-- >From birks@ermine.ox.ac.uk Sat Aug 01 08:25:55 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z2WzD-00061w-00; Sat, 1 Aug 1998 08:25:55 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Sat, 1 Aug 1998 09:25:50 +0100 Received: from platform.asc.ox.ac.uk (platform.asc.ox.ac.uk [163.1.128.124]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id JAA08261 for ; Sat, 1 Aug 1998 09:25:49 +0100 (BST) Message-Id: <1.5.4.32.19980801082512.009ca16c@ermine.ox.ac.uk> 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: Sat, 01 Aug 1998 09:25:12 +0100 To: restitution From: Peter Birks Subject: three new books + contents thereof Three new books, with their contents pages: FD Rose, ed, Restitution and Banking Law ISBN 0 9526499 1 8 (express order Francis Rose ) 1 Unauthorised Payment and Unjust Enrichment in Banking Law Justice DH van Zyl 1 2 Distributing the Burden of Alternative Co-Extensive Liabilities: Some Banking Cases Considered Dr Charles Mitchell 27 3 Undue Influence and Misrepresentation after O'Brien: Making Security Secure Janet O'Sullivan 42 4 Undue Influence and Misrepresentation after O'Brien: Making Security Secure -- a Commentary Graham Virgo 70 5 O'Brien, Notice and the Onus of Proof Kit Barker 78 6 Cross-Border Security Enforcement and the Conflict of Laws Gabriel Moss QC/Felicity Toube 89 7 Cross-Border Security Enforcement, Restitution and Priorities Nick Segal 99 8 Tracing and Electronic Funds Transfers Dr Lionel Smith 120 9 Assisting a Breach of Duty by a Fiduciary, the Common Law and Money Laundering Michael Tugendhat 35 10 Recovering Misdirected Money from Banks: Ministerial Receipt at Law and in Equity Michael Bryan 161 11 The Burden on the Bank P Birks 189 Bibliography 233 Index 241 WR Cornish, Richard Nolan, J O'Sullivan, G Virgo (edd) Restitution Past, Present and Future, Essays in Honour of Gareth Jones (Hart 1998) 1 Misnomer Peter Birks 1 2 Misnomer -- A Response Andrew Tettenborn 31 3 The History of Quasi-Contract in English Law JH Baker 37 4 The Later History of Restitution John Langbein 57 5 Proprietary Restitutionary Claim Roy Goode 63 6 Three Questions on Proprietary Claims Sarah Worthington 79 7 Conflicts of Interest, Unjust Enrichment, and Wrongdoing Richard Nolan 87 8 Conflicts of Interest, Unjust Enrichment, and Wrongdoing -- A Commentary David Fox 127 9 Restitution for Wrongs: The Basis of Liability Daniel Friedmann 133 10 Civil Disgorgement of Wrongdoers' Gains: The Temptation to Do Justice Neil Andrews 155 11 Work Done in Anticipation of a Contract Which Does Not Materialise Ewan McKendrick 163 12 Work Done in Anticipation of a Contract Which Does Not Materialise -- A Response Steve Hedley 195 13 Restitution and Constructive Trusts Sir Peter Millett 199 14 Restitution and Constructive Trusts -- A Commentary AJ Oakley 219 15 Knowing Receipt -- The Need for a New Landmark Lord Nicholls 231 16 Knowing Receipt -- The Need for a New Landmark - Some Reflections Charles Harpum 247 17 Equitable Doctrine and Discretion in Remedies Paul Finn 251 18 Restitution in Canada Beverly McLachlin 275 19 Restitution in Canada -- A Commentary J Beatson 297 20 What is the Law of Restitution About Graham Virgo 305 21 What is the Law of Restitution About William Swadling 331 Index 339 Andrew Burrows, Understanding the Law of Obligations (Hart 1998) 1.Dividing the Law of Obligations 1 2 Solving the Problem of Concurrent Liability 16 3 Understanding the Law of Restitution: A Map Through the Thicket 34 4 Free Acceptance and the Law of Restitution 45 5 Restitution: Where do We Go from Here? 72 6 In Defence of Tort 120 7 Legislative Reform of Remedies for Breach of Contract 135 8 Improving Contract and Tort: The View from The Law Commission 164 Index 219 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 >From eodell@dux4.tcd.ie Wed Aug 05 14:12:26 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z44Ik-000443-00; Wed, 5 Aug 1998 14:12:26 +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 PAA02213 for ; Wed, 5 Aug 1998 15:12:23 +0100 (BST) Date: Wed, 5 Aug 1998 15:12:23 +0100 (BST) Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Bank overcharging customers I have a question for the list arising out of an important news story in Ireland at the moment. Last March, RT=C9 (the national tv and radio station) were about to break the story that various branches of the National Irish Bank had imposed excess charges and fees on customer bank accounts. NIB sued RT=C9 for breac= h of confidence, taking the case all the way to the Supreme Court (see NIB v RT=C9 (Supreme Court, unreported, 20 March 1998)) which ruled that the proposed disclosure was in the public interest. RT=C9 then broadcast a serie= s of allegations that NIB The bank commissioned a consultancy, Arthur Andersen, to undertake an investigation of the matter. At a press conferennce yesterday, the bank published that report, and its chief executive, Mr Mr Grahame Savage, undertook to return the excess charges and fees, plus interest. Thus, for example, the front page of the Irish Times today contains the headline "NIB to pay =A3131,166 for excess charges", and the story, by Colm Keena, continues that "National Irish Bank is to return =A3131,166 plus interest to 370 customers after two inquiries into allegations of improper interest- and fee-loading by the bank. Its chief executive, Mr Grahame Savage, yesterday offered the bank's "unreserved apologies" to the customers. Mr Savage was speaking at a press briefing at which details of an Arthur Andersen report on interest-loading by the bank were disclosed. The report dealt with interest charges at five branches The periods examined varied from branch to branch, The periods are those referred to in an RT=C9 repor= t last March, which first alleged interest-loading by the bank." =46or those who are interested, the full story is at http://www.irish-times.com/irish-times/paper/1998/0805/fro1.html (And I must declare that I am not now, and have never been, a customer of the NIB) My question is this; given that the bank took RT=C9 to the Supreme Court in an effort to prevent the broadcast of the story, they might equally have decided not to return the money at all, or to return it without interest; if they had done so, and a customer of the bank had decided to sue for the return of the money plus interest, would that have been an action for restitution of an unjust enrichment, and if so, what would the ground for restitution (the unjust factor) have been ? Many thanks 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.) >From swh10@cus.cam.ac.uk Wed Aug 05 14:51:09 1998 Received: from (taurus.cus.cam.ac.uk) [131.111.8.48] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z44uD-00046U-00; Wed, 5 Aug 1998 14:51:09 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by taurus.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z44uA-0006C8-00 for restitution@maillist.ox.ac.uk; Wed, 5 Aug 1998 15:51:06 +0100 Message-Id: <3.0.1.32.19980805155008.007cce30@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, 05 Aug 1998 15:50:08 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: Bank overcharging customers In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable At 15:12 05/08/98 +0100, (Eoin O' Dell wrote: >Last March, RT=C9 (the national tv and radio station) were about to break >the story that various branches of the National Irish Bank had imposed >excess charges and fees on customer bank accounts. NIB sued RT=C9 for= breach >of confidence, taking the case all the way to the Supreme Court (see NIB v >RT=C9 (Supreme Court, unreported, 20 March 1998)) which ruled that the >proposed disclosure was in the public interest. RT=C9 then broadcast a= series >of allegations that NIB The bank commissioned a consultancy, Arthur >Andersen, to undertake an investigation of the matter. At a press >conferennce yesterday, the bank published that report, and its chief >executive, Mr Mr Grahame Savage, undertook to return the excess charges and >fees, plus interest. > > >My question is this; given that the bank took RT=C9 to the Supreme Court in >an effort to prevent the broadcast of the story, they might equally have >decided not to return the money at all, or to return it without interest; >if they had done so, and a customer of the bank had decided to sue for the >return of the money plus interest, would that have been an action for >restitution of an unjust enrichment, and if so, what would the ground for >restitution (the unjust factor) have been ? > Presumably the bank's treatment of its customers was a breach of its contracts with them. Actions to recover the customers' lost money are therefore=20 actions for breach of contract, or perhaps even (depending on the circumstances) actions for debts based on the contracts, if that is different. =20 No doubt failing to pay your debts enriches you, but to define 'unjust enrichment' so broadly means that *all* civil liabilities would be based=20 on unjust enrichment. Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D 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 =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D >From colin.riegels@virgin.net Wed Aug 05 17:15:09 1998 Received: from (newmail.virgin.net) [194.168.54.44] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z479Z-0004Hf-00; Wed, 5 Aug 1998 17:15:09 +0000 Received: from pentium ([194.168.68.149]) by newmail.virgin.net (Post.Office MTA v3.5 release 217 ID# 0-52107U250000L250000S0V35) with SMTP id net; Wed, 5 Aug 1998 17:15:07 +0000 Message-ID: <35C890E5.55CA@virgin.net> Date: Wed, 05 Aug 1998 18:05:41 +0100 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: Steve Hedley CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers References: <3.0.1.32.19980805155008.007cce30@pop.cus.cam.ac.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit > Presumably the bank's treatment of its customers was a breach of its > contracts with them. > > Actions to recover the customers' lost money are therefore > actions for breach of contract, or perhaps even (depending on the > circumstances) actions for debts based on the contracts, if that is > different. That must be correct. The unstated dream of certain academics to reduce the entire two volumes of Chitty into one small chapter in Goff & Jones entitled "Quasi-restitution" has not yet come to fruition. COLIN RIEGELS Barrister One Paper Buildings Temple, London EC4Y 7EP >From axelrod@andromeda.rutgers.edu Wed Aug 05 18:44:50 1998 Received: from (andromeda.rutgers.edu) [128.6.10.4] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z48YJ-0004Ma-00; Wed, 5 Aug 1998 18:44:48 +0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.8.8/8.8.8) with SMTP id OAA09676; Wed, 5 Aug 1998 14:44:44 -0400 (EDT) Date: Wed, 5 Aug 1998 14:44:43 -0400 (EDT) From: Allan AXELROD Reply-To: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers In-Reply-To: <3.0.1.32.19980805155008.007cce30@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Content-Transfer-Encoding: QUOTED-PRINTABLE >=20 [snip from odell> > > >My question is this; given that the bank took RT=C9 to the Supreme Court= in > >an effort to prevent the broadcast of the story, they might equally have > >decided not to return the money at all, or to return it without interest= ; > >if they had done so, and a customer of the bank had decided to sue for t= he > >return of the money plus interest, would that have been an action for > >restitution of an unjust enrichment, and if so, what would the ground fo= r > >restitution (the unjust factor) have been ? > > >=20 >[headley continues]=20 > Presumably the bank's treatment of its customers was a breach of its > contracts with them. >=20 > Actions to recover the customers' lost money are therefore=20 > actions for breach of contract, or perhaps even (depending on the > circumstances) actions for debts based on the contracts, if that is > different. =20 =3D=3D=3D=3D=3D=3D a customer maintains a credit with a bank:=20 the credit represents the amount of the bank's express or implied obligation to pay money to the customer [against check or otherwise] the customer agrees that the bank can charge against the credit in various determinable future amounts the customer makes demand on the bank---via check or otherwise--for the amount of his balance properly determined as per contract---dishonor of the demand would be a breach, or in the case of a dishonored check perhaps also slander-of-credit? =20 if the deposit was contractually set-up in specie, and the bank withheld return of the appropriate specific amount, it would seem that tort would also be involved?? my question as to ENGLISH usages: if the bank concealed the charges, or somehow misrepresented their legitimacy, and by contract or general limitation the customer became time-barred, would her subsequent=20 action to recover, in spite of the bar, be characterized as the use=20 of fraud or mistake as a ground of restitution, or simply as impled-contractual defenses against the bar? =20 >From swh10@cus.cam.ac.uk Wed Aug 05 19:46:17 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z49Vp-0004PR-00; Wed, 5 Aug 1998 19:46:17 