-- Received: (qmail 26373 invoked from network); 1 Dec 1997 22:01:10 -0000 Received: from www11-gui.server.virgin.net (194.168.54.17) by jess.oucs.ox.ac.uk with SMTP; 1 Dec 1997 22:01:10 -0000 Received: from default1 ([194.168.58.159]) by www11-gui.server.virgin.net (Post.Office MTA v3.1.2 release (PO203-101c) ID# 0-0U10L2S100) with SMTP id AAA29299 for ; Mon, 1 Dec 1997 22:01:08 +0000 Message-ID: <34832D9B.18BE@virgin.net> Date: Mon, 01 Dec 1997 21:35:23 +0000 From: Colin Riegels Reply-To: colin.riegels@virgin.net X-Mailer: Mozilla 3.01C-VN709-003 (Win95; I) MIME-Version: 1.0 To: Restitution Mailing List Subject: Taylor v. Dickens Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Given the popularity of one particular set of hypothetical facts put to young Restitution students, it is perhaps surprising that the recent decision in Taylor v. Dickens (The Times, November 24, 1997) has not attracted comment on this mailing list. The facts will bring feelings of deja vu to all who have studied the subject. P had worked for T for many years without reward expecting, as T had promised, that T would leave him something in her will. T changed her will without telling P and then died. P sought to maintain a claim against the estate in both contract and by way of estoppel. Both claims failed. A claim for quantum meruit was, I believe, neither pleaded nor argued, and thus the case provides no insight (and nor will the likely appeal) into the application of restitutionary principles in the circumstances. It is though, perhaps illustrative of the fact that the grip which the subject enjoys over academia has yet to extend to practice. However, those who would advocate the wholesale expansion of the recovery of unjust enrichment into entirely unprecedented areas transforming the scope of the law of obligations might do well to heed the words of the learned judge at first instance. To the suggestion that there was a general right of equitable intervention in response to any unconscionability he asserted: "[i]f there were such a jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree." Words to remember indeed. COLIN RIEGELS, LL.B., B.C.L. (Oxon) Barrister One Paper Buildings Temple, London, EC4Y 7EP (0171) 583-7355 Received: (qmail 13205 invoked from network); 2 Dec 1997 15:02:10 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 2 Dec 1997 15:02:10 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id JAA13589; Tue, 2 Dec 1997 09:58:35 -0500 Date: Tue, 2 Dec 1997 09:58:35 -0500 (EST) From: Allan AXELROD To: Colin Riegels cc: Restitution Mailing List Subject: Re: RDG: Taylor v. Dickens In-Reply-To: <34832D9B.18BE@virgin.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Mon, 1 Dec 1997, Colin Riegels wrote: .......... To the suggestion that > there was a general right of equitable intervention in response to any > unconscionability he asserted: "[i]f there were such a jurisdiction one > might as well forget the law of contract and judge every civil dispute > with a portable palm tree." > > Words to remember indeed. > ============================= in US law under the Uniform commercial COde, 'unconscionability' is in issue for almost every commercial contract in the US and would you believe life goes on, and case outcomes are not generally thought to be capricious what pathology accounts for this sort of 'end-of-western-civilization-as\we\know-it' judicial statement? Received: (qmail 19118 invoked from network); 4 Dec 1997 09:24:31 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 4 Dec 1997 09:24:31 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 4 Dec 1997 09:24:29 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id JAA08744 for ; Thu, 4 Dec 1997 09:24:27 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 4 Dec 1997 09:23:06 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion Date: Wed, 3 Dec 1997 20:47:27 +0000 (GMT) From: Paul Michalik To: lionel.smith@law.oxford.ac.uk Subject: Re: RDG: Taylor v. Dickens (fwd) Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Status: RO On Tue, 2 Dec 1997, Allan AXELROD wrote: > > On Mon, 1 Dec 1997, Colin Riegels wrote: > > .......... To the suggestion that > > there was a general right of equitable intervention in response to any > > unconscionability he asserted: "[i]f there were such a jurisdiction one > > might as well forget the law of contract and judge every civil dispute > > with a portable palm tree." > > > > Words to remember indeed. > > > ============================= > > > in US law under the Uniform > commercial COde, 'unconscionability' is in issue for almost every > commercial contract in the US and would you believe life goes on, and > case outcomes are not generally thought to be capricious > > what pathology accounts for > this sort of 'end-of-western-civilization-as\we\know-it' > judicial statement? > Yes, but in the US, the concept of arguing the social and political implications of a judicial decision, particularly at appellate level makes a great deal of difference. Judges are openly legislating, and gather the background information that English judges tend to regard as one very important reason parliament is the sole legislator here. (Quite apart from questions of constitutional legitimacy.) The point is that the US system is adapted to inherent uncertainty in a way in which the english system is not (which is not to say that it could not be so adapted). the US accepts the palm tree principle, and courts have adjusted to deal, as palm tree legislators, with the resulting powers and resulting uncertainties. It is far from pathological to respect certainty and to fear change to an unconstitional tyrany of the bewigged ones. It is far from pathological not to want to follow the US lead into the indignities of direct election of judicial officers and campaigns for office based on who has been tougher on criminals - all of which are a relatively natural (if not inevitable) result of seeking a mandate for judicial legislation. Equity once was the court of conscience, but outgrew the tendency in favour of certainty in the law. Restituion scholarship ought to resist the tendency to want to turn the clock back. Our Lord Chancellor may have ambitions to emulate Wolsey. Let's not help him turn that nightmare into reality. Paul Michalik Received: (qmail 27914 invoked from network); 4 Dec 1997 15:17:53 -0000 Received: from kroner.ecel.uwa.edu.au (130.95.4.2) by jess.oucs.ox.ac.uk with SMTP; 4 Dec 1997 15:17:53 -0000 Received: from lproksch.dialup.ecel.uwa.edu.au (lproksch.dialup.ecel.uwa.edu.au [130.95.248.57]) by kroner.ecel.uwa.edu.au (8.8.8/8.8.7) with SMTP id XAA07043; Thu, 4 Dec 1997 23:14:16 +0800 (WST) Date: Thu, 4 Dec 1997 23:14:16 +0800 (WST) Message-Id: <199712041514.XAA07043@kroner.ecel.uwa.edu.au> X-Sender: lproksch@mailhost.ecel.uwa.edu.au X-Mailer: Windows Eudora Light Version 1.5.2 Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable To: Colin Riegels From: Louis Proksch Subject: Re: RDG: Taylor v. Dickens Cc: Restitution Mailing List At 09:35 PM 1/12/97 +0000, Colin wrote: >Given the popularity of one particular set of hypothetical facts put to >young Restitution students, it is perhaps surprising that the recent >decision in Taylor v. Dickens (The Times, November 24, 1997) has not >attracted comment on this mailing list. > >The facts will bring feelings of deja vu to all who have studied the >subject. P had worked for T for many years without reward expecting, as >T had promised, that T would leave him something in her will. T changed >her will without telling P and then died. P sought to maintain a claim >against the estate in both contract and by way of estoppel. Both claims >failed. > >A claim for quantum meruit was, I believe, neither pleaded nor argued, >and thus the case provides no insight (and nor will the likely appeal) >into the application of restitutionary principles in the circumstances. >It is though, perhaps illustrative of the fact that the grip which the >subject enjoys over academia has yet to extend to practice. > >However, those who would advocate the wholesale expansion of the >recovery of unjust enrichment into entirely unprecedented areas >transforming the scope of the law of obligations might do well to heed >the words of the learned judge at first instance. To the suggestion that >there was a general right of equitable intervention in response to any >unconscionability he asserted: "[i]f there were such a jurisdiction one >might as well forget the law of contract and judge every civil dispute >with a portable palm tree." > >Words to remember indeed. > >COLIN RIEGELS, LL.B., B.C.L. (Oxon) >Barrister >One Paper Buildings >Temple, London, EC4Y 7EP >(0171) 583-7355 > > >___________________________________________________________________________ _____ >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 restitution" in the body of a >message to . To unsubscribe, send "unsubscribe >restitution" to the same address. The list is run by Lionel Smith of St. >Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email >. > >I look forward to reading the decision in Taylor v Dickens. The profession in Australia has of course long appreciated the significance of restitutionary principles (which do not necessarily have anything to do with "a general right of equitable intervention in response to any unconscionability") - perhaps somewhat in advance of "academia". My own sense of deja vu was heightened by my recollection of Stinchcombe v Thomas [1957] VR 509, in which Monahan J found that no contract arose from an arrangement under which the plaintiff was to act as housekeeper for the deceased, for which he would "well reward her". She so acted for over twelve years (her actual claim being limited to five and a half years because of the Statute of Limitations) and during that time received =A31 per week. The going rate for a living-in housekeeper in the district in the relevant five and a half years "averaged =A35 per week on the basis of eight hours per= day, with one day off per week and with an annual holiday of two weeks on full pay" (513). Those with little antipodean experience may be interested in the plaintiff's duties. "She began by spring-cleaning the house; she regularly did the cooking, washing and sewing; she mowed the lawns throughout the relevant period; she gathered firewood and kindling wood; she weeded and watered the garden and during the later years she also did the digging that was necessary in the garden; she drew water from the well - at times up to 200 buckets per day; she bottled and preserved the fruit crops; she gathered and carted manure; she assisted at the slaughtering of sheep and treated the offal therefrom and did the necessary cleaning up after those operations; she cleaned the kitchen chimney as required; she cleaned out the water tank as required; she assisted to maintain the poultry pens as required; she made the deceased's underclothing; she made the soap requirements of the household in later years; she cut the deceased's hair; she nursed and tended the deceased when he was ill and dressed his wounds following upon an operation on his bladder [he died aged eighty-two - LLP]; in addition she provided many of the household requirements from her own moneys; she had few holidays; she received throughout the period 1942-1954 no more than approximately =A380 worth of gifts and presents of money from the deceased". [See also Proverbs XXXI, 10-31.] Absent contract, the alternative claim "as on a quantum meruit basis for work and labour done and services rendered by her for the deceased at his request" (509) succeeded. Roll on restitution. [Apologies, Colin: third time lucky - LLP] Received: (qmail 2350 invoked from network); 4 Dec 1997 22:02:53 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 4 Dec 1997 22:02:53 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 4 Dec 1997 22:02:43 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id WAA29062 for ; Thu, 4 Dec 1997 22:02:40 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Thu, 4 Dec 1997 22:01:16 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new fiduciary case Greetings all, and welcome to new members. This is to announce a new case, Swindle v. Harrison [1997] 4 All ER 705, in which the CA held that even though there had been a breach of fiduciary duty by a solicitor named Swindle (sic) (non-disclosure of secret profit), and the client suffered a loss in the ensuing transaction, the loss was not recoverable as it was not causally related to the breach. But maybe if the breach had been one which was the "equivalent of fraud" (717b) it would be otherwise. (?) Hodgkinson v. Simms, SCC, not followed, cited, or otherwise noticed. This case is clearly not about restitution but we do see the annoying habit of referring to that measure of damages which ignores causation as the "restitutionary measure" (715d; cf Canson v. Boughton, SCC). Lionel This personal computer certified 100% free of Microsoft=81 products. Received: (qmail 23076 invoked from network); 5 Dec 1997 18:52:01 -0000 Received: from dux4.tcd.ie (134.226.1.194) by jess.oucs.ox.ac.uk with SMTP; 5 Dec 1997 18:52:01 -0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id SAA31506 for ; Fri, 5 Dec 1997 18:51:59 GMT Date: Fri, 5 Dec 1997 18:51:59 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Taylor v. Dickens Reluctant as I am to utter (once again !) the immortal words "There is an Irish case ...", nonetheless, I want to mention not one, but three, in the context of Taylor v. Dickens. First, the Taylor v. Dickens tendency to miss relevant restitutionary remedies and to claim only in contract is alive and well and living in Ireland (see, eg, Jobling-Purser v. Jackman (High Court, unreported, 12 January 1995, Costello P) [1995] R.L.R. s.210). Second, nevertheless, there is an Irish case, in which the plaintiff sought not a quantum meruit (which was statute barred) but a constructive trust (which was not). It is Reidy v McGreevy (High Court, unreported, 19 March 1993, Barron J) [1994] R.L.R. s.183. Third, it seems to me that the judgment in Taylor v. Dickens - as reported in the Times - takes a very narrow view of proprietary estoppel. By contrast, and on facts in which a nephew worked on the deceased uncle's farm, the Irish Supreme Court seems to have taken an extraordinarily generous view of that doctrine in the nephew's favour, in McCarron v. McCarron (Supreme Court, unreported, 13 February 1997) {1997] R.L.R. s.?