, 26 Nov 2007 08:05:05 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: FW: RDG: Birksian/sine causa approach to enrichment law In-Reply-To: MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_mOtn+75dJHrKyg0zjvToyQ)" This is a multi-part message in MIME format. --Boundary_(ID_mOtn+75dJHrKyg0zjvToyQ) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline I post on behalf of Martin Hogg Two brief comments on Duncan's interesting email critiquing the Birksian scheme: (1) I think Duncan is right to say that error remains crucial in the traditional thinking about some Scots enrichment cases, e.g. transfers made in fulfilment of a supposed obligation which does not exist, as well as cases of enrichment by imposition taking the form of bona fide improvements to property believed to be owned by the improver. I (along with other Scots colleagues) have argued however that the reliance on the concept of mistake/error in such cases is not helpful, and it would be better to say that the requirement of the claim in each case should be (i) a transfer made in respect of a non-existent obligation, coupled with an available defence that the transferor knew the obligation was not due; (ii) similarly, an improvement made to property which is not owned by the improver, coupled with a defence that the improver knew the property was not his. Such a defence would in each case achieve the same result as is currently played by the error requirement, but would remove error from its current problematic central position. So, I don't think that Duncan's error point undermines a sine causa approach to classifying enrichment (which I support, and which I believe can make sense of the Scots authorities, as my colleagues Niall Whitty and Hector MacQueen, as well as myself, have argued in our respective writings on the topic). (2) I do agree that cases such as Connelly v Simpson, where one would wish to unwind a rescinded contract in such a way that the party who has paid under the voidable contract is entitled to restitution of what he/she has paid, are best dealt with by providing a form of contractual restitution. To ignore the contractual context of the claim and treat it as an enrichment claim, thereby evaluating the nature of the claim as enrichment merely because it provides recovery in an enrichment measure, leads to confusing results. Such a classification of remedies based upon their measure of recovery would, for instance, treat a contractual damages claim assessed according to the status quo/restoration measure as a delictual remedy, a bizarre and undesirable result (I argue strongly as much in my Obligations book). However, I don't believe that recognising such a claim as a contractual form of enrichment somehow undermines a sine causa approach to enrichment classification. The sine cause approach makes perfect sense for Scots enrichment law as it provides a principled map of the whole subject, something which is inherently more attractive to Scots lawyers than the piecemeal and incomplete approach of a perpetually expanding unjust factors list. Martin Dr Martin A Hogg Director of Teaching The School of Law The Old College University of Edinburgh EH8 9YL Scotland Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx Tel: +44 131 650 2071 Fax: +44 131 650 6317 Reply email may be addressed to: Martin.Hogg@ed.ac.uk ----- Original Message ----- From: HOGG Martin Date: Monday, November 26, 2007 7:32 am Subject: FW: RDG: Birksian/sine causa approach to enrichment law To: Jason Neyers > > Dear Jason, > > For some reason the RDG is not letting me post (are you able to > fix this > for me?). Perhaps you might post the comment below for me? > > Thanks, > > Martin > > -----Original Message----- > From: mhogg@staffmail.ed.ac.uk [mailto:mhogg@staffmail.ed.ac.uk] > Sent: 26 November 2007 12:29 > To: 'ENRICHMENT@LISTS.MCGILL.CA' > Subject: RDG: Birksian/sine causa approach to enrichment law > > > Two brief comments on Duncan's interesting email critiquing the > Birksianscheme: > > (1) I think Duncan is right to say that error remains crucial in the > traditional thinking about some Scots enrichment cases, e.g. transfers > made in fulfilment of a supposed obligation which does not > exist, as > well as cases of enrichment by imposition taking the form of > bona fide > improvements to property believed to be owned by the improver. I > (alongwith other Scots colleagues) have argued however that the > reliance on > the concept of mistake/error in such cases is not helpful, and > it would > be better to say that the requirement of the claim in each case should > be (i) a transfer made in respect of a non-existent obligation, > coupledwith an available defence that the transferor knew the > obligation was > not due; (ii) similarly, an improvement made to property which > is not > owned by the improver, coupled with a defence that the improver > knew the > property was not his. Such a defence would in each case achieve > the same > result as is currently played by the error requirement, but > would remove > error from its current problematic central position. So, I don't think > that Duncan's error point undermines a sine causa approach to > classifying enrichment (which I support, and which I believe can make > sense of the Scots authorities, as my colleagues Niall Whitty > and Hector > MacQueen, as well as myself, have argued in our respective > writings on > the topic). > > (2) I do agree that cases such as Connelly v Simpson, where one would > wish to unwind a rescinded contract in such a way that the party > who has > paid under the voidable contract is entitled to restitution of what > he/she has paid, are best dealt with by providing a form of > contractualrestitution. To ignore the contractual context of the > claim and treat it > as an enrichment claim, thereby evaluating the nature of the > claim as > enrichment merely because it provides recovery in an enrichment > measure,leads to confusing results. Such a classification of > remedies based upon > their measure of recovery would, for instance, treat a contractual > damages claim assessed according to the status quo/restoration measure > as a delictual remedy, a bizarre and undesirable result (I argue > strongly as much in my Obligations book). However, I don't > believe that > recognising such a claim as a contractual form of enrichment somehow > undermines a sine causa approach to enrichment classification. > > The sine cause approach makes perfect sense for Scots enrichment > law as > it provides a principled map of the whole subject, something > which is > inherently more attractive to Scots lawyers than the piecemeal and > incomplete approach of a perpetually expanding unjust factors list. > > Martin > > Dr Martin A Hogg > Director of Teaching > The School of Law > The Old College > University of Edinburgh > EH8 9YL > Scotland > > Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx > > Tel: +44 131 650 2071 > Fax: +44 131 650 6317 > > Reply email may be addressed to: > Martin.Hogg@ed.ac.uk > -- Jason Neyers 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_mOtn+75dJHrKyg0zjvToyQ) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EI post on behalf of Martin Hogg=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ETwo brief comments on Duncan=27s interesting email critiquing t= he Birksian=3CBR=3Escheme=3A=3CBR=3E=3CBR=3E(1) I think Duncan is right = to say that error remains crucial in the=3CBR=3Etraditional thinking abo= ut some Scots enrichment cases=2C e=2Eg=2E transfers=3CBR=3Emade in fulf= ilment of a supposed obligation which does not exist=2C as=3CBR=3Ewell a= s cases of enrichment by imposition taking the form of bona fide=3CBR=3E= improvements to property believed to be owned by the improver=2E I (alon= g=3CBR=3Ewith other Scots colleagues) have argued however that the relia= nce on=3CBR=3Ethe concept of mistake/error in such cases is not helpful=2C= and it would=3CBR=3Ebe better to say that the requirement of the claim = in each case should=3CBR=3Ebe (i) a transfer made in respect of a non-ex= istent obligation=2C coupled=3CBR=3Ewith an available defence that the t= ransferor knew the obligation was=3CBR=3Enot due=3B (ii) similarly=2C an= improvement made to property which is not=3CBR=3Eowned by the improver=2C= coupled with a defence that the improver knew the=3CBR=3Eproperty was n= ot his=2E Such a defence would in each case achieve the same=3CBR=3Eresu= lt as is currently played by the error requirement=2C but would remove=3C= BR=3Eerror from its current problematic central position=2E So=2C I don=27= t think=3CBR=3Ethat Duncan=27s error point undermines a sine causa appro= ach to=3CBR=3Eclassifying enrichment (which I support=2C and which I bel= ieve can make=3CBR=3Esense of the Scots authorities=2C as my colleagues = Niall Whitty and Hector=3CBR=3EMacQueen=2C as well as myself=2C have arg= ued in our respective writings on=3CBR=3Ethe topic)=2E=3CBR=3E=3CBR=3E(2= ) I do agree that cases such as Connelly v Simpson=2C where one would=3C= BR=3Ewish to unwind a rescinded contract in such a way that the party wh= o has=3CBR=3Epaid under the voidable contract is entitled to restitution= of what=3CBR=3Ehe/she has paid=2C are best dealt with by providing a fo= rm of contractual=3CBR=3Erestitution=2E To ignore the contractual contex= t of the claim and treat it=3CBR=3Eas an enrichment claim=2C thereby eva= luating the nature of the claim as=3CBR=3Eenrichment merely because it p= rovides recovery in an enrichment measure=2C=3CBR=3Eleads to confusing r= esults=2E Such a classification of remedies based upon=3CBR=3Etheir meas= ure of recovery would=2C for instance=2C treat a contractual=3CBR=3Edama= ges claim assessed according to the status quo/restoration measure=3CBR=3E= as a delictual remedy=2C a bizarre and undesirable result (I argue=3CBR=3E= strongly as much in my Obligations book)=2E However=2C I don=27t believe= that=3CBR=3Erecognising such a claim as a contractual form of enrichmen= t somehow=3CBR=3Eundermines a sine causa approach to enrichment classifi= cation=2E =3CBR=3E=3CBR=3EThe sine cause approach makes perfect sense fo= r Scots enrichment law as=3CBR=3Eit provides a principled map of the who= le subject=2C something which is=3CBR=3Einherently more attractive to Sc= ots lawyers than the piecemeal and=3CBR=3Eincomplete approach of a perpe= tually expanding unjust factors list=2E=3CBR=3E=3CBR=3EMartin=3CBR=3E=3C= BR=3EDr Martin A Hogg=3CBR=3EDirector of Teaching=3CBR=3EThe School of L= aw=3CBR=3EThe Old College=3CBR=3EUniversity of Edinburgh=3CBR=3EEH8 9YL=3C= BR=3EScotland=3CBR=3E=3CBR=3EHomepage=3A =3CA href=3D=22http=3A//www=2El= aw=2Eed=2Eac=2Euk/staff/martinhogg=5F45=2Easpx=22 target=3Dl=3Ehttp=3A//= www=2Elaw=2Eed=2Eac=2Euk/staff/martinhogg=5F45=2Easpx=3C/A=3E=3CBR=3E=3C= BR=3ETel=3A +44 131 650 2071=3CBR=3EFax=3A +44 131 650 6317=3CBR=3E=3CBR= =3EReply email may be addressed to=3A=3CBR=3EMartin=2EHogg=40ed=2Eac=2Eu= k=3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3EFrom=3A HOGG Martin= =26lt=3Bmhogg=40uun=2Eed=2Eac=2Euk=26gt=3B=3CBR=3EDate=3A Monday=2C Nov= ember 26=2C 2007 7=3A32 am=3CBR=3ESubject=3A FW=3A RDG=3A Birksian/sine = causa approach to enrichment law=3CBR=3ETo=3A Jason Neyers =26lt=3Bjneye= rs=40uwo=2Eca=26gt=3B=3CBR=3E=3CBR=3E=26gt=3B =26nbsp=3B=3CBR=3E=26gt=3B= Dear Jason=2C=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B For some reason the RDG = is not letting me post (are you able to =3CBR=3E=26gt=3B fix this=3CBR=3E= =26gt=3B for me=3F)=2E Perhaps you might post the comment below for me=3F= =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Thanks=2C=3CBR=3E=26gt=3B =3CBR=3E=26g= t=3B Martin=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B -----Original Message-----=3C= BR=3E=26gt=3B From=3A mhogg=40staffmail=2Eed=2Eac=2Euk =5Bmailto=3Amhogg= =40staffmail=2Eed=2Eac=2Euk=5D =3CBR=3E=26gt=3B Sent=3A 26 November 2007= 12=3A29=3CBR=3E=26gt=3B To=3A =27ENRICHMENT=40LISTS=2EMCGILL=2ECA=27=3C= BR=3E=26gt=3B Subject=3A RDG=3A Birksian/sine causa approach to enrichme= nt law=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Two brief comme= nts on Duncan=27s interesting email critiquing the =3CBR=3E=26gt=3B Birk= sianscheme=3A=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B (1) I think Duncan is rig= ht to say that error remains crucial in the=3CBR=3E=26gt=3B traditional = thinking about some Scots enrichment cases=2C e=2Eg=2E transfers=3CBR=3E= =26gt=3B made in fulfilment of a supposed obligation which does not =3CB= R=3E=26gt=3B exist=2C as=3CBR=3E=26gt=3B well as cases of enrichment by = imposition taking the form of =3CBR=3E=26gt=3B bona fide=3CBR=3E=26gt=3B= improvements to property believed to be owned by the improver=2E I =3CB= R=3E=26gt=3B (alongwith other Scots colleagues) have argued however that= the =3CBR=3E=26gt=3B reliance on=3CBR=3E=26gt=3B the concept of mistake= /error in such cases is not helpful=2C and =3CBR=3E=26gt=3B it would=3CB= R=3E=26gt=3B be better to say that the requirement of the claim in each = case should=3CBR=3E=26gt=3B be (i) a transfer made in respect of a non-e= xistent obligation=2C =3CBR=3E=26gt=3B coupledwith an available defence = that the transferor knew the =3CBR=3E=26gt=3B obligation was=3CBR=3E=26g= t=3B not due=3B (ii) similarly=2C an improvement made to property which = =3CBR=3E=26gt=3B is not=3CBR=3E=26gt=3B owned by the improver=2C coupled= with a defence that the improver =3CBR=3E=26gt=3B knew the=3CBR=3E=26gt= =3B property was not his=2E Such a defence would in each case achieve =3C= BR=3E=26gt=3B the same=3CBR=3E=26gt=3B result as is currently played by = the error requirement=2C but =3CBR=3E=26gt=3B would remove=3CBR=3E=26gt=3B= error from its current problematic central position=2E So=2C I don=27t = think=3CBR=3E=26gt=3B that Duncan=27s error point undermines a sine caus= a approach to=3CBR=3E=26gt=3B classifying enrichment (which I support=2C= and which I believe can make=3CBR=3E=26gt=3B sense of the Scots authori= ties=2C as my colleagues Niall Whitty =3CBR=3E=26gt=3B and Hector=3CBR=3E= =26gt=3B MacQueen=2C as well as myself=2C have argued in our respective = =3CBR=3E=26gt=3B writings on=3CBR=3E=26gt=3B the topic)=2E=3CBR=3E=26gt=3B= =3CBR=3E=26gt=3B (2) I do agree that cases such as Connelly v Simpson=2C= where one would=3CBR=3E=26gt=3B wish to unwind a rescinded contract in = such a way that the party =3CBR=3E=26gt=3B who has=3CBR=3E=26gt=3B paid = under the voidable contract is entitled to restitution of what=3CBR=3E=26= gt=3B he/she has paid=2C are best dealt with by providing a form of =3CB= R=3E=26gt=3B contractualrestitution=2E To ignore the contractual context= of the =3CBR=3E=26gt=3B claim and treat it=3CBR=3E=26gt=3B as an enrich= ment claim=2C thereby evaluating the nature of the =3CBR=3E=26gt=3B clai= m as=3CBR=3E=26gt=3B enrichment merely because it provides recovery in a= n enrichment =3CBR=3E=26gt=3B measure=2Cleads to confusing results=2E Su= ch a classification of =3CBR=3E=26gt=3B remedies based upon=3CBR=3E=26gt= =3B their measure of recovery would=2C for instance=2C treat a contractu= al=3CBR=3E=26gt=3B damages claim assessed according to the status quo/re= storation measure=3CBR=3E=26gt=3B as a delictual remedy=2C a bizarre and= undesirable result (I argue=3CBR=3E=26gt=3B strongly as much in my Obli= gations book)=2E However=2C I don=27t =3CBR=3E=26gt=3B believe that=3CBR= =3E=26gt=3B recognising such a claim as a contractual form of enrichment= somehow=3CBR=3E=26gt=3B undermines a sine causa approach to enrichment = classification=2E =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B The sine cause appro= ach makes perfect sense for Scots enrichment =3CBR=3E=26gt=3B law as=3CB= R=3E=26gt=3B it provides a principled map of the whole subject=2C someth= ing =3CBR=3E=26gt=3B which is=3CBR=3E=26gt=3B inherently more attractive= to Scots lawyers than the piecemeal and=3CBR=3E=26gt=3B incomplete appr= oach of a perpetually expanding unjust factors list=2E=3CBR=3E=26gt=3B =3C= BR=3E=26gt=3B Martin=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Dr Martin A Hogg=3C= BR=3E=26gt=3B Director of Teaching=3CBR=3E=26gt=3B The School of Law=3CB= R=3E=26gt=3B The Old College=3CBR=3E=26gt=3B University of Edinburgh=3CB= R=3E=26gt=3B EH8 9YL=3CBR=3E=26gt=3B Scotland=3CBR=3E=26gt=3B =3CBR=3E=26= gt=3B Homepage=3A http=3A//www=2Elaw=2Eed=2Eac=2Euk/staff/martinhogg=5F4= 5=2Easpx=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Tel=3A +44 131 650 2071=3CBR=3E= =26gt=3B Fax=3A +44 131 650 6317=3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Reply = email may be addressed to=3A=3CBR=3E=26gt=3B Martin=2EHogg=40ed=2Eac=2Eu= k=3CBR=3E=26gt=3B =3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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 . 