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z49Vn-00047T-00 for restitution@maillist.ox.ac.uk; Wed, 5 Aug 1998 20:46:15 +0100 Message-Id: <3.0.1.32.19980805204608.00798380@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, 05 Aug 1998 20:46:08 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG: Bank overcharging customers In-Reply-To: References: <3.0.1.32.19980805155008.007cce30@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 14:44 05/08/98 -0400, Allan AXELROD wrote: > > >the customer makes demand on the bank---via check or otherwise--for >the amount of his balance properly determined as per contract---dishonor >of the demand would be a breach, or in the case of a dishonored check >perhaps also slander-of-credit? > An action for defamation would be possible. >if the deposit was contractually set-up in specie, and >the bank withheld return of the appropriate specific amount, it would >seem that tort would also be involved?? > If you mean defamation, then yes in theory. In practice, an action in defamation seems rather unlikely, but it is certainly possible. >my question as to ENGLISH usages: if the bank concealed the charges, or >somehow misrepresented their legitimacy, and by contract or general >limitation the customer became time-barred, would her subsequent >action to recover, in spite of the bar, be characterized as the use >of fraud or mistake as a ground of restitution, or simply as >impled-contractual defenses against the bar? > > If fraud could be proved, time would not run against the plaintiff until plaintiff discovered the fraud, or should have discovered it. Traditionally, the English courts have drawn no distinction between contract and quasi-contract here; quasi-contractual action is caught by the 6-year bar on 'actions in simple contract'. The distinction between contract and quasi-contract, while of course it can be drawn, is therefore not obviously useful to a plaintiff in this context. Theorists of a certain stamp have waxed indignant at this, but having asserted that contract *should* be different period from quasi- contract, they can then think of no more appropriate period than the contractual one. See for example Limitatio n of Actions, Law Comm CP 151 part V. 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 =================================================== >From robert.stevens@lady-margaret-hall.oxford.ac.uk Thu Aug 06 09:32:52 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4MPj-0004xZ-00; Thu, 6 Aug 1998 09:32:51 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 6 Aug 1998 10:32:50 +0100 Received: from pc06.lmh.ox.ac.uk (pc06.lmh.ox.ac.uk [163.1.138.106]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id KAA15618 for ; Thu, 6 Aug 1998 10:32:49 +0100 (BST) Message-ID: <025901bdc11d$3bcc50a0$6a8a01a3@pc06.lmh.ox.ac.uk> From: Robert Stevens To: restitution Subject: Was Bank Overcharging Customers Date: Thu, 6 Aug 1998 10:33:13 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Steve wrote: "Traditionally, the English courts have drawn no distinction between contract and quasi-contract here; quasi-contractual action is caught by the 6-year bar on 'actions in simple contract'. The distinction between contract and quasi-contract, while of course it can be drawn, is therefore not obviously useful to a plaintiff in this context. Theorists of a certain stamp have waxed indignant at this, but having asserted that contract *should* be different period from quasi- contract, they can then think of no more appropriate period than the contractual one. " It is true that some claims based upon unjustified enrichment (if we accept the existence of such a category) are classified as actions "founded on a simple contract" for the purposes of s5 of the Limitation Act. This is surely unsurprising. If they were not so classified the courts would have been forced to conclude that no time limit applied to such claims as there is no specific provision within the Act dealing with them. It is also true that the time period applicable is generally the same: 6 years. It is not true, however, that time starts to run from the same point. Time for claims based upon a breach of contract will generally start from breach. Time for claims based upon unjustified enrichment will generally, but not always, run from the time of enrichment. Claims based upon the commission of a tort also generally carry a time limit of six years. Where a claim for breach of contract and the commission of a tort exist concurrently the different points at which time may begin to run can provide an incentive for the pleading of the claim in tort rather than in contract (Henderson v Merrett). The same may be true where a claim based upon unjustified enrichment exists concurrently with a claim for breach of contract. Robert Stevens >From swh10@cus.cam.ac.uk Thu Aug 06 10:30:14 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4NJG-00050X-00; Thu, 6 Aug 1998 10:30:14 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z4NJD-0002tp-00 for restitution@maillist.ox.ac.uk; Thu, 6 Aug 1998 11:30:11 +0100 Message-Id: <3.0.1.32.19980806113013.007c7da0@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, 06 Aug 1998 11:30:13 +0100 To: restitution From: Steve Hedley Subject: RDG: Bank Overcharging Customers In-Reply-To: <025901bdc11d$3bcc50a0$6a8a01a3@pc06.lmh.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 10:33 06/08/98 +0100, Robert Stevens wrote: >It is true that some claims based upon unjustified enrichment (if we accept >the existence of such a category) But the relevant statute *doesn't* recognise any such category. That is the point. In a statute which sets out to be comprehensive and to include all possible private law claims, Parlament did not find it necessary to mention restitution or unjust enrichment. >are classified as actions "founded on a >simple contract" for the purposes of s5 of the Limitation Act. This is >surely unsurprising. If they were not so classified the courts would have >been forced to conclude that no time limit applied to such claims as there >is no specific provision within the Act dealing with them. There is a specific category of contractual claims in the statute, which includes contracts arising by operation of law. I appreciate that you have difficulties with the notion of a contract arising by operation of law, and would like to separate 'contract' from 'restitution', but this is not a universal view, and I was discussing what the law actually is. The Act treats both varieties of contract together. >It is also true >that the time period applicable is generally the same: 6 years. It is not >true, however, that time starts to run from the same point. Time runs from the accrual of the obligation. In the example we were discussing, the obligation accrues at the same instant whether you look at the matter in 'breach of contract' terms or 'unjust enrichment terms'. >Time for claims >based upon a breach of contract will generally start from breach. Time for >claims based upon unjustified enrichment will generally, but not always, run >from the time of enrichment. This begs an important question, by smuggling in the assumption that there is a coherent 'law of limitation for unjust enrichment claims'. Every article I have read on the subject concludes, correctly in my view, that there is no such coherent law, and that the law is a hotch-potch, reflecting the miscellaneous nature of the claims covered. Of course, many of those articles then go on to argue that the law should be changed, to reflect some underlying order the authors think they see. This is a different issue. >Claims based upon the commission of a tort also generally carry a time limit >of six years. Where a claim for breach of contract and the commission of a >tort exist concurrently the different points at which time may begin to run >can provide an incentive for the pleading of the claim in tort rather than >in contract (Henderson v Merrett). The same may be true where a claim based >upon unjustified enrichment exists concurrently with a claim for breach of >contract. > That would be so if the contract/restitution line could be drawn in the same way as the contract/tort line. But for a number of reasons, which will be apparent on reading any good text on the history of private law, the lines are of a very different character, and the separation of contract from restitution incomplete at best. 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 =================================================== >From robert.stevens@lady-margaret-hall.oxford.ac.uk Thu Aug 06 11:43:09 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4ORp-0005Ak-00; Thu, 6 Aug 1998 11:43:09 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 6 Aug 1998 12:43:04 +0100 Received: from pc06.lmh.ox.ac.uk (pc06.lmh.ox.ac.uk [163.1.138.106]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id MAA29901 for ; Thu, 6 Aug 1998 12:43:02 +0100 (BST) Message-ID: <001f01bdc12f$5951d200$6a8a01a3@pc06.lmh.ox.ac.uk> From: Robert Stevens To: restitution Subject: Was Banks Overcharging Customers Date: Thu, 6 Aug 1998 12:42:53 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Steve wrote, again, >>It is true that some claims based upon unjustified enrichment (if we accept >>the existence of such a category) > >But the relevant statute *doesn't* recognise any such category. That >is the point. In a statute which sets out to be comprehensive and to >include all possible private law claims, Parlament did not find it >necessary to mention restitution or unjust enrichment. It is not true that the Limitation Act purports to deal with all private law claims. Many equitable claims are, for example, not included. Whether the omission of any specific provision dealing with unjustified enrichment was deliberate is probably incapable of being given an answer. I have not checked Hansard. >In the example we were >discussing, the obligation accrues at the same instant whether you look >at the matter in 'breach of contract' terms or 'unjust enrichment terms'. I agree that in the example it makes no difference. I was merely trying to balance the impression given that it will never make any difference. >>Time for claims >>based upon a breach of contract will generally start from breach. Time for >>claims based upon unjustified enrichment will generally, but not always, run >>from the time of enrichment. > >This begs an important question, by smuggling in the assumption that there >is a coherent 'law of limitation for unjust enrichment claims'. I did start by saying I was assuming that there was a coherent body of law concerned with unjustified enrichment. Whether or not I agree with that assumption is a different matter. It is clearly true that not all claims which might be classified as based upon unjustified enrichment are, for the purposes of limitation treated in the same way. That is why I said 'generally.' >>Claims based upon the commission of a tort also generally carry a time limit >>of six years. Where a claim for breach of contract and the commission of a >>tort exist concurrently the different points at which time may begin to run >>can provide an incentive for the pleading of the claim in tort rather than >>in contract (Henderson v Merrett). The same may be true where a claim based >>upon unjustified enrichment exists concurrently with a claim for breach of >>contract. >> > >That would be so if the contract/restitution line could be drawn in the >same way as the contract/tort line. But for a number of reasons, which >will be apparent on reading any good text on the history of private law, >the lines are of a very different character, and the separation of contract >from restitution incomplete at best. I don't think those who would argue for a coherent body of law concerned with 'unjustified enrichment' would base this view on its historical provenance in English private law. Those who believe in this category include within it areas traditionally seen as distinct (e.g. the action for money had and received and some constructive trusts.) My view is that unjustified enrichment's sole justification for separate existence is that it is conceptually distinct. I would agree that 'torts' is a different type of classification from 'unjustified enrichment.' As you say in your recent textbook on tort, the exclusion from 'torts' of certain equitable wrongs appears to be historical accident. The historical classification of 'torts' is not entirely conceptually coherent therefore. Robert Stevens >From swh10@cus.cam.ac.uk Thu Aug 06 12:42:30 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4PNG-0005Hi-00; Thu, 6 Aug 1998 12:42:30 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z4PND-0000Yf-00 for restitution@maillist.ox.ac.uk; Thu, 6 Aug 1998 13:42:28 +0100 Message-Id: <3.0.1.32.19980806134220.007d1460@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, 06 Aug 1998 13:42:20 +0100 To: restitution From: Steve Hedley Subject: RDG: Banks Overcharging Customers In-Reply-To: <001f01bdc12f$5951d200$6a8a01a3@pc06.lmh.