-- >From lionel.smith@law.oxford.ac.uk Thu Oct 01 09:18:53 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zOesv-0001je-00; Thu, 1 Oct 1998 09:18:53 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zOesv-000497-00 for restitution@maillist.ox.ac.uk; Thu, 1 Oct 1998 10:18:53 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.03 #1) id 0zOest-0004pv-00 for restitution@maillist.ox.ac.uk; Thu, 1 Oct 1998 10:18:52 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 1 Oct 1998 10:19:18 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: old law books Greetings all, and welcome to new members. In a slight drought of restitution news, perhaps legal history can step in. I have just received the new special list from Meyer Boswell books in San Francisco, which lists an important edition of Blackstone and also an edition of John Worrall's rendition of every case in Coke's reports into rhyming couplets, eg Caudzey. 'Gainst common prayer, if parson say In sermon aught, bishop deprive him may. 5 Rep. 1. Boulston. If neighbour cony-boroughs make, The conies I, in my own ground, may take. 5 Rep. 104. The list also