Date: Fri, 7 Jun 1996 10:26:44 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution WD at last Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Greetings to all, I have finally got the text of Westdeutsche Landesbank Girozentrale v Islington L.B.C. up on the list. For those not familiar with it, it is a decision of the House of Lords of 22 May 1996. The plaintiff bank and the defendant local council entered into an interest rate swap transaction later declared void as ultra vires the defendant. The plaintiff sought to recover money paid by it under the swap, with compound interest. In order to bolster its claim to compound interest, the plaintiff argued that the money was held by the defendant as a fiduciary under a resulting trust. The House, by a 3-2 majority, allowed only simple interest, rejecting the trust argument and overruling Sinclar v Brougham [1914] AC 398 in the process. You can get the case by sending an email to majordomo@majordomo.srv.ualberta.ca (nb not restitution@majordomo.srv.ualberta.ca); leave the subject blank and put in the body of the message get restitution restfiles/wd.txt The case will come as an email. If your mailer is like mine (Eudora Light) the case will probably get broken into a number of messages (perhaps nine) because it is rather long. This method of distribution allows only text without any fancy formatting. Thus eg quotations from other cases are not indented (although they are clearly marked by quotation marks) and the names of cases are not italicized etc. For ease of quotation from the judgment, however, I have (1) inserted marks to show the transcript page numbers; thus [23] shows the start of p 23 in the official transcript; (2) marked any underlining in the original speeches _like this_. Note that the case has now been reported in the Times (30 May) which is accessible on the Web (http://www.the-times.co.uk/), but of course this only gives a summary of the main points. I have also made available another case, F. C. Jones & Sons (Trustees in Bankruptcy) v. Jones, a recent judgment of the English Court of Appeal (I do not have the exact date but think it was in March). One of the bankrupt partners wrote a cheque drawn on a partnership account in favour of his wife, after the act of bankruptcy and therefore after all of the partnership property had vested in the trustee in bankruptcy. The wife used the money to speculate successfully in futures. The court (through Millett LJ) held that the trustee in bankruptcy could take the traceable proceeds (in the form of a bank account in the wife's name), including the profits, on the strength of a purely common law claim. The case would be unremarkable except for its being decided without regard to any trust theory or any use of equity; Millett LJ said that the trustee could have sued the bank at common law on the account, even though the account was in the wife's name. To get this case, email as above except put get restitution restfiles/jones.txt You can order both cases with one email, just be sure each "get" command is on a separate line in your message. Lionel Smith From: "GP. McMeel" Subject: restitution Casebook on Restitution To: restitution@majordomo.srv.ualberta.ca Date: Tue, 11 Jun 1996 08:53:29 +0100 (BST) Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca This is just a note to inform subscibers to this list that this month sees the publication of my "Casebook on Restitution". This is intended for the use of undergraduates and others studying Restitution and Obligations. It is a book on English law, although I have tried to take account of some of the developments in the High Court of Australia. (Apologies to the founder of this mailing list, but limited knowledge prevented me from trying to keep up with the Canadian courts). Some of you may have already seen promotional literature and ordered (or posssibly received) inspection copies. If you have not yet please do so. The publishers (Blackstone's) are very generous with Lecturer's copies. They can be contacted as follows: Blackstone Press 9-15 Aldine Street London W12 8AW Phone: 0181 740 1173 Fax: 0181 743 2292 Inevitably the book is already a bit out of date. No Westdeusche in the Lords, not to mention Millett LJ's most recent foray. Those two decisions will be giving us all a bit to think about over the summer. (My initial view is that the majority i the Lords got it absolutely right: no proprietary interest; no fiduciary relationship; no compound interest - we must avoid the desire to over-reward restitutionary plaintiffs - and confine Sinclair v Brougham to the dustbin of intellectual wrong turnings in the law. I hope to develop these "thoughts" later, but that may start the ball rolling!) As regards the book I hope it may be of some use to you and especially your students. All feedback gratefully received, whether by traditional means or over the Net. Best Wishes Gerard McMeel Lecturer in Law University of Bristol (Gerard.McMeel@bris.ac.uk) 11 June 1996 Date: Thu, 13 Jun 1996 09:34:22 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: Re: restitution Casebook on Restitution Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Congratulations to Gerard McMeel on what appears to be the first commercially produced restitution casebook! I am looking forward to seeing it. Gerard: any chance you could post a summary of the table of contents so we can get a feel for the structure? Gerard wrote: >(Apologies to the >founder of this mailing list, but limited knowledge prevented me from >trying to keep up with the Canadian