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 12:42 06/08/98 +0100, Robert Stevens wrote: >Whether the omission of any specific provision dealing with unjustified >enrichment was deliberate is probably incapable of being given an answer. Legal history is well developed enough to answer that, I think. The provision in question dates from 1939, a time at which 'unjustified enrichment' barely featured in English legal consciousness at all. The common law liablities we are discussing were almost universally regarded as based on implied contracts. Even a decade later, as the Law Commission have recently noted, "the implied contract theory, , although under attack, was still used to explain 'quasi-contractual' claims" (CP 151, 1998, para 5.6) and the reference to 'contract' was clearly meant to include quasi-contract. The fact that this has more recently been disputed, and is still a matter for argument, is beside the point. >It is clearly true that not all claims which might be classified as based >upon unjustified enrichment are, for the purposes of limitation treated in >the same way. That is why I said 'generally.' > Indeed. *Any* claim *might* be classified as an unjust enrichment claim, inasmuch as failure to honour any claim unjustly enriches the person who does so. That is why assertions that there must be some coherence to the category are typically rather rash. I'm glad to know that you're not making such a claim, and were speaking hypothetically. >Those who believe in this category >include within it areas traditionally seen as distinct (e.g. the action for >money had and received and some constructive trusts.) My view is that >unjustified enrichment's sole justification for separate existence is that >it is conceptually distinct. Well, at least we are agreed that other justifications won't do. If we were agreed on the merits of the conceptual argument, we would agree on everything ! >The historical classification of 'torts' is not entirely >conceptually coherent therefore. > Indeed not. That is why attempts to analogise from the tort/contract distinction to the contract/restitution distinction are usually rather dubious. 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 =================================================== >From eodell@dux4.tcd.ie Thu Aug 06 13:26:01 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4Q3M-0005L0-00; Thu, 6 Aug 1998 13:26:01 +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 OAA31779 for ; Thu, 6 Aug 1998 14:25:58 +0100 (BST) Date: Thu, 6 Aug 1998 14:25:58 +0100 (BST) 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: Limitiation Hello all I started a thread on banks taking money (more precisely, increasing a customer's debit (eg overdraft) or reducing a credit) and it's become a debate about whether the liability to make restitution for unjust enrichment was sufficiently separate as a category to merit separate reference in a limitation statute, which was in turn an element of the more general question of whether it was sufficienlty coherent as a legal category in its own right. However, if I understand correctly Steve Hedley's arguments in the past, he does not so much deny a category of causes of action which effect restitution as deny that the category is underpinned by a logically and historically consistent principle against unjust enrichment. On that view, a category of causes of action which effect restitution becomes no more than a mix-um gather-um of actions, similar to the state of the law of tort(s). However, the legislator has decided that torts are sufficiently similar that they should have a prima facie limiation period of six years, unless they involve personal injury, in which case, the period is three years. It would not be illogical for a legislator to decide that actions which effect restitution are sufficiently similar that they should have a prima facie unitary limitation period of, for example, six years. But ascribing such a limitation period would not say anything to the more general question of whether there is a single principle underlying liability in the various tort actions brought within the umbrella limiation period; similarly, for those actions which effect restitution. Hence, I think it is possible to conduct a debate about limitation periods for such actions without commiting to a particular answer to the more general question of whether the various actions for restitution of an unjust enrichment are sufficienlty coherent to form a single legal category. On the question of limitation, Steve Hedley is perfectly right to point out, I think, that the modern English limitation statutes trace back to 1939. Ireland usually adopts English statutes about 20 years later (guess the statutes of which the Companies Act, 1963, and the Copyright Act, 1957 are breaches of copyright). Hence, it came to pass that Ireland needed a new Statute of Limitations, and got one in 1957 (just within the 20 year deadline). But it is interesting, at least for the purposes of the Hedley / Stevens exchange, in that s11(1) expressly states a six-year limitation period for actions founded, inter alia, on "tort", "breach of contract" and "quasi-contract". The addition of this last category has always intrigued me, not least because of the absence of a similar subsection in the English 1939 legislation which was the model for the 1957 Act. The category of "quasi-contract", as a matter of history, included the action for money had and received, the action for money paid to the defendant to the use of the plaintiff, quantum meruit, and quantum valebant, ie the common counts; and it is these common counts which form the raw material of the common law actions which effect restitution of an unjust enrichment. In this way, it might be said that Irish law does have an express statutory limitation period for (what might be described as) common law actions for restitution of unjust/unjustified enrichments. And it does so without commiting to any specific answer to the question of whether the various actions for restitution of an unjust enrichment are sufficienlty coherent to form a single legal category. Best from a dull Dublin afternoon, 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.) >From charles.mitchell@kcl.ac.uk Thu Aug 06 13:33:25 1998 Received: from (mail.kcl.ac.uk) [137.73.66.6] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4QAX-0005M4-00; Thu, 6 Aug 1998 13:33:25 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id OAA07925 for ; Thu, 6 Aug 1998 14:32:13 +0100 (BST) Message-Id: <1.5.4.32.19980806132809.0068d944@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: Thu, 06 Aug 1998 14:28:09 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Robert Stevens writes: 'Whether the omission of any specific provision [in the Limitation Act 1980] dealing with unjustified enrichment was deliberate is probably incapable of being given an answer. I have not checked Hansard.' At 1st instance in Westdeutsche (more accurately, in the Sandwell action) the plaintiffs argued that s 5 did not cover non-contractual claims for restitution, and that the 1980 Act prescribed no limitation period for such claims. At [1994] 4 All ER 890, 943, Hobhouse J held that this argument ran counter to the general purpose of the Act and rendered the wording of s 5 ambiguous. Pepper v Hart therefore allowed him to look in Hansard, where he discovered that in 1938 and 1939 the Solicitor-General had expressly said that the old 1939 Act was intended to implement the 1936 interim report of the 1936 Law Revision Committee, which committee had expressly included 'quasi-contract' alongside simple contract. Hobhouse J therefore concluded that s 5 applied to claims like the plaintiffs' in respect of money had and received. It follows that the 1980 Act does in fact cover that portion of the law of unjust enrichment which fell within the scope of 'quasi-contract' as that category was understood by the Law Revision Cttee in 1936. Presumably the cttee did not regard it as including the many equitable claims which do not fall within the ambit of the 1980 Act - as RS rightly points out. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law 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 >From Andrew.Dickinson@cliffordchance.com Thu Aug 06 13:47:21 1998 Received: from (cliffordchance.com) [194.133.109.2] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4QO1-0005NV-00; Thu, 6 Aug 1998 13:47:21 +0000 Received: from lon-msg-100.cliffordchance.com ([10.54.2.78]) by dee.cliffordchance.com with ESMTP id <19508>; Thu, 6 Aug 1998 14:14:06 +0100 Received: from lon-msg-2.cliffordchance.com (unverified [10.54.2.25]) by lon-msg-100.cliffordchance.com (Integralis SMTPRS 2.04) with ESMTP id ; Thu, 06 Aug 1998 14:13:24 +0100 Message-Id: Received: by lon-msg-2.cliffordchance.com with Internet Mail Service (5.0.1460.8) id ; Thu, 6 Aug 1998 14:10:30 +0100 From: "Dickinson, Andrew" To: restitution , Robert Stevens Subject: RE: RDG: Was Banks Overcharging Customers Date: Thu, 6 Aug 1998 13:37:00 +0100 X-Mailer: Internet Mail Service (5.0.1460.8) Robert wrote: > Whether the omission of any specific provision dealing with unjustified enrichment was deliberate is probably incapable of being given an answer. I have not checked Hansard. > I note two things: 1. that the Law Revision Committee on limitation in 1936 was headed by Lord Wright - one can perhaps presume that the absence of a specific provision dealing with unjust enrichment was deliberate - at that time, although the "principle" of unjust enrichment had been recognised, it had not yet emerged from the tangle of the various forms of action and the implied contract "theory"; 2. a similar point arose in the recent Kleinwort Benson -v- Birmingham appeal to the House of Lords. The respondent councils argued that relief for mistakes of law was not contemplated by the LRC in 1936 and that, accordingly, s. 32(1)(c) of the Limitation Act 1980 (derived from s. 26(c) of the Limitation Act 1939) should not be applied to a claim for relief from a mistake of law. As to the other point which appears to have been discussed (i.e. the relationship between claims in contract and restitution), I recall reading something on the application of Henderson -v- Merrett to this issue. Can anybody help me to refresh my memory as to the source (by private message)? As I understand it, the rationale of Henderson is that the existence of a duty of care in tort is not inconsistent with a contractual duty of care and, indeed, the duty in tort may be wider than the contractual duty. In most cases, however, the presence of a contract will be inconsistent with a claim for unjust enrichment in respect of benefits conferred under that contract. As Lord Hope recently said: "There can be no better justification for an enrichment thant thay it was obtained and is being retained in the exercise of a contractual right against the party who seeks to invoke the remedy." However, there will be cases in which there is no inconsistency. Possible examples include the following: (a) if one party does not perform in accordance with the contract but temporarily offers a different performance which is accepted by the other party (Miles -v- Wakefield); (b) if the recipient, instead of having a contractual entitlement to retain, has a contractual duty to return: (i) if A gives B (for consideration) a £5 note to keep for him for a week. B fails to return the note. His conduct constitutes a breach of contract. Can A maintain an action for money had and received (failure of consideration). Must he accept B's repudiatory breach before doing so? (ii) What if the relationship between A and B is not bailor and bailee but customer and banker and B's obligation is not to return the same £5 note but to pay A £5 on demand? Can B's refusal render his initial enrichment unjust? (iii) if the recipient is obliged to account to the payer for the excess (Bangladesh Sugar). Any thoughts? Andrew *********************************************************************** The information in this email and in any attachments is confidential and intended solely for the attention and use of the named addressee(s). This information may be subject to legal professional or other privilege or may otherwise be protected by work product immunity or other legal rules. It must not be disclosed to any person without our authority. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are not authorised to and must not disclose, copy, distribute, or retain this message or any part of it. >From axelrod@andromeda.rutgers.edu Thu Aug 06 14:51:33 1998 Received: from (andromeda.rutgers.edu) [128.6.10.4] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4RO9-0005TC-00; Thu, 6 Aug 1998 14:51:33 +0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.8.8/8.8.8) with SMTP id KAA06800; Thu, 6 Aug 1998 10:51:16 -0400 (EDT) Date: Thu, 6 Aug 1998 10:51:16 -0400 (EDT) From: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers In-Reply-To: <3.0.1.32.19980805204608.00798380@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII > At 14:44 05/08/98 -0400, Allan AXELROD wrote: > > > > > >the customer makes demand on the bank---via check or otherwise--for > >the amount of his balance properly determined as per contract---dishonor > >of the demand would be a breach, or in the case of a dishonored check > >perhaps also slander-of-credit? > > > [hedley]> An action for defamation would be possible. > axelrod: the US at one time had a rule that wrongful dishonor of a check by a bank was a 'slander' of credit, and could entitle any merchant depositor to substantial general damages i always suppossd that rule, like any other quaintly phrased, originated in england-- as relief from the constrictive specific rule mentioned in HADLEY--that interest was the exclusive measure of damages for breach of a contract to pay money--and that it arose during an era--happily past according to most members of this restitution group?