* (compare a less nuanced but similarly generous view of the doctrine in Smyth v. Halpin (Irish Times Law Report 31 March 1997 (H.Ct., Geoghegan J.)) [1997] R.L.R> s.?*). It seems to me that Irish empiricism (or simply bad judicial craft) is proving excellent soil in which to plant portable palm trees - provided they can handle the rain (on which see Mee "Palm Trees in the Rain - New Model Constructive Trusts in Ireland" (1996) 1 Conveyancing and Property Law Journal 9 - quite properly critical of the imposition of constructive trusts without justifiction in principle). (* The reason why I cannot give a section number to the 1997 RLR is that, though a contributor, I have yet to receive a copy, but notes on both cases should be in the Ireland chapter of the 1997 Review; copies of these or any other Irish material always available; if you are interested, you only have to ask me, (though I am such an inefficient correspondent you may have to wait a while !)). Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Received: (qmail 20472 invoked from network); 8 Dec 1997 11:57:45 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 8 Dec 1997 11:57:45 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 8 Dec 1997 11:57:37 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id LAA27991 for ; Mon, 8 Dec 1997 11:57:33 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Mon, 8 Dec 1997 11:56:11 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: RDG: Taylor v. Dickens Eoin O'Dell wrote, >Reluctant as I am to utter (once again !) the immortal words "There is an >Irish case ...", nonetheless, I want to mention not one, but three, in the >context of Taylor v. Dickens. Of course there are also Canadian cases. We should remember that what may be the first Commonwealth case to recognize a claim in unjust enrichment was Deglman [1954] 3 DLR 785 (SCC), which was a quantum meruit claim against an estate for services rendered. More recently Single v. Macharski Estate [1996] 3 WWR 23, [1997] RLR =A7 61 (Man CA). It may well be that thes= e cases are good examples of the new model free acceptance, ie secret acceptance, but then again the unconscionability may be supervening rather than initial. (What?) Lionel Received: (qmail 29778 invoked from network); 8 Dec 1997 17:46:13 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 8 Dec 1997 17:46:13 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id MAA17291 for ; Mon, 8 Dec 1997 12:45:37 -0500 Date: Mon, 8 Dec 1997 12:45:37 -0500 (EST) From: Allan AXELROD To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Taylor v. Dickens (fwd) Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII ---------- Forwarded message ---------- Date: Mon, 8 Dec 1997 10:30:51 -0500 (EST) From: Allan AXELROD To: Paul Michalik Cc: lionel.smith@law.oxford.ac.uk Subject: Re: RDG: Taylor v. Dickens (fwd) On Wed, 3 Dec 1997, Paul Michalik wrote: ..... > The point is that the US system is adapted to inherent uncertainty in a > way in which the english system is not (which is not to say that it could > not be so adapted). the US accepts the palm tree principle, and courts > have adjusted to deal, as palm tree legislators, with the resulting powers and > resulting uncertainties. It is far from pathological to respect certainty > and to fear change to an unconstitional tyrany of the bewigged ones. It > is far from pathological not to want to follow the US lead into the > indignities of direct election of judicial officers and campaigns for > office based on who has been tougher on criminals - all of which are a > relatively natural (if not inevitable) result of seeking a mandate for > judicial legislation. > ==== i had to look something up before responding to those intersting observations: Mr Michalik's reference to the excitement of american electoral politics in re our activist judiciary and the criminal law perhaps derives from an instructive episode in california a few years back. in that state, death is the statutory penalty for a number of offenses---but in case after case where lower courts had pronounced that sentence, the state supreme court reversed on some or another finding that the proceedings below had been defective: for years, error was ALWAYS found in capital cases many members of the public were outraged---some at the outcomes and others also disturbed by the 'activism'--- and a campaign begun to recall the california state supreme court judges [in a number of our states---mostly in the west and middle-west, there are constitutional provisions for a recall popular vote: 'shall judge X retain office?'] and several of the offending judges were indeed recalled--at least one went on to a constructive academic career [inter alia, Jurisprudence] with the university of california there were members of the bar who were in favor of the recall, and analyses published of how specious were some of the grounds asserted by the court in its death sentence reversals, from which analyses it was reluctantly concluded that the court had abandoned its traditional and proper role in this the lawyers were poorly informed, at least as to tradition, for the court in its very speciousness was adhering to a solid precedent for speciousness in capital cases, the best sort of precedent for those of us in the colonies there was for example a well-known english case of a man acquitted of the capital offense of stealing a pair of stockings on the ground that the stockings stolen were odd ones, and another acquitted of stealing a duck, when the duck turned out to be a drake [reporter's note to Rex v Holloway, 171 E.R.1131n [1823] for an account of the extremes to which the english judiciary--- several centuries back-- went to avoid infliction of the death penalty for 'aggravated larceny' 'shop-lifting 'and the like see Hall Theft, Law and Society 2d ed 1952 pp 118-127 the book, incidentally, generalizes that administrative nullification [by judges, juries, prosecutors and police] is a frequent or even normal element of the process by which law in anglo-american jurisdictions adapts to social change Received: (qmail 17958 invoked from network); 9 Dec 1997 15:39:18 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 9 Dec 1997 15:39:18 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Tue, 9 Dec 1997 15:39:14 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id PAA26517 for ; Tue, 9 Dec 1997 15:38:44 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 9 Dec 1997 15:37:22 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new CLJ Greetings all, In the new Cambridge Law Journal (Nov 97), a case note on Foskett v. McKeown (tracing into life insurance), and a book review of R Chambers' _Resulting Trusts_. Both courtesy of Richard Nolan. Lionel Received: (qmail 18259 invoked from network); 9 Dec 1997 15:56:55 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 9 Dec 1997 15:56:55 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Tue, 9 Dec 1997 15:56:48 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id PAA10305 for ; Tue, 9 Dec 1997 15:56:45 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 9 Dec 1997 15:55:22 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: more tracing Bill Swadling advises: >And in Nov 97 LMCLQ another case-note on Foskett, this time by Charles >Mitchell. Received: (qmail 12064 invoked from network); 15 Dec 1997 21:12:39 -0000 Received: from www11-gui.server.virgin.net (194.168.54.17) by jess.oucs.ox.ac.uk with SMTP; 15 Dec 1997 21:12:39 -0000 Received: from default1 ([194.168.58.92]) by www11-gui.server.virgin.net (Post.Office MTA v3.1.2 release (PO203-101c) ID# 0-0U10L2S100) with SMTP id AAA5055 for ; Mon, 15 Dec 1997 21:12:37 +0000 Message-ID: <34959C60.10AF@virgin.net> Date: Mon, 15 Dec 1997 21:08:48 +0000 From: "Colin, Lisa and the Cat" Reply-To: colin.riegels@virgin.net X-Mailer: Mozilla 3.01C-VN709-003 (Win95; I) MIME-Version: 1.0 To: Restitution Mailing List Subject: Barclays Bank -v- Caplan Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Equity and commerce have never been comfortable bed-fellows. The former demanded flexibility and latter certainty. One of the areas where this clash has become apparent with unfortunate consequences for the cohesion of the law of Restitution is the doctrine of undue influence. A new and disappointingly consistent chapter has been added to this story. The facts of Barclays Bank v. Caplan are depressingly familiar. Entrepreneur husband influences his wife to give security over the family home. The business fails and the security is called in. The twist in Caplan is that Pauline Caplan had executed four security agreements. In the first the bank saw that she had independent legal advice. Thus, notwithstanding the fact that she was unduly influenced, the security was set aside. However, notwithstanding this antecedent legal advice, when the subsequent security was executed, no separate advice was given and those guarantees were set aside for undue influence. Disappointingly the Court of Appeal seemingly continued in the vein of the previous House of Lords decisions (Barclays Bank v. O'Brien, CIBC Mortgages v. Pitt) and chose to see undue influence as a defendant sided unjust factor. To force this into the framework they were dealing with, i.e. an essentially innocent third party, they had to fix banks with a strikingly suspect "constructive notice." Therefore, provided they comply with the necessary formalities there will be no basis for setting aside the security. Surely far more preferable and consistent is the approach of the High Court of Australia in CAB v. Amadio where Mason J (as he then was) distinguished between setting aside agreements for undue influence, a PLAINTIFF sided factor, and setting aside agreements for unconscionability, a defendant sided factor with a particularly high threshold. There have been hints of confusion in the English cases, particularly where the Lords refer to "wrongful or improper conduct" or "a species of fraud", but not on behalf of the defendant, but the third party. The real reason for this, one suspects, is that Lord Browne-Wilkinson, as he unashamedly confessed, was keen to preserve the value of the family home as security. This agenda has received black and white endorsement by the Court of Appeal in Caplan. However, it does so at the risk of doctrinal impurity, and with the attendant risk of driving up the transaction cost of security. One suspects that there are few cases of undue influence that could not be dealt with by a sterner examination of the facts and less squeamish County Court judges. Where there are genuine cases of undue influence (and I would suggest the word "undue" has a hegemony of understatement), and the assets cannot be recovered under section 423 of the Insolvency Act (transactions defrauding creditors), well then those are the people whom equity should properly assist. COLIN RIEGELS, LL.B., B.C.L. (Oxon) Barrister One Paper Buildings Temple, London, EC4Y 7EP (0171) 583-7355 Received: (qmail 20337 invoked from network); 16 Dec 1997 11:00:59 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 16 Dec 1997 11:00:59 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Tue, 16 Dec 1997 11:00:54 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id LAA14731 for ; Tue, 16 Dec 1997 11:00:51 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 16 Dec 1997 11:01:24 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Law Commission Report 1. Colin Riegels wrote: >Equity and commerce have never been comfortable bed-fellows. I must say I have never really understood this sentiment given that the primary mode of taking security over movables in unreformed jurisdictions such as the UK is via the equitable charge. 