courts). No apologies necessary. It really is kind of a whole different game over here. Lionel From: "GP. McMeel" Date: Fri, 14 Jun 1996 09:32:36 BST Subject: restitution Restitution Casebook To: restitution@majordomo.srv.ualberta.ca Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Thanks to Lionel Smith and to Paul Todd for their emails. With respect to Paul Todd's enquiry I have arranged for Blackstones to send promotional material to those interested in Property and Trusts as well those in interested in Obligations and Restitution per se. I have happy to provide further details of the book for subscribers to the list. The Table of Contents is as follows: CHAPTER 1: INTRODUCTION Section 1: The Principle of Unjust Enrichment A: The Components of a Restitution Claim B: Implied Contract or Unjust Enrichment? C: A Short History of Restitution D: Contract and Restitution E: Direct and Indirect Recipients/Two party and Three party Configurations Section 2: Restitutionary Techniques A: In rem and in personam B: Terminology Section 3: Tests of Enrichment CHAPTER 2: MISTAKE Section 1: Money paid under a Mistake of Fact Section 2: Money paid under a Mistake of Law Section 3: Services Rendered Under a Mistake Section 4: Rescission for Mistake and Misrepresentation A: Rescission for Misrepresentation B: Rescission for Mistake Section 5: Is Ignorance a Restitutionary Cause of Action? CHAPTER 3: COMPULSION Section 1: Benefits Conferred Under Duress A: Duress to the Person B: Duress of Goods C: Economic Duress D: 'Lawful act' duress? Section 2: Benefits Obtained as a Result of Undue Influence Section 3: Inequality Section 4: Legal Compulsion A: Recoupment B: Contribution Section 5: Necessity or Moral Compulsion A: Authorities Favouring Restitution B: Authorities Hostile to Restitution C: A General Principle? CHAPTER 4: FAILURE OF CONSIDERATION Section 1: Contracts Discharged by Breach A: Recovery of Money by the Innocent Party B: Recovery of Non-money Benefits by the Innocent Party C: Recovery of Money by the Party in Breach D: Recovery of Non-money Benefits by the Party in Breach Section 2: Contracts Discharged by Frustration A: The Common Law B: The Act Section 3: Restitution and Pre-Contractual Liability Section 4: Void and Unenforceable Contracts A: Void Contracts B: Contracts Unenforceable Due to Lack of Formality Section 5: Free Acceptance. CHAPTER 5: RESTITUTION AND PUBLIC LAW Section 1: The Woolwich Case Section 2: The Swaps Case CHAPTER 6: RESTITUTION AND THE LAW OF WRONGS Section 1: Restitution and Torts A: Waiver of Tort B: Restitutionary Damages? Section 2: Restitutionary Damages for Breach of Contract? Section 3: Breach of Fiduciary Duty Section 4: Breach of Confidence Section 5: Accessory Liability in Equity CHAPTER 7: TRACING AND PROPRIETARY REMEDIES Section 1: Tracing at Common Law Section 2: Tracing in Equity A: The Relationship between Tracing and Knowing Receipt B: The Tracing Rules Section 3: Proprietary Remedies CHAPTER 8: DEFENCES Section 1: Bona Fide Purchase Section 2: Change of Position and Estoppel A: Estoppel B: Ministerial Receipt C: Change of Position Section 3: Counter-Restitution Impossible? Section 4: Public Policy It may also be useful for you to have some abstracts from the Preface: "Restitution has emerged over the last fifty years as an essential component in the modern law of obligations. Its central concerns are the reversal of unjust enrichments and the unscrambling of defective transactions. Until recently these difficult topics have been neglected in traditional legal education, with quasi-contract and constructive trusts hived off as appendices to more familiar 'core' subjects. Increasingly restitution is taught as a subject in its own right, at both undergraduate and postgraduate level. It is well-served with textbooks by Birks (An Introduction to the Law of Restitution, Oxford: Clarendon Press, paperback edn. 1989), Burrows (The Law of Restitution, London: Butterworths, 1993) and Tettenborn (The Law of Restitution, London: Cavendish Press, 1993). However, as Professor Birks has observed: 'There is, at a time when such books have proliferated, no English collection of cases and materials relevant to restitution. The contrast with the state of affairs in tort and contract hardly needs to be further underlined.' (Introduction, 3) This is a first attempt at plugging that gap. A major difficulty for first-time students of the subject is language. The cases utilise techniques such as the action for money had and received and the equitable lien, whereas modern juristic writings speak of unjust factors and incontrovertible benefit. Chapter One attempts to prepare students for this terminological minefield. Another characteristic of restitution scholarship is the creative re-interpretation of authorities. More commonly than in other fields of law, commentators classify cases by reference to grounds for restitution which are insufficiently articulated, or not articulated at all by the judges. The annotations and suggestions for further reading aim to provide some help here. The structure of the chapters is intended to be lightweight, and not to be a grand theory of categorisation. Some topics do not yield much (or much worthwhile) judicial discussion: for example, enrichment. Similarly on the margins of the subject, emerging and controversial grounds for restitution, such as 'ignorance' and 'free acceptance', are discussed in outline only. Some of the materials on the emerging and much criticised judicial synthesis of 'no consideration' are to be found