-- when the english bench and bar were ACTIVELY engaged in the manipulation of doctrine??. >From eodell@dux4.tcd.ie Thu Aug 06 15:09:47 1998 Received: from (dux4.tcd.ie) [134.226.1.194] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4Rfn-0005Uv-00; Thu, 6 Aug 1998 15:09:47 +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 QAA16058 for ; Thu, 6 Aug 1998 16:09:45 +0100 (BST) Date: Thu, 6 Aug 1998 16:09:45 +0100 (BST) 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: Banks Overcharging Customers Hello all The contributions of Charles Mitchell and Andrew Dickinson as to the influence of the 1936 Law Revision Committee upon the 1939 Act are interesting, since the 1936 Report also influenced the drafting of the Irish 1957 Act; and deliberations about "quasi-contract" in the former might have led to its express inclusion in s.11(1) of the latter; but that is mere speculation. Andrew's contribution then returned the thread whence it came. Recall the problem of a bank taking money from its customers' accounts in the guise of charges which were not in fact due. I asked whether there could be an action for restitution of an unjust enrichment and if so what was the unjust factor. Steve Hedley replied that there would be an action for breach of contract. It was the possibility of such an answer that induced me to enquire first whether there could be an action for restitution of an unjust enrichment, but with respect to Steve, I am not convinced that the answer is entirely obvious. It is probably pushing things too far to say that there is implied into every contract between a customer and a bank that the bank will not steal from the customer, because, though it almost certainly fulfills the terms of the officious bystander test, it is still an unreal proposition. It is better to say that the contract simply does not cover the situation which has occurred. Thus, even if the existence of a valid contract between the parties can be said to bar an action for restitution of an unjust enrichment, the contract only does so if it governs the situtation of the unjust enrichment. In Lord Hope's dictum from Dollar Land, the payment was made pursuant to contract, so that ex hypothesi, the contract governs and thus bars an action for restitution of an unjust enrichment relating to that payment; on the other hand in Miles v Wakefield, the contract did not in fact govern the 37/40ths of performance, so that it did not bar an action for a quatum meruit for the work actually done. Applying such a distinction to the other examples posed by Andrew, all three are situations where the contract governs the relationship in the particular facts which have happened, so that the plaintiff's primary port of call will be to enforce the contractual duty to pay over to him the money in the hands of the defendant. Thus, in the situtation the NIB in Ireland, the question is whether the contract between the bank and the customers governs the relationship in the particular situation which has occurred. If it is unreal to say that it does, then pace Hedley, any action which the customers may have is one for restitution of the bank's unjust enrichment. If that is so, (and there is a coherent principle against unjust enrichment underpinning all such actions) that brings me to my second question: what is the unjust factor ? Best, 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.) >From axelrod@andromeda.rutgers.edu Thu Aug 06 15:11:22 1998 Received: from (andromeda.rutgers.edu) [128.6.10.4] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4RhK-0005V8-00; Thu, 6 Aug 1998 15:11:22 +0000 Received: from localhost (axelrod@localhost) by andromeda.rutgers.edu (8.8.8/8.8.8) with SMTP id LAA09753; Thu, 6 Aug 1998 11:11:18 -0400 (EDT) Date: Thu, 6 Aug 1998 11:11:18 -0400 (EDT) From: Allan AXELROD Reply-To: Allan AXELROD To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers In-Reply-To: <3.0.1.32.19980805204608.00798380@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII axelrod:> > >if the deposit was contractually set-up in specie, and > >the bank withheld return of the appropriate specific amount, it would > >seem that tort would also be involved?? > > > hedley: > If you mean defamation, then yes in theory. In practice, an action in > defamation seems rather unlikely, but it is certainly possible. > > i did not mean defamation---my illustration, poorly worded, referred to a case in which the contract was one of bailment, so that its breach by non-return would give rise both to an action in contract and also an action to recover the specific property---which in american jurisprudence would be called a tort action--whether called detinue, or conversion, or an action for claim-and-delivery if by the way the bailee had wrongfully sold the bailed item, and the proceeds of sale were traceably in hand, the bailor would in american law have a specific action to recover those proceeds for purposes of this general discussion about unjust enrichment it is interesting to note that the action of bailor for proceeds or for their amount would not in american law be classed as a mere tort and/or contract action, but rather as the enforcement of a constructive trust imposed by law to prevent unjust enrichment---a consequence of that characteriation is that the bailor would not be a mere general creditor if the bailee had becomne insolvent in english law does a wronged bailor have an action against the bailee for the proceeds of the wrong-fully transferred chattel: does it get a special status in insolvency proceedings, what is it called, and to which large ground of recovery [tort contract quasi-contract, unjust enrichment] is it assigned? how generous we all are in educating one another---should even brighten mr o'dell's dull dublin day >From swh10@cus.cam.ac.uk Thu Aug 06 15:24:29 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4Ru1-0005Wx-00; Thu, 6 Aug 1998 15:24:29 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z4Rtz-0000Z3-00 for restitution@maillist.ox.ac.uk; Thu, 6 Aug 1998 16:24:27 +0100 Message-Id: <3.0.1.32.19980806162415.007df100@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, 06 Aug 1998 16:24:15 +0100 To: restitution From: Steve Hedley Subject: RDG: Was Banks Overcharging Customers In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable This latest set of issues raised by Andrew Dickinson=20 is interesting, and I suspect is rather closer to what=20 Eoin was really asking in the first place. My difficulty is that Andrew wants to ask about=20 non-contractual, restitutionary liabilities in the cases=20 he is discussing, whereas I am not sure I know what=20 it means to say that the liabilities are restitutionary=20 rather than contractual. =20 As Robert and I have already said, contract/restitution=20 is not quite like tort/contract. It makes perfect sense to=20 discuss whether a plaintiff on facts like *Henderson* should=20 sue in Contract or in Tort, because the two different causes=20 of action involve proof of different matters : in Tort the=20 plaintiff has to establish duty but not agreement, time runs=20 from damage not from breach of duty, and so on. But in=20 the cases we have been discussing, there is no such obvious=20 line between action in contract and action in restitution. =20 The operative facts are the same. The limitation period=20 is the same. We cannot say merely 'one is an action in=20 contract and the other in money had and recieved' without=20 relying on a system of forms of action which was formally=20 abolished over a century ago. =20 So what, *in relation to the examples suggested*, does=20 it mean to talk about action in restitution going wider=20 than contract ? At 13:37 06/08/98 +0100, Andrew Dickinson wrote: >(a) if one party does not perform in accordance with the contract but=20 >temporarily offers a different performance which is accepted by the other >party (Miles -v- Wakefield); > The performance is accepted in the knowledge that it is meant to be=20 paid for, and there will already be considerable evidence of what rate of remuneration the parties had in mind. Any remedy=20 for a quantum meruit is therefore easy to justify on=20 contractual principles. Why is it being suggested that we=20 postulate a restitutionary remedy too ? >(b) if the recipient, instead of having a contractual entitlement to= retain, >has contractual duty to return: > >(i) if A gives B (for consideration) a =A35 note to keep for him for a= week. B >>fails to return the note. His conduct constitutes a breach of contract.= Can >A maintain an action for money had and received (failure of= consideration). >Must he accept B's repudiatory breach before doing so?=20 > >(ii) What if the relationship between A and B is not bailor and bailee but= =20 >customer and banker and B's obligation is not to return the same =A35 note= but >to pay A =A35 on demand? Can B's refusal render his initial enrichment= unjust? > Again, obviously there is a contractual remedy for =A35. In what circumstances would a litigant ever want to assert that there was a restitutionary remedy for =A35 ? Certainly if the matter is confined to A and B, I can't see the point. If 3rd parties enter the picture, then we are also up to our eyeballs in the quagmire of which claims are personal and which=20 proprietary (from which few emerged unscathed). Of course,=20 1. There may be some nebulous sense in which there is a restitutionary remedy, identical with the contract action. But law is a practical science. If the restitutionary remedy adds nothing to the contractual remedy, there seems little point in mentioning it. Or perhaps someone on this list has seen a point to it ? 2. In all of these cases there is an unjust enrichment, as those words are used in ordinary speech. But the same could be said of most contract cases. One of the purposes of legal doctrine is to narrow the range of facts and arguments that is deemed material in any one situation. 3. In some of these cases, it might be suggested that 'unjust enrichment' is in some sense a superior description of the operative facts, better than saying that there is a contractual remedy. To which the answer=20 has to be that the contractual analysis got there first, by several centuries. =20 Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D 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 =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D >From jerrym@mweb.co.za Thu Aug 06 15:38:03 1998 Received: from (mailcrunch.cis.co.za) [196.2.16.5] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4S77-0005ZD-00; Thu, 6 Aug 1998 15:38:02 +0000 Received: from jerry (cpt-534-223.mweb.co.za [196.2.57.223]) by mailcrunch.cis.co.za (8.8.8/8.8.8) with SMTP id RAA09191 for ; Thu, 6 Aug 1998 17:41:47 -0200 (GMT) From: "JERRY MARGOLIUS" To: Subject: LAND RESTITUTION - UNJUST ENRICHMENT Date: Thu, 6 Aug 1998 17:37:15 +0200 Message-ID: <01bdc150$1678c580$LocalHost@jerry> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_003D_01BDC160.DA019580" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.71.1712.3 X-MimeOLE: Produced By Microsoft MimeOLE V4.71.1712.3 This is a multi-part message in MIME format. ------=_NextPart_000_003D_01BDC160.DA019580 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Forum. Consider the following:- An apartheid Government expropriates land under racially based = legislation. The properties are purchased at a nominal amount (often = below market value) from the affected parties and then retained by the = State for many years. The property owned by the Government now forms part of the State assets. = The Government has introduced a process of Land Restitution whereby = persons who lost their property under racially based legislation can = claim the property back. The State agrees to resell at Market Value and return the land to the = claimant. In some cases, properties may have been rented out for the = past 30 years. Other property has in time become valuable land due to = its locality. Has the state not benefited from unjust enrichment?=20 How should a restitution claim be made? How would one consider valuing tenants rights when they lost the right = to live in a property as a result of the legislation and providing = restitution? The law in our Country (South Africa)has no precedents. Any comments Regards. ------=_NextPart_000_003D_01BDC160.DA019580 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Dear Forum.
