Date: Wed, 4 Oct 1995 11:53:01 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@gpu.srv.ualberta.ca (Lionel Smith) Subject: restitution Technical Notes Sender: owner-restitution@quartz.ucs.ualberta.ca Reply-To: restitution@quartz.ucs.ualberta.ca This is a follow up to my "welcome to the restitution group" message of Saturday 30 September. First, welcome to the several people who have signed up since then and who therefore did not get that message. There has been a strong Antipodean influx. Second, two technical notes. The computer boffins here have been working on some changes to the list and finished them just this weekend. 1. The list server will now automatically add the word "restitution" to the beginning of the Subject line of all postings before it distributes them. This allows you to identify which messages in your mailbox are from this discussion group, before you even open them. You may have noticed this on David Stevens's inaugural posting. (Thank you David!) It is still a good idea to put something in your Subject line when you post a message. In fact, for boffiny reasons, the prefix will not be applied if the subject line is left blank (as it was in my message of Saturday). 2. The list server now also modifies the posting in an attempt to make it possible simply to use the "reply" function of your mail program to send a posting to the server. The idea is that if you are reading someone else's posting and choose "reply", your mailer will set up a message to the list server, and not a personal message to the person who wrote the posting you are reading. Note however that this does not seem to work with all mail programs, eg it works with Eudora on the Mac but not with WordPerfect Office Mail under DOS (those are the only two I have tested). You will have to try it yourself to see what happens. Eg if you choose "reply" for this message, and your program sets up a message to "liosmith@gpu.srv.ualberta.ca", then it doesn't work for you. If on the other hand it sets up a message to "restitution@quartz.ucs.ualberta.ca" then it works and your reply will go as a posting. "But," (you say) "you told us that to send a posting it has to go to 'restitution@majordomo.srv.ualberta.ca'!" Indeed I did, and it does. More boffiny reasons. Either one will work. Note that the "info" file which you got when you subscribed says that you cannot use the reply function to make a posting. That info file has now been modified to reflect this change. You can get a new copy of it by sending a message to "majordomo@majordomo.srv.ualberta.ca", leaving the subject line blank, and putting in the message body (on its own line) "info restitution". If all of this gives you a headache, please ignore it. Many thanks and I look forward to reading your postings. Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Mon, 9 Oct 1995 10:57:50 +1000 X-Sender: mmcinnes@mail-g.deakin.edu.au To: restitution@quartz.ucs.ualberta.ca From: mmcinnes@deakin.edu.au (Mitchell McInnes) Subject: restitution Course Organisation Sender: owner-restitution@quartz.ucs.ualberta.ca Reply-To: restitution@quartz.ucs.ualberta.ca It's great to see that Dr Smith's efforts have already begun to bear fruit. I'd like to join David Stevens by adding my thanks to Lionel for setting up the discussion group. In response to David Stevens' question regarding the structure of restitution courses, I thought I'd mention the approach that I've taken. The basic structure looks like this: A. Overview 1. The Nature of the Law of Restitution 2. Historical Basis of the Law of Restitution 3. Acceptance of the Concept of Unjust Enrichment B. The Concept of Unjust Enrichment 4. Enrichment 5. At the Plaintiff's Expense 6. Unjust Factors C. Remedies 7. Remedies D. Bars And Defences 8. Bars and Defences E. Instances of Enrichment By Subtraction 9. Mistake 10. Necessitous Intervention (Various Unjust Factors) 11. Compulsion (Various Unjust Factors) 12. Ineffective Contracts (Various Unjust Factors) F. Instances of Enrichment By Wrongs 13. Benefits Acquired Through Wrongful Acts I've found that it's useful to provide students with a theoretical understanding of the law of restitution because (especially in Australia) so many fundamental issues have yet to be conclusively settled. Moreover, it seems that if the students understand the theory of unjust enrichment from the outset, the specific instances of recovery can be analysed with (reasonably) little difficulty. In fact, the theory provided in the first part of the year largely allows them to independently work through the specific instances of recovery and non-recovery in Parts E and F. It similarly seems useful to place the chapter on defences early in the course, rather than at the end, where it often is found. That way, when examining the specific instances of claims, students are able to fully analyse the cases and understand why relief may be denied even though the plaintiff has established the first three elements of the UE principle and thereby established a prima facie claim to relief. A final note on the syllabus. Some obvious areas are omitted because they are sufficiently covered in other courses. Mitchell McInnes Date: Mon, 16 Oct 1995 16:24:03 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@gpu.srv.ualberta.ca (Lionel Smith) Subject: restitution New Restitution Law Review Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Members of the discussion group will be interested to know that the 1995 issue of the Restitution Law Review is now out. It contains four articles, four case comments, regional digests from nine jurisdictions (including now the US), an English language report of _Adras Ltd. v. Harlow & Jones_ (the important decision of the SC of Israel on disgorgement of the profits of breach of contract), an extract from the Civil Code of Quebec, a review of the English Law Commission's new Report on Mistakes of Law, and five book reviews. This is the largest issue yet of the RLR. Anyone interested in subscribing or submitting to the RLR who has access to the World Wide Web can take a look at this page: http://gpu.srv.ualberta.ca/~liosmith/rlr.html If you do not have access to the Web and would like information about the RLR, drop me a line. Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Thu, 26 Oct 1995 15:26:42 -0700 To: restitution@quartz.ucs.ualberta.ca From: liosmith@gpu.srv.ualberta.ca (Lionel Smith) Subject: restitution Course Organisation Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Hello to all. The restitution discussion group continues to grow. With members joining in the US and Singapore, we are now up to over 50 members. I would like to respond to Mitchell McInnes's posting regarding the structure of the course. I agree wholeheartedly that a careful overview (with historical background) is appropriate at the start of the course. I was extremely interested to learn that Mitchell considers defences and remedies before going into the "unjust factors," ie the grounds for restitution. On those points, I have a more traditional approach (if anything is traditional in restitution) in which I consider subtractive unjust enrichment before remedies and defences. I take Mitch's point, however, that it is easier to get a "big picture" when you are aware of the defences. In fact, although formally we have not got to defences yet, I have long ago taken the time to explain the nature of the defence of change of position. Without an awareness of that, the law of restitution can look too plaintiff-biased. This year, however, I decided to address the unjust factors before the question of whether the defendant was enriched and whether it was at the plaintiff's expense. Logically, those questions probably precede a consideration of the unjust factor, but they are very abstract (services as enrichments, three-party cases etc) and I think are easier to understand when the grounds for restitution are in place. A skeleton of my syllabus looks like this. Those who have seen the Restitution Research Resource will see that I have drawn on it: Part One: Introduction I. Nature of the Subject II. Organization of the Subject III. History Part Two: Autonomous Unjust Enrichment I. Unjust Factors 1. No Intention to Transfer Wealth (a) Ignorance (b) Mistake (i) Induced Mistake (Misrepresentation) (ii) Spontaneous Mistake (iii) Mistake of Law (c) Compulsion by the Payee (i) Recovery from Payee (ii) Recovery from Person Primarily Liable (d) Ultra Vires Demands by a Public Authority (e) Compulsion by Circumstances (i) Recovery from Recipient (ii) Recovery from Person Primarily Liable (f) Inequality of Bargaining Power 2. Conditional Intention to Transfer Wealth (a) No Contract (b) Anticipated Contract Which Does Not Arise (c) Frustrated Contract (d) Discharged Contract 3. Unconscientious Receipt 4. Is an Unjust Factor Needed? II. Was the Defendant Enriched? 1. Discharge of an Obligation Owed by the Defendant 2. Services and Improvements III. Was the Enrichment at the Expense of the Plaintiff? IV. Personal or Proprietary Restitution? V. Tracing VI. Domestic Context; Unjust Sacrifice VII. Defences 1. Change of Position and Estoppel 2. Agent's Accounting Defence 3. Bona Fide Purchase 4. Passing On 5. Illegality 6. Counter Restitution is Impossible 7. Limitation Part Three: Restitution for Wrongs I. Breach of Fiduciary Obligation II. Breach of Confidence III. Torts IV. Intellectual Property V. Breach of Contract VI. Crime Part Four: Comparative Aspects This is for an undergraduate course which lasts for one 13-week term, three hours a week. Anyone who would like to see the full syllabus and who has access to the World Wide Web can find it at: http://gpu.srv.ualberta.ca/~liosmith/restitution.html If you do not have access to the Web and would like a copy, by email or snail mail, drop me a line. I might add that I have always thought that a great introduction to the subject is Lord Denning's review of the first edition of Goff & Jones, which is at (1967) 83 LQR 277. This 2-page review is the first item on my reading list. Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Mon, 30 Oct 1995 20:51:21 +0100 To: restitution From: liosmith@pop.srv.ualberta.ca (Lionel Smith) Subject: Free Acceptance Cc: Bcc: X-Attachments: Hello to all, and welcome to the new members who have joined over the past few days. Recently a friend in Adelaide sent me a new case (Angelopolous v. Sabatino) in which the SC of South Australia (Full Ct) allowed a claim for improvements to property on the basis of free acceptance (or "acceptance", as Doyle CJ seemed to prefer calling it). In consultation with the computer people here, I have made some modifications to this mailing list which will add a new level of functionality. It can now be used for the distribution of text files. The way it works is this. There is now a directory on the server which is linked to this list. Any files in that directory are accessible by members of this mailing list. In order to determine which files are accessible, you need to send an email to the server at majordomo@majordomo.srv.ualberta.ca Leave the subject line blank, and in the body of the message put index restitution The server will send you an email with a list of files available. (It is a bit messy because it is a UNIX based server.) The first item on the list is "restfiles". That is not a file, but rather the directory in which all of the other files are located. The files are listed after that. Right now, there is only one; it is called "sabatino.txt". So you don't really need to perform the "index" command unless you want to try it out. Now comes the good part. You can order that file and receive it by email. Again, you send a command to the server, at majordomo@majordomo.srv.ualberta.ca Leave the subject line blank, and in the body of the message put get restitution restfiles/sabatino.txt The command is "get"; "restitution" is the name of this mailing list; and the "restfiles/sabatino.txt" is the pathname to the file you want. The server will then email the file to you. It is about 15 pages long and so it will be broken into two parts; in other words you will get two separate emails. But you will have the case in electronic form. This feature has a lot of potential. If anyone has any sort of information in electronic form which they would like to make available to the other members of the list, simply drop me a line and we can add it to this directory. The "info" file which everyone gets upon joining has now been modified to include information about this new function. If you wish, you can get an updated copy by sending an email to the server (majordomo@majordomo.srv.ualberta.ca), writing in the body of the message info restitution Remember that if you want to send a posting to go to other members (rather than a command to the server), you need to send it to restitution@majordomo.srv.ualberta.ca That's it for now!