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_mOtn+75dJHrKyg0zjvToyQ)-- ========================================================================= Date: Mon, 26 Nov 2007 12:55:30 -0000 Reply-To: HOGG Martin Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: HOGG Martin Subject: RDG: Birksian/sine causa approach to enrichment law MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable =20 Two brief comments on Duncan's interesting email critiquing the Birksian scheme: (1) I think Duncan is right to say that error remains crucial in the traditional thinking about some Scots enrichment cases, e.g. transfers made in fulfilment of a supposed obligation which does not exist, as well as cases of enrichment by imposition taking the form of bona fide improvements to property believed to be owned by the improver. I (along with other Scots colleagues) have argued however that the reliance on the concept of mistake/error in such cases is not helpful, and it would be better to say that the requirement of the claim in each case should be (i) a transfer made in respect of a non-existent obligation, coupled with an available defence that the transferor knew the obligation was not due; (ii) similarly, an improvement made to property which is not owned by the improver, coupled with a defence that the improver knew the property was not his. Such a defence would in each case achieve the same result as is currently played by the error requirement, but would remove error from its current problematic central position. So, I don't think that Duncan's error point undermines a sine causa approach to classifying enrichment (which I support, and which I believe can make sense of the Scots authorities, as my colleagues Niall Whitty and Hector MacQueen, as well as myself, have argued in our respective writings on the topic). (2) I do agree that cases such as Connelly v Simpson, where one would wish to unwind a rescinded contract in such a way that the party who has paid under the voidable contract is entitled to restitution of what he/she has paid, are best dealt with by providing a form of contractual restitution. To ignore the contractual context of the claim and treat it as an enrichment claim, thereby evaluating the nature of the claim as enrichment merely because it provides recovery in an enrichment measure, leads to confusing results. Such a classification of remedies based upon their measure of recovery would, for instance, treat a contractual damages claim assessed according to the status quo/restoration measure as a delictual remedy, a bizarre and undesirable result (I argue strongly as much in my Obligations book). However, I don't believe that recognising such a claim as a contractual form of enrichment somehow undermines a sine causa approach to enrichment classification.=20 The sine cause approach makes perfect sense for Scots enrichment law as it provides a principled map of the whole subject, something which is inherently more attractive to Scots lawyers than the piecemeal and incomplete approach of a perpetually expanding unjust factors list. Martin Dr Martin A Hogg Director of Teaching The School of Law The Old College University of Edinburgh EH8 9YL Scotland Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx Tel: +44 131 650 2071 Fax: +44 131 650 6317 Reply email may be addressed to: Martin.Hogg@ed.ac.uk ____________________________________________________________________ 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, 27 Nov 2007 10:00:00 -0000 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re: RDG: Birksian/sine causa approach to enrichment law In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit I absolutely accept that sine causa makes sense as a system of unjust enrichment law, embedded in a legal system moulded around it (not sure that's quite the right expression). So it works fine in Germany, and with added unjust-factor like encrustations in Scotland, and South Africa. I'm not going after sine causa as a principle in all cases in all jurisdictions. That would be silly. My point is a somewhat more modest one that firstly the Birksian scheme takes too much into sine causa, and that at the same time it cannot be made to work in England without risking confusion with settled contract law. Hobhouse J in Westdeutsche talked of failure of consideration as a contractual idea, and absence of consideration as restitution. With a sine causa system that makes sense, but then we have to extract one contractual concept of consideration or mutuality/reciprocity from another concept of consideration also based on reciprocity which forms part of the basis for validity. The contractual mutuality requirement is fine for Scots law - there's no consideration requirement for the validity of a contract, similarly South African, so there's nothing to get confused with. I don't think English law will be able to separate the two things in time to save itself from incoherence, which is neither to its credit nor discredit. I would in fact say the same thing about Canadian law. The effects of termination for breach aren't something Canadian courts (so far as I am aware) have considered in this context. Mess around with the structure of a subject and it causes messes elsewhere, for very little gain. The final results of the cases will be different in very few instances. Too much pain for too little gain! That said, my main problem with Garland et al is of course what Jason calls "the reasonable expectations/public policy mumbo jumbo", which I guess means there's more than one reason why Canada is heading for incoherence. If you can'r decide what (all) your juristic reasons are, you have a problem with a juristic reasons approach. Duncan Dr Duncan Sheehan Senior Lecturer in Law Director of Research Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom >-----Original Message----- >From: Enrichment - Restitution & Unjust Enrichment Legal >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of HOGG Martin >Sent: Monday, November 26, 2007 12:56 PM >To: ENRICHMENT@LISTS.MCGILL.CA >Subject: [RDG] RDG: Birksian/sine causa approach to enrichment law > > >Two brief comments on Duncan's interesting email critiquing >the Birksian >scheme: > >(1) I think Duncan is right to say that error remains crucial in the >traditional thinking about some Scots enrichment cases, e.g. transfers >made in fulfilment of a supposed obligation which does not exist, as >well as cases of enrichment by imposition taking the form of bona fide >improvements to property believed to be owned by the improver. I (along >with other Scots colleagues) have argued however that the reliance on >the concept of mistake/error in such cases is not helpful, and it would >be better to say that the requirement of the claim in each case should >be (i) a transfer made in respect of a non-existent obligation, coupled >with an available defence that the transferor knew the obligation was >not due; (ii) similarly, an improvement made to property which is not >owned by the improver, coupled with a defence that the >improver knew the >property was not his. Such a defence would in each case >achieve the same >result as is currently played by the error requirement, but >would remove >error from its current problematic central position. So, I don't think >that Duncan's error point undermines a sine causa approach to >classifying enrichment (which I support, and which I believe can make >sense of the Scots authorities, as my colleagues Niall Whitty >and Hector >MacQueen, as well as myself, have argued in our respective writings on >the topic). > >(2) I do agree that cases such as Connelly v Simpson, where one would >wish to unwind a rescinded contract in such a way that the >party who has >paid under the voidable contract is entitled to restitution of what >he/she has paid, are best dealt with by providing a form of contractual >restitution. To ignore the contractual context of the claim >and treat it >as an enrichment claim, thereby evaluating the nature of the claim as >enrichment merely because it provides recovery in an >enrichment measure, >leads to confusing results. Such a classification of remedies >based upon >their measure of recovery would, for instance, treat a contractual >damages claim assessed according to the status quo/restoration measure >as a delictual remedy, a bizarre and undesirable result (I argue >strongly as much in my Obligations book). However, I don't believe that >recognising such a claim as a contractual form of enrichment somehow >undermines a sine causa approach to enrichment classification. > >The sine cause approach makes perfect sense for Scots enrichment law as >it provides a principled map of the whole subject, something which is >inherently more attractive to Scots lawyers than the piecemeal and >incomplete approach of a perpetually expanding unjust factors list. > >Martin > >Dr Martin A Hogg >Director of Teaching >The School of Law >The Old College >University of Edinburgh >EH8 9YL >Scotland > >Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx > >Tel: +44 131 650 2071 >Fax: +44 131 650 6317 > >Reply email may be addressed to: >Martin.Hogg@ed.ac.uk > >____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, . > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Tue, 27 Nov 2007 07:19:45 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: Duncan.Sheehan@uea.ac.uk In-Reply-To: <006701c830dc$45b07630$3198de8b@UEA.AC.UK> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_xOMYXDaM9DfI1lq6fMKSbA)" This is a multi-part message in MIME format. --Boundary_(ID_xOMYXDaM9DfI1lq6fMKSbA) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7BIT Content-disposition: inline Duncan: Maybe I'm being dense but doesn't the common law have a system for determining when obligations are reciprocal and when they are not? Isn't that what the Hong Kong Fir analysis (which has been accepted in Canada) is all about? Sincerely, ----- Original Message ----- From: "Duncan Sheehan (LAW)" Date: Tuesday, November 27, 2007 5:05 am Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law To: ENRICHMENT@LISTS.MCGILL.CA > I absolutely accept that sine causa makes sense as a system of unjust > enrichment law, embedded in a legal system moulded around it > (not sure > that's quite the right expression). So it works fine in Germany, > and with > added unjust-factor like encrustations in Scotland, and South > Africa. I'm > not going after sine causa as a principle in all cases in all > jurisdictions.That would be silly. My point is a somewhat more > modest one that firstly the > Birksian scheme takes too much into sine causa, and that at the > same time it > cannot be made to work in England without risking confusion with > settledcontract law. Hobhouse J in Westdeutsche talked of > failure of consideration > as a contractual idea, and absence of consideration as > restitution. With a > sine causa system that makes sense, but then we have to extract one > contractual concept of consideration or mutuality/reciprocity > from another > concept of consideration also based on reciprocity which forms > part of the > basis for validity. The contractual mutuality requirement is > fine for Scots > law - there's no consideration requirement for the validity of a > contract,similarly South African, so there's nothing to get > confused with. I don't > think English law will be able to separate the two things in > time to save > itself from incoherence, which is neither to its credit nor > discredit. I > would in fact say the same thing about Canadian law. The effects of > termination for breach aren't something Canadian courts (so far > as I am > aware) have considered in this context. Mess around with the > structure of a > subject and it causes messes elsewhere, for very little gain. > The final > results of the cases will be different in very few instances. > Too much pain > for too little gain! > > That said, my main problem with Garland et al is of course what > Jason calls > "the reasonable expectations/public policy mumbo jumbo", which I > guess means > there's more than one reason why Canada is heading for > incoherence. If you > can'r decide what (all) your juristic reasons are, you have a > problem with a > juristic reasons approach. > > Duncan > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > >-----Original Message----- > >From: Enrichment - Restitution & Unjust Enrichment Legal > >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of HOGG Martin > >Sent: Monday, November 26, 2007 12:56 PM > >To: ENRICHMENT@LISTS.MCGILL.CA > >Subject: [RDG] RDG: Birksian/sine causa approach to enrichment law > > > > > >Two brief comments on Duncan's interesting email critiquing > >the Birksian > >scheme: > > > >(1) I think Duncan is right to say that error remains crucial > in the > >traditional thinking about some Scots enrichment cases, e.g. > transfers>made in fulfilment of a supposed obligation which does > not exist, as > >well as cases of enrichment by imposition taking the form of > bona fide > >improvements to property believed to be owned by the improver. > I (along > >with other Scots colleagues) have argued however that the > reliance on > >the concept of mistake/error in such cases is not helpful, and > it would > >be better to say that the requirement of the claim in each case > should>be (i) a transfer made in respect of a non-existent > obligation, coupled > >with an available defence that the transferor knew the > obligation was > >not due; (ii) similarly, an improvement made to property which > is not > >owned by the improver, coupled with a defence that the > >improver knew the > >property was not his. Such a defence would in each case > >achieve the same > >result as is currently played by the error requirement, but > >would remove > >error from its current problematic central position. So, I > don't think > >that Duncan's error point undermines a sine causa approach to > >classifying enrichment (which I support, and which I believe > can make > >sense of the Scots authorities, as my colleagues Niall Whitty > >and Hector > >MacQueen, as well as myself, have argued in our respective > writings on > >the topic). > > > >(2) I do agree that cases such as Connelly v Simpson, where one would > >wish to unwind a rescinded contract in such a way that the > >party who has > >paid under the voidable contract is entitled to restitution of what > >he/she has paid, are best dealt with by providing a form of > contractual>restitution. To ignore the contractual context of > the claim > >and treat it > >as an enrichment claim, thereby evaluating the nature of the > claim as > >enrichment merely because it provides recovery in an > >enrichment measure, > >leads to confusing results. Such a classification of remedies > >based upon > >their measure of recovery would, for instance, treat a contractual > >damages claim assessed according to the status quo/restoration > measure>as a delictual remedy, a bizarre and undesirable result > (I argue > >strongly as much in my Obligations book). However, I don't > believe that > >recognising such a claim as a contractual form of enrichment somehow > >undermines a sine causa approach to enrichment classification. > > > >The sine cause approach makes perfect sense for Scots > enrichment law as > >it provides a principled map of the whole subject, something > which is > >inherently more attractive to Scots lawyers than the piecemeal and > >incomplete approach of a perpetually expanding unjust factors list. > > > >Martin > > > >Dr Martin A Hogg > >Director of Teaching > >The School of Law > >The Old College > >University of Edinburgh > >EH8 9YL > >Scotland > > > >Homepage: http://www.law.ed.ac.uk/staff/martinhogg_45.aspx > > > >Tel: +44 131 650 2071 > >Fax: +44 131 650 6317 > > > >Reply email may be addressed to: > >Martin.Hogg@ed.ac.uk > > > >____________________________________________________________________ > > 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, > . -- Jason Neyers 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_xOMYXDaM9DfI1lq6fMKSbA) Content-type: text/html; charset=us-ascii Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EDuncan=3A=3C/DIV=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3EMaybe I=27m being dense but doesn=27t the common law have a sys= tem for determining when obligations are reciprocal and when they are no= t=3F Isn=27t that what the =3CEM=3EHong Kong Fir=3C/EM=3E analysis (whic= h has been accepted in Canada)=26nbsp=3Bis all about=3F=26nbsp=3B =3C/DI= V=3E =3CDIV=3E=26nbsp=3B=3C/DIV=3E =3CDIV=3ESincerely=2C =3CBR=3E=3CBR=3E----- Original Message -----=3CBR=3E= From=3A =22Duncan Sheehan (LAW)=22 =26lt=3BDuncan=2ESheehan=40uea=2Eac=2E= uk=26gt=3B=3CBR=3EDate=3A Tuesday=2C November 27=2C 2007 5=3A05 am=3CBR=3E= Subject=3A Re=3A =5BRDG=5D RDG=3A Birksian/sine causa=26nbsp=3Bapproach = to enrichment law=3CBR=3ETo=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=3C= BR=3E=26gt=3B I absolutely accept that sine causa=26nbsp=3Bmakes sense a= s a system of unjust=3CBR=3E=26gt=3B enrichment law=2C embedded in a leg= al system moulded around it =3CBR=3E=26gt=3B (not sure=3CBR=3E=26gt=3B t= hat=27s quite the right expression)=2E So it works fine in Germany=2C =3C= BR=3E=26gt=3B and with=3CBR=3E=26gt=3B added unjust-factor like encrusta= tions=26nbsp=3Bin Scotland=2C and South =3CBR=3E=26gt=3B Africa=2E I=27m= =3CBR=3E=26gt=3B not going after sine causa=26nbsp=3Bas a principle in a= ll cases in all =3CBR=3E=26gt=3B jurisdictions=2EThat would be silly=2E = My point is a somewhat more =3CBR=3E=26gt=3B modest one that firstly the= =3CBR=3E=26gt=3B Birksian=26nbsp=3Bscheme takes too much into sine causa= =2C and that at the =3CBR=3E=26gt=3B same time it=3CBR=3E=26gt=3B cannot= be made to work in England without risking confusion with =3CBR=3E=26gt= =3B settledcontract=26nbsp=3Blaw=2E Hobhouse=26nbsp=3BJ in Westdeutsche=26= nbsp=3Btalked of =3CBR=3E=26gt=3B failure of consideration=3CBR=3E=26gt=3B= as a contractual idea=2C and absence of consideration as =3CBR=3E=26gt=3B= restitution=2E With a=3CBR=3E=26gt=3B sine causa=26nbsp=3Bsystem that m= akes sense=2C but then we have to extract one=3CBR=3E=26gt=3B contractua= l concept of consideration or mutuality/reciprocity =3CBR=3E=26gt=3B fro= m another=3CBR=3E=26gt=3B concept of consideration also based on recipro= city which forms =3CBR=3E=26gt=3B part of the=3CBR=3E=26gt=3B basis for = validity=2E The contractual mutuality requirement is =3CBR=3E=26gt=3B fi= ne for Scots=3CBR=3E=26gt=3B law - there=27s no consideration requiremen= t for the validity of a =3CBR=3E=26gt=3B contract=2Csimilarly South Afri= can=2C so there=27s nothing to get =3CBR=3E=26gt=3B confused with=2E I d= on=27t=3CBR=3E=26gt=3B think English law will be able to separate the tw= o things in =3CBR=3E=26gt=3B time to save=3CBR=3E=26gt=3B itself from in= coherence=2C which is neither to its credit nor =3CBR=3E=26gt=3B discred= it=2E I=3CBR=3E=26gt=3B would in fact say the same thing about Canadian = law=2E The effects of=3CBR=3E=26gt=3B termination for breach aren=27t so= mething Canadian courts (so far =3CBR=3E=26gt=3B as I am=3CBR=3E=26gt=3B= aware) have considered in this context=2E Mess around with the =3CBR=3E= =26gt=3B structure of a=3CBR=3E=26gt=3B subject and it causes messes els= ewhere=2C for very little gain=2E =3CBR=3E=26gt=3B The final=3CBR=3E=26g= t=3B results of the cases will be different in very few instances=2E =3C= BR=3E=26gt=3B Too much pain=3CBR=3E=26gt=3B for too little gain!