Date: Sun, 14 Jan 1996 15:20:44 -0500 (EST) Date-warning: Date header was inserted by HULAW1.HARVARD.EDU From: brian francis fitzgerald Subject: restitution Ozified X-Sender: bfitzger@pop.law.harvard.edu To: restitution@majordomo.srv.ualberta.ca Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca I have just received here in Cambridge MA the latest volume (18 no 2) of the University of Queensland Law Journal (UQLJ) which I have an article in. Much to my surprise it arrives with three pieces on ue. One by Burrows (an overview of ue), one by myself (ownership as the proximity or privity principle in ue) one by Peter Bulter (on Royal Insurance). This is a great effort for our Aussie publishers as I think the last time we had more than one ue article in a journal was when Birks and Butler published a couple of articles in 1990? UQLJ. I think it is great to see UQLJ (Clive Turner) being so supportive and of course Peter Butler! A description of life at Harvard. Snow falls and falls.... Cheers Brian Fitzgerald Date: Fri, 19 Jan 1996 10:40:11 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Robert Chambers Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Greetings to all, and welcome to new members! Robert Chambers, who has just finished his D.Phil. at Oxford in the area of resulting trusts, is off today with his family to the fair city of Melbourne, where he will be taking up a post at the Faculty of Law at Melbourne University. I hope everyone will join me in wishing Robert and his family all the best in their new country. The Chambers have chosen a great time to move. They leave Edmonton during a record-breaking cold snap (the high yesterday was -40 degrees) and move to Melbourne at the height of summer. I could use a 70-degree Celsius swing right about now. Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 From: "Berta E. Hernandez" Organization: St. John's University School of Law To: frenkiel@tribeca.ios.com (Ary Frenkiel), restitution@majordomo.srv.ualberta.ca Date: Thu, 25 Jan 1996 23:55:24 EST Subject: Re: restitution Priority: normal Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca I am interested in investigating whether there is an emerging duty to make restitution for properties taken. Ultimately I would like to see if such obligation might apply to nationalizations such as took place in Cuba. I would appreciate it if you could share with me any available sources for the premise of an obligation to make restitution. My sense is that most materials would be from Germany & Italy re takings as well as from other Eastern European states. Thanks in advance for your help. Saludos. Berta 0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+ + Berta Esperanza Hernandez 0 0 Professor of Law + + St. John's University School of Law 0 0 8000 Utopia Parkway + + Jamaica, N.Y. 11439 U.S.A. 0 0 Tel: 718-990-6428 + + Fax: 718-591-1855 0 0 e-mail: bhernand@sjulaw.stjohns.edu + +0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0 From: lsmith@LAW.UALBERTA.CA Date: Fri, 26 Jan 1996 01:42:14 +0100 To: liosmith@gpu.srv.ualberta.ca Subject: BOUNCE restitution@majordomo.srv.ualberta.ca: Non-member submission from [birks@sable.ox.ac.uk (Peter B.H. Birks)] -Forwarded Date: 1/26/1996 9:40 am (Friday) From: JUDGE.SMTP."owner-restitution@majordomo.srv.ualberta.ca" To: JUDGE.SMTP("owner-restitution@majordomo.srv.ualberta.ca") Subject: BOUNCE restitution@majordomo.srv.ualberta.ca: Non-member submission from [birks@sable.ox.ac.uk (Peter B.H. Birks)] Received: (from majordom@localhost) by quartz.ucs.ualberta.ca (8.7.1/8.7.1) id BAA20377; Fri, 26 Jan 1996 01:40:09 -0700 >From lsmith@law.ualberta.ca Fri Jan 26 01:40:07 1996 Received: from oxmail3.ox.ac.uk (oxmail3.ox.ac.uk [163.1.2.9]) by quartz.ucs.ualberta.ca (8.7.1/8.7.1) with ESMTP id BAA20116 for ; Fri, 26 Jan 1996 01:40:03 -0700 Received: from sable.ox.ac.uk by oxmail3 with SMTP (PP); Fri, 26 Jan 1996 08:39:49 +0000 Received: from pbirks ([163.1.128.118]) by sable.ox.ac.uk (1.5/8.6.12) with SMTP id IAA13479 for ; Fri, 26 Jan 1996 08:39:46 GMT Message-Id: <199601260839.IAA13479@sable.ox.ac.uk> X-Sender: birks@SABLE.OX.AC.UK Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 26 Jan 1996 09:34:44 +0000 To: restitution@majordomo.srv.ualberta.ca From: birks@sable.ox.ac.uk (Peter B.H. Birks) Subject: Re: restitution X-Mailer: NISSAN V. ATTORNEY - GENERAL [1968] 1 QB 286 BURMAH OIL V. LORD ADVOCATE [1965] AC 75 THESE ARE THE FOUNDATION CASES IN THE UK> >I am interested in investigating whether there is an emerging duty to >make restitution for properties taken. Ultimately I would like to >see if such obligation might apply to nationalizations such as took >place in Cuba. I would appreciate it if you could share with me any >available sources for the premise of an obligation to make >restitution. My sense is that most materials would be from Germany & >Italy re takings as well as from other