2. Published yesterday was the English Law Commission's Report No. 247, Aggravated, Exemplary and Restitutionary Damages. It is available on the Web at You can browse it or download a pdf version. To use pdf you need a program called Adobe Acrobat Reader, which is free (and available for all major platforms) and allows you to view or print the file. You can get it by visiting or or . Here is an extract (probably Crown copyright) from the online summary of the Report: "The Law Commission considers punitive damages should be placed on a clear, principled, but tightly controlled, footing. We therefore propose a detailed legislative scheme according to which: *Punitive damages would be available for a legal wrong (other than breach of contract) if the defendant has deliberately and outrageously disregarded the plaintiff's rights. *The decision to award punitive damages, and their amount, would be matters for judges to decide; even where a civil trial is otherwise by jury, these matters would never be decided by a jury. *Punitive damages would not be awarded where the defendant has been convicted of a criminal offence for the same conduct, or where another available remedy is adequate punishment. *Some subsidiary good aspects of the present law on punitive damages would be preserved (eg on the standard of proof). *Some subsidiary outdated aspects of the present law would be replaced by modern rules. For example, we recommend a diametrically opposite approach to the present law on survival of claims to punitive damages, so that the claim survives in favour of a deceased plaintiff's estate, but does not survive against a deceased defendant's estate. Our Report also makes recommendations relating to two other types of damages: 'aggravated damages' and 'restitutionary damages'. *Aggravated damages compensate for mental distress caused by the manner or motive with which the wrong was committed. There has been some confusion in the past about whether aggravated damages have the rather different purpose of punishing a wrongdoer. We recommend legislative reform which will remove the confusion once and for all. *Restitutionary damages aim to strip from a wrongdoer gains made by committing a wrong. We think that restitutionary damages ought to be more widely available than at present, but that such development is, in general, best left to the courts. Our legislative proposals are therefore confined to ensuring that, wherever punitive damages could be awarded by a court, the court will also have available to it the less extreme remedy of restitutionary damages. Thus we propose that restitutionary damages should be available for a legal wrong (other than breach of contract) if the defendant has made gains by deliberately and outrageously disregarding the plaintiff's rights. Lionel Received: (qmail 25339 invoked from network); 16 Dec 1997 13:04:57 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 16 Dec 1997 13:04:57 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xhwgA-0003Tw-00; Tue, 16 Dec 1997 13:04:54 +0000 Message-Id: <3.0.1.32.19971216130454.007d72d0@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Tue, 16 Dec 1997 13:04:54 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Restitution ; Law Commission Report In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 11:01 16/12/97 +0000, Lionel Smith quoted: >*Restitutionary damages aim to strip from a wrongdoer gains made by >committing a wrong. We think that restitutionary damages ought to be more >widely available than at present, but that such development is, in general, >best left to the courts. Our legislative proposals are therefore confined >to ensuring that, wherever punitive damages could be awarded by a court, >the court will also have available to it the less extreme remedy of >restitutionary damages. Thus we propose that restitutionary damages should >be available for a legal wrong (other than breach of contract) if the >defendant has made gains by deliberately and outrageously disregarding the >plaintiff's rights. > The new proposal certainly seems to leave a huge amount to judicial discretion ! The remedy may only be considered where the defendant's conduct is "deliberate" and "outrageous", both words which are (to put it mildly) susceptible of many different interpretations; The measure is discretionary - the only constraint in the bill is that the measure must be *designed* to remove the defendant's benefit; The action is only available at all if the judges think fit, as the bill says that damages "may" be awarded under this head. Given how little litigation there has been in this area, we will be waiting a very long time indeed before we know what it means. This part of the legislation seems to be more about imposing a particular framework of ideas on the law than about achieving any practical objective. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 6014 invoked from network); 17 Dec 1997 09:32:57 -0000 Received: from dux4.tcd.ie (134.226.1.194) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 09:32:57 -0000 Received: from [134.226.248.23] (law023.law.tcd.ie [134.226.248.23]) by dux4.tcd.ie (8.8.7/8.8.7) with SMTP id JAA17901 for ; Wed, 17 Dec 1997 09:32:56 GMT Date: Wed, 17 Dec 1997 09:32:56 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Barclays: the suing bank BARCLAYS BANK v O'BRIEN IS *NOT* A RESTITUTION CASE Colin Riegels' email provides a good occasion for me to make a stab at an argument which I have been developing the key to which is the above statement that Barclays Bank v O'Brien is not a restitution case at all. I would appreciate any feedback which people may have on the point. Colin Riegels wrote that in Barclays Bank v Caplan >the Court of Appeal seemingly continued in the vein of >the previous House of Lords decisions (Barclays Bank v. O'Brien, CIBC >Mortgages v. Pitt) and chose to see undue influence as a defendant sided >unjust factor. > >Surely far more preferable and consistent is the approach of the High >Court of Australia in CAB v. Amadio setting aside agreements for undue >>influence, [as] a PLAINTIFF sided factor, I most strongly disagree with the proposition that Barclays Bank v O'Brien states a defendant-sided unjust factor. In my view, it does not state any unjust factor at all, as it is not a restitution case, but a contract case. The lessons of the _Westdeutsche_ (and related) litigation are many, but one of them is the invalidity of a contract and a consequential restitutionary remedy are two separate matters. Thus, a contract can go off for incapacity or for some other reason of contract law, company law, equity, and so on. This then provides the occasion for a possible restitutionary remedy by the application of the four enquiries. It is the same for mistake. A contract can go off for mistake (in contract, as defined, eg, by Bell v Lever Bros); that provides the occasion for the four enquiries, one of which relates to the unjust factor. There are several available: the facts which satisfy the test for mistake in contract may also independently satisfy the test for mistake in restitution (as stated eg in Barclays Bank v Simms), or the plaintiff's mistaken belief in the existence of a valid contract may provide the unjust factor, or the facts may amount to a failure of consideration. Again, it is clear that the reason why the contract goes off is separate from the reason why any consequential remedy in restitution is available. It is the same for coercion. When a contract is set aside for duress at law or for undue influence at equity, that is the relevant contract doctrine at work. When there is a consequential remedy in restitution, that is because the test for the unjust factor of coercion is independently satisfied. Remember mistake again: contract goes off for mistake (Bell v Lever Bros); restitution for that mistake (Barclays Bank v Simms); similarly, here there are two separate enquiries: whether the contract (according to the test put forward by the law of contract) is a valid contract, and, if not, whether (according to the test put forward by the law of restitution) there ought to be a restitutionary remedy. Barclays Bank v O'Brien and its extensive progeny merely state the test to be applied as a matter of contract to determine the validity of a contract. Thus, where A unduly influences B to contract with C, the test in Barclays Bank v O'Brien simply determines the validity of the contract between B and C. It does no more. Finally, neither in O'Brien, nor in any subsequent case, has there been a claim for restitution. Every single such case has been as to whether the Bank C can enforce the contract as against the surety (usually wife) B. No case has arisen in which B has sought restitution from C. Thus, O'Brien and its progeny form part of the law of the contract, and have no place in the law of restitution (in exactly the same way as the doctrine of ultra vires is part of the law of contract relating to companies and has no place in the law of restitution). The invalidity of the contract for the undue influence, like the ultra vires, may form the occasion for the restitution analysis, but it is not an element of the restitution analysis. As to the restitution analysis consequent upon the invalidity of the contract on O'Brien principles, where A has unduly influenced B to contract with C, and on O'Brien principles the contract between B and C is invalidy, if B has paid C, B can recover in restitution from C simply on the (plaintiff-sided) ground of vititation of consent by coercion (the undue influence), subject to certain defences C might have (see [1997] CLJ 71 for more on this). Eoin O'Dell. P.S. Why is it that so many leading cases have Barclays Bank as plaintiffs ? EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Received: (qmail 7455 invoked from network); 17 Dec 1997 10:08:01 -0000 Received: from hermes.ex.ac.uk (HELO exeter.ac.uk) (144.173.6.14) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 10:08:01 -0000 Received: from sc556 [144.173.96.46] by hermes via SMTP (KAA16237); Wed, 17 Dec 1997 10:04:47 GMT Date: Wed, 17 Dec 1997 10:04:47 GMT Message-Id: <199712171004.KAA16237@hermes> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: Windows Eudora Version 1.4.4 Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: A.M.Tettenborn@exeter.ac.uk (Andrew Tettenborn) Subject: RDG: Barclays: the suing bank Eoin has, as usual, hit the nail on the head. O'Brien is a contract / property case (property because it deals with the validity of the creation of a security interest, as well as the validity of a personal covenant to repay). Once the mortgage/covenant has been successfully impugned, there may of course be restitutionary consequences (e.g. return of any benefits obtained by the person seeking to set asde the transaction): but that is an entirely different matter. Andrew Tettenborn University of Exeter. BARCLAYS BANK v O'BRIEN IS *NOT* A RESTITUTION CASE Colin Riegels' email provides a good occasion for me to make a stab at an argument which I have been developing the key to which is the above statement that Barclays Bank v O'Brien is not a restitution case at all. I would appreciate any feedback which people may have on the point. Colin Riegels wrote that in Barclays Bank v Caplan >the Court of Appeal seemingly continued in the vein of >the previous House of Lords decisions (Barclays Bank v. O'Brien, CIBC >Mortgages v. Pitt) and chose to see undue influence as a defendant sided >unjust factor. > >Surely far more preferable and consistent is the approach of the High >Court of Australia in CAB v. Amadio setting aside agreements for undue >>influence, [as] a PLAINTIFF sided factor, I most strongly disagree with the proposition that Barclays Bank v O'Brien states a defendant-sided unjust factor. In my view, it does not state any unjust factor at all, as it is not a restitution case, but a contract case. The lessons of the _Westdeutsche_ (and related) litigation are many, but one of them is the invalidity of a contract and a consequential restitutionary remedy are two separate matters. Thus, a contract can go off for incapacity or for some other reason of contract law, company law, equity, and so on. This then provides the occasion for a possible restitutionary remedy by the application of the four enquiries. It is the same for mistake. A contract can go off for mistake (in contract, as defined, eg, by Bell v Lever Bros); that provides the occasion for the four enquiries, one of which relates to the unjust factor. There are several available: the facts which satisfy the test for mistake in contract may also independently satisfy the test for mistake in restitution (as stated eg in Barclays Bank v Simms), or the plaintiff's mistaken belief in the existence of a valid contract may provide the unjust factor, or the facts may amount to a failure of consideration. Again, it is clear that the reason why the contract goes off is separate from the reason why any consequential remedy in restitution is available. It is the same for coercion. When a contract is set aside for duress at law or for undue influence at equity, that is the relevant contract doctrine at work. When there is a consequential remedy in restitution, that is because the test for the unjust factor of coercion is independently satisfied. Remember mistake again: contract goes off for mistake (Bell v Lever Bros); restitution for that mistake (Barclays Bank v Simms); similarly, here there are two separate enquiries: whether the contract (according to the test put forward by the law of contract) is a valid contract, and, if not, whether (according to the test put forward by the law of restitution) there ought to be a restitutionary remedy. Barclays Bank v O'Brien and its extensive progeny merely state the test to be applied as a matter of contract to determine the validity of a contract. Thus, where A unduly influences B to contract with C, the test in Barclays Bank v O'Brien simply determines the validity of the contract between B and C. It does no more. Finally, neither in O'Brien, nor in any subsequent case, has there been a claim for restitution. Every single such case has been as to whether the Bank C can enforce the contract as against the surety (usually wife) B. No case has arisen in which B has sought restitution from C. Thus, O'Brien and its progeny form part of the law of the contract, and have no place in the law of restitution (in exactly the same way as the doctrine of ultra vires is part of the law of contract relating to companies and has no place in the law of restitution). The invalidity of the contract for the undue influence, like the ultra vires, may form the occasion for the restitution analysis, but it is not an element of the restitution analysis. As to the restitution analysis consequent upon the invalidity of the contract on O'Brien principles, where A has unduly influenced B to contract with C, and on O'Brien principles the contract between B and C is