=3CBR=3E= =26gt=3B =3CBR=3E=26gt=3B That said=2C my main problem with Garland et a= l is of course what =3CBR=3E=26gt=3B Jason calls=3CBR=3E=26gt=3B =22the = reasonable expectations/public policy mumbo jumbo=22=2C which I =3CBR=3E= =26gt=3B guess means=3CBR=3E=26gt=3B there=27s more than one reason why = Canada is heading for =3CBR=3E=26gt=3B incoherence=2E If you=3CBR=3E=26g= t=3B can=27r decide what (all) your juristic reasons are=2C you have a =3C= BR=3E=26gt=3B problem with a=3CBR=3E=26gt=3B juristic reasons approach=2E= =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B Duncan =3CBR=3E=26gt=3B =3CBR=3E=26gt= =3B Dr Duncan Sheehan=3CBR=3E=26gt=3B Senior Lecturer in Law=3CBR=3E=26g= t=3B Director of Research=3CBR=3E=26gt=3B Norwich Law School=3CBR=3E=26g= t=3B University of East Anglia=3CBR=3E=26gt=3B Norwich NR4 7TJ=3CBR=3E=26= gt=3B United Kingdom =3CBR=3E=26gt=3B =3CBR=3E=26gt=3B =26gt=3B-----Orig= inal Message-----=3CBR=3E=26gt=3B =26gt=3BFrom=3A Enrichment - Restituti= on =26amp=3B Unjust Enrichment Legal =3CBR=3E=26gt=3B =26gt=3BIssues =5B= mailto=3AENRICHMENT=40LISTS=2EMCGILL=2ECA=5D On Behalf Of HOGG Martin=3C= BR=3E=26gt=3B =26gt=3BSent=3A Monday=2C November 26=2C 2007 12=3A56 PM=3C= BR=3E=26gt=3B =26gt=3BTo=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=26g= t=3B =26gt=3BSubject=3A =5BRDG=5D RDG=3A Birksian/sine causa approach to= enrichment law=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B =3CBR=3E= =26gt=3B =26gt=3BTwo brief comments on Duncan=27s interesting email crit= iquing =3CBR=3E=26gt=3B =26gt=3Bthe Birksian=3CBR=3E=26gt=3B =26gt=3Bsch= eme=3A=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3B(1) I think Dunc= an is right to say that error remains crucial =3CBR=3E=26gt=3B in the=3C= BR=3E=26gt=3B =26gt=3Btraditional thinking about some Scots enrichment c= ases=2C e=2Eg=2E =3CBR=3E=26gt=3B transfers=26gt=3Bmade in fulfilment of= a supposed obligation which does =3CBR=3E=26gt=3B not exist=2C as=3CBR=3E= =26gt=3B =26gt=3Bwell as cases of enrichment by imposition taking the fo= rm of =3CBR=3E=26gt=3B bona fide=3CBR=3E=26gt=3B =26gt=3Bimprovements to= property believed to be owned by the improver=2E =3CBR=3E=26gt=3B I (al= ong=3CBR=3E=26gt=3B =26gt=3Bwith other Scots colleagues) have argued how= ever that the =3CBR=3E=26gt=3B reliance on=3CBR=3E=26gt=3B =26gt=3Bthe c= oncept of mistake/error in such cases is not helpful=2C and =3CBR=3E=26g= t=3B it would=3CBR=3E=26gt=3B =26gt=3Bbe better to say that the requirem= ent of the claim in each case =3CBR=3E=26gt=3B should=26gt=3Bbe (i) a tr= ansfer made in respect of a non-existent =3CBR=3E=26gt=3B obligation=2C = coupled=3CBR=3E=26gt=3B =26gt=3Bwith an available defence that the trans= feror knew the =3CBR=3E=26gt=3B obligation was=3CBR=3E=26gt=3B =26gt=3Bn= ot due=3B (ii) similarly=2C an improvement made to property which =3CBR=3E= =26gt=3B is not=3CBR=3E=26gt=3B =26gt=3Bowned by the improver=2C coupled= with a defence that the =3CBR=3E=26gt=3B =26gt=3Bimprover knew the=3CBR= =3E=26gt=3B =26gt=3Bproperty was not his=2E Such a defence would in each= case =3CBR=3E=26gt=3B =26gt=3Bachieve the same=3CBR=3E=26gt=3B =26gt=3B= result as is currently played by the error requirement=2C but =3CBR=3E=26= gt=3B =26gt=3Bwould remove=3CBR=3E=26gt=3B =26gt=3Berror from its curren= t problematic central position=2E So=2C I =3CBR=3E=26gt=3B don=27t think= =3CBR=3E=26gt=3B =26gt=3Bthat Duncan=27s error point undermines a sine c= ausa approach to=3CBR=3E=26gt=3B =26gt=3Bclassifying enrichment (which I= support=2C and which I believe =3CBR=3E=26gt=3B can make=3CBR=3E=26gt=3B= =26gt=3Bsense of the Scots authorities=2C as my colleagues Niall Whitty= =3CBR=3E=26gt=3B =26gt=3Band Hector=3CBR=3E=26gt=3B =26gt=3BMacQueen=2C= as well as myself=2C have argued in our respective =3CBR=3E=26gt=3B wri= tings on=3CBR=3E=26gt=3B =26gt=3Bthe topic)=2E=3CBR=3E=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3B(2) I do agree that cases such as Connelly v Simps= on=2C where one would=3CBR=3E=26gt=3B =26gt=3Bwish to unwind a rescinded= contract in such a way that the =3CBR=3E=26gt=3B =26gt=3Bparty who has=3C= BR=3E=26gt=3B =26gt=3Bpaid under the voidable contract is entitled to re= stitution of what=3CBR=3E=26gt=3B =26gt=3Bhe/she has paid=2C are best de= alt with by providing a form of =3CBR=3E=26gt=3B contractual=26gt=3Brest= itution=2E To ignore the contractual context of =3CBR=3E=26gt=3B the cla= im =3CBR=3E=26gt=3B =26gt=3Band treat it=3CBR=3E=26gt=3B =26gt=3Bas an e= nrichment claim=2C thereby evaluating the nature of the =3CBR=3E=26gt=3B= claim as=3CBR=3E=26gt=3B =26gt=3Benrichment merely because it provides = recovery in an =3CBR=3E=26gt=3B =26gt=3Benrichment measure=2C=3CBR=3E=26= gt=3B =26gt=3Bleads to confusing results=2E Such a classification of rem= edies =3CBR=3E=26gt=3B =26gt=3Bbased upon=3CBR=3E=26gt=3B =26gt=3Btheir = measure of recovery would=2C for instance=2C treat a contractual=3CBR=3E= =26gt=3B =26gt=3Bdamages claim assessed according to the status quo/rest= oration =3CBR=3E=26gt=3B measure=26gt=3Bas a delictual remedy=2C a bizar= re and undesirable result =3CBR=3E=26gt=3B (I argue=3CBR=3E=26gt=3B =26g= t=3Bstrongly as much in my Obligations book)=2E However=2C I don=27t =3C= BR=3E=26gt=3B believe that=3CBR=3E=26gt=3B =26gt=3Brecognising such a cl= aim as a contractual form of enrichment somehow=3CBR=3E=26gt=3B =26gt=3B= undermines a sine causa approach to enrichment classification=2E =3CBR=3E= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BThe sine cause approach makes = perfect sense for Scots =3CBR=3E=26gt=3B enrichment law as=3CBR=3E=26gt=3B= =26gt=3Bit provides a principled map of the whole subject=2C something = =3CBR=3E=26gt=3B which is=3CBR=3E=26gt=3B =26gt=3Binherently more attrac= tive to Scots lawyers than the piecemeal and=3CBR=3E=26gt=3B =26gt=3Binc= omplete approach of a perpetually expanding unjust factors list=2E=3CBR=3E= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BMartin=3CBR=3E=26gt=3B =26gt=3B= =3CBR=3E=26gt=3B =26gt=3BDr Martin A Hogg=3CBR=3E=26gt=3B =26gt=3BDirect= or of Teaching=3CBR=3E=26gt=3B =26gt=3BThe School of Law=3CBR=3E=26gt=3B= =26gt=3BThe Old College=3CBR=3E=26gt=3B =26gt=3BUniversity of Edinburgh= =3CBR=3E=26gt=3B =26gt=3BEH8 9YL=3CBR=3E=26gt=3B =26gt=3BScotland=3CBR=3E= =26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BHomepage=3A http=3A//www=2Elaw= =2Eed=2Eac=2Euk/staff/martinhogg=5F45=2Easpx=3CBR=3E=26gt=3B =26gt=3B=3C= BR=3E=26gt=3B =26gt=3BTel=3A +44 131 650 2071=3CBR=3E=26gt=3B =26gt=3BFa= x=3A +44 131 650 6317=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =26gt=3BR= eply email may be addressed to=3A=3CBR=3E=26gt=3B =26gt=3BMartin=2EHogg=40= ed=2Eac=2Euk=3CBR=3E=26gt=3B =26gt=3B=3CBR=3E=26gt=3B =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 =26gt=3B= This message was delivered through the Restitution Discussion Group=2C=3C= BR=3E=26gt=3B =26gt=3B an international internet LISTSERV devoted to all= aspects of =3CBR=3E=26gt=3B the law=3CBR=3E=26gt=3B =26gt=3B of unjust = enrichment=2E To subscribe=2C send =22subscribe =3CBR=3E=26gt=3B enrichm= ent=22 in=3CBR=3E=26gt=3B =26gt=3B the body of a message to =26lt=3Blist= serv=40lists=2Emcgill=2Eca=26gt=3B=2E To =3CBR=3E=26gt=3B unsubscribe=2C= =26gt=3B send =22signoff enrichment=22 to the same address=2E To =3CBR=3E= =26gt=3B make a posting to=3CBR=3E=26gt=3B =26gt=3B all group members=2C= send to =26lt=3Benrichment=40lists=2Emcgill=2Eca=26gt=3B=2E =3CBR=3E=26= gt=3B The list is=3CBR=3E=26gt=3B =26gt=3B run by Lionel Smith of McGill= University=2C =3CBR=3E=26gt=3B =26lt=3Blionel=2Esmith=40mcgill=2Eca=26g= t=3B=2E=26gt=3B=3CBR=3E=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=3CBR=3E=26gt=3B =26nbsp=3BThis mess= age was delivered through the Restitution =3CBR=3E=26gt=3B Discussion Gr= oup=2C=3CBR=3E=26gt=3B =26nbsp=3Ban international internet LISTSERV devo= ted to all aspects =3CBR=3E=26gt=3B of the law=3CBR=3E=26gt=3B =26nbsp=3B= of unjust enrichment=2E To subscribe=2C send =22subscribe =3CBR=3E=26gt=3B= enrichment=22 in=3CBR=3E=26gt=3B =26nbsp=3Bthe body of a message to =26= lt=3Blistserv=40lists=2Emcgill=2Eca=26gt=3B=2E To =3CBR=3E=26gt=3B unsub= scribe=2C=26nbsp=3Bsend =22signoff enrichment=22 to the same address=2E = =3CBR=3E=26gt=3B To make a posting to=3CBR=3E=26gt=3B =26nbsp=3Ball grou= p members=2C send to =3CBR=3E=26gt=3B =26lt=3Benrichment=40lists=2Emcgil= l=2Eca=26gt=3B=2E The list is=3CBR=3E=26gt=3B =26nbsp=3Brun by Lionel Sm= ith of McGill University=2C =3CBR=3E=26gt=3B =26lt=3Blionel=2Esmith=40mc= gill=2Eca=26gt=3B=2E=3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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 . 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_xOMYXDaM9DfI1lq6fMKSbA)-- ========================================================================= Date: Wed, 28 Nov 2007 17:11:00 +0200 Reply-To: "Du Plessis, Jacques, Prof " Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Du Plessis, Jacques, Prof " Subject: Re: RDG: Birksian/sine causa approach to enrichment law In-Reply-To: A<006701c830dc$45b07630$3198de8b@UEA.AC.UK> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable I am relieved to hear that Duncan is not going after sine causa/absence of legal ground as a principle in all cases in all jurisdictions. Martin has already provided a Scottish perspective. As far as South African law is concerned, may I briefly add the following.=20 The South African experience with requiring proof of factors such as excusable mistake and compulsion to obtain restitution of transfers which were aimed at discharging liability but failed to do so (ie transfers which were not not due) has in fact not been a happy one. Some problems with determining the quality of the mistake or degree of compulsion have been similar to those experienced in the common law. An inability to make these determinations has at times even forced us back into the arms of fictional implied contracts, which is clearly not where we want to be.=20 At a colloquium recently held in Stellenbosch on the future development of the South African law of unjustified enrichment, there was a clear appreciation on the side of many participants that we need to move away from the current approach. No-one is saying that a transfer which is not due must always be recoverable. It is accepted that there are circumstances when the recipient should be entitled to retain the transfer even though it is not due. The problem is identifying which recipient requires such protection. One possible answer is that it is the recipient who was brought under the impression that he could keep the transfer irrespective of whether it was due or not. Such a test avoids necessarily having to determine whether the transferor actually or supposedly knew/was in doubt/was ignorant about liability, or having to differentiate between the effects of various degrees of compulsion/pressure/influence on the transferor's mind; the focus is on the recipient, and on determining whether his reliance is such that he deserves to keep the undue payment. How does all of this fit in with the sine causa requirement? In essence, one can say that the failure of the transfer to discharge a due debt prima facie means there is no legal basis for its retention; but whether it ultimately is retained without legal ground depends on whether the test above is met. =20 It would be interesting to hear of situations involving payments which are not due where such a test would give rise to unacceptable results, compared to an approach which requires that the undue payment must have been made under mistake or compulsion. Best wishes Jacques du Plessis Prof Jacques du Plessis Faculty of Law University of Stellenbosch Private Bag X1 Stellenbosch 7602 South Africa Telephone: 0027 (0)21 808 3189 Fax: 0027 (0)21 886 6235 Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, South Africa ____________________________________________________________________ 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, 28 Nov 2007 16:16:06 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: "Du Plessis, Jacques, Prof " In-Reply-To: <9C48EEFF0A9A1147A920EBEF2CE8CBF00108E0DE@STBEVS01.stb.sun. ac.za> Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_1093521532==_.ALT" --=====================_1093521532==_.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable I'm afraid I can't answer Jacques' question, but I would like to an=20 additional question of my own, by way of footnote to (distraction from?)=20 his interesting comments on the difficulties experienced in civil law=20 jurisdictions with cases where payments are made to discharge debts which=20 turn out not to have been due. I believe that civil law / mixed=20 jurisdictions have also had difficulties with payments of debts for the=20 payment of which the claimant WAS liable, but which should more properly=20 have been paid in part or in full by a defendant who was also liable for=20 the same debt (i.e. cases which are treated in common law systems as claims= =20 for contribution or reimbursement). Since the debt owed by the claimant to= =20 the creditor in these cases was due, one could say that there was legal=20 ground for the creditor's payment, suggesting that there is a legal=20 justification for the transfer on which not only the creditor but also the= =20 defendant can rely, in the event that the claimant tries to get his money=20 back - cf Pothier, Trait=E9 des Obligations 2.2.7.4. Hence I believe that= =20 civilian jurists have had to finesse this point in order to allow recovery= =20 - but I'd be interested to hear from people in civilian / mixed=20 jurisdictions how this works out exactly. Best wishes, Charles At 17:11 28/11/2007 +0200, Du Plessis, Jacques, Prof wrote: >I am relieved to hear that Duncan is not going after sine causa/absence >of legal ground as a principle in all cases in all jurisdictions. Martin >has already provided a Scottish perspective. As far as South African law >is concerned, may I briefly add the following. > >The South African experience with requiring proof of factors such as >excusable mistake and compulsion to obtain restitution of transfers >which were aimed at discharging liability but failed to do so (ie >transfers which were not not due) has in fact not been a happy one. Some >problems with determining the quality of the mistake or degree of >compulsion have been similar to those experienced in the common law. An >inability to make these determinations has at times even forced us back >into the arms of fictional implied contracts, which is clearly not where >we want to be. > >At a colloquium recently held in Stellenbosch on the future development >of the South African law of unjustified enrichment, there was a clear >appreciation on the side of many participants that we need to move away >from the current approach. No-one is saying that a transfer which is not >due must always be recoverable. It is accepted that there are >circumstances when the recipient should be entitled to retain the >transfer even though it is not due. The problem is identifying which >recipient requires such protection. One possible answer is that it is >the recipient who was brought under the impression that he could keep >the transfer irrespective of whether it was due or not. Such a test >avoids necessarily having to determine whether the transferor actually >or supposedly knew/was in doubt/was ignorant about liability, or having >to differentiate between the effects of various degrees of >compulsion/pressure/influence on the transferor's mind; the focus is on >the recipient, and on determining whether his reliance is such that he >deserves to keep the undue payment. > >How does all of this fit in with the sine causa requirement? In essence, >one can say that the failure of the transfer to discharge a due debt >prima facie means there is no legal basis for its retention; but whether >it ultimately is retained without legal ground depends on whether the >test above is met. > >It would be interesting to hear of situations involving payments which >are not due where such a test would give rise to unacceptable results, >compared to an approach which requires that the undue payment must have >been made under mistake or compulsion. > >Best wishes > >Jacques du Plessis > >Prof Jacques du Plessis >Faculty of Law >University of Stellenbosch >Private Bag X1 >Stellenbosch 7602 >South Africa >Telephone: 0027 (0)21 808 3189 >Fax: 0027 (0)21 886 6235 >Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, >South Africa > >____________________________________________________________________ > 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, . --=====================_1093521532==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I'm afraid I can't answer Jacques' question, but I would like to an additional question of my own, by way of footnote to (distraction from?) his interesting comments on the difficulties experienced in civil law jurisdictions with cases where payments are made to discharge debts which turn out not to have been due.  I believe that civil law / mixed jurisdictions have also had difficulties with payments of debts for the payment of which the claimant WAS liable, but which should more properly have been paid in part or in full by a defendant who was also liable for the same debt (i.e. cases which are treated in common law systems as claims for contribution or reimbursement).  Since the debt owed by the claimant to the creditor in these cases was due, one could say that there was legal ground for the creditor's payment, suggesting that there is a legal justification for the transfer on which not only the creditor but also the defendant can rely, in the event that the claimant tries to get his money back - cf Pothier, Trait=E9 des Obligations 2.2.7.4. Hence I believe that civilian jurists have had to finesse this point in order to allow recovery - but I'd be interested to hear from people in civilian / mixed jurisdictions how this works out exactly.  Best wishes, Charles