 
Consider the = following:-
 
An apartheid Government expropriates = land under=20 racially based legislation. The properties are purchased at a nominal = amount=20 (often below market value) from  the affected parties and then = retained by=20 the State for many years.
 
The property owned by the Government = now forms=20 part of the State assets.  The Government has introduced a process = of Land=20 Restitution whereby persons who lost their property under racially based = legislation can claim the property back.
 
The State agrees to resell at Market = Value and=20 return the land to the claimant. In some cases, properties may have been = rented=20 out for the past 30 years. Other property has in time become valuable = land due=20 to its locality.
 
Has the state not benefited from = unjust=20 enrichment?
How should a restitution claim be=20 made?
How would one consider valuing = tenants rights=20 when they lost the right to live in a property as a result of the = legislation=20 and providing restitution? 
 
The law in our Country (South = Africa)has no=20 precedents. Any comments
 
Regards.
------=_NextPart_000_003D_01BDC160.DA019580-- >From swh10@cus.cam.ac.uk Thu Aug 06 15:52:39 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4SLH-0005au-00; Thu, 6 Aug 1998 15:52:39 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z4SLD-0001uL-00 for restitution@maillist.ox.ac.uk; Thu, 6 Aug 1998 16:52:35 +0100 Message-Id: <3.0.1.32.19980806165221.007e4a70@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, 06 Aug 1998 16:52:21 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Banks Overcharging Customers In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 16:09 06/08/98 +0100, Eoin O' Dell wrote: >Steve Hedley replied that there would be an action for >breach of contract. It was the possibility of such an answer that induced >me to enquire first whether there could be an action for restitution of an >unjust enrichment, but with respect to Steve, I am not convinced that the >answer is entirely obvious. I have often thought, and have even occasionally said, that much of the impetus for a 'law of unjust enrichment' comes from an unrealistically narrow view of contract, which is turn comes from studying too much general contract law and not enough of the actual contracts that come before the courts. This seems like a very good exmaple. >It is probably pushing things too far to say >that there is implied into every contract between a customer and a bank >that the bank will not steal from the customer, because, though it almost >certainly fulfills the terms of the officious bystander test, it is still >an unreal proposition. Do you imagine, then, that by the law of contract considered on its own, banks would be free to charge what they like for services, or take as much money from customer accounts for their own purposes, as they see fit ? What is "unreal" about the idea that they must hold themselves ready to pay the customer's money on demand and as directed, without diverting it elsewhere, and subject only to clear, agreed exceptions such as lawful charges ? Surely that is exactly what the customer expects. You have simply misled yourself by focusing on a case where a bank's misbehaviour happened to enrich it. The case would not be substantially different if the bank diverted the money elsewhere, and whether the bank lost or gained as a result would be irrelevant. Either way, they still owe the customer the money. >It is better to say that the contract simply does >not cover the situation which has occurred. Thus, even if the existence of >a valid contract between the parties can be said to bar an action for >restitution of an unjust enrichment, the contract only does so if it >governs the situtation of the unjust enrichment. In Lord Hope's dictum from >Dollar Land, the payment was made pursuant to contract, so that ex >hypothesi, the contract governs and thus bars an action for restitution of >an unjust enrichment relating to that payment; on the other hand in Miles v >Wakefield, the contract did not in fact govern the 37/40ths of performance, >so that it did not bar an action for a quantum meruit for the work actually >done. Which contract ? The original contract did not cover the situation. In the new situation which emerged, the parties agreed to act differently. The amount that must be paid for the performance is set in accordance with the expectations of the parties, of which there will be ample evidence from the earlier, inapplicable, 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 =================================================== >From charles.mitchell@kcl.ac.uk Thu Aug 06 16:17:58 1998 Received: from (mail.kcl.ac.uk) [137.73.66.6] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4Sjm-0005dn-00; Thu, 6 Aug 1998 16:17:58 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id RAA07273 for ; Thu, 6 Aug 1998 17:16:44 +0100 (BST) Message-Id: <1.5.4.32.19980806161239.0068bb28@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="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Thu, 06 Aug 1998 17:12:39 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Since noone seems to have anything better to do today than read their RDG messages (it's a beautiful, blazing hot day in London at the moment - why aren't I outside sunbathing?), may I briefly return your attention to Eoin's comments last week on the 29th, on the subject of the enrichingness of the receipt and possession of money? At one point in his message, Eoin said: 'He may never have owned the money, but that does not change the fact that he has been benefitted and thus enriched by its receipt.' This turned my mind to something I discussed with Frank Rose recently, in connection with the award of interest in restitutionary cases, and Lords Goff and Woolf's comments on this subject in Westdeutsche. Lords G and W make it plain in their speeches that they regard the user value of money - ie the benefit of having it over time - as enriching in itself. Hence, if X pays Y =A3100 by mistake, and then keeps it for a year, and X is then held= to be entitled to recover it via an action for unjust enrichment, the measure of Y's enrichment is =A3100 + the value of having =A3100 for a year. This= leads me to ask three questions: i) Is the user value an incontrovertible benefit - ie must its value always be set by reference to current bank lending rates, or is there room for arguments either by Y that he is a billionaire with more money than he could ever have use for, so that the value of having the =A3100 to him is as nothing, or by X, that Y needed exactly that sum to take up a once in a lifetime business opportunity and couldn't have borrowed the money elsewhere because he was such a bad credit risk, so that the value of having the =A310= 0 was greater for him than for others? ii) If user value is enriching, why is it dealt with at the interest stage, and not as a substantive part of X's claim? Mason and Carter develop an argument that it should be dealt with as part of the enrichment component in an unjust enrichment claim at para 2807. Are they right? iii) Is money enriching in other ways, besides a) the spending power it confers on its owner/possessor and b) the user value discussed above? One comes to mind - the appearance of owning it can itself be enriching if it leads others to assess you as a better credit risk than is in fact the case. That's it. I'm off home to watch the cricket. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 0171 873 2290 fax: 0171 873 2465 e-mail: charles.mitchell@kcl.ac.uk >From robert.stevens@lady-margaret-hall.oxford.ac.uk Thu Aug 06 17:33:51 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4TvD-0005iz-00; Thu, 6 Aug 1998 17:33:51 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 6 Aug 1998 18:33:50 +0100 Received: from pc06.lmh.ox.ac.uk (pc06.lmh.ox.ac.uk [163.1.138.106]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id SAA17772 for ; Thu, 6 Aug 1998 18:33:50 +0100 (BST) Message-ID: <000c01bdc160$5a1e5380$6a8a01a3@pc06.lmh.ox.ac.uk> From: Robert Stevens To: restitution Subject: Was Banks Overcharging Customers Date: Thu, 6 Aug 1998 18:33:40 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Steve wrote, yet again: ">(b) if the recipient, instead of having a contractual entitlement to retain, >has contractual duty to return: >(ii) What if the relationship between A and B is not bailor and bailee but >customer and banker and B's obligation is not to return the same £5 note but >to pay A £5 on demand? Can B's refusal render his initial enrichment unjust? > Again, obviously there is a contractual remedy for £5. In what circumstances would a litigant ever want to assert that there was a restitutionary remedy for £5 ?" Some arguable possibilities might be tentatively suggested: What if the agreed rate of interest was lower than the interest which would be awarded if the claim was based upon a failure of consideration? What if the English court had no jurisdiction over a contractual claim? What if different systems of law applied to the contractual and restitutionary claims? What if B is a minor and cannot be sued in contract? What if the obligation is to repay in a different, now devalued, currency? Some very tentative suggestions on Andrew's point, i) In return for B promises to pay C £5 on demand, A pays B £5. B refuses to pay C. A should have a claim for £5 based upon a failure of consideration. Should it make any difference that B's promise is to pay £5 to A rather than C? ii) However, The Trident Beauty might be authority against any restitutionary claim. A owes B £5. B assigns his right to payment to C. A pays C £5. B fails to perform his side of the deal and comes under an implied contractual obligation to repay A. A has no restitutionary claim against C, and he is limited to his contractual claim against B. Surely the same would be true if there was no assignment? I have never been very happy with the Trident Beauty. Robert Stevens >From swh10@cus.cam.ac.uk Thu Aug 06 18:15:04 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4UZ6-0005lQ-00; Thu, 6 Aug 1998 18:15:04 +0000 Received: from [131.111.219.51] (helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.02 #1) id 0z4UZ4-0005y4-00 for restitution@maillist.ox.ac.uk; Thu, 6 Aug 1998 19:15:02 +0100 Message-Id: <3.0.1.32.19980806191442.007b3e30@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, 06 Aug 1998 19:14:42 +0100 To: restitution From: Steve Hedley Subject: Re: RDG: Was Banks Overcharging Customers In-Reply-To: <000c01bdc160$5a1e5380$6a8a01a3@pc06.lmh.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 18:33 06/08/98 +0100, Robert Stevens wrote: >What if the agreed rate of interest was lower than the interest which would >be awarded if the claim was based upon a failure of consideration? >What if different systems of law applied to the contractual and >restitutionary claims? >What if the obligation is to repay in a different, now devalued, currency? The answer to those 3 is that the parties should be held to their agreement. If A can't claim these rights under the contract, A has no business claiming them by more devious means. How can we justify allowing A to claim in Dollars if A has already agreed to take the money in Yen ? Different consideration apply to, >What if B is a minor and cannot be sued in contract? though if the law is serious about not letting minors enter into contracts, presumbaly the law shouldn't allow itself to be fooled by a mere re-labelling of the case as restitution. I must confess I don't know the answer to : >What if the English court had no jurisdiction over a contractual claim? but perhaps someone who knows more about conflicts that me could explain in what circumstances the court is likely to have jurisdiction over the claim only if it is framed as a restitutionary one. Tomorrow will do ....... 