under the heading of convenience: 'Restitution and Public Law '. Inevitably there are omissions: subrogation, contribution and resulting trusts receive only superficial treatment. Restitution has been blessed in the last couple of decades by a wealth of excellent academic writing. The sophistication of modern analysis is now being transplanted to the case law. Whilst I have provided references to academic writings, this is ultimately a case book, utilising traditional case method techniques. As Paul Matthews, a self-confessed restitution-sceptic recently wrote: "..... there are now a number of judicial pronouncements on the central principle(s) of restitution as a discrete subject. But they are not altogether consistent, and in any event they run well ahead of the collective results of the cases in which they appear. The mosaic is yet tiny." (in Birks (ed), Laundering and Tracing, Oxford: Clarendon Press, 1995, 66). That may overstate the sceptical view somewhat, but contains a grain of truth. The basic aim of a casebook, especially in this area of the law, should be to identify the established grounds of recovery, and the limitations upon such recovery. Criticism and categorisation come later." I hope this information is of some assistance. The selection of cases is pretty conservative. Clearly there are difficulties with emerging causes of action such as; ignorance, inequality, free acceptance and "no consideration" (although the latter may not survive Lord Goff's justified sceptism in Westdeusche) where there is little explicit judicial discussion. All what we really do here is refer to the textbooks and relevant academic articles. I look forward to the feedback (!) when you get hold of your inspection copies. Best wishes. Gerard McMeel Lecturer in Law University of Bristol (Gerard.McMeel@bristol.ac.uk) 14 June 1996 Date: Mon, 24 Jun 1996 10:45:36 -0700 To: restitution@majordomo.srv.ualberta.ca From: liosmith@maildrop.srv.ualberta.ca (Lionel Smith) Subject: restitution SPTL Conference Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca Greetings to all, and welcome to new members. For those who do not already know, the Society of Public Teachers of Law will be meeting in Cambridge, 9-13 September 1996. The theme of the main conference is "legislation." Speakers will include Hon. Mrs. Justice Arden (Chair of the Law Commission), Prof. Jack Beatson (Rouse Ball Prof of Law at Cambridge), Prof. Neil MacCormick (Regius Prof of Law at Edinburgh), Prof. Reinhard Zimmerman (Prof of Law at Regensburg), and many more. The Restitution Section will meet 9-11 September. This year the session is presented jointly with the Contracts Section, the Commercial Law Section, the Journal of Contract Law, and the UK National Conference on Comparative Law. This joint session is on "Failure of Contracts." For info on the main conference (including registration fees and booking forms), contact The Courses Registrar, University of Cambridge, Board of Continuing Education, Madingley Hall, Madingley, Cambridge, UK, CB3 8AQ, tel + 44 (0)1954 210 636, fax + 44 (0)1954 210 677. If you are interested in going I would not wait much longer. For info on the joint session, contact J. Stevens, School of Law, University of Buckingham, Buckingham, UK, MK18 1EG, fax + 44 (0)1280 822 245. I would also like to take this opportunity to mention that list member William Swadling, currently of University College London, who was recently cited with approval by the House of Lords in their decision in Westdeutsche, has been elected to a fellowship at Brasenose College, Oxford, with effect from 1 January 1997. Congratulations Bill! Lionel Smith From: mitchell_mcinnes.lawstaff@muwaye.unimelb.edu.au Date: Wed, 26 Jun 96 11:34:26 MUT X-Priority: 3 (Normal) To: Subject: restitution Restitution Text Sender: owner-restitution@majordomo.srv.ualberta.ca Reply-To: restitution@majordomo.srv.ualberta.ca A quick notice to advertise a new collection of essays entitled "Restitution: Developments In Unjust Enrichment" M McInnes (ed). The book is published by LBC Information Services (previously known as Law Book Company), which can be contacted at: 50 Waterloo Road North Ryde, New South Wales Australia, 2113 Phone: (02) 9936 6444 Fax: (02) 9888 7240 The table of contents reads as follows: 1. Searching for Restitution In Australia Keith Mason QC 2. The Structure & Challenges of Unjust Enrichment Dr Mitchell McInnes 3. Change of Position: The Nature of the Defence Prof Peter Birks 4. Change of Position: A Commentary Dr Michael Bryan 5. Benefits - For Services Rendered Justice David Byrne 6. Benefits - For Services Rendered: Commentary Michael Garner 7. Restitutionary Recovery of Taxes After Royal Insurance JD Merralls QC 8. Restitutionary Recovery of Taxes: Commentary John Glover 9. Restitution & Contract Risk Prof JW Carter 10. Restitution & Contract Risk: Commentary Kwai-Lian Liew Most of the titles are sufficiently self-explanatory. I'll note simply that (i) Justice Byrne's paper examines the difficulties associated with restitutionary claims for services, (ii) Garner's paper focuses on the concept of free acceptance and the relationship between the nature and valuation of benefits, and (iii) Liew's paper primarily deals with the provision of services under anticipated contracts which fail to materialise. Finally, it may be worth mentioning that while the text is based on a recent conference held in Melbourne, the papers certainly are not limited to an examination of Australian law. Mitchell McInnes Faculty of Law University of Melbourne