Eastern European states. >Thanks in advance for your help. Saludos. Berta > > > >0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+ >+ Berta Esperanza Hernandez 0 >0 Professor of Law + >+ St. John's University School of Law 0 >0 8000 Utopia Parkway + >+ Jamaica, N.Y. 11439 U.S.A. 0 >0 Tel: 718-990-6428 + >+ Fax: 718-591-1855 0 >0 e-mail: bhernand@sjulaw.stjohns.edu + >+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0 > > Date: Fri, 26 Jan 1996 10:38:34 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Restitution for Properties Taken Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Berta E. Hernandez wrote: >I am interested in investigating whether there is an emerging duty to >make restitution for properties taken. Ultimately I would like to >see if such obligation might apply to nationalizations such as took >place in Cuba. I would appreciate it if you could share with me any >available sources for the premise of an obligation to make >restitution. My sense is that most materials would be from Germany & >Italy re takings as well as from other Eastern European states. >Thanks in advance for your help. Saludos. Berta Nissan V. Attorney - General [1968] 1 QB 286 Burmah Oil V. Lord Advocate [1965] AC 75 These are the foundation cases in the UK. Peter Birks Date: Sat, 27 Jan 1996 09:20:02 -0500 (EST) From: bfitzger@hulaw1.harvard.edu Subject: Re: restitution To: restitution@majordomo.srv.ualberta.ca Cc: Ary Frenkiel , restitution@majordomo.srv.ualberta.ca Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Berta I think the area you are touching on is very interesting and important. Exploring the relationship of unjust enrichment and public law. The following may help: 1) Chapter in my forthcoming text, Australian Constitutional Law and Theory - chapter titled "Unjust Enrichment as a Principle of Australian Constitutionalism" (not to be confused with the casebook that has just been published). I can send you a copy if you want. It looks at recent Australian cases where the highest court has meshed restitution and takings jurisprudence - very interesting. 2) Article by Heslop et al in 1993 Boston University Law Review - comprehensive study of Eastern Europe and bringing in international law as well - a great start for your project. Good old BU! I remember reading a BU article while at Oxford - something Dawson had written. 3) Note though the meshing of the private law concept of unjust enrichment and a public law analogy must be done with care. In public law no right is absolute - it is always subject to modification in the public interst (proportionality and all that). So if you start saying you want restitution against any public type organisation remember the general principle in public law is that no right is absolute - I think the German constitution says this explicitly re takings. The private law school think this is a bit odd and from what I have seen written on Woolwich in countries that do have a written constitution, there is some confusion here. If in doubt on this consider my article "Ultra Vires and Unjust Enrichment" (1993) 2 Griffith Law Review 1 or something more general like the Manitoba Legislation case of 1985 (which talks in terms of the rule of law), or even EC cases like Sabena. In the UK where there is no written constitution and parliamentary sovereignty it is much easier to assert that a common law right is absolute until taken away by parl. This differing public and private form of restiution might also suggest a closer look at the arguments on whether unjust enrichment is corrective or distributive justice. On which see Wendy Gordon's works (Boston), Jules Coleman (Yale), Ernest Weinrib (Toronto). 4) Do not forget the classic text of Wolfgang Friedmann Changing Structures in International Law (1964) Columbia Univ Press - which has some good theoretical material on unjust enrichment and international law. 5) Many constitutions have the obligation built in - section 51 (31) the Aust constitution is a great example - it has been interpreted in recent cases as embodying a principle of restitution for unjust enrichment. 6) I am not an expert on the US takings jurisprudence. M Radin's book or is it Carol Rose? have some interesting thoughts on property and takings. Great topic! Cheers Brian Fitzgerald On Thu, 25 Jan 1996, Berta E. Hernandez wrote: > > I am interested in investigating whether there is an emerging duty to > make restitution for properties taken. Ultimately I would like to > see if such obligation might apply to nationalizations such as took > place in Cuba. I would appreciate it if you could share with me any > available sources for the premise of an obligation to make > restitution. My sense is that most materials would be from Germany & > Italy re takings as well as from other Eastern European states. > Thanks in advance for your help. Saludos. Berta > > > > 0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+ > + Berta Esperanza Hernandez 0 > 0 Professor of Law + > + St. John's University School of Law 0 > 0 8000 Utopia Parkway + > + Jamaica, N.Y. 11439 U.S.A. 0 > 0 Tel: 718-990-6428 + > + Fax: 718-591-1855 0 > 0 e-mail: bhernand@sjulaw.stjohns.edu + > +0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0+0 > Date: Sat, 27 Jan 1996 14:19:04 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: Re: restitution Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Berta E. Hernandez wrote: >I am interested in investigating whether there is an emerging duty to >make restitution for properties taken. Ultimately I would like to >see if such obligation might apply to nationalizations such as took >place in Cuba. Berta, Here is a copy of a posting to this list from several weeks ago: "Ary Frenkiel writes: >I am working in a relatively new field in restitution, namely the >restitution of properties (immovable) seized by the Nazi regime from >1933-1945 in Germany. As you all may be aware,the FRG,after the fall of the >Wall,started a programme of such restitution to people who qualify. >My question to you is, where can I acccess documents on the web relating to >such legislation. The search engines I use for the Web are: Lycos (http://www.lycos.com/), Webcrawler (http://webcrawler.com/), and Infoseek (http://www2.infoseek.com). Sites which may be of assistance to you include: http://langlab.uta.edu/germ/gic/gic_search.html (a search engine for material, in English and German, at the German Information Centre) http://fub46.zedat.fu-berlin.de:8080/~stummel/Jura.html (this is supposed to provide access to a search engine for German legal issues in German) http://seamless.com/bzt/index.html (this is the home page for Bender Zahn Tigges, which claims to be the first German law firm on the Web. Their info indicates that they do work relating to "property restitution." Maybe someone there can help you out). If you are interested in comparative work with the situation in South Africa (where land confiscated under the apartheid regime is subject to restitution), you might look at the following: http://www.os2.iaccess.za/jutastat/constit/chap8.htm (chapter 8 of the new constitution which includes the restitution provisions in ss 121-123) http://www.polity.org.za/gnuindex.html (an index of material for the current government, including documents on restitution) http://www.polity.org.za/lists/govnotices.html (includes a notice about the application of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994))." I would also add a point which may be of more direct interest to you than it was to Ary Frenkiel. Professer Daniel Visser of the University of Cape Town gave a paper at the 1994 meeting of the SPTL called "Giving Back the Country" which explains the South African position. I do not know if it has since been published, but I could send you a copy. Hope this helps. Lionel Smith Faculty of Law University of Alberta 403 492 2599; Fax 403 492 4924 Date: Sat, 27 Jan 1996 15:48:19 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution Knowing Assistance Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Hi everyone, I am desparately trying to remember where I recently read something. In a recent article someone referred to knowing assistance liability and then in a footnote said something like, "Nearly every major law journal has recently published an article on this subject." There then followed a wonderful catalogue of recent articles on the point. Does this ring a bell with anyone? Thanks, Lionel Smith Faculty of Law, University of Alberta Edmonton, Alberta, Canada T6G 2H5 Tel 403 492 2599; Fax 403 492 4924 From: lsmith@LAW.UALBERTA.CA Date: Tue, 30 Jan 1996 03:39:20 +0100 To: liosmith@gpu.srv.ualberta.ca Subject: -Forwarded Date: 1/30/1996 3:39 am (Tuesday) From: JUDGE.SMTP."mcadamsl@rferl.org" To: JUDGE.SMTP("Lionel.Smith@UAlberta.CA") Received: from stout.ucs.ualberta.ca by bock.ucs.ualberta.ca with ESMTP (8.6.5/UA3.0.0June95) id DAA26937 for ; Tue, 30 Jan 1996 03:38:42 -0700 Received: (from httpd@localhost) by stout.ucs.ualberta.ca (8.7.3/8.6.9) id DAA107496 for lsmith@law.ualberta.ca; Tue, 30 Jan 1996 03:38:43 -0700 Date: Tue Jan 30 03:38:42 MST 1996 Reply-to: mcadamsl@rferl.org (lisa mcadams) ------------------------------------------------------------ dr. smith: i am a correspondent at radio free europe in prague working on a story about the possible linkage of eu membership for east european states to resitution of property. i would be interested in any leads / info you could provide in this area. particularly, noteworthy experts i could contact for phone interviews. thank you in advance for your attention. cheers, lam ------------------------------------------------------------ Server protocol: HTTP/1.0 Remote host: nca5.rferl.org Remote IP address: 192.135.216.65 Sent via Web forms mail app /www/cgi-bin/Mailer.pl from stout