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 =================================================== >From vinodh.coomaraswamy@balliol.oxford.ac.uk Thu Aug 06 22:42:11 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4Yjb-0005vx-00; Thu, 6 Aug 1998 22:42:11 +0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 6 Aug 1998 23:42:10 +0100 Received: from max1.public.ox.ac.uk (max79.public.ox.ac.uk [192.76.27.79]) by sable.ox.ac.uk (1.1/8.8.3) with SMTP id XAA19434 for ; Thu, 6 Aug 1998 23:42:02 +0100 (BST) From: Vinodh S Coomaraswamy To: restitution Subject: Date: Thu, 6 Aug 1998 23:46:13 +0100 Message-ID: <01bdc18c$213d7560$4f1b4cc0@max1.public.ox.ac.uk> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0006_01BDC194.8301DD60" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.71.1712.3 X-MimeOLE: Produced By Microsoft MimeOLE V4.71.1712.3 This is a multi-part message in MIME format. ------=_NextPart_000_0006_01BDC194.8301DD60 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable An important decision on presumed undue influence has today been handed down by the High Court of Australia. The name of the case is Garcia v National Australia Bank Ltd [1998] HCA 48 and, pending the full report, the full text of the judgment is available at http://www.lawnet.com.au/courts/hct/garcia.htm The 6-judge bench of the High Court unanimously allowed the plaintiff's appeal against the decision of the Court of Appeal of New South Wales (leading judgment by Sheller JA) which had in turn reversed the decision of the primary judge (Young J) declaring void and unenforceable certain guarantees executed by the plaintiff in favour of the defendant (in = summary: the wife won). Gaudron, McHugh, Gummow and Hayne JJ delivered the leading judgment; Callinan J concurred in the result and the reasons in = a separate judgment; Kirby J concurred in the result but for different = reasons. The majority reaffirmed the continued existence of a special Yerkey v = Jones principle for wives and rejected the Bank's argument that any such = principle had been subsumed in the broader principle of unconscionable conduct = from Commercial Bank of Australia Ltd v Amadio. In doing so, the majority = rejected Barclays Bank v O'Brien and any role for the equitable doctrine of = notice in these cases beyond the threshold requirement that the creditor have = notice that the woman is married to the man.=20 Kirby J quite convincingly rejects as a matter of precedent and policy = the continued existence of any special principle for wives and instead = allowed the appeal on an application of a modified Barclays Bank v O'Brien = approach. ------=_NextPart_000_0006_01BDC194.8301DD60 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
An important decision = on presumed=20 undue influence has today
been handed down by the = High Court of=20 Australia.  The name of
the case is Garcia = v National=20 Australia Bank Ltd [1998] HCA 48
and, pending the full = report, the=20 full text of the judgment is available
at http://www.lawnet.com.au/courts/hct/garcia.htm=
 
The 6-judge bench of = the High Court=20 unanimously allowed the plaintiff's
appeal against = the decision of the Court of Appeal of New South Wales
(leading judgment by = Sheller JA)=20 which had in turn = reversed the=20 decision
of the primary judge = (Young J)=20 declaring void and unenforceable certain
guarantees executed by = the plaintiff=20 in favour of the defendant (in summary:
the wife won).  = Gaudron, McHugh,=20 Gummow and Hayne JJ delivered the
leading judgment; = Callinan J concurred in the result = and the reasons=20 in a
separate judgment; = Kirby J concurred=20 in the result but for different reasons.
 
The majority reaffirmed = the continued=20 existence of a  special Yerkey v Jones
principle for = wives and=20 rejected the Bank's argument that any such principle 
had been subsumed in = the broader=20 principle of unconscionable conduct from
Commercial Bank of = Australia Ltd=20 v Amadio.   In doing so, the majority = rejected
Barclays Bank v = O'Brien and=20 any role for the equitable doctrine of notice in
these cases beyond the = threshold=20 requirement that the creditor have notice
that the woman is = married to the=20 man. 
 
Kirby J quite = convincingly rejects as=20 a matter of precedent and policy the
continued existence of any special principle for wives  = and=20 instead = allowed
the appeal on an = application of a=20 modified Barclays = Bank v=20 O'Brien approach.
------=_NextPart_000_0006_01BDC194.8301DD60-- >From c.rickett@auckland.ac.nz Thu Aug 06 23:23:12 1998 Received: from (mailhost.auckland.ac.nz) [130.216.1.4] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4ZNH-0005zo-00; Thu, 6 Aug 1998 23:23:11 +0000 Received: from postbox.auckland.ac.nz (postbox.auckland.ac.nz [130.216.191.8]) by mailhost.auckland.ac.nz (8.9.1/8.9.1/8.9.1-ua) with ESMTP id LAA06951; Fri, 7 Aug 1998 11:23:06 +1200 (NZST) Received: from [130.216.73.202] (c.rickett.law.auckland.ac.nz [130.216.73.202]) by postbox.auckland.ac.nz (8.8.5/8.8.5) with SMTP id LAA27776; Fri, 7 Aug 1998 11:23:05 +1200 (NZST) From: Prof Charles Rickett Sender: c.rickett@auckland.ac.nz Reply-To: c.rickett@auckland.ac.nz To: "Eoin O' Dell" Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers In-Reply-To: Message-ID: Date: Fri, 07 Aug 1998 10:28:51 +1200 Priority: NORMAL X-Mailer: Simeon for MacPPC Version 4.1.5 Build (43) X-Authentication: IMSP MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII Content-Transfer-Encoding: QUOTED-PRINTABLE The original problem raised by Eoin was whether a bank which=20 reduced the account balance of its customer without that customer's=20 mandate was liable in an action in "unjust enrichment". There then followed suggestions that this was a breach of contract=20 which sounded in damages against the bank for the loss caused to the=20 customer by the bank's taking (or holding back) of the customer's=20 money. My view is that there is no loss at all to the customer - nor any=20 enrichment to the bank. There is no "money" which belongs to the=20 customer. Any "money" belongs to the bank, since money deposited=20 becomes the bank's property. The customer is not therefore "losing"=20 money. Nor is the bank making any enrichment at the customer's=20 expense. It is just that the bank is (wrongfully) refusing to admit=20 the proper extent of the debt it owes the customer. This sort of=20 thing happens when banks pay out on forged or countermanded cheques=20 where (subject to a Liggett or Cleadon "equity") there is no basis on=20 which the bank can lawfully debit its customer's account. If the=20 bank does debit the account, the customer's avenue of redress is=20 probably a declaration that the debit was unlawful (and=20 perhaps if necessary rectification of the account statement to record=20 the correct position). In National Bank v Walpole & Patterson Ltd=20 [1975] 2 NZLR 7, a forged cheques case,the customer got itself utterly=20 confused and founded its claim on loss alleged to have been suffered by=20 it. Richmond J dealt eloquently with the misconception at pp 11-12. I=20 don't think it arguable that the bank is enriched at the customer's=20 expense for the purposes of a "restitutionary" claim by the customer. =20 Mere denial of a debt properly owed is not an enrichment,=20 and particularly where there is no money of the customer at issue. = =20 On Wed, 5 Aug 1998 15:12:23 +0100 (BST) Eoin O' Dell =20 wrote: > I have a question for the list arising out of an important news story in > Ireland at the moment. >=20 > Last March, RT=C9 (the national tv and radio station) were about to brea= k > the story that various branches of the National Irish Bank had imposed > excess charges and fees on customer bank accounts. NIB sued RT=C9 for br= each > of confidence, taking the case all the way to the Supreme Court (see NIB = v > RT=C9 (Supreme Court, unreported, 20 March 1998)) which ruled that the > proposed disclosure was in the public interest. RT=C9 then broadcast a se= ries > of allegations that NIB The bank commissioned a consultancy, Arthur > Andersen, to undertake an investigation of the matter. At a press > conferennce yesterday, the bank published that report, and its chief > executive, Mr Mr Grahame Savage, undertook to return the excess charges a= nd > fees, plus interest. >=20 > Thus, for example, the front page of the Irish Times today contains the > headline "NIB to pay =A3131,166 for excess charges", and the story, by Co= lm=0D=0A> Keena, continues that >=20 > "National Irish Bank is to return =A3131,166 plus interest to 370 custome= rs > after two inquiries into allegations of improper interest- and fee-loadin= g > by the bank. Its chief executive, Mr Grahame Savage, yesterday offered th= e > bank's "unreserved apologies" to the customers. Mr Savage was > speaking at a press briefing at which details of an Arthur Andersen repor= t > on interest-loading by the bank were disclosed. The report dealt with > interest charges at five branches The periods examined varied from > branch to branch, The periods are those referred to in an RT=C9 re= port > last March, which first alleged interest-loading by the bank." >=20 > For those who are interested, the full story is at > http://www.irish-times.com/irish-times/paper/1998/0805/fro1.html >=20 > (And I must declare that I am not now, and have never been, a customer of > the NIB) >=20 > My question is this; given that the bank took RT=C9 to the Supreme Court = in > an effort to prevent the broadcast of the story, they might equally have > decided not to return the money at all, or to return it without interest; > if they had done so, and a customer of the bank had decided to sue for th= e > return of the money plus interest, would that have been an action for > restitution of an unjust enrichment, and if so, what would the ground for > restitution (the unjust factor) have been ? >=20 > Many thanks >=20 > Eoin >=20 >=20 >=20 >=20 >=20 > EOIN O'DELL > Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie >=20 > Trinity College ph (+ 353 - 1) 608 1178 > Dublin 2 fax (+ 353 - 1) 677 0449 > Ireland > Live Long and Prosper !! >=20 > (All opinions are personal; no legal responsibility whatsoever is accepte= d.) >=20 >=20 >=20 > _________________________________________________________________________= _______ > This message was delivered through the Restitution Discussion Group, an > international internet LISTSERV devoted to all aspects of the law of unju= st > enrichment. To subscribe, send "subscribe restitution" in the body of a > message to . To unsubscribe, send "unsubscri= be > restitution" to the same address. To make a posting to all group members, > send to . The list is run by Lionel Smith = of > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email > . ---------------------- Prof Charles Rickett Faculty of Law, The University of Auckland c.rickett@auckland.ac.nz >From jcsheahan@compuserve.com Fri Aug 07 05:30:33 1998 Received: from (arl-img-5.compuserve.com) [149.174.217.135] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4f6n-0006Ct-00; Fri, 7 Aug 1998 05:30:33 +0000 Received: (from root@localhost) by arl-img-5.compuserve.com (8.8.6/8.8.6/2.12) id BAA08448 for restitution@maillist.ox.ac.uk; Fri, 7 Aug 1998 01:30:32 -0400 (EDT) Date: Fri, 7 Aug 1998 01:30:15 -0400 From: J C Sheahan Subject: Re: RDG: Bank overcharging customers Sender: J C Sheahan To: RDG Message-ID: <199808070130_MC2-555F-CDBD@compuserve.com> MIME-Version: 1.0 Content-Transfer-Encoding: quoted-printable Content-Type: text/plain; charset=ISO-8859-1 Content-Disposition: inline -------------------- Begin Forwarded Message -------------------- From: J C Sheahan, 100355,3164 To: Prof Charles Rickett, INTERNET:c.rickett@auckland.ac.nz Date: Fri, Aug 7, 1998 12:21:18 AM RE: Re: RDG: Bank overcharging customers Prof. Rickett is surely correct. The point has also been considered in an Australian case concerning a cheque wrongly debited to an account - Channon v E.S.