At 17:11 28/11/2007 +0200, Du Plessis, Jacques, Prof wrote:
I am relieved to hear that Duncan is not going after sine causa/absence
of legal ground as a principle in all cases in all jurisdictions. Martin
has already provided a Scottish perspective. As far as South African law
is concerned, may I briefly add the following.

The South African experience with requiring proof of factors such=20 as
excusable mistake and compulsion to obtain restitution of transfers
which were aimed at discharging liability but failed to do so (ie
transfers which were not not due) has in fact not been a happy one. Some
problems with determining the quality of the mistake or degree of
compulsion have been similar to those experienced in the common law. An
inability to make these determinations has at times even forced us back
into the arms of fictional implied contracts, which is clearly not where
we want to be.

At a colloquium recently held in Stellenbosch on the future development
of the South African law of unjustified enrichment, there was a clear
appreciation on the side of many participants that we need to move away
from the current approach. No-one is saying that a transfer which is not
due must always be recoverable. It is accepted that there are
circumstances when the recipient should be entitled to retain the
transfer even though it is not due. The problem is identifying=20 which
recipient requires such protection. One possible answer is that it is
the recipient who was brought under the impression that he could keep
the transfer irrespective of whether it was due or not. Such a test
avoids necessarily having to determine whether the transferor actually
or supposedly knew/was in doubt/was ignorant about liability, or having
to differentiate between the effects of various degrees of
compulsion/pressure/influence on the transferor's mind; the focus is on
the recipient, and on determining whether his reliance is such that he
deserves to keep the undue payment.

How does all of this fit in with the sine causa requirement? In essence,
one can say that the failure of the transfer to discharge a due=20 debt
prima facie means there is no legal basis for its retention; but whether
it ultimately is retained without legal ground depends on whether the
test above is met. 

It would be interesting to hear of situations involving payments which
are not due where such a test would give rise to unacceptable results,
compared to an approach which requires that the undue payment must have
been made under mistake or compulsion.