invalidy, if B has paid C, B can recover in restitution from C simply on the (plaintiff-sided) ground of vititation of consent by coercion (the undue influence), subject to certain defences C might have (see [1997] CLJ 71 for more on this). Eoin O'Dell. P.S. Why is it that so many leading cases have Barclays Bank as plaintiffs ? EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) ________________________________________________________________________________ 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 restitution" in the body of a message to . To unsubscribe, send "unsubscribe restitution" to the same address. The list is run by Lionel Smith of St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email . Received: (qmail 8111 invoked from network); 17 Dec 1997 10:52:10 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 10:52:10 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xiH5D-0005OU-00; Wed, 17 Dec 1997 10:52:07 +0000 Message-Id: <3.0.1.32.19971217105215.007ba700@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 17 Dec 1997 10:52:15 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Barclays: the suing bank In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 09:32 17/12/97 GMT, Eoin O'Dell wrote: > BARCLAYS BANK v O'BRIEN IS *NOT* A RESTITUTION CASE > > >Barclays Bank v O'Brien and its extensive progeny merely state the test to >be applied as a matter of contract to determine the validity of a contract. >Thus, where A unduly influences B to contract with C, the test in Barclays >Bank v O'Brien simply determines the validity of the contract between B and >C. It does no more. > >Finally, neither in O'Brien, nor in any subsequent case, has there been a >claim for restitution. Every single such case has been as to whether the >Bank C can enforce the contract as against the surety (usually wife) B. No >case has arisen in which B has sought restitution from C. Thus, O'Brien and >its progeny form part of the law of the contract, and have no place in the >law of restitution (in exactly the same way as the doctrine of ultra vires >is part of the law of contract relating to companies and has no place in >the law of restitution). The invalidity of the contract for the undue >influence, like the ultra vires, may form the occasion for the restitution >analysis, but it is not an element of the restitution analysis. > I entirely agree, although (as a secondary issue) I would ask why the consequences of unravelling a contract aren't part of the law of contract as well. The interesting question is why anyone ever thought restitution had anything to do with it, given the strength of the usual insistence that contract and restitution are distinct - expressed over, for example, the alleged importance of separating 'genuine' implied contracts from 'fictitious' implied contracts. At least part of the problem is the reluctance of (English) restitution lawyers to get involved in any debate about the relation between their subject and equity - in marked contrast to (say) Australia, where the incompatibility is much more well known. We therefore seem to have a situation where English restitution lawyers tend to lay claims to significant portions of equity, without ever providing an intellectual basis for it. Knowing Assistance is another area which has been sort-of-claimed by restitution lawyers; ditto tracing, though in the last year or so we are beginning to see attempts to justify its being part of restitution as distinct from property - though manifestly there is a way to go there. Would it be fair to say that while in Australia, equity and restitution lawyers are at daggers drawn, whereas in England they are politely ignoring one another ? Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 9589 invoked from network); 17 Dec 1997 12:08:16 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 12:08:16 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Wed, 17 Dec 1997 12:08:00 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id MAA08563 for ; Wed, 17 Dec 1997 12:07:48 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 17 Dec 1997 12:08:20 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Barclays: the suing bank Eoin O'Dell wrote: >the invalidity of a contract and a consequential >restitutionary remedy are two separate matters. That seems right but it does not follow that setting aside a contract is not itself a matter of unjust enrichment. IF (which some will contest) legal responses can be said to arise from wrongs, consent, unjust enrichment, and other causes, THEN while enforcing a contract is a response deriving from consent, setting one aside is not necessarily so. It might be so, if viewed simply as an absence of the kind of consent required to generate an enforceable promise. That works better for "void contracts" than for voidable ones. If we ask why the law gives one party an actively exercisable power of avoidance (rather than a finding that there is no contract), then it is difficult to view the source of that power as consensual. Nobody wanted it, saw it coming, or bargained for it. It might be based on a wrong, though the case of innocent misrepresentation shows that it is certainly not always so. Thus when Eoin goes on: >Finally, neither in O'Brien, nor in any subsequent case, has there been a >claim for restitution. Every single such case has been as to whether the >Bank C can enforce the contract as against the surety (usually wife) B. it is at least possible to say that the ability to resist the enforcement of the contract is itself a claim for restitution; that is, the ability to set aside the contract is an example of the law's undoing a transaction which if not undone would result in as much of an unjust enrichment as a mistaken payment. Even if setting aside a contract is a response to unjust enrichment, nonetheless I fully agree with Eoin that there may be a different test depending on whether one seeks to set aside a contract or an extracontractual transaction. A mistaken extracontractual payment may be unwound just because the payor made a careless mistake of which the payee was ignorant; a mistakenly entered contract cannot be unwound for that reason. It requires more, eg that the mistake was induced by the other party (misrepresentation). So in undue influence, we might say that if one is trying to undo a contract for undue influence, more is needed than if one were trying to recover an extracontractual payment. And it may well be that if one is trying to undo a contract for undue influence exerted by someone other than one's contractual parter, it must be the case that the contractual partner knew of the undue influence. Indeed that may be the law when one is trying to undo a contract for mistake induced by someone other than one's contractual partner. So said a majority of the Court of Appeal, changing slightly the facts of O'Brien, in Banco Exterior Internacional SA v Thomas [1997] 1 All ER 46, 54c. In that case the analysis is generally along the lines suggested by Eoin and by the above: we are dealing with a question of setting aside a contract and the relevant rule directs us to whether the contractual counterparty had notice of a factor which would be a sufficient reason to set aside the contract had the counterparty itself been the one which generated that factor. "In a case such as the present it does not seem to me to make any sense to ask whether [defendant] had an equity as against [undue influencer] to set aside the transaction [defendant] had entered into with the bank. The question to my mind is simply whether the bank had any actual or constructive notice that [defendant] had entered into the transaction with the bank under undue influence exerted by [undue influencer]." 54ef, per Scott VC. Steve Hedly wrote: >Would it be fair to say that while in Australia, equity and restitution >lawyers are at daggers drawn, whereas in England they are politely >ignoring one another ? I wonder if it is arrogant to say that I think I am both an equity lawyer and a restitution lawyer? Or just somone who likes to read about private law. And yet I feel neither internal strife nor internal indifference. (At least not on this point.) Internal ignorance, perhaps. And some idea that it is not too much to ask of a legal system that its parts should cohere. Lionel Received: (qmail 11521 invoked from network); 17 Dec 1997 13:31:28 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 13:31:28 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xiJZM-0006mq-00; Wed, 17 Dec 1997 13:31:25 +0000 Message-Id: <3.0.1.32.19971217133131.007d2100@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 17 Dec 1997 13:31:31 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Barclays: the suing bank In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 12:08 17/12/97 +0000, Lionel Smith wrote: > >Eoin O'Dell wrote: > >>the invalidity of a contract and a consequential >>restitutionary remedy are two separate matters. > >That seems right but it does not follow that setting aside a contract is >not itself a matter of unjust enrichment. Whether or not a contract will be enforced is a matter for the law of contract; ditto the question whether it will be "set aside" (i.e. not enforced).. I didn't understand Eoin to assert that unjust enrichment is irrelevant to the question whether contracts should be enforced - does anyone believe this ? And aren't the formation and enforcement of contracts something to do with unjust enrichment, too ? >IF (which some will contest) >legal responses can be said to arise from wrongs, consent, unjust >enrichment, and other causes, THEN while enforcing a contract is a response >deriving from consent, setting one aside is not necessarily so. You seem to be assuming that "the law of contract" is reducible purely to issues of consent, and that issues such as (say) unjust enrichment are irrelevant to it. Yet what scholar of the law of contract believes this ? > >I wonder if it is arrogant to say that I think I am both an equity lawyer >and a restitution lawyer? Or just somone who likes to read about private >law. Arrogance doesn't enter into it, but the traditions are certainly different ones, and many people have seen inconsistency between them. >And yet I feel neither internal strife nor internal indifference. (At >least not on this point.) Internal ignorance, perhaps. And some idea that >it is not too much to ask of a legal system that its parts should cohere. > >Lionel > > > A law of contract based purely on consent does not cohere with a law of restitution in no way based on consent - which is precisely why it is unconvincing to portray them each that way. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 11665 invoked from network); 17 Dec 1997 13:32:29 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 13:32:29 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Wed, 17 Dec 1997 13:32:17 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id NAA21627 for ; Wed, 17 Dec 1997 13:32:14 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 17 Dec 1997 13:32:46 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion X-Sender: birks@ermine.ox.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 17 Dec 1997 13:02:01 +0000 To: Lionel Smith From: "Peter B. H. Birks" Subject: Re: RDG: Barclays: the suing bank Lionel must be right. The right to rescind can only belong to contract in a contextual sense. That is, it belongs in the law which is about contract. When we look at the events from which rights arise, we can rarely derive a right to rescind from contract. We can when the parties have provided expressly for a right to rescind in certain events. In all other cases the right to rescind is raised by operation of law. All rights which arise by operation of law arise from a wrong, an unjust enrichment, or some other event. Because in the leading case Lord Browne-Wilkinson repeatedly called misrepresentation a wrong and undue influence a wrong, many will think that the O'Brien right to rescind arises from a wrong. That cannot be correct, unless Lord Browne-Wilkinson meant to restrict the relief to those cases in which the facts can be re-analysed as a wrong, thus excluding, for example, purely innocent misrepresentation and many instances of undue influence. If we reject the notion that the right to rescind arises from a wrong, we are left with only the other two categories. Since the purpose and effect of recognizing the right to rescind is to cause the bank to surrender a benefit which it wants very much to hang on to but which the law evidently regards as one which ought not to be retained, it does not seem incorrect to attribute the right to rescind the security to unjust enrichment. Peter Birks Regius Professor of Civil Law University of Oxford Work 01865 279338 fax 279299 All Souls, Oxford, OX1 4 AL Home 01865 735625 Oak Trees, Sandy Lane, Boars Hill OX1 5HN Received: (qmail 12451 invoked from network); 17 Dec 1997 14:03:07 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 14:03:07 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xiK3z-0000nF-00; Wed, 17 Dec 1997 14:03:03 +0000 Message-Id: <3.0.1.32.19971217140310.007d1a80@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 17 Dec 1997 14:03:10 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Barclays: the suing bank In-Reply-To: <19971217133230.11671.qmail@maillist.