& A. Bank (1918) 18 SRNSW 30 (see per Ferguson J at p.38). Once the relationship of banker an= d customer is properly understood it can be seen that the NIB problem has nothing to do with breach of contract or unjustified enrichment. John Sheahan SC = Australia. -------------------- End Forwarded Message -------------------- >From swh10@cus.cam.ac.uk Fri Aug 07 08:05:05 1998 Received: from (ursa.cus.cam.ac.uk) [131.111.8.6] (cusexim) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4hWL-0006Kx-00; Fri, 7 Aug 1998 08:05:05 +0000 Received: from swh10 (helo=localhost) by ursa.cus.cam.ac.uk with local-smtp (Exim 2.02 #1) id 0z4hWJ-00069w-00 for restitution@maillist.ox.ac.uk; Fri, 7 Aug 1998 09:05:03 +0100 Date: Fri, 7 Aug 1998 09:05:03 +0100 (BST) From: Steve Hedley To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Bank overcharging customers In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Fri, 7 Aug 1998, Prof Charles Rickett wrote: > My view is that there is no loss at all to the customer - nor any > enrichment to the bank. There is no "money" which belongs to the > customer. Any "money" belongs to the bank, since money deposited > becomes the bank's property. The customer is not therefore "losing" > money. Nor is the bank making any enrichment at the customer's > expense. It is just that the bank is (wrongfully) refusing to admit > the proper extent of the debt it owes the customer. This sort of > thing happens when banks pay out on forged or countermanded cheques > where (subject to a Liggett or Cleadon "equity") there is no basis on > which the bank can lawfully debit its customer's account. If the > bank does debit the account, the customer's avenue of redress is > probably a declaration that the debit was unlawful (and > perhaps if necessary rectification of the account statement to record > the correct position). Well, my suggestion was not that the remedy was necessarily an action for damages, but that it was a *contractual* remedy. As to whether the remedy was for a contractual debt or for damages, I was not sure then and am not sure now; we'd have to flesh out Eoin's hypothetical a bit more. Certainly there *are* cases where a failure to pay a debt has been regarded as a breach of contract, sounding in damages; if you were to say that none of them were in a banking context I'm not in a position to say that you are wrong. Steve Hedley, Faculty of Law, University of Cambridge ====================================================== * e-mail : swh10@cam.ac.uk * * voice (+ answering machine): 01223 334931 * * fax : 01223 334967 * * snailmail : Christ's College, Cambridge CB2 3BU * ====================================================== >From robert.stevens@lady-margaret-hall.oxford.ac.uk Fri Aug 07 09:40:11 1998 Received: from (oxmail4.ox.ac.uk) [163.1.2.33] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4j0N-0006R4-00; Fri, 7 Aug 1998 09:40:11 +0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Fri, 7 Aug 1998 10:40:08 +0100 Received: from pc06.lmh.ox.ac.uk (pc06.lmh.ox.ac.uk [163.1.138.106]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id KAA04594 for ; Fri, 7 Aug 1998 10:40:08 +0100 (BST) Message-ID: <005b01bdc1e7$579f3660$6a8a01a3@pc06.lmh.ox.ac.uk> From: Robert Stevens To: restitution Subject: Was Banks Overcharging Date: Fri, 7 Aug 1998 10:39:58 +0100 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.2106.4 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.2106.4 Steve wrote, "...someone who knows more about conflicts that me could explain in what circumstances the court is likely to have jurisdiction over the claim only if it is framed as a restitutionary one." The best I can come up with is this. A lends B £5. Repayment is to be made in Ruritania where B is domiciled. B fails to repay. A cannot rely upon his contractual claim to bring a claim in England because he cannot fit the facts within any of the relevant heads of Ord 11 r 1 (d) or (e), because the contract was not made in England etc. A, domiciled in England, argues that the obligation to make restitution is to be performed in England, as a debtor must seek out his creditor. This claim would probably be within Ord 11 r (1) (e) or, possibly (t). Robert Stevens >From charles.mitchell@kcl.ac.uk Fri Aug 07 12:28:58 1998 Received: from (mail.kcl.ac.uk) [137.73.66.6] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z4ldi-0006gq-00; Fri, 7 Aug 1998 12:28:58 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.1/8.9.1) with SMTP id NAA29888 for ; Fri, 7 Aug 1998 13:27:44 +0100 (BST) Message-Id: <1.5.4.32.19980807122340.00695e30@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, 07 Aug 1998 13:23:40 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Further to Prof Rickett's comments re incorrect debits to bank accounts, I would add that the same point is made by Peter Birks in Restitution and Banking Law, at p 223, in the course of discussing a problem which I consider in my chapter in that book, viz whether the bank or the customer's fidelity insurer should bear the burden of paying for a customer's loss when the customer's employee fraudulently withdraws money from the customer's account. Peter convincingly argues that the loss should always be borne by the bank, for the reason that in law the customer never suffers an insured loss - since the bank had no mandate from the customer to debit the account, it continues to owe the customer the sum which it wrongly debited from the account, or in the case of an overdrawn account, continues to be entitled to the smaller sum prior to the wrongful debit. The many American cases touching on this issue, cited in my chapter, appear to overlook this point entirely - as do I, mea culpa. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law 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 >From evans_sc@hotmail.com Sat Aug 08 02:17:07 1998 Received: from (hotmail.com) [207.82.251.115] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0z4yZ8-0007UB-00; Sat, 8 Aug 1998 02:17:06 +0000 Received: (qmail 27085 invoked by uid 0); 8 Aug 1998 02:16:04 -0000 Message-ID: <19980808021604.27084.qmail@hotmail.com> Received: from 203.26.10.19 by www.hotmail.com with HTTP; Fri, 07 Aug 1998 19:16:03 PDT X-Originating-IP: [203.26.10.19] From: "Simon Evans" To: restitution@maillist.ox.ac.uk Subject: Garcia v NAB Content-Type: text/plain Date: Fri, 07 Aug 1998 19:16:03 PDT Vinodh S Coomaraswamy wrote: >An important decision on presumed undue influence has today >been handed down by the High Court of Australia. The name of >the case is Garcia v National Australia Bank Ltd [1998] HCA 48 >and, pending the full report, the full text of the judgment is > available at http://www.lawnet.com.au/courts/hct/garcia.htm The full text is also available at: http://www.austlii.edu.au/au/cases/cth/high_ct/1998/48.html I don't think the case can be described as one of presumed undue influence - the joint judgment (of Gaudron, McHugh, Gummow and Hayne JJ) eschews any such analysis. They decline to adopt (or modify) Barclays Bank plc v O'Brien and instead hold that it will be unconscionable for a lender to enforce a third party security (in the absence of undue influence or unconscionable conduct with the knowledge by the lender) if: (a) in fact the surety did not understand the purport and effect of the transaction; (b) the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed); (c) the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet (d) the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her. The decision is very significant - and more than a little problematic. Regards, Simon Evans. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From lionel.smith@law.oxford.ac.uk Mon Aug 17 23:06:06 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z8YLm-0003dO-00; Mon, 17 Aug 1998 23:06:06 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0z8YLm-0004Ul-00; Tue, 18 Aug 1998 00:06:06 +0100 Received: from ppp1423.on.bellglobal.com ([206.172.226.79] helo=[206.172.197.184]) by sable.ox.ac.uk with esmtp (Exim 2.02 #2) id 0z8YLf-0006Kq-00 for restitution@maillist.ox.ac.uk; Tue, 18 Aug 1998 00:06:03 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 17 Aug 1998 14:05:12 -0700 To: restitution@maillist.ox.ac.uk From: lionel.smith@law.oxford.ac.uk approved: eregion From: "Simon Evans" To: restitution@maillist.ox.ac.uk Subject: Garcia v NAB Content-Type: text/plain Date: Fri, 07 Aug 1998 19:16:03 PDT Vinodh S Coomaraswamy wrote: >An important decision on presumed undue influence has today >been handed down by the High Court of Australia. The name of >the case is Garcia v National Australia Bank Ltd [1998] HCA 48 >and, pending the full report, the full text of the judgment is > available at http://www.lawnet.com.au/courts/hct/garcia.htm The full text is also available at: http://www.austlii.edu.au/au/cases/cth/high_ct/1998/48.html I don't think the case can be described as one of presumed undue influence - the joint judgment (of Gaudron, McHugh, Gummow and Hayne JJ) eschews any such analysis. They decline to adopt (or modify) Barclays Bank plc v O'Brien and instead hold that it will be unconscionable for a lender to enforce a third party security (in the absence of undue influence or unconscionable conduct with the knowledge by the lender) if: (a) in fact the surety did not understand the purport and effect of the transaction; (b) the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed); (c) the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet (d) the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her. The decision is very significant - and more than a little problematic. Regards, Simon Evans. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From lionel.smith@law.oxford.ac.uk Mon Aug 17 23:06:20 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z8YM0-0003db-00; Mon, 17 Aug 1998 23:06:20 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0z8YM0-0004Ur-00; Tue, 18 Aug 1998 00:06:20 +0100 Received: from ppp1423.on.bellglobal.com ([206.172.226.79] helo=[206.172.197.184]) by sable.ox.ac.uk with esmtp (Exim 2.02 #2) id 0z8YLu-0006Kq-00 for restitution@maillist.ox.ac.uk; Tue, 18 Aug 1998 00:06:19 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 17 Aug 1998 16:33:54 -0700 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: RDG: LAND RESTITUTION - UNJUST ENRICHMENT On 6 Aug, Jerry Margolius asked for comments on restitution of land under the new South African constitution. I would note that at the Restitution Section of the 1994 SPTL conference (at the UEA in Norwich), Prof. Daniel Visser (Cape Town) gave a paper on this matter ("Giving Back the Land"). Please let me know if you would like a copy. Lionel >From lionel.smith@law.oxford.ac.uk Mon Aug 17 23:06:29 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0z8YM9-0003do-00; Mon, 17 Aug 1998 23:06:29 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0z8YM9-0004Ut-00; Tue, 18 Aug 1998 00:06:29 +0100 Received: from ppp1423.on.bellglobal.com ([206.172.226.79] helo=[206.172.197.184]) by sable.ox.ac.uk with esmtp (Exim 2.02 #2) id 0z8YM3-0006Kq-00 for restitution@maillist.ox.ac.uk; Tue, 18 Aug 1998 00:06:27 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 17 Aug 1998 14:30:35 -0700 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re: RDG: Bank overcharging customers On 6 August, Allan Axelrod asked: > in english law [a] does a wronged bailor have an action against the >bailee for the proceeds of the wrong-fully transferred chattel: >[b] does it get a special status in insolvency proceedings, [c] what is it >called, and [d] to which large ground of recovery >[tort contract quasi-contract, unjust enrichment] is it assigned? I think most people would agree that the answer to [a] is "yes"; long-standing "waiver of tort" doctrine gives the plaintiff at least a personal claim. [B] is harder; I think that English/Commonwealth law is the same as US law on this point and a trust of the proceeds would arise (and it would probably be called a constructive trust, as in the US, but maybe it is really a resulting trust: see R. Chambers, Resulting Trusts (1997)). But others would disagree. As for [c]: (i) if the plaintiff were just seeking a personal accounting of the proceeds, then a practitioner using traditional language would probably say that the plaintiff was "waiving the tort and suing for money had and received to the use of the plaintiff" (yes, (s)he might really say that in England in 1998); an academic (depending on his or her religion) might say that the plaintiff was seeking personal restitution (or disgorgement) for wrongding; (ii) if the plaintiff were seeking a trust of the proceeds, then a practitioner using traditional language might say that the plaintiff was making "an equitable tracing claim", but the relief sought would be a declaration of trust and consequent relief (ie delivery of the trust property). [D] is not easy either. My view would be that the personal claim is a tort claim in which the plaintiff is seeking an alternative sanction (disgorgement of defendant's gain, rather than compensation of plaintiff's loss). On the other hand, the trust claim alleges ownership of a new subject matter and must provide some explanation for the source of that ownership. I think it is based on unjust enrichment, but (to put it mildly) the point is unsettled. Lionel >From Rg8Il4fYp@par1k1z.se Sat Aug 22 05:45:13 1998 Received: from (vivek.doe.ernet.in) [202.41.100.95] by maillist.ox.ac.uk with smtp (Exim 1.82 #2) id 0zA6U3-0008N0-00; Sat, 22 Aug 1998 05:45:11 +0000 Received: from vikram.doe.ernet.in by vivek.doe.ernet.in (SMI-8.6/SMI-4.1-MHS-7.0) id LAA28720; Sat, 22 Aug 1998 11:00:05 -0500 From: Rg8Il4fYp@par1k1z.se Received: from by vikram.doe.ernet.in (4.1/SMI-4.1-MHS-7.0) id AB17222; Sat, 22 Aug 98 11:12:44+050 Date: 22 Aug 98 1:32:41 AM Reply-To: byzer897@dri2at197.com.eu Message-Id: To: tyroi1aw531@grw45yz279.net.eu Subject: Daniel 12 Revealed X-RBL-Warning: Blackholed - see Dear friend: This is an invitation to visit our Homepage that is linked to the FREE Internet publication, THE WISE SHALL UNDERSTAND. Chapter one is entitled "Daniel 12 Revealed." Daniel 12 was NOT to be understood "until the end of the days." It is now unfolded after more than 2,500 years by using a special "key" found in Genesis 2:4; Daniel 12 carries important warnings concerning last-day deception. Our Internet provider is frequently off-line, so please print this letter to preserve the following address where you can access this on-line publication: HTTP://MAINFRAM.CTAZ.COM/PUBLIC/DANIEL12/HOMEPAGE.HTM We know that there are many thinking people who are not happywith popular religion and are seeking greater truth. Please ask God for guidance as you study this material. It is of no cost to you, but we feel He would have us publish this last-day message in printed form for those unable to read it on the Internet. If you agree that it has a special message for this time, we would appreciate any contribution in U.S. funds to help with its publication. Make your check payable to ONE-WAY MINISTRIES. And mail to: Charles and Tish Clever One-Way Ministries P.O. Box 432 Talihina, OK 74571, U.S.A. Your friends in God's service, Charles and Tish Clever E-mail address: REVEALED4U@USA.NET Phone (918) 567-3545 CC: chasclever@mainfram.ctaz.com >From lionel.smith@law.oxford.ac.uk Mon Aug 24 15:52:56 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zAyvQ-00025U-00; Mon, 24 Aug 1998 15:52:56 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0zAyvE-0006J3-00; Mon, 24 Aug 1998 16:52:44 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zAyvB-0000xq-00 for restitution@maillist.ox.ac.uk; Mon, 24 Aug 1998 16:52:43 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 24 Aug 1998 16:52:29 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: New MLR Hello all, In the new Modern Law Review (July 98): N. Hopkins, "Acquiring Property Rights from Uncompleted Sales of Land" (on the meaning of "equity treats that as done which ought to be done") C. Rotherham, Review Article of H. Dagan, Unjust Enrichment: A Study of Private Law and Public Values Lionel >From lionel.smith@law.oxford.ac.uk Thu Aug 27 08:41:08 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zBxcC-000670-00; Thu, 27 Aug 1998 08:41:08 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0zBxcC-0007kS-00; Thu, 27 Aug 1998 09:41:08 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zBxcA-0001qI-00 for restitution@maillist.ox.ac.uk; Thu, 27 Aug 1998 09:41:07 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 27 Aug 1998 09:40:53 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Land Restitution A little while ago I mentioned a paper given by Prof. Daniel Visser in 1994 called "Giving Back the Country" (by mistake I called it "Giving Back the Land"). Since then Michelle Cunningham has advised me that >A paper by Professor Visser and Dr >Theunis Roux entitled "Giving back the country: South Africa's >Restitution of Land Rights Act, 1994 in context" appears in the book >"Confronting past injustices - Approaches to Amnesty, Punishment, >Reparation and Restitution in South Africa and Germany" edited by >Professors Medard Rwelamira and Gerhard Werle. It was published under >the auspices of the Friedrich Ebert Stiftung by Butterworths, Durban in >1996. Lionel >From MichelleC@norwich.co.za Thu Aug 27 14:30:21 1998 Received: from (gauntlet.norwich.co.za) [196.36.160.34] (firewall-user) by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zC347-0006dR-00; Thu, 27 Aug 1998 14:30:20 +0000 Received: by gauntlet.norwich.co.za; id QAA20931; Thu, 27 Aug 1998 16:30:09 +0200 (SAT) Received: from mail.norwich.co.za(160.160.31.63) by gauntlet.norwich.co.za via smap (4.1) id xma020865; Thu, 27 Aug 98 16:29:46 +0200 Received: by CPT_P_SMS_1 with Internet Mail Service (5.5.1960.3) id ; Thu, 27 Aug 1998 16:28:00 +0200 Message-ID: <1219DE5824BCD111878F00805FEA203401824ED0@CPT_P_SMS_1> From: "Cunningham, Michelle" To: "'restitution@maillist.ox.ac.uk'" Subject: RDG: Land Restitution Date: Thu, 27 Aug 1998 16:27:58 +0200 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.1960.3) Content-Type: text/plain Perhaps that should have been "context" with a capital. > ---------- > From: Lionel Smith[SMTP:lionel.smith@law.oxford.ac.uk] > Reply To: Lionel Smith > Sent: Thursday, August 27, 1998 11:40 AM > To: restitution@maillist.ox.ac.uk > Subject: RDG: Land Restitution > > A little while ago I mentioned a paper given by Prof. Daniel Visser in > 1994 > called "Giving Back the Country" (by mistake I called it "Giving Back > the > Land"). Since then Michelle Cunningham has advised me that > > >A paper by Professor Visser and Dr > >Theunis Roux entitled "Giving back the country: South Africa's > >Restitution of Land Rights Act, 1994 in context" appears in the book > >"Confronting past injustices - Approaches to Amnesty, Punishment, > >Reparation and Restitution in South Africa and Germany" edited by > >Professors Medard Rwelamira and Gerhard Werle. It was published > under > >the auspices of the Friedrich Ebert Stiftung by Butterworths, Durban > in > >1996. > > Lionel > > > > ______________________________________________________________________ > __________ > This message was delivered through the Restitution Discussion Group, > an > international internet LISTSERV devoted to all aspects of the law of > unjust > enrichment. To subscribe, send "subscribe restitution" in the body of > a > message to . To unsubscribe, send > "unsubscribe > restitution" to the same address. To make a posting to all group > members, > send to . The list is run by Lionel > Smith of > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email > . > >From jerrym@mweb.co.za Sat Aug 29 12:26:14 1998 Received: from (mailcrunch.cis.co.za) [196.2.16.5] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zCk57-0000Ib-00; Sat, 29 Aug 1998 12:26:13 +0000 Received: from jerry (cpt-533-62.mweb.co.za [196.2.57.62]) by mailcrunch.cis.co.za (8.8.8/8.8.8) with SMTP id OAA19991; Sat, 29 Aug 1998 14:30:13 -0200 (GMT) From: "JERRY MARGOLIUS" To: Cc: Subject: Re: Land Restitution Date: Sat, 29 Aug 1998 14:25:07 +0200 Message-ID: <01bdd348$0f060240$3e3902c4@jerry> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.71.1712.3 X-MimeOLE: Produced By Microsoft MimeOLE V4.71.1712.3 Dear Michelle Many thanks for your advise. I now need some international commentary!!! Regards Jerry >From lionel.smith@law.oxford.ac.uk Mon Aug 31 13:00:44 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zDTZc-00027b-00; Mon, 31 Aug 1998 13:00:44 +0000 Received: from sable.ox.ac.uk ([163.1.2.4] ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 1.90 #1) for restitution@maillist.ox.ac.uk id 0zDTZc-0004i8-00; Mon, 31 Aug 1998 14:00:44 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.02 #4) id 0zDTZY-00028C-00 for restitution@maillist.ox.ac.uk; Mon, 31 Aug 1998 14:00:43 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 31 Aug 1998 14:00:12 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Now reported at [1998] 3 All ER 876 (and also on the Smith Bernal web site ) is Dunbar Bank Plc v Nadeem, decided by the English CA on 18 June 98. It deals with "manifest disadvantage" and the requirement of counter-restitution in rescission. Millett LJ: "The court of equity is a court of conscience. It sets aside transactions obtained by the exercise of undue influence because such conduct is unconscionable. But however the present case is analysed, whether as a case of actual or presumed influence, the influence was not undue. It is impossible, in my judgment, to criticise Mr Nadeem's conduct as unconscionable." Comments anyone? Lionel