Best wishes

Jacques du Plessis

Prof Jacques du Plessis
Faculty of Law
University of Stellenbosch
Private Bag X1
Stellenbosch 7602
South Africa
Telephone:  0027 (0)21 808 3189
Fax:  0027 (0)21 886 6235
Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa  Streets, Stellenbosch,
South Africa

____________________________________________________________________
 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, . --=====================_1093521532==_.ALT-- ========================================================================= Date: Wed, 28 Nov 2007 17:35:35 +0100 Reply-To: Gerhard Dannemann Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerhard Dannemann Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: Charles Mitchell In-Reply-To: <5.1.0.14.2.20071128153048.032f6d68@pop.kcl.ac.uk> MIME-Version: 1.0 Content-Type: text/html; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit A short answer to Charles', rather than Jacques' question:

Some situations which in English law might call for restitution are instead covered by cessio legis in German law. This is an assignment which operates by virtue of the law and is not merely imputed. For example, if the guarantor pays instead of the principal debtor, § 774 BGB transfers the creditor's claim onto the guarantor who can use this claim to proceed against the debtor.  Similar provisions apply e.g. for insurers who can recover from the tortfeasor for damage caused to the insured person.  Cessio legis also occurs if an absconding parent fails to pay maintenance for his or her child and another relative steps in; the relative can recover from the parent by virtue of cessio legis under § 1607 subs. (2) or (3) BGB. Similarly, § 426 BGB allows joint and several debtors to recover from each other for what they have paid to the creditor in excess of their own share. And § 268 subs. (3) BGB allows a person to save his or her securities for a claim by paying another creditor who has a claim against the same debtor with privileged securities. The same person can then recover from the debtor, by cessio legis of the claim which the privileged creditor had against the debtor.

(This is an updated version of what I have written in Markesinis, Lorenz and Dannemann, The German Law of Obligations, Vol. I, p. 716-7.)

Gerhard Dannemann

Charles Mitchell wrote:
I'm afraid I can't answer Jacques' question, but I would like to an additional question of my own, by way of footnote to (distraction from?) his interesting comments on the difficulties experienced in civil law jurisdictions with cases where payments are made to discharge debts which turn out not to have been due.  I believe that civil law / mixed jurisdictions have also had difficulties with payments of debts for the payment of which the claimant WAS liable, but which should more properly have been paid in part or in full by a defendant who was also liable for the same debt (i.e. cases which are treated in common law systems as claims for contribution or reimbursement).  Since the debt owed by the claimant to the creditor in these cases was due, one could say that there was legal ground for the creditor's payment, suggesting that there is a legal justification for the transfer on which not only the creditor but also the defendant can rely, in the event that the claimant tries to get his money back - cf Pothier, Traité des Obligations 2.2.7.4. Hence I believe that civilian jurists have had to finesse this point in order to allow recovery - but I'd be interested to hear from people in civilian / mixed jurisdictions how this works out exactly.  Best wishes, Charles




At 17:11 28/11/2007 +0200, Du Plessis, Jacques, Prof wrote:
I am relieved to hear that Duncan is not going after sine causa/absence
of legal ground as a principle in all cases in all jurisdictions. Martin
has already provided a Scottish perspective. As far as South African law
is concerned, may I briefly add the following.

The South African experience with requiring proof of factors such as
excusable mistake and compulsion to obtain restitution of transfers
which were aimed at discharging liability but failed to do so (ie
transfers which were not not due) has in fact not been a happy one. Some
problems with determining the quality of the mistake or degree of
compulsion have been similar to those experienced in the common law. An
inability to make these determinations has at times even forced us back
into the arms of fictional implied contracts, which is clearly not where
we want to be.

At a colloquium recently held in Stellenbosch on the future development
of the South African law of unjustified enrichment, there was a clear
appreciation on the side of many participants that we need to move away
from the current approach. No-one is saying that a transfer which is not
due must always be recoverable. It is accepted that there are
circumstances when the recipient should be entitled to retain the
transfer even though it is not due. The problem is identifying which
recipient requires such protection. One possible answer is that it is
the recipient who was brought under the impression that he could keep
the transfer irrespective of whether it was due or not. Such a test
avoids necessarily having to determine whether the transferor actually
or supposedly knew/was in doubt/was ignorant about liability, or having
to differentiate between the effects of various degrees of
compulsion/pressure/influence on the transferor's mind; the focus is on
the recipient, and on determining whether his reliance is such that he
deserves to keep the undue payment.

How does all of this fit in with the sine causa requirement? In essence,
one can say that the failure of the transfer to discharge a due debt
prima facie means there is no legal basis for its retention; but whether
it ultimately is retained without legal ground depends on whether the
test above is met. 

It would be interesting to hear of situations involving payments which
are not due where such a test would give rise to unacceptable results,
compared to an approach which requires that the undue payment must have
been made under mistake or compulsion.

Best wishes

Jacques du Plessis

Prof Jacques du Plessis
Faculty of Law
University of Stellenbosch
Private Bag X1
Stellenbosch 7602
South Africa
Telephone:  0027 (0)21 808 3189
Fax:  0027 (0)21 886 6235
Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa  Streets, Stellenbosch,
South Africa

____________________________________________________________________
 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, . 