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 13:02 17/12/97 +0000, Peter Birks wrote: >Lionel must be right. The right to rescind can only belong to contract in a >contextual sense. That is, it belongs in the law which is about contract. Contract law *is* the law about contracts. Contracts are creatures of the law. It makes no sense to distinguish between "contract law" and "contextual contract law" : the context of contract law is necessarily a legal context. >When we look at the events from which rights arise, we can rarely derive a >right to rescind from contract. We can when the parties have provided >expressly for a right to rescind in certain events. In all other cases the >right to rescind is raised by operation of law. All contractual rights involve the operation of law : that is why we look in law books to determine the legal effects of contracts, rather than merely interviewing the parties. Many rules in contract cannot intelligibly be derived from the intentions of the parties, eg rules on formalities, offer and acceptance, and consideration. >All rights which arise by >operation of law arise from a wrong, an unjust enrichment, or some other >event. Because in the leading case Lord Browne-Wilkinson repeatedly called >misrepresentation a wrong and undue influence a wrong, many will think that >the O'Brien right to rescind arises from a wrong. That cannot be correct, >unless Lord Browne-Wilkinson meant to restrict the relief to those cases in >which the facts can be re-analysed as a wrong, thus excluding, for example, >purely innocent misrepresentation and many instances of undue influence. If >we reject the notion that the right to rescind arises from a wrong, we are >left with only the other two categories. Since the purpose and effect of >recognizing the right to rescind is to cause the bank to surrender a benefit >which it wants very much to hang on to but which the law evidently regards >as one which ought not to be retained, it does not seem incorrect to >attribute the right to rescind the security to unjust enrichment. There is no particular difficulty in treating morally blameless conduct as "wrong" - witness the common law tort of conversion and the statutory tort of supplying defective products. The incorrectness lies not in invoking unjust enrichment, but in supposing that invoking unjust enrichment somehow excludes other explanations. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 20617 invoked from network); 17 Dec 1997 23:02:37 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 17 Dec 1997 23:02:37 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id SAA28158 for ; Wed, 17 Dec 1997 18:02:35 -0500 Date: Wed, 17 Dec 1997 18:02:35 -0500 (EST) From: Allan AXELROD To: restitution@maillist.ox.ac.uk Subject: failed contracts and restitution Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII convention, in part influenced by the structure of pleadings, leads us to describe some cases as the avoidance of contracts, and it may be useful to organize avoidance materials, along with those dealing with enforceable contracts, under the heading 'contract law'. nevertheless, the avoided contract, after the court completes its consideration, represents a fact situation in which contract remedies are not available. However as transfers may have been effected in the failed contract case, some remedy may be appropriate. why not retain the convention of describing all failed-contract readjustments ---whether arising from a failure of offer, or an avoidance for duress---as restitutionary? this could represent a pragmatic judgment that failed-contract cases have more in common with mistake cases than they do with those involving breach, and that the commonality bears examination [not to say that remediation in breach cases gives expression to entirely different values from those in the failed-contract case] i assume that we are discussing a question of convention rather than some empirical truth, and i suppose the utility of the convention is the only consideration of interest, aside from the conservative value of changing slowly? Received: (qmail 21282 invoked from network); 18 Dec 1997 00:30:48 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 00:30:48 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xiTrQ-0005Ao-00; Thu, 18 Dec 1997 00:30:44 +0000 Message-Id: <3.0.1.32.19971218003046.007c3dd0@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Thu, 18 Dec 1997 00:30:46 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: failed contracts and restitution Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 18:02 17/12/97 -0500, Allan Axelrod wrote: > > > convention, in part influenced by the structure of pleadings, >leads us to describe some cases as the avoidance of contracts, and >it may be useful to organize avoidance materials, along with >those dealing with enforceable contracts, under the heading 'contract >law'. > > nevertheless, the avoided contract, after the court completes its >consideration, represents a fact situation in which contract remedies are >not available. However as transfers may have been effected in >the failed contract case, some remedy may be appropriate. > > why not retain the convention of describing all failed-contract >readjustments ---whether arising from a failure of offer, or an >avoidance for duress---as restitutionary? > If this is the convention (which I would question), it must be of very recent origin. Mere conservatism would lead us in very different directions. Consider for example the various uses of the expression "rescission". > this could represent a pragmatic judgment that failed-contract cases >have more in common with mistake cases than they do with those >involving breach, and that the commonality bears examination > >[not to say that remediation in breach cases gives expression to entirely >different values from those in the failed-contract case] > It would be interesting to see a reasoned justification of this position. The remedies on breach are not obviously dissimilar from the failed-contract remedies; what are the "entirely different values" at work ? The case for their being fundamentally different is not obvious. Which is not to say that it could not be made. Over to you. >i assume that we are discussing a question of convention rather than some >empirical truth, and i suppose the utility of the convention is the >only consideration of interest, aside from the conservative value of >changing slowly? > I assume so too, though I'm not sure that this is the position of others who have written in this area. To see these issues as "restitutionary" at all is to move pretty fast; to assert that there are common principles uniting all "restitutionary" issues is to move even faster. Which leaves those who would do so with the burden of establishing the utility of their proposed new convention .... Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 30429 invoked from network); 18 Dec 1997 14:04:27 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 14:04:27 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id JAA25954; Thu, 18 Dec 1997 09:03:43 -0500 Date: Thu, 18 Dec 1997 09:03:43 -0500 (EST) From: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: failed contracts and restitution In-Reply-To: <3.0.1.32.19971218003046.007c3dd0@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII your note confirms my nervousness about participating in this group upon which i have stumbled and in which i seem to be the only american participant our law languages have grown apart and american academic lawyers are riddled with social science, an infection which seems to have spared most of this group but i am surprised at your suggestions that i am using 'restitution' unconventionally i have learned three principal categories of situations calling for civil money judgments---tort, breach of contract, and unjust enrichment one of our leading cases---last century----involved an employee who was to have been paid at the end of a one-year employment contract, but who materially breached after seven months work the decision was highly controversial but the employee was awarded a quantum meruit and we were taught that these plaintiff-in breach cases used a restitutionary measure of compensation in that the recovery was not based on the contrct wage rate we'd better find out whether that usage is inconsistent with yours before we try to go forward Received: (qmail 389 invoked from network); 18 Dec 1997 15:43:44 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 15:43:44 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xii6v-0000Li-00; Thu, 18 Dec 1997 15:43:42 +0000 Message-Id: <3.0.1.32.19971218154348.007d9830@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Thu, 18 Dec 1997 15:43:48 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: failed contracts and restitution In-Reply-To: References: <3.0.1.32.19971218003046.007c3dd0@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 09:03 18/12/97 -0500, Allan Axelrod wrote: > >your note confirms my nervousness about participating in >this group upon which i have stumbled and in which i seem >to be the only american participant > Don't worry, we don't bite! I do not imagine that I am the right person to speak for restitution lawyers generally, but will try to give a general answer. No doubt I will be corrected if I fail to give a fair statement of the position. I do not think we are that far apart from the american scholarship, but the situation is not quite the same. >i am surprised at your suggestions that i am using 'restitution' >unconventionally > You must realise that there is a lot of recent history here, and that not only is restitution a controversial area, but so is contract. The controversy in contract is more low-level, but disputes as to the one tend to involve the other. In particular, some say that unjust enrichment is of growing importance throughout the whole of the law (Atiyah, for example), whereas others would confine it largely to a distinct area in itself In other words, a very innovative attitude (pro-unjust enrichment) towards in restitution tends to go along with a rather traditional (anti-unjust enrichment attitude) to contract. A further complicating factor is the continued existence of equity as a distinct branch of the law - though again, precisely *how* distinct is a matter of opinion. > i have >learned three principal categories of situations calling for civil >money judgments---tort, breach of contract, and unjust >enrichment > That is a proposition that is now familiar to people on this list, but the reference to unjust enrichment renders it controversial to lawyers in general. It would be uncontroversial to say that there is much in private law that does not concern either torts or contracts, but it is another matter whether this non-tort, non-contract subject matter can be regarded as a distinct third area of similar coherence. Hence, when you said that >this could represent a pragmatic judgment that failed- >contract cases have more in common with mistake >cases than they do with those involving breach, >and that the commonality bears examination you appear to English eyes to be stepping in on one side of the argument rather than the other - which is why someone on the other side asks for your justification. The issue is indeed precisely whether the commonality bears examination. >one of our leading cases---last century----involved an >employee who was to have been paid at the end of a one-year >employment contract, but who materially breached >after seven months work the decision was highly controversial but the >employee was awarded a quantum meruit and we were taught that these >plaintiff-in breach cases used a restitutionary measure of compensation >in that the recovery was not based on the contrct wage rate > That very example has been the subject of much controversy in this jurisdiction, particularly over what the measure should be. Whether the contract rate or some other rate is appropriate is an open question, on which there is no lack of opinions. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 2719 invoked from network); 18 Dec 1997 17:25:27 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 17:25:27 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id MAA19534; Thu, 18 Dec 1997 12:25:18 -0500 Date: Thu, 18 Dec 1997 12:25:18 -0500 (EST) From: Allan AXELROD Reply-To: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: failed contracts and restitution In-Reply-To: <3.0.1.32.19971218154348.007d9830@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Thu, 18 Dec 1997, Steve Hedley wrote: > At 09:03 18/12/97 -0500, Allan Axelrod wrote: > > > >your note confirms my nervousness about participating in > >this group upon which i have stumbled and in which i seem > >to be the only american participant > > > > > Don't worry, we don't bite! > we're like animals here, and it's so nice to be with a group of friendly gentle controversilaists such as yourselves let me repeat and amplify: our discussion has been [mostly] taxonomic: we discover clumps of civil law-suits [ranging from inadvertently taking possession of another's personal property to intentional maiming] in which the recovery is based on plaintiff's loss and we give a group name : tort we discover clumps of lawsuits [more coherent factually] in which plaintiff's recovery is measured by promise, expectations, bargain and have a group name contract we have a clump of cases [ranging widely again from mistake through defective contrct situations such as duress or plaintiff-in-breach] where the measure of recovery is defendant's gain: i at least learned to call this 'restitution' and why not this last classifying word? you say because the several cases don't have enough in common to require or legitimate a label, and so you want to squeeze the cases in what i have called the third category back into the other two, which then will no longer be differentiated by type of remedy but by some other idea why deprive the world of a taxonomy of law-suits classified by remedy measure? remedy measure is certainly important in practice and for clients etc etc perhaps you fear that the naming of a category 'unjust enrichment' entailing a remedy 'restitution' will alter substantive results in an unattractive way?? which thought brings me to your last paragraph [although i hope i have paid sufficient attention to those in bewteen] which responds to my last paragraph next printed > > > >one of our leading cases---last century----involved an > >employee who was to have been paid at the end of a one-year > >employment contract, but who materially breached > >after seven months work the decision was highly controversial but the > >employee was awarded a quantum meruit and we were taught that these > >plaintiff-in breach cases used a restitutionary measure of compensation > >in that the recovery was not based on the contrct wage rate > > > > > That very example has been the subject of much controversy in > this jurisdiction, particularly over what the measure should be. > Whether the contract rate or some other rate is appropriate > is an open question, on which there is no lack of opinions. > with respect that seems to me to be quite irrrelevant to our discussion: if the law prescribes a contract measure then i promise not to call it a restitution case and if you accept that there is a category 'unjust enrichment' and a measure 'restitution' i promise that my sense of what is or is not 'unjust' will not be influenced by the existence of the named category Received: (qmail 3266 invoked from network); 18 Dec 1997 17:44:55 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 17:44:55 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 18 Dec 1997 17:44:36 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id RAA03677 for ; Thu, 18 Dec 1997 17:44:33 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: References: <3.0.1.32.19971218154348.007d9830@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 18 Dec 1997 17:45:03 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re: RDG: failed contracts and restitution Allan Axelrod wrote: >why deprive the world of a taxonomy of law-suits classified by remedy >measure? remedy measure is certainly important in practice and for >clients etc etc Eg J Stapleton, "A New 'Seascape' for Obligations: Reclassification on the Basis of Measure of Damages" in Birks ed. *Classification of Obligations* (Oxford, OUP, 1997). Although I suspect classifying by creative event is more interesting from an analytical (as opposed to a practical) point of view. Lionel Received: (qmail 5677 invoked from network); 18 Dec 1997 19:26:56 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 19:26:56 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.81 #4) id 0xilaw-0001f3-00; Thu, 18 Dec 1997 19:26:54 +0000 Message-Id: <3.0.1.32.19971218192701.007df450@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Thu, 18 Dec 1997 19:27:01 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: failed contracts and restitution In-Reply-To: References: <3.0.1.32.19971218154348.007d9830@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 12:25 18/12/97 -0500, Allan Alexrod wrote: > > >we have a clump of cases [ranging widely again from mistake through >defective contrct situations such as duress or plaintiff-in-breach] where >the measure of recovery is defendant's gain: i at least learned to call >this 'restitution' > > But of course this is not a simple classification by measure, because most restitution measures are equivocal, eg : If P pays over a sum to D and the law allows recovery back, the measure itself could equally be described as "P's loss" or as "D's gain". If D uses P's property and is made to pay the market rate for so doing, this could be described as "P's loss" or as "D's gain" or as "P's expectation" - and each of those positions has its supporters in the literature. This is why the enquiry has to be broader, and take in other matters in deciding which description is better. There are of course a few anomalous remedies which cannot convincingly be seen other than as measures of gain - I am thinking of actions to remove profits from defaulting fiduciaries and so on - but a law of restitution founded principally on obscure instances of that sort would be a very poor thing. >and why not this last classifying word? you say because the several >cases don't have enough in common to require or legitimate a label, Precisely. That is the core of it. >and so >you want to squeeze the cases in what i have called the third category >back into the other two, which then will no longer be differentiated by >type of remedy but by some other idea > Well, that is a side-issue. Certainly I would put them into one of the earlier classifications if they fairly fit; so should you. >why deprive the world of a taxonomy of law-suits classified by remedy >measure? remedy measure is certainly important in practice and for >clients etc etc > Nobody is trying to deprive anybody of anything; the question is simply, What is the most convenient description. As to the "contract price vs. quantum meruit" problem, >with respect that seems to me to be quite irrrelevant to our >discussion: if the law prescribes a contract measure then i >promise not to call it a restitution case >and if you accept that there is a category 'unjust enrichment' and a >measure 'restitution' i promise that my sense of what is or is not >'unjust' will not be influenced by the existence of the named >category > > But either measure can happily be described as contractual or as unjust enrichment, as we please. The work is plainly being done for reward, and so some sort of expectation measure is appropriate; there may be an issue as to whether the parties' earlier agreement can still be relevant ("contract") or whether we should refer to typical market wage rates ("quantum meruit"), but that doesn't change the nature of the problem. For that matter, either measure could be described as a measure of benefit, the problem then being as to the value to be put on the benefit. I would myself think "expectation" a better description than "benefit", in both cases. But that is secondary. The main point is that the remedies are rather similar, and the idea that the first case concerns "the worker's expectation" whereas the second concerns "the employer's gain" quite unconvincing. It is like saying that one glass is half full, whereas another is quite different because it is half empty. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 8456 invoked from network); 18 Dec 1997 23:05:27 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 18 Dec 1997 23:05:27 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id SAA22842; Thu, 18 Dec 1997 18:05:23 -0500 Date: Thu, 18 Dec 1997 18:05:23 -0500 (EST) From: Allan AXELROD Reply-To: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: failed contracts and restitution In-Reply-To: <3.0.1.32.19971218192701.007df450@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII someone does get to say 'this correspondence must now cease'? and i assume we will happily give this to our moderator? after this ms. and before your next? =============== ==================================== On Thu, 18 Dec 1997, Steve Hedley wrote: > At 12:25 18/12/97 -0500, Allan Alexrod wrote: > > > > > >we have a clump of cases [ranging widely again from mistake through > >defective contrct situations such as duress or plaintiff-in-breach] where > >the measure of recovery is defendant's gain: i at least learned to call > >this 'restitution' > > > > > > But of course this is not a simple classification by measure, > because most restitution measures are equivocal, eg : > > If P pays over a sum to D and the law allows > recovery back, the measure itself could equally be > described as "P's loss" or as "D's gain". =========================> that gives me pause but only to create a fourth remedial classification known as 'all of the above' ======================== There are of course a few anomalous remedies which > cannot convincingly be seen other than as measures of > gain - I am thinking of actions to remove profits from > defaulting fiduciaries and so on - but a law of restitution > founded principally on obscure instances of that sort > would be a very poor thing. how would you classify the remedy in our mistake cases under what we call Occupants and Claimants Acts: an innocent trespasser upon being evicted is entitled to a lien against the realty for any value added during his possession: the amount doesn't measure what was spent nor does it reflect any sort of expectation? anyway all i want to say of particular cases, such as the one you have just described and hwoever small the category, is something which i know conveys meaning and gives an interesting differentation for members of the bar: 'the measure of recovery in such and such a case was restitutionary' but you keep imputing to me a desire to create or acknowledge a tawdry something you call a law of restitution, a desire to effect what lionel smith called a classification by creative event and to make statements such as 'the recovery in such and such a case was restitutionary' which does imply the cause-of-action leading to the recovery you do not refute the idea that there is a useful category of restitution-unjust enrichment cases classifed by creative event simply by showing that the measure of recovery in such cases does not uniquely measure defendant's gain so long as it does measure defendant's gain as to whether there is a law of restitution classed by creative event we agree that the question is whether the classification is useful and other members of the group still awake might choose to address that i will add: one of the great articles in american legal history was entitled 'waiver distributed' the author conclusively demosntrated that there was really no such thing as waiver---cases called waiver cases were really estoppels, or contract modifications---i can;t remeber the other categories everyone however is still talking about waiver if waiver and the law of restitution are otiose or misleading categories, what accounts for their persistence? it's either utility or the devil? Received: (qmail 15445 invoked from network); 19 Dec 1997 11:20:17 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 19 Dec 1997 11:20:17 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.82 #1) id 0xj0TK-0000uG-00; Fri, 19 Dec 1997 11:20:02 +0000 Message-Id: <3.0.1.32.19971219112009.007d0cb0@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Fri, 19 Dec 1997 11:20:09 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: failed contracts and restitution In-Reply-To: References: <3.0.1.32.19971218192701.007df450@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I begin to see, I think. In your jurisdiction, or so I infer from what you say, it is settled that there is a law of restitution based on unjust enrichment. So settled is this point, indeed, that it is news to you that any other view might seriously be entertained. Am I right ? Whereas in mine, the propositions that there is a law of restitution, and that it is based on unjust enrichment, have only relatively recently been promoted with any vigour. Those who maintain those propositions are not repeating obvious truths, but saying something they know others might reasonably disagree with. They may be right, they may be wrong, but that cannot and do not present it as the only possible view. Accordingly, what seem to you as obvious propositions about unjust enrichment seem to us as propositions which need to be established through reasoned argument; and whereas with you, legal conservatism is in favour of unjust enrichment, here it is against. The 'unjust enrichment' camp have many arguments, but cannot claim to represent an established orthodoxy; and when they seek to analyze a remedy as restitutionary, it is by no means immaterial that it can be analyzed in other ways. It is very much to the point that there are others ways of looking at these things. Accordingly, at 18:05 18/12/97 -0500, Allan Axelrod wrote: > > >anyway all i want to say of particular cases, such as the one you >have just described and hwoever small the category, is something which i >know conveys meaning and gives an interesting differentation for members >of the bar: > >'the measure of recovery in such and such a case was restitutionary' > Whereas here, it means little to typical members of the bar, and so those who wish to promote it must attempt to give it a meaning. And if those in favour of 'unjust enrichment' here admit that the category of claim is small, they call in question the utility of asserting its existence. They wish to gain acceptance for it, and so are forced to claim that it is important. >but you keep imputing to me a desire >to create or acknowledge a tawdry something you call a law of restitution, >a desire to effect what lionel smith called a classification by creative >event and to make statements such as 'the recovery in such and such a case >was restitutionary' which does imply the cause-of-action >leading to the recovery > If I seem to you to be imputing that view to you, that is because that is the view I expect to be behind support for 'unjust enrichment'. > >as to whether there is a law of restitution classed by creative >event we agree that the question is whether the classification is useful >and other members of the group still awake might choose to address that > I hope they will. The question whether 'unjust enrichment' is actually a *useful* classification has been much neglected. >i will add: > > if waiver and the law of restitution are otiose or >misleading categories, what accounts for their persistence? > >it's either utility or the devil? > At present, in this jurisdiction, restitution has only persisted for a rather small fraction of the time that rival theories lasted; resort to supernatural explanation seems premature. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 17706 invoked from network); 19 Dec 1997 12:22:10 -0000 Received: from mail.kcl.ac.uk (root@137.73.66.6) by jess.oucs.ox.ac.uk with SMTP; 19 Dec 1997 12:22:10 -0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.8.8/8.8.8) with SMTP id MAA16493 for ; Fri, 19 Dec 1997 12:16:21 GMT Message-Id: <1.5.4.32.19971219121359.00676704@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 19 Dec 1997 12:13:59 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Steve Hedley writes: >At present, in this jurisdiction, restitution has only persisted >for a rather small fraction of the time that rival theories lasted; >resort to supernatural explanation seems premature. > > > As an analytical approach, resort to the supernatural has also been viewed with disfavour by high judicial authority - see Circuit Systems Ltd (in liq) v Norglen Ltd, HL, 27th Nov 1997, per Lord Hoffmann; 'there is no need for such spooky jurisprudence'. Dr Charles Mitchell School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 e-mail: charles.mitchell@kcl.ac.uk Received: (qmail 23003 invoked from network); 19 Dec 1997 15:01:20 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 19 Dec 1997 15:01:20 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id KAA24818; Fri, 19 Dec 1997 10:00:56 -0500 Date: Fri, 19 Dec 1997 10:00:56 -0500 (EST) From: Allan AXELROD Reply-To: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: failed contracts and restitution In-Reply-To: <3.0.1.32.19971219112009.007d0cb0@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Fri, 19 Dec 1997, Steve Hedley wrote: > I begin to see, I think. ======================== that makes it all worthwhile we have enriched one another Received: (qmail 23837 invoked from network); 19 Dec 1997 15:48:50 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 19 Dec 1997 15:48:50 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Fri, 19 Dec 1997 15:48:42 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id PAA06824 for ; Fri, 19 Dec 1997 15:48:39 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 19 Dec 1997 15:49:11 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Terminology If I may intervene ... Allan Alexrod wrote: >does someone get to say 'this correspondence must now cease'? and i >assume we will happily give this to our moderator? I would not quite want to say that; it is an interesting dialogue (or dialog) and to some extent replicates one which Mr Hedley and Prof Birks have been having since at least 1985 (see (1985) 5 Legal Studies 56 (Hedley) and 67 (Birks) [NB Legal Studies is the SPTL's journal, not the JLS from U of Chicago]) and which they continue to carry on (see Hedley [1997] 3 Web JCLI, at http://webjcli.ncl.ac.uk/1997/issue3/hedley3a.html, and Birks in Birks ed., *Classification of Obligations* (Oxford, OUP, 1997)). Far from trying to stop the thread (which I would only want to do if it was starting to get repetitive), I would like to contribute to it. Allan said: >as to whether there is a law of restitution classed by creative >event we agree that the question is whether the classification is useful >and other members of the group still awake might choose to address that I think the first point is very important. We must be clear as to what we are fighting about or we may find out that there has been no point to the disagreement. There are at least three classifications in play. One is contextual, eg "commercial law" which has elements of contract, property, tort, trusts, agency etc (a list which itself arguably uses all three different classifications). The second is by response, in which "restitution" goes with compensation, punishment, symbolic vindication (nominal damages). (And possibly "disgorgement." If we understand "restitution" to be about reversing a transfer of wealth (thus taking notice of both defendant's gain and plaintiff's loss) then we must distinguish taking away a gain without regard to whether it corresponds to a plaintiff's loss, which we could call "disgorgement".) "Tort" does not belong in this scheme because tort is something which generates the items on this list. The third is by creative event. Wrongs, consent, unjust enrichment, others. In this sense "unjust enrichment" does not include eg taking away fiduciaries' profits; that is disgorgement for a wrong. "Tort" is a subcategory of "wrongs." It is also important to notice that "consent" does not equate to "contract." When I wrote >IF (which some will contest) >legal responses can be said to arise from wrongs, consent, unjust >enrichment, and other causes, THEN while enforcing a contract is a response >deriving from consent, setting one aside is not necessarily so. Steve Hedley replied: >You seem to be assuming that "the law of contract" is reducible purely to >issues of consent, and that issues such as (say) unjust enrichment are >irrelevant to it. Yet what scholar of the law of contract believes this ? But I actually did not use the phrase "the law of contract" nor make any claim about the utility of that phrase or its possible content. Obligations generated by consent include most contractual obligations but they also include eg the obligations of an express trustee (cf Langbein (1996) 105 Yale LJ 625). We could use any or all of these three systems of classification but it is perilous to mix them unconsciously. If a student was asked what he was studying in a particular semester he might say "restitution, tort, and commercial law." No one would bat an eyelash. But if a student was asked what she was studying in a term and answered "imprisonment, theft, and chattel law" then a different view might be taken. Yet the series are parallel. I think Steve takes the view that "the law of contract" is a contextual category as I have used that phrase. Thus it includes things not generated by consent. That is a perfectly defensible usage but if others understand the phrase differently and the differences are not brought to the fore confusion must follow. I think others do understand it differently, and a view that "the law of contract" includes only obligations generated by consent is also defensible. So part of the controversy can be understood as which of these three systems of classification is most useful. But another part of it can be understood as taking place within a classification based on causative event. That is the issue about whether unjust enrichment is properly a category within that clasification. Steve said > And aren't the formation and >enforcement of contracts something to do with unjust enrichment, too ? In another place ((1984) 100 LQR 697) Steve said: "The Law of Restitution can only suffer if the words "unjust," "enrichment" and "expense" are sometimes treated as bearing their everyday meanings and sometimes as technical terms." Amen to that. I would suggest that Steve is using two of those words in their everyday meanings when he suggests that the formation and enforcement of contracts have something to do with unjust enrichment. What I think is the emerging consensus all over the Commonwealth (building upon the US experience), among academics and judges, is that there is a technical sense of the phrase "unjust enrichment." In that sense it is a source of obligations (and perhaps of proprietary rights). It is a cause of action or a family of causes of action. On that terminological choice (which I do not claim is anything but a choice, albeit a very useful and increasingly popular one), then the formation and enforcement of contracts have absolutely nothing to do with unjust enrichment. Steve appears to take the view that the phrase "unjust enrichment" does not deserve to have a technical meaning, as it does not reliably identify anything. That may be a defensible view but it is I think now a minority view. Allan also wrote: >your note confirms my nervousness about participating in >this group upon which i have stumbled and in which i seem to be the only >american participant I can say that you are not the only American member of the list. Whether we will hear from others is outwith my control. Lionel Received: (qmail 26114 invoked from network); 19 Dec 1997 19:25:36 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 19 Dec 1997 19:25:36 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.82 #1) id 0xj83C-0007Is-00; Fri, 19 Dec 1997 19:25:34 +0000 Message-Id: <3.0.1.32.19971219192532.007d6100@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Fri, 19 Dec 1997 19:25:32 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Terminology In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I suspect terminology is indeed at the root of it. To my way of thinking, the introduction of new terminology which changes the legal position needs the same scrutiny as new legislation. At 15:49 19/12/97 +0000, Lionel Smith wrote: > >There are at least three classifications in play. One is >contextual, eg "commercial law" which has elements of contract, property, >tort, trusts, agency etc (a list which itself arguably uses all three >different classifications). The second is by response, in which >"restitution" goes with compensation, punishment, symbolic vindication >(nominal damages). (And possibly "disgorgement." If we understand >"restitution" to be about reversing a transfer of wealth (thus taking >notice of both defendant's gain and plaintiff's loss) then we must >distinguish taking away a gain without regard to whether it corresponds to >a plaintiff's loss, which we could call "disgorgement".) "Tort" does not >belong in this scheme because tort is something which generates the items >on this list. The third is by creative event. Wrongs, consent, unjust >enrichment, others. In this sense "unjust enrichment" does not include eg >taking away fiduciaries' profits; that is disgorgement for a wrong. "Tort" >is a subcategory of "wrongs." > A rather elaborate classification, if I may say so. What is its purpose ? Any number of distinctions *can* be drawn. But for what end ? It is one thing to draw a distinction and quite another to use it. I will use the classification you mentioned if any useful purpose seems to be served by it, but not otherwise. To require that all legal argument needs to be structured around it is a strong claim indeed - it is as if you claimed that a man's left side is distinct from his left side, and then went on to insist that therefore he will feel no pain if cut down the middle. >I actually did not use the phrase "the law of contract" nor make any >claim about the utility of that phrase or its possible content. Obligations >generated by consent include most contractual obligations but they also >include eg the obligations of an express trustee (cf Langbein (1996) 105 >Yale LJ 625). > And yet others on the list had no hesitation in concluding that you were making a claim about the law of contract, as against the law of unjust enrichment - isn't that interesting ? For example, Peter Birks commented that >Lionel must be right. The right to rescind can only belong >to contract in a contextual sense. That is, it belongs in the >law which is about contract. When we look at the events >from which rights arise, we can rarely derive a right to >rescind from contract ... > > .... it does not seem incorrect to attribute the right to >rescind the security to unjust enrichment. The law is all one thing. By all means concentrate your attention on one aspect of it at a time, but do not suppose that what you do in one area does not affect what happens in another. You can have profound effects on the law of contract without its being anywhere in your thoughts - indeed, it may be affected precisely because you did *not* ask yourself about it. >We could use any or all of these three systems of classification but it is >perilous to mix them unconsciously. If a student was asked what he was >studying in a particular semester he might say "restitution, tort, and >commercial law." No one would bat an eyelash. Nor should they, despite the student's obvious failure to apply your classification (mixing up your first and your second category).. >But if a student was asked >what she was studying in a term and answered "imprisonment, theft, and >chattel law" then a different view might be taken. Yet the series are >parallel. > Indeed. Both statements fail your requirements of logical consistency. Yet the first statement is faultless and the second is goobleydegook. This story has important implications about the relevance of logical coherence. "Perilous" to mix categories - Why ? Explain to the first student the dangers he is running, if you really think he is. The dangers the second is running are more obvious. >I think Steve takes the view that "the law of contract" is a contextual >category as I have used that phrase. I don't think I should try the patience of the list by trying to define my own approach to contract precisely. Suffice to say that I am not sure I even understand what it would mean to claim that contract is or isn't contextual in this sense. This is one of the dangers of rigid terminological schemes : they close off options. You are boxing yourself in so that certain claims cannot be made. If your approach had been at all common 20 years ago, then neither Patrick Atiyah nor Hugh Collins nor Charles Fried could have written what they did on contract : Atiyah and Collins would have been told that their works were internally contradictory, and Fried would have been told that his work consisted wholly of circular assertions. Yet no-one understands their work that way. >What I think is the emerging consensus all over the Commonwealth (building >upon the US experience), among academics and judges, is that there is a >technical sense of the phrase "unjust enrichment." In that sense it is a >source of obligations (and perhaps of proprietary rights). It is a cause of >action or a family of causes of action. On that terminological choice >(which I do not claim is anything but a choice, albeit a very useful and >increasingly popular one), then the formation and enforcement of contracts >have absolutely nothing to do with unjust enrichment. Steve appears to take >the view that the phrase "unjust enrichment" does not deserve to have a >technical meaning, as it does not reliably identify anything. That may be a >defensible view but it is I think now a minority view. > As to what is the majority view and what is minority, I think you need to look rather closer at the nature of the support for unjust enrichment. Much of it is premised on the (natural) assumption that the words mean something close to their natural meaning. That is precisely why I surveyed the use of "unjust enrichment" in law reports using LEXIS for my [1995] CLJ article; it is manifest that those judges who use the expression at all do not have any very technical meaning in mind. How many judgements can you recall that even *name* any unjust factors, let alone use them ? If practitioners refer to "restitution", what are the odds that they will be talking about something which academics will regard as part of the subject, as distinct from some compensatory notion ? How many judges recognise any inconsistency basing a restitutionary claim on unjust enrichment and basing it on an implied contract ? Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== Received: (qmail 1900 invoked from network); 20 Dec 1997 17:34:32 -0000 Received: from andromeda.rutgers.edu (@128.6.10.4) by jess.oucs.ox.ac.uk with SMTP; 20 Dec 1997 17:34:32 -0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.6.12+bestmx+oldruq+newsunq/8.6.12) with SMTP id MAA08136; Sat, 20 Dec 1997 12:34:28 -0500 Date: Sat, 20 Dec 1997 12:34:28 -0500 (EST) From: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: failed contracts and restitution In-Reply-To: <3.0.1.32.19971219112009.007d0cb0@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII if, as you maintain, there is nothing in england worthy of the name 'law of restitution' and if there is, as you concede possible, a collection of U.S. decisions that deserve that title, can we account for the difference? CUI BONO? 1 the largest head for restitution cases here is mistake 2 because of the prominence, here, of lawyers in the guidance of business and personal money activity, a good number of the mistakes come from lay-persons following mistaken legal advise 3 the US has a flourishing industry in malpractice litigation, one branch of which is legal malpractice 4 to the extent that benefits conferred on another because of mistaken legal advise are not recoverable back, the liability of lawyers here is increased QED liberal US recovery-back for mistake is induced largely by sympathy for an incompetnet American bar, a fellow-feeling from the judges who are of course drawn from the ranks of that bar, and from american legislatures which are made up mostly of lawyers ======================= that not-very-serious exercise in a sort of contemporary american legal explanation is just a little season's greeting and thank-you to the group Received: (qmail 14861 invoked from network); 22 Dec 1997 08:57:23 -0000 Received: from mail.kcl.ac.uk (root@137.73.66.6) by jess.oucs.ox.ac.uk with SMTP; 22 Dec 1997 08:57:22 -0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.8.8/8.8.8) with SMTP id IAA20387 for ; Mon, 22 Dec 1997 08:52:10 GMT Message-Id: <1.5.4.32.19971222084955.0068d4a8@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Dec 1997 08:49:55 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Restitutionary damages for breach of contract Reported in The Times this morning (Mon 22nd Dec), Lord Woolf had the following observations to make in A-G v Blake: 'The court invited submissions on whether the Crown might have a private law claim to restitutionary damages for breach of contract. The Attorney decided not to advance such a claim before the CA. Since there would be no appeal, the court expressed its view, which was obiter and without benefit of argument. 'The general rule was that damages for breach of contract were compensatory not restitutionary. The time had come to recognise a restitutionary claim for profits made from a breach of contract in appropriate circumstances. The difficult question was in what circumstances they should be available. 'The basis on which damages were awarded should not depend on the defendant's moral culpability. Breach of contract enabling a defendant to enter into a more profitable contract, and by entering into a later contract putting it out of his power to perform his contract with the plaintiff were insufficient to justify an award. 'There were at least two situations where justice required the award of restitutionary damages where compensatory damages would be inadequate: skimped performance and where a defendant had obtained his profit by doing the very thing he had contracted not to do. That covered the present case exactly. Mr Blake had promised not to disclose official information and he did so for profit. 'In _Snepp_ v _United States_ (1980) 100 S Ct 763 a majority ofthe US Sup Ct awarded restitutionary damages for breach of contract in circumstances closely resembling the present case. 'They invoked a constructive trust impressed on the proceeds of publication without prior clearance. Their Lordships would prefer to award restitutionary damages directly for breach of contract rather than distort the equitable concepts of fiduciary duty or constructive trust to accommodate them. 'In the absence of a claim for substantial damages for breach of contract, however, the private law claim was dismissed.' These obiter dicta constitute a very significant step down the road towards restitutionary damages for breach of contract. The MR would clearly have awarded restitutionary damages for Blake's breach of his contract with the Crown if the A-G had asked for them, and presumably he thinks that an award on this basis should also have been made in the Spycatcher case. A Happy Christmas to all, Charles ____________________________________________________________________________ ________ Dr Charles Mitchell School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk Received: (qmail 16925 invoked from network); 22 Dec 1997 10:22:06 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 22 Dec 1997 10:22:06 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 22 Dec 1997 10:22:05 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id KAA17480 for ; Mon, 22 Dec 1997 10:22:02 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Dec 1997 10:22:35 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith config restitution eregion Received: (qmail 19495 invoked from network); 22 Dec 1997 12:54:04 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 22 Dec 1997 12:54:04 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 22 Dec 1997 12:53:54 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id MAA19926 for ; Mon, 22 Dec 1997 12:53:51 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Dec 1997 12:54:24 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: technical & foskett Greetings all, 1. The RDG's configuration was changed recently so that if you "reply" to a posting you set up a private reply to the poster. This was to reduce the likelihood of accidental postings. What it means is that if you wish to make a posting you need to have the posting address to hand, which not everyone does. I have tried (and this message will function as a test to see if I succeeded) to change the "footer" so that the posting address will appear there and thus in every future message. 2. The House of Lords has granted leave to appeal the decision of the CA in Foskett v. McKeown, the case on tracing trust money into life assurance proceeds. In addition to the case notes already mentioned, one by Robert Chambers will be out soon in Trust Law International. Seasons' greetings, Lionel Received: (qmail 19525 invoked from network); 22 Dec 1997 12:58:12 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 22 Dec 1997 12:58:12 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 22 Dec 1997 12:58:05 +0000 Received: from [163.1.157.172] (ug28.sthughs.ox.ac.uk [163.1.157.172]) by sable.ox.ac.uk (1.2/8.8.3) with ESMTP id MAA08381 for ; Mon, 22 Dec 1997 12:58:03 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Dec 1997 12:58:35 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion From: Lionel Smith Subject: technical & foskett Greetings all, 1. The RDG's configuration was changed recently so that if you "reply" to a posting you set up a private reply to the poster. This was to reduce the likelihood of accidental postings. What it means is that if you wish to make a posting you need to have the posting address to hand, which not everyone does. I have tried (and this message will function as a test to see if I succeeded) to change the "footer" so that the posting address will appear there and thus in every future message. 2. The House of Lords has granted leave to appeal the decision of the CA in Foskett v. McKeown, the case on tracing trust money into life assurance proceeds. In addition to the case notes already mentioned, one by Robert Chambers will be out soon in Trust Law International. Seasons' greetings, Lionel Received: (qmail 30503 invoked from network); 23 Dec 1997 10:53:17 -0000 Received: from ursa.cus.cam.ac.uk (cusexim@131.111.8.6) by jess.oucs.ox.ac.uk with SMTP; 23 Dec 1997 10:53:17 -0000 Received: from swh10.christs.cam.ac.uk (swh10.cam.ac.uk) [131.111.219.51] by ursa.cus.cam.ac.uk with smtp (Exim 1.82 #1) id 0xkRxb-0003qU-00; Tue, 23 Dec 1997 10:53:15 +0000 Message-Id: <3.0.1.32.19971223105323.007d1890@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Tue, 23 Dec 1997 10:53:23 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: failed contracts and restitution Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I asure members of the group that the following is not a bogus attempt to stir up further controversy by faking e-mail, but is actually a forwarded message from Gerard McMeel, intended for this discussion list. The main lines of the reply I would draft but for my holiday plans are that 1/ I am happy to use some other label than "restitution enthusiast" for those who apply the approach to Restitution promoted in Birks' "Introduction to Restitution", but have noticed a tendency to deny the reality of this phenomenon. It is rather as if someone described Harriet Harman or David Blunkett as "Labour supporters" and they then complained of being typecast ! and 2/ I have never urged *ignorance* of restitution as desirable, and am no more guilty of promoting it than is anyone else on this list. ===================================================== It is interesting to see such controversy sparked by the certainties of a former Bristol student and, I'm sure "atypical" member of the Bar/ I have written elsewhere of my views of the location of rescission in the legal map,and have been typecast as a "restitution enthusias" by Steve as a result! I was concerned by Steve's remark about typical members of the (I presume English) Bar, especially by the idea that this construct (whose education in the law of obligations was confined to Contract and Tort) should control our legal thinking. Should such a creature exist, there is a danger he could overlook potential remedial solutions for his clients. In reality , recent reported cases suggest increasing familiarity with restitutionary literature, both cases and juristic writings. However in my experience solutions are overlooked due to unfamiliarity. Take one example: Can a negligent insurance intermediary retain the premium? Suppose a broker takes the client's cheque and instructions to insure immediately. The broker is dilatory and a riskk eventuates with no cover The insured can recover danages from the broker equivalent to the indemnity. Can he also have his money back which has never been applied for the intended purpose? Dr Clarke in the Law of Insurance Contracts says he can (albeit as an element of damages) and cites CA in Osman v Ralph Moss (1977)(in fact the issue is not explicitly discussed ther). There is a counter-argument that by suing the broker for damages the client "affirms" the contract and cannott have both restitution and damges(reasoning similar to the HCA in The Mikhail Lermontov, brilliantly criticised by Barker in 1993 LMCLQ) However the client did not bargain for no cover and to be left to the tender mercies of litigation against the broker. A prudent client when he discovers the gap will effect insurance elsewhere for the remainder of the term. Further, the agent received the money in a fiduciary capacity for one purpose only, to which it has not been applied/ On balance I think most English courts will include the sum in the damages or will award rest. on the basis of a total (or sometimes perhaps partial failure) of consideration, oblivious of any theoretical difficulties (as happened in the sale of goods context in Rogers v Parish ). However I know a lot of practitiners who disagre. Any views? Apologies for the poor quality of this message - I am logging in from a remote terminal and I cannot revise the text. Gerard McMeel (University of Bristol) Supreme Court Jerusalem