-- 

Prof. Dr. Gerhard Dannemann 

Centre for British Studies 

Humboldt-Universität zu Berlin 

Jägerstr. 10-11 

10117 Berlin 

Tel. +49 30 2093 5334 

Fax  +49 30 2093 5370 

http://www2.hu-berlin.de/gbz
____________________________________________________________________ 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, 28 Nov 2007 12:41:02 -0500 Reply-To: Jason Neyers Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: Gerhard Dannemann , Charles Mitchell In-Reply-To: <474D98D7.1040406@gbz.hu-berlin.de> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_7+JhvxWvalB17/NjY2N7+w)" This is a multi-part message in MIME format. --Boundary_(ID_7+JhvxWvalB17/NjY2N7+w) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: quoted-printable Content-disposition: inline In response to Charles=27 question=2C there are similar provisions to be= found in the CCQ=2E I can=27t recall whether they were treated as arisi= ng by operation of law or were imputed=2E In any event=2C I recall being= taught that these provisions were consistent with the secondary nature = of the indemnity promise made--i=2Ee=2E the person would be over-indemni= fied if they were both compensated and kept the debt and thus had to tra= nsfer the debt to the indemnifier=2E The secondary nature of the indemni= ty explained why the debt was transfered rather than extinguished=2E = ----- Original Message ----- From=3A Gerhard Dannemann =3Cgerhard=2Edannemann=40GBZ=2EHU-BERLIN=2EDE=3E= Date=3A Wednesday=2C November 28=2C 2007 11=3A40 am Subject=3A Re=3A =5BRDG=5D RDG=3A Birksian/sine causa approach to enrich= ment law To=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA A short answer to Charles=27=2C rather than Jacques=27 question=3A Some situations which in English law might call for restitution are inst= ead covered by = cessio legis in German law=2E This is an assignment which operates by vi= rtue of the law and is not merely imputed=2E For example=2C if the guara= ntor pays instead of the principal debtor=2C =A7 774 BGB transfers the c= reditor=27s claim onto the guarantor who can use this claim to proceed a= gainst the debtor=2E Similar provisions apply e=2Eg=2E for insurers who= can recover from the tortfeasor for damage caused to the insured person= =2E Cessio legis also occurs if an absconding parent fails to pay maint= enance for his or her child and another relative steps in=3B the relativ= e can recover from the parent by virtue of cessio legis under =A7 1607 s= ubs=2E (2) or (3) BGB=2E Similarly=2C =A7 426 BGB allows joint and sever= al debtors to recover from each other for what they have paid to the cre= ditor in excess of their own share=2E And =A7 268 subs=2E (3) BGB allows= a person to save his or her securities for a claim by paying another cr= editor who has a claim against the same debtor with privileged securitie= s=2E The same person can then recover from the debtor=2C by cessio legis= of the claim which the privileged creditor had against the debtor=2E = (This is an updated version of what I have written in Markesinis=2C Lore= nz and Dannemann=2C The German Law of Obligations=2C Vol=2E I=2C p=2E 71= 6-7=2E) Gerhard Dannemann Charles Mitchell wrote=3A = I=27m afraid I can=27t answer Jacques=27 question=2C but I would like to= an additional question of my own=2C by way of footnote to (distraction = from=3F) his interesting comments on the difficulties experienced in civ= il law jurisdictions with cases where payments are made to discharge deb= ts which turn out not to have been due=2E I believe that civil law / mi= xed jurisdictions have also had difficulties with payments of debts for = the payment of which the claimant WAS liable=2C but which should more pr= operly have been paid in part or in full by a defendant who was also lia= ble for the same debt (i=2Ee=2E cases which are treated in common law sy= stems as claims for contribution or reimbursement)=2E Since the debt ow= ed by the claimant to the creditor in these cases was due=2C one could s= ay that there was legal ground for the creditor=27s payment=2C suggestin= g that there is a legal justification for the transfer on which not only= the creditor but also the defendant can rely=2C in the event that the c= laimant tries to get his money back - cf Pothier=2C Trait=E9 des Obligat= ions 2=2E2=2E7=2E4=2E Hence I believe that civilian jurists have had to = finesse this point in order to allow recovery - but I=27d be interested = to hear from people in civilian / mixed jurisdictions how this works out= exactly=2E Best wishes=2C Charles At 17=3A11 28/11/2007 +0200=2C Du Plessis=2C Jacques=2C Prof =3Cjedp=40s= un=2Eac=2Eza=3E wrote=3A I am relieved to hear that Duncan is not going after sine causa/absence of legal ground as a principle in all cases in all jurisdictions=2E Mart= in has already provided a Scottish perspective=2E As far as South African l= aw is concerned=2C may I briefly add the following=2E = The South African experience with requiring proof of factors such as excusable mistake and compulsion to obtain restitution of transfers which were aimed at discharging liability but failed to do so (ie transfers which were not not due) has in fact not been a happy one=2E So= me problems with determining the quality of the mistake or degree of compulsion have been similar to those experienced in the common law=2E A= n inability to make these determinations has at times even forced us back into the arms of fictional implied contracts=2C which is clearly not whe= re we want to be=2E = At a colloquium recently held in Stellenbosch on the future development of the South African law of unjustified enrichment=2C there was a clear appreciation on the side of many participants that we need to move away from the current approach=2E No-one is saying that a transfer which is n= ot due must always be recoverable=2E It is accepted that there are circumstances when the recipient should be entitled to retain the transfer even though it is not due=2E The problem is identifying which recipient requires such protection=2E One possible answer is that it is the recipient who was brought under the impression that he could keep the transfer irrespective of whether it was due or not=2E Such a test avoids necessarily having to determine whether the transferor actually or supposedly knew/was in doubt/was ignorant about liability=2C or havin= g to differentiate between the effects of various degrees of compulsion/pressure/influence on the transferor=27s mind=3B the focus is= on the recipient=2C and on determining whether his reliance is such that he= deserves to keep the undue payment=2E How does all of this fit in with the sine causa requirement=3F In essenc= e=2C one can say that the failure of the transfer to discharge a due debt prima facie means there is no legal basis for its retention=3B but wheth= er it ultimately is retained without legal ground depends on whether the test above is met=2E = It would be interesting to hear of situations involving payments which are not due where such a test would give rise to unacceptable results=2C= compared to an approach which requires that the undue payment must have been made under mistake or compulsion=2E Best wishes Jacques du Plessis Prof Jacques du Plessis Faculty of Law University of Stellenbosch Private Bag X1 Stellenbosch 7602 South Africa Telephone=3A 0027 (0)21 808 3189 Fax=3A 0027 (0)21 886 6235 Courier=3A Ou Hoofgebou=2Cc/o Ryneveldt =26 Andringa Streets=2C Stellen= bosch=2C South Africa =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 message was delivered through the Restitution Discussion Group=2C an international internet LISTSERV devoted to all aspects of the law of unjust enrichment=2E To subscribe=2C send =22subscribe enrichment=22= in the body of a message to =3Clistserv=40lists=2Emcgill=2Eca=3E=2E To uns= ubscribe=2C send =22signoff enrichment=22 to the same address=2E To make a posting = to all group members=2C send to =3Cenrichment=40lists=2Emcgill=2Eca=3E=2E = The list is run by Lionel Smith of McGill University=2C =3Clionel=2Esmith=40mcgill=2E= ca=3E=2E = =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 messag= e was delivered through the Restitution Discussion Group=2C an internati= onal internet LISTSERV devoted to all aspects of the law of unjust enric= hment=2E To subscribe=2C send =22subscribe enrichment=22 in the body of = a message to =3Clistserv=40lists=2Emcgill=2Eca=3E=2E To unsubscribe=2C s= end =22signoff enrichment=22 to the same address=2E To make a posting to= all group members=2C send to =3Cenrichment=40lists=2Emcgill=2Eca=3E=2E = The list is run by Lionel Smith of McGill University=2C =3Clionel=2Esmit= h=40mcgill=2Eca=3E=2E = -- Prof=2E Dr=2E Gerhard DannemannCentre for British StudiesHumboldt-Uni= versit=E4t zu BerlinJ=E4gerstr=2E 10-1110117 BerlinTel=2E +49 30 2093 53= 34Fax +49 30 2093 5370http=3A//www2=2Ehu-berlin=2Ede/gbz =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 messag= e was delivered through the Restitution Discussion Group=2C an internati= onal internet LISTSERV devoted to all aspects of the law of unjust enric= hment=2E To subscribe=2C send =22subscribe enrichment=22 in the body of = a message to =3Clistserv=40lists=2Emcgill=2Eca=3E=2E To unsubscribe=2C s= end =22signoff enrichment=22 to the same address=2E To make a posting to= all group members=2C send to =3Cenrichment=40lists=2Emcgill=2Eca=3E=2E = The list is run by Lionel Smith of McGill University=2C =3Clionel=2Esmit= h=40mcgill=2Eca=3E=2E = -- = Jason Neyers 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. 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_7+JhvxWvalB17/NjY2N7+w) Content-type: text/html; charset=iso-8859-1 Content-transfer-encoding: quoted-printable Content-disposition: inline =3CDIV=3EIn response to Charles=27 question=2C there are similar provisi= ons=26nbsp=3Bto be found in the CCQ=2E=26nbsp=3BI can=27t recall whether= they were treated as arising by operation of law or were imputed=2E In = any event=2C I recall being taught that these provisions were consistent= with the secondary nature of the indemnity promise made--i=2Ee=2E the p= erson would be over-=3CSPAN lang=3DEN-CA style=3D=22FONT-SIZE=3A 12pt=3B= FONT-FAMILY=3A =27Times New Roman=27=3B mso-fareast-font-family=3A =27T= imes New Roman=27=3B mso-ansi-language=3A EN-CA=3B mso-fareast-language=3A= EN-US=3B mso-bidi-language=3A AR-SA=22=3Eindemnified=26nbsp=3B=3C/SPAN=3E= if they were both compensated and kept the debt and thus had to transfer= the debt to the indemnifier=2E The secondary nature of the indemnity ex= plained why the debt was transfered rather than extinguished=2E =3CBR=3E= =3CBR=3E----- Original Message -----=3CBR=3EFrom=3A Gerhard Dannemann=26= nbsp=3B=26lt=3Bgerhard=2Edannemann=40GBZ=2EHU-BERLIN=2EDE=26gt=3B=3CBR=3E= Date=3A Wednesday=2C November 28=2C 2007 11=3A40 am=3CBR=3ESubject=3A Re= =3A =5BRDG=5D RDG=3A Birksian/sine causa=26nbsp=3Bapproach to enrichment= law=3CBR=3ETo=3A ENRICHMENT=40LISTS=2EMCGILL=2ECA=3CBR=3E=3CBR=3E=3CSPA= N=3E =3CP=3E=3CTR=3E=3CTD text=3D=22=23000000=22 bgcolor=3D=22=23ffffff=22=3E= =3CP=3EA short answer to Charles=27=2C rather than Jacques=27 question=3A= =3CBR=3E=3CBR=3ESome situations which in English law might call for rest= itution are instead covered by =3C/P=3Ecessio=26nbsp=3Blegis=26nbsp=3Bin= German law=2E This is an assignment which operates by virtue of the law= and is not merely imputed=2E For example=2C if the guarantor=26nbsp=3Bp= ays instead of the principal debtor=2C =A7 774 BGB=26nbsp=3Btransfers th= e creditor=27s claim onto the guarantor=26nbsp=3Bwho can use this claim = to proceed against the debtor=2E=26nbsp=3B Similar provisions apply e=2E= g=2E for insurers who can recover from the tortfeasor=26nbsp=3Bfor damag= e caused to the insured person=2E=26nbsp=3B Cessio=26nbsp=3Blegis=26nbsp= =3Balso occurs if an absconding parent fails to pay maintenance for his = or her child and another relative steps in=3B the relative can recover f= rom the parent by virtue of cessio=26nbsp=3Blegis=26nbsp=3Bunder =A7 160= 7 subs=2E (2) or (3) BGB=2E Similarly=2C =A7 426 BGB=26nbsp=3Ballows joi= nt and several debtors to recover from each other for what they have pai= d to the creditor in excess of their own share=2E And =A7 268 subs=2E (3= ) BGB=26nbsp=3Ballows a person to save his or her securities for a claim= by paying another creditor who has a claim against the same debtor with= privileged securities=2E The same person can then recover from the debt= or=2C by cessio=26nbsp=3Blegis=26nbsp=3Bof the claim which the privilege= d creditor had against the debtor=2E =3CBR=3E=3CBR=3E(This is an updated= version of what I have written in Markesinis=2C Lorenz and Dannemann=2C= The German Law of Obligations=2C Vol=2E I=2C p=2E 716-7=2E)=3CBR=3E=3CB= R=3EGerhard Dannemann=3CBR=3E=3CBR=3ECharles Mitchell wrote=3A = =3CBLOCKQUOTE cite=3Dmid=3A5=2E1=2E0=2E14=2E2=2E20071128153048=2E032f6d6= 8=40pop=2Ekcl=2Eac=2Euk type=3D=22cite=22=3EI=27m afraid I can=27t answe= r Jacques=27 question=2C but I would like to an additional question of m= y own=2C by way of footnote to (distraction from=3F) his interesting com= ments on the difficulties experienced in civil law jurisdictions with ca= ses where payments are made to discharge debts which turn out not to hav= e been due=2E=26nbsp=3B I believe that civil law / mixed jurisdictions h= ave also had difficulties with payments of debts for the payment of whic= h the claimant WAS liable=2C but which should more properly have been pa= id in part or in full by a defendant who was also liable for the same de= bt (i=2Ee=2E cases which are treated in common law systems as claims for= contribution or reimbursement)=2E=26nbsp=3B Since the debt owed by the = claimant to the creditor in these cases was due=2C one could say that th= ere was legal ground for the creditor=27s payment=2C suggesting that the= re is a legal justification for the transfer on which not only the credi= tor but also the defendant can rely=2C in the event that the claimant tr= ies to get his money back - cf =3CFONT face=3D=22Arial=2C Helvetica=22=3E= Pothier=2C =3CI=3ETrait=E9=26nbsp=3Bdes=26nbsp=3BObligations =3C/I=3E2=2E= 2=2E7=2E4=3CI=3E=2E =3C/I=3EHence I believe that civilian jurists have h= ad to finesse this point in order to allow recovery - but I=27d be inter= ested to hear from people in civilian / mixed jurisdictions how this wor= ks out exactly=2E=26nbsp=3B =3C/FONT=3EBest wishes=2C Charles=3CBR=3E=3C= BR=3E=3CBR=3E=3CBR=3E=3CBR=3EAt 17=3A11 28/11/2007 +0200=2C Du Plessis=2C= Jacques=2C Prof =3CA href=3D=22javascript=3Amain=2Ecompose(=27new=27=2C= =27t=3Djedp=40sun=2Eac=2Eza=27)=22=3E=26lt=3Bjedp=40sun=2Eac=2Eza=26gt=3B= =3C/A=3E wrote=3A=3CBR=3E =3CBLOCKQUOTE class=3Dcite cite=3D=22=22 type=3D=22cite=22=3EI am reliev= ed to hear that Duncan is not going after sine causa/absence=3CBR=3Eof l= egal ground as a principle in all cases in all jurisdictions=2E Martin=3C= BR=3Ehas already provided a Scottish perspective=2E As far as South Afri= can law=3CBR=3Eis concerned=2C may I briefly add the following=2E =3CBR=3E= =3CBR=3EThe South African experience with requiring proof of factors suc= h as=3CBR=3Eexcusable mistake and compulsion to obtain restitution of tr= ansfers=3CBR=3Ewhich were aimed at discharging liability but failed to d= o so (ie=3CBR=3Etransfers which were not not due) has in fact not been a= happy one=2E Some=3CBR=3Eproblems with determining the quality of the m= istake or degree of=3CBR=3Ecompulsion have been similar to those experie= nced in the common law=2E An=3CBR=3Einability to make these determinatio= ns has at times even forced us back=3CBR=3Einto the arms of fictional im= plied contracts=2C which is clearly not where=3CBR=3Ewe want to be=2E =3C= BR=3E=3CBR=3EAt a colloquium recently held in Stellenbosch on the future= development=3CBR=3Eof the South African law of unjustified enrichment=2C= there was a clear=3CBR=3Eappreciation on the side of many participants = that we need to move away=3CBR=3Efrom the current approach=2E No-one is = saying that a transfer which is not=3CBR=3Edue must always be recoverabl= e=2E It is accepted that there are=3CBR=3Ecircumstances when the recipie= nt should be entitled to retain the=3CBR=3Etransfer even though it is no= t due=2E The problem is identifying which=3CBR=3Erecipient requires such= protection=2E One possible answer is that it is=3CBR=3Ethe recipient wh= o was brought under the impression that he could keep=3CBR=3Ethe transfe= r irrespective of whether it was due or not=2E Such a test=3CBR=3Eavoids= necessarily having to determine whether the transferor actually=3CBR=3E= or supposedly knew/was in doubt/was ignorant about liability=2C or havin= g=3CBR=3Eto differentiate between the effects of various degrees of=3CBR= =3Ecompulsion/pressure/influence on the transferor=27s mind=3B the focus= is on=3CBR=3Ethe recipient=2C and on determining whether his reliance i= s such that he=3CBR=3Edeserves to keep the undue payment=2E=3CBR=3E=3CBR= =3EHow does all of this fit in with the sine causa requirement=3F In ess= ence=2C=3CBR=3Eone can say that the failure of the transfer to discharge= a due debt=3CBR=3Eprima facie means there is no legal basis for its ret= ention=3B but whether=3CBR=3Eit ultimately is retained without legal gro= und depends on whether the=3CBR=3Etest above is met=2E=26nbsp=3B =3CBR=3E= =3CBR=3EIt would be interesting to hear of situations involving payments= which=3CBR=3Eare not due where such a test would give rise to unaccepta= ble results=2C=3CBR=3Ecompared to an approach which requires that the un= due payment must have=3CBR=3Ebeen made under mistake or compulsion=2E=3C= BR=3E=3CBR=3EBest wishes=3CBR=3E=3CBR=3EJacques du Plessis=3CBR=3E=3CBR=3E= Prof Jacques du Plessis=3CBR=3EFaculty of Law=3CBR=3EUniversity of Stell= enbosch=3CBR=3EPrivate Bag X1=3CBR=3EStellenbosch 7602=3CBR=3ESouth Afri= ca=3CBR=3ETelephone=3A=26nbsp=3B 0027 (0)21 808 3189=3CBR=3EFax=3A=26nbs= p=3B 0027 (0)21 886 6235=3CBR=3ECourier=3A Ou Hoofgebou=2Cc/o Ryneveldt = =26amp=3B Andringa=26nbsp=3B Streets=2C Stellenbosch=2C=3CBR=3ESouth Afr= ica=3CBR=3E=3CBR=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=3CBR=3E=26nbsp=3BThis message was delivered through the Restituti= on Discussion Group=2C=3CBR=3E=26nbsp=3Ban international internet LISTSE= RV devoted to all 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=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 message was delivered through the Restitution Discussi= on Group=2C an international internet LISTSERV devoted to all aspects of= the law of unjust enrichment=2E To subscribe=2C send =22subscribe enric= hment=22 in the body of a message to =3CA href=3D=22javascript=3Amain=2E= compose(=27new=27=2C=27t=3Dlistserv=40lists=2Emcgill=2Eca=27)=22=3E=26lt= =3Blistserv=40lists=2Emcgill=2Eca=26gt=3B=3C/A=3E=2E To unsubscribe=2C s= end =22signoff enrichment=22 to the same address=2E To make a posting to= all group members=2C send to =3CA href=3D=22javascript=3Amain=2Ecompose= (=27new=27=2C=27t=3Denrichment=40lists=2Emcgill=2Eca=27)=22=3E=26lt=3Ben= richment=40lists=2Emcgill=2Eca=26gt=3B=3C/A=3E=2E The list is run by Lio= nel Smith of McGill University=2C =3CA href=3D=22javascript=3Amain=2Ecom= pose(=27new=27=2C=27t=3Dlionel=2Esmith=40mcgill=2Eca=27)=22=3E=26lt=3Bli= onel=2Esmith=40mcgill=2Eca=26gt=3B=3C/A=3E=2E =3C/BLOCKQUOTE=3E=3CBR=3E=3C= BR=3E=3CPRE class=3Dmoz-signature cols=3D=2272=22=3E-- Prof=2E Dr=2E Ger= hard DannemannCentre for British StudiesHumboldt-Universit=E4t zu Berlin= J=E4gerstr=2E 10-1110117 BerlinTel=2E +49 30 2093 5334Fax +49 30 2093 5= 370=3CA class=3Dmoz-txt-link-freetext href=3D=22http=3A//www2=2Ehu-berli= n=2Ede/gbz=22 target=3D1=3Ehttp=3A//www2=2Ehu-berlin=2Ede/gbz=3C/A=3E=3C= /PRE=3E=3C/TD=3E=3C/TR=3E=3C/SPAN=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 message was delivered through the Restitut= ion Discussion Group=2C an international internet LISTSERV devoted to al= l aspects of the law of unjust enrichment=2E To subscribe=2C send =22sub= scribe enrichment=22 in the body of a message to =26lt=3Blistserv=40list= s=2Emcgill=2Eca=26gt=3B=2E To unsubscribe=2C send =22signoff enrichment=22= to the same address=2E To make a posting to all group members=2C send t= o =26lt=3Benrichment=40lists=2Emcgill=2Eca=26gt=3B=2E The list is run by= Lionel Smith of McGill University=2C =26lt=3Blionel=2Esmith=40mcgill=2E= ca=26gt=3B=2E =3C/DIV=3E=3CBR=3E=3CBR=3E -- = =3Cbr=3EJason Neyers =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 . 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_7+JhvxWvalB17/NjY2N7+w)-- ========================================================================= Date: Wed, 28 Nov 2007 17:42:40 -0000 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: "Du Plessis, Jacques, Prof " In-Reply-To: <9C48EEFF0A9A1147A920EBEF2CE8CBF00108E0DE@STBEVS01.stb.sun.ac.za> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit In some cases this would presumably in English law and other common law systems be treated as change of position or sometimes estoppel, given the emphasis on reliance. If we're going wider than this to the recipient's impression that he could keep the transfer, do we not risk moving from looking at whether the transferor was mistaken/in doubt/ignorant whatever to the same question of the transferee. If you dislike the question in relation to one party why is it easier in relation to the other? Or have I missed something? Duncan Dr Duncan Sheehan Senior Lecturer in Law Director of Research Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom >-----Original Message----- >From: Enrichment - Restitution & Unjust Enrichment Legal >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Du >Plessis, Jacques, Prof >Sent: Wednesday, November 28, 2007 3:11 PM >To: ENRICHMENT@LISTS.MCGILL.CA >Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law > >I am relieved to hear that Duncan is not going after sine causa/absence >of legal ground as a principle in all cases in all >jurisdictions. Martin >has already provided a Scottish perspective. As far as South >African law >is concerned, may I briefly add the following. > >The South African experience with requiring proof of factors such as >excusable mistake and compulsion to obtain restitution of transfers >which were aimed at discharging liability but failed to do so (ie >transfers which were not not due) has in fact not been a happy >one. Some >problems with determining the quality of the mistake or degree of >compulsion have been similar to those experienced in the common law. An >inability to make these determinations has at times even forced us back >into the arms of fictional implied contracts, which is clearly >not where >we want to be. > >At a colloquium recently held in Stellenbosch on the future development >of the South African law of unjustified enrichment, there was a clear >appreciation on the side of many participants that we need to move away >from the current approach. No-one is saying that a transfer >which is not >due must always be recoverable. It is accepted that there are >circumstances when the recipient should be entitled to retain the >transfer even though it is not due. The problem is identifying which >recipient requires such protection. One possible answer is that it is >the recipient who was brought under the impression that he could keep >the transfer irrespective of whether it was due or not. Such a test >avoids necessarily having to determine whether the transferor actually >or supposedly knew/was in doubt/was ignorant about liability, or having >to differentiate between the effects of various degrees of >compulsion/pressure/influence on the transferor's mind; the focus is on >the recipient, and on determining whether his reliance is such that he >deserves to keep the undue payment. > >How does all of this fit in with the sine causa requirement? >In essence, >one can say that the failure of the transfer to discharge a due debt >prima facie means there is no legal basis for its retention; >but whether >it ultimately is retained without legal ground depends on whether the >test above is met. > >It would be interesting to hear of situations involving payments which >are not due where such a test would give rise to unacceptable results, >compared to an approach which requires that the undue payment must have >been made under mistake or compulsion. > >Best wishes > >Jacques du Plessis > >Prof Jacques du Plessis >Faculty of Law >University of Stellenbosch >Private Bag X1 >Stellenbosch 7602 >South Africa >Telephone: 0027 (0)21 808 3189 >Fax: 0027 (0)21 886 6235 >Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, >South Africa > >____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, . > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 28 Nov 2007 21:35:26 -0000 Reply-To: Niall R Whitty Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Niall R Whitty Subject: Re: RDG: Birksian/sine causa approach to enrichment law Comments: To: Duncan.Sheehan@UEA.AC.UK MIME-Version: 1.0 Content-Type: text/plain; format=flowed; charset="iso-8859-1"; reply-type=original Content-Transfer-Encoding: 7bit Duncan Perhaps the following argument by Professor Paolo Gallo may provide a swatisfactory answer to your last question. The starting point in cases of condictio indebiti or condictio sine causa /mistaken payment/payment without legal ground cases is that the payment was indebitum, ie not due. Therefore the recipient is prima facie unjustifiably enriched by the payment. This is the background to Paolo Gallo's brief but telling argument that the policy of reversing the burden of proof (ie the German solution of knowledge of absence of ground as a defence rather than error as a ground of restitution) "seems to be the most efficient and rational one. In effect between a payor who tries to avoid a loss and a recipient who tries to hold on to an improper benefit, the former is to be preferred". See P Gallo, "Unjust Enrichment: A Comparative Analysis" (1992) 40 Amer J Comp Law 431 at p 444. Kind regards, Niall R Whitty. ----- Original Message ----- From: "Duncan Sheehan (LAW)" To: Sent: Wednesday, November 28, 2007 5:42 PM Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law > In some cases this would presumably in English law and other common law > systems be treated as change of position or sometimes estoppel, given the > emphasis on reliance. If we're going wider than this to the recipient's > impression that he could keep the transfer, do we not risk moving from > looking at whether the transferor was mistaken/in doubt/ignorant whatever > to > the same question of the transferee. If you dislike the question in > relation > to one party why is it easier in relation to the other? Or have I missed > something? > > Duncan > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > >>-----Original Message----- >>From: Enrichment - Restitution & Unjust Enrichment Legal >>Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Du >>Plessis, Jacques, Prof >>Sent: Wednesday, November 28, 2007 3:11 PM >>To: ENRICHMENT@LISTS.MCGILL.CA >>Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law >> >>I am relieved to hear that Duncan is not going after sine causa/absence >>of legal ground as a principle in all cases in all >>jurisdictions. Martin >>has already provided a Scottish perspective. As far as South >>African law >>is concerned, may I briefly add the following. >> >>The South African experience with requiring proof of factors such as >>excusable mistake and compulsion to obtain restitution of transfers >>which were aimed at discharging liability but failed to do so (ie >>transfers which were not not due) has in fact not been a happy >>one. Some >>problems with determining the quality of the mistake or degree of >>compulsion have been similar to those experienced in the common law. An >>inability to make these determinations has at times even forced us back >>into the arms of fictional implied contracts, which is clearly >>not where >>we want to be. >> >>At a colloquium recently held in Stellenbosch on the future development >>of the South African law of unjustified enrichment, there was a clear >>appreciation on the side of many participants that we need to move away >>from the current approach. No-one is saying that a transfer >>which is not >>due must always be recoverable. It is accepted that there are >>circumstances when the recipient should be entitled to retain the >>transfer even though it is not due. The problem is identifying which >>recipient requires such protection. One possible answer is that it is >>the recipient who was brought under the impression that he could keep >>the transfer irrespective of whether it was due or not. Such a test >>avoids necessarily having to determine whether the transferor actually >>or supposedly knew/was in doubt/was ignorant about liability, or having >>to differentiate between the effects of various degrees of >>compulsion/pressure/influence on the transferor's mind; the focus is on >>the recipient, and on determining whether his reliance is such that he >>deserves to keep the undue payment. >> >>How does all of this fit in with the sine causa requirement? >>In essence, >>one can say that the failure of the transfer to discharge a due debt >>prima facie means there is no legal basis for its retention; >>but whether >>it ultimately is retained without legal ground depends on whether the >>test above is met. >> >>It would be interesting to hear of situations involving payments which >>are not due where such a test would give rise to unacceptable results, >>compared to an approach which requires that the undue payment must have >>been made under mistake or compulsion. >> >>Best wishes >> >>Jacques du Plessis >> >>Prof Jacques du Plessis >>Faculty of Law >>University of Stellenbosch >>Private Bag X1 >>Stellenbosch 7602 >>South Africa >>Telephone: 0027 (0)21 808 3189 >>Fax: 0027 (0)21 886 6235 >>Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, >>South Africa >> >>____________________________________________________________________ >> This message was delivered through the Restitution Discussion Group, >> an international internet LISTSERV devoted to all aspects of the law >> of unjust enrichment. To subscribe, send "subscribe enrichment" in >> the body of a message to . To unsubscribe, >> send "signoff enrichment" to the same address. To make a posting to >> all group members, send to . The list is >> run by Lionel Smith of McGill University, . >> > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, . > > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 28 Nov 2007 23:37:47 +0100 Reply-To: florian.mohs@unibas.ch Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Florian Mohs Subject: Re: Birksian/sine causa approach to enrichment law In-Reply-To: <001001c831e6$12c8d590$3198de8b@UEA.AC.UK> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Dear all I agree that there is a certain interrelation between the issues of mista= ke and change of position as to the relevant standard of knowledge of the transf= eror and the transferee. But is it a risk that we look to both sides of the transaction and inquir= e into both sides' state of mind? I think no. In my view, it is rather a chance. For me, a compelling example of a case against an absence of basis-analys= is without regard to the transferor=92s state of mind is: National Bank of New Zealand v Waitaki International Processing (NI) Ltd = [1999] 2 NZLR 211 (CA) Summarized the facts of this case are as follows: The defendant, Waitaki, had been paid money by the plaintiff, National Ba= nk of New Zealand, under the mistaken assumption that the bank owed the money t= o Waitaki. The defendant knew that the payment lacked a legal basis and obj= ected to the payment. The bank insisted and, finally, the defendant accepted th= e payment. The defendant then invested the money, at first in government st= ocks, and then in the property market, where the money was lost. On evidence, t= he defendant Waitaki had positive knowledge of the mistake of the plaintiff = bank. This alone, however, did not suffice to disqualify the defendant from inv= oking the defence of change of position. The Court of Appeal entered into a bal= ancing of equities and took into consideration the relative fault of both the plaintiff and the defendant. Best wishes Florian ________________________ Dr. Florian Mohs, LL.M. University of Basel Faculty of Law Peter Merian-Weg 8 P.O. Box 4002 Basel Switzerland E: florian.mohs@unibas.ch T: +41 61 267 05 20 Zitat von "Duncan Sheehan (LAW)" : > In some cases this would presumably in English law and other common law > systems be treated as change of position or sometimes estoppel, given t= he > emphasis on reliance. If we're going wider than this to the recipient's > impression that he could keep the transfer, do we not risk moving from > looking at whether the transferor was mistaken/in doubt/ignorant whatev= er to > the same question of the transferee. If you dislike the question in rel= ation > to one party why is it easier in relation to the other? Or have I misse= d > something? > > Duncan > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > >-----Original Message----- > >From: Enrichment - Restitution & Unjust Enrichment Legal > >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Du > >Plessis, Jacques, Prof > >Sent: Wednesday, November 28, 2007 3:11 PM > >To: ENRICHMENT@LISTS.MCGILL.CA > >Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law > > > >I am relieved to hear that Duncan is not going after sine causa/absenc= e > >of legal ground as a principle in all cases in all > >jurisdictions. Martin > >has already provided a Scottish perspective. As far as South > >African law > >is concerned, may I briefly add the following. > > > >The South African experience with requiring proof of factors such as > >excusable mistake and compulsion to obtain restitution of transfers > >which were aimed at discharging liability but failed to do so (ie > >transfers which were not not due) has in fact not been a happy > >one. Some > >problems with determining the quality of the mistake or degree of > >compulsion have been similar to those experienced in the common law. A= n > >inability to make these determinations has at times even forced us bac= k > >into the arms of fictional implied contracts, which is clearly > >not where > >we want to be. > > > >At a colloquium recently held in Stellenbosch on the future developmen= t > >of the South African law of unjustified enrichment, there was a clear > >appreciation on the side of many participants that we need to move awa= y > >from the current approach. No-one is saying that a transfer > >which is not > >due must always be recoverable. It is accepted that there are > >circumstances when the recipient should be entitled to retain the > >transfer even though it is not due. The problem is identifying which > >recipient requires such protection. One possible answer is that it is > >the recipient who was brought under the impression that he could keep > >the transfer irrespective of whether it was due or not. Such a test > >avoids necessarily having to determine whether the transferor actually > >or supposedly knew/was in doubt/was ignorant about liability, or havin= g > >to differentiate between the effects of various degrees of > >compulsion/pressure/influence on the transferor's mind; the focus is o= n > >the recipient, and on determining whether his reliance is such that he > >deserves to keep the undue payment. > > > >How does all of this fit in with the sine causa requirement? > >In essence, > >one can say that the failure of the transfer to discharge a due debt > >prima facie means there is no legal basis for its retention; > >but whether > >it ultimately is retained without legal ground depends on whether the > >test above is met. > > > >It would be interesting to hear of situations involving payments which > >are not due where such a test would give rise to unacceptable results, > >compared to an approach which requires that the undue payment must hav= e > >been made under mistake or compulsion. > > > >Best wishes > > > >Jacques du Plessis > > > >Prof Jacques du Plessis > >Faculty of Law > >University of Stellenbosch > >Private Bag X1 > >Stellenbosch 7602 > >South Africa > >Telephone: 0027 (0)21 808 3189 > >Fax: 0027 (0)21 886 6235 > >Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, > >South Africa > > > >____________________________________________________________________ > > 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 sent using IMP, the Internet Messaging Program. ____________________________________________________________________ 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, 28 Nov 2007 23:49:21 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Change of position and relative fault Comments: To: florian.mohs@unibas.ch In-Reply-To: <1196289467.474dedbbda391@webmail.unibas.ch> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; DelSp="Yes"; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: quoted-printable Picking up on Florian's point, it seems to me that cases like Waitaki =20 have something to be said for them despite the Privy Council's =20 rejection of relative fault in Dextra Bank. Where C carelessly pays D =20 by mistake and D has not disenriched himself, the question which =20 arises is whether C or D should now have the benefit which still =20 exists (in D's hands), and in cases like this C's carelessness is not =20 a good reason to let D keep the benefit, whatever D's state of mind, =20 given that C did not truly mean him to have it / there was no legal =20 ground for the transfer. Contrast the case where a good faith D has =20 carelessly disenriched himself: here a different question arises, viz =20 whether C or D should now bear the loss of the benefit which no longer =20 exists in either party's hands. In cases like this the fact that they =20 have both carelessly contributed to the loss of the benefit is a good =20 reason to make them share the loss. In Dextra Bank the PC reasoned =20 that it would be unfair on C to bring his carelessness into account in =20 a relative fault calculation when D tries to raise a C of P defence, =20 given that C's carelessness is ignored when deciding whether he has a =20 prima facie right of recovery, but this strikes me as a non sequitur =20 because the relevance of C's carelessness is different at the cause of =20 action stage and the defences stage. Best wishes, Charles Quoting Florian Mohs : > Dear all > > I agree that there is a certain interrelation between the issues of =20 > mistake and > change of position as to the relevant standard of knowledge of the transfe= ror > and the transferee. > > But is it a risk that we look to both sides of the transaction and =20 > inquire into > both sides' state of mind? I think no. In my view, it is rather a chance. > > For me, a compelling example of a case against an absence of basis-analysi= s > without regard to the transferor=92s state of mind is: > > National Bank of New Zealand v Waitaki International Processing (NI) =20 > Ltd [1999] > 2 NZLR 211 (CA) > > Summarized the facts of this case are as follows: > > The defendant, Waitaki, had been paid money by the plaintiff, =20 > National Bank of > New Zealand, under the mistaken assumption that the bank owed the money to > Waitaki. The defendant knew that the payment lacked a legal basis =20 > and objected > to the payment. The bank insisted and, finally, the defendant accepted the > payment. The defendant then invested the money, at first in =20 > government stocks, > and then in the property market, where the money was lost. On evidence, th= e > defendant Waitaki had positive knowledge of the mistake of the =20 > plaintiff bank. > This alone, however, did not suffice to disqualify the defendant =20 > from invoking > the defence of change of position. The Court of Appeal entered into =20 > a balancing > of equities and took into consideration the relative fault of both the > plaintiff and the defendant. > > Best wishes > > Florian > > ________________________ > Dr. Florian Mohs, LL.M. > University of Basel > Faculty of Law > Peter Merian-Weg 8 > P.O. Box > 4002 Basel > Switzerland > > E: florian.mohs@unibas.ch > T: +41 61 267 05 20 > > > Zitat von "Duncan Sheehan (LAW)" : > >> In some cases this would presumably in English law and other common law >> systems be treated as change of position or sometimes estoppel, given the >> emphasis on reliance. If we're going wider than this to the recipient's >> impression that he could keep the transfer, do we not risk moving from >> looking at whether the transferor was mistaken/in doubt/ignorant whatever= to >> the same question of the transferee. If you dislike the question in relat= ion >> to one party why is it easier in relation to the other? Or have I missed >> something? >> >> Duncan >> >> Dr Duncan Sheehan >> Senior Lecturer in Law >> Director of Research >> Norwich Law School >> University of East Anglia >> Norwich NR4 7TJ >> United Kingdom >> >> >-----Original Message----- >> >From: Enrichment - Restitution & Unjust Enrichment Legal >> >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Du >> >Plessis, Jacques, Prof >> >Sent: Wednesday, November 28, 2007 3:11 PM >> >To: ENRICHMENT@LISTS.MCGILL.CA >> >Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment law >> > >> >I am relieved to hear that Duncan is not going after sine causa/absence >> >of legal ground as a principle in all cases in all >> >jurisdictions. Martin >> >has already provided a Scottish perspective. As far as South >> >African law >> >is concerned, may I briefly add the following. >> > >> >The South African experience with requiring proof of factors such as >> >excusable mistake and compulsion to obtain restitution of transfers >> >which were aimed at discharging liability but failed to do so (ie >> >transfers which were not not due) has in fact not been a happy >> >one. Some >> >problems with determining the quality of the mistake or degree of >> >compulsion have been similar to those experienced in the common law. An >> >inability to make these determinations has at times even forced us back >> >into the arms of fictional implied contracts, which is clearly >> >not where >> >we want to be. >> > >> >At a colloquium recently held in Stellenbosch on the future development >> >of the South African law of unjustified enrichment, there was a clear >> >appreciation on the side of many participants that we need to move away >> >from the current approach. No-one is saying that a transfer >> >which is not >> >due must always be recoverable. It is accepted that there are >> >circumstances when the recipient should be entitled to retain the >> >transfer even though it is not due. The problem is identifying which >> >recipient requires such protection. One possible answer is that it is >> >the recipient who was brought under the impression that he could keep >> >the transfer irrespective of whether it was due or not. Such a test >> >avoids necessarily having to determine whether the transferor actually >> >or supposedly knew/was in doubt/was ignorant about liability, or having >> >to differentiate between the effects of various degrees of >> >compulsion/pressure/influence on the transferor's mind; the focus is on >> >the recipient, and on determining whether his reliance is such that he >> >deserves to keep the undue payment. >> > >> >How does all of this fit in with the sine causa requirement? >> >In essence, >> >one can say that the failure of the transfer to discharge a due debt >> >prima facie means there is no legal basis for its retention; >> >but whether >> >it ultimately is retained without legal ground depends on whether the >> >test above is met. >> > >> >It would be interesting to hear of situations involving payments which >> >are not due where such a test would give rise to unacceptable results, >> >compared to an approach which requires that the undue payment must have >> >been made under mistake or compulsion. >> > >> >Best wishes >> > >> >Jacques du Plessis >> > >> >Prof Jacques du Plessis >> >Faculty of Law >> >University of Stellenbosch >> >Private Bag X1 >> >Stellenbosch 7602 >> >South Africa >> >Telephone: 0027 (0)21 808 3189 >> >Fax: 0027 (0)21 886 6235 >> >Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, Stellenbosch, >> >South Africa >> > >> >____________________________________________________________________ >> > 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 sent using IMP, the Internet Messaging Program. > > ____________________________________________________________________ > 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 Charles Mitchell charles.mitchell@kcl.ac.uk ____________________________________________________________________ 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, 28 Nov 2007 23:50:28 -0000 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: Re: Birksian/sine causa approach to enrichment law MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear All, =20 I think that there may well be something to be gained from a focus on = the recipient's state of mind in changing his position. We should that = way hold the defendant to the same standard as the claimant. Taking a = paradigm mistaken payment as our example, If the claimant is able to = recover even when he has been careless as to the reason for the transfer = in the first place (Kelly v Solari), it seems to me that there would be = an attractive symmetry in applying the same standard to the defendant's = "mistake" in believing that he was entitled to the enrichment and = changing his position as a result of that belief. The facts of and = approach to the defence in Dextra Bank v Bank of Jamaica give an example = of such an approach to the defence (albeit that the Privy Council found = that Dextra had not made a mistake in the first place).=20 =20 But it should be clear that such an approach would go to what = constitutes a "good faith change of position" for the purposes of = establishing a defence to the claim in unjust enrichment. It is not = therefore, in English law, a question of relative fault (rejected by the = Privy Council in Dextra Bank), as the establishment of the claimant's = initial mistake must surely precede the question of the defence to the = claim. Whilst I do not presume to speak on his behalf, Prof McInnes has, = I believe, suggested an analysis along these lines ("Enrichments, = expenses and restitutionary defences" (2002) 118 LQR 209-214; and = "Enrichments and Reasons for Restitution: Protecting Freedom of Choice" = (2003) 48 McGill Law 419, 453-456) and I offer a similar view in = "Changing Position on Change of Position" [2007] 15 RLR 135-141 (please = forgive the self-referencing). =20 Best wishes, =20 James Lee =20 -- James Lee Teaching Fellow School of Law University of Reading Foxhill House, rm. 2.09 Whiteknights Road, Earley Reading RG6 7BA United Kingdom Phone: +44 (0) 118 3785643 Fax: +44 (0) 118 3784543 Email: j.s.lee@reading.ac.uk Web: www.reading.ac.uk/law ________________________________ From: Enrichment - Restitution & Unjust Enrichment Legal Issues on = behalf of Florian Mohs Sent: Wed 28/11/2007 22:37 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] Birksian/sine causa approach to enrichment law Dear all I agree that there is a certain interrelation between the issues of = mistake and change of position as to the relevant standard of knowledge of the = transferor and the transferee. But is it a risk that we look to both sides of the transaction and = inquire into both sides' state of mind? I think no. In my view, it is rather a = chance. For me, a compelling example of a case against an absence of = basis-analysis without regard to the transferor's state of mind is: National Bank of New Zealand v Waitaki International Processing (NI) Ltd = [1999] 2 NZLR 211 (CA) Summarized the facts of this case are as follows: The defendant, Waitaki, had been paid money by the plaintiff, National = Bank of New Zealand, under the mistaken assumption that the bank owed the money = to Waitaki. The defendant knew that the payment lacked a legal basis and = objected to the payment. The bank insisted and, finally, the defendant accepted = the payment. The defendant then invested the money, at first in government = stocks, and then in the property market, where the money was lost. On evidence, = the defendant Waitaki had positive knowledge of the mistake of the plaintiff = bank. This alone, however, did not suffice to disqualify the defendant from = invoking the defence of change of position. The Court of Appeal entered into a = balancing of equities and took into consideration the relative fault of both the plaintiff and the defendant. Best wishes Florian ________________________ Dr. Florian Mohs, LL.M. University of Basel Faculty of Law Peter Merian-Weg 8 P.O. Box 4002 Basel Switzerland E: florian.mohs@unibas.ch T: +41 61 267 05 20 Zitat von "Duncan Sheehan (LAW)" : > In some cases this would presumably in English law and other common = law > systems be treated as change of position or sometimes estoppel, given = the > emphasis on reliance. If we're going wider than this to the = recipient's > impression that he could keep the transfer, do we not risk moving from > looking at whether the transferor was mistaken/in doubt/ignorant = whatever to > the same question of the transferee. If you dislike the question in = relation > to one party why is it easier in relation to the other? Or have I = missed > something? > > Duncan > > Dr Duncan Sheehan > Senior Lecturer in Law > Director of Research > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > >-----Original Message----- > >From: Enrichment - Restitution & Unjust Enrichment Legal > >Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Du > >Plessis, Jacques, Prof > >Sent: Wednesday, November 28, 2007 3:11 PM > >To: ENRICHMENT@LISTS.MCGILL.CA > >Subject: Re: [RDG] RDG: Birksian/sine causa approach to enrichment = law > > > >I am relieved to hear that Duncan is not going after sine = causa/absence > >of legal ground as a principle in all cases in all > >jurisdictions. Martin > >has already provided a Scottish perspective. As far as South > >African law > >is concerned, may I briefly add the following. > > > >The South African experience with requiring proof of factors such as > >excusable mistake and compulsion to obtain restitution of transfers > >which were aimed at discharging liability but failed to do so (ie > >transfers which were not not due) has in fact not been a happy > >one. Some > >problems with determining the quality of the mistake or degree of > >compulsion have been similar to those experienced in the common law. = An > >inability to make these determinations has at times even forced us = back > >into the arms of fictional implied contracts, which is clearly > >not where > >we want to be. > > > >At a colloquium recently held in Stellenbosch on the future = development > >of the South African law of unjustified enrichment, there was a clear > >appreciation on the side of many participants that we need to move = away > >from the current approach. No-one is saying that a transfer > >which is not > >due must always be recoverable. It is accepted that there are > >circumstances when the recipient should be entitled to retain the > >transfer even though it is not due. The problem is identifying which > >recipient requires such protection. One possible answer is that it is > >the recipient who was brought under the impression that he could keep > >the transfer irrespective of whether it was due or not. Such a test > >avoids necessarily having to determine whether the transferor = actually > >or supposedly knew/was in doubt/was ignorant about liability, or = having > >to differentiate between the effects of various degrees of > >compulsion/pressure/influence on the transferor's mind; the focus is = on > >the recipient, and on determining whether his reliance is such that = he > >deserves to keep the undue payment. > > > >How does all of this fit in with the sine causa requirement? > >In essence, > >one can say that the failure of the transfer to discharge a due debt > >prima facie means there is no legal basis for its retention; > >but whether > >it ultimately is retained without legal ground depends on whether the > >test above is met. > > > >It would be interesting to hear of situations involving payments = which > >are not due where such a test would give rise to unacceptable = results, > >compared to an approach which requires that the undue payment must = have > >been made under mistake or compulsion. > > > >Best wishes > > > >Jacques du Plessis > > > >Prof Jacques du Plessis > >Faculty of Law > >University of Stellenbosch > >Private Bag X1 > >Stellenbosch 7602 > >South Africa > >Telephone: 0027 (0)21 808 3189 > >Fax: 0027 (0)21 886 6235 > >Courier: Ou Hoofgebou,c/o Ryneveldt & Andringa Streets, = Stellenbosch, > >South Africa > > > >____________________________________________________________________ > > 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 sent using IMP, the Internet Messaging Program. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Fri, 30 Nov 2007 11:39:34 +0200 Reply-To: "Du Plessis, Jacques, Prof " Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Du Plessis, Jacques, Prof " Subject: Re: Birksian/sine causa approach to enrichment law In-Reply-To: A<1196289467.474dedbbda391@webmail.unibas.ch> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable I fully agree with the view that one should be wary of restricting the recoverability of transfers which are not due. But the proposed reliance-based test would certainly not exclude recovery in all the reckless payment cases. Let's look at Florian's example. The bank may indeed have been reckless in its insistence that the amount is due; but it can be doubted whether the bank created the impression that the payment may be kept irrespective of whether it is due or not. So, the claim should be allowed, but subject to the change of position defence. Allowing the change of position defence can of course also be justified on reliance-based grounds, but it is a distinct, separate stage in the process: the recipient's reliance may not have been sufficiently strong to exclude the claim altogether (stage 1), but this does not make it irrelevant; the reliance could still be protected, though to a lesser extent, through only making the recipient liable for value remaining (stage 2).=20 Let me just add the following. I am not arguing that evidence relating to transferor's state of mind (inasmuch as it is really ascertainable) and associated conduct is irrelevant in deciding whether there should be a claim. It can be part of the relevant facts when establishing whether there is a reliance worthy of protection. But it is one thing to be a relevant fact in deciding whether an undue payment is recoverable, and another to be a requirement for recovery.=20 Jacques Prof Jacques du Plessis Faculty of Law University of Stellenbosch Private Bag X1 Stellenbosch Matieland 7602 South Africa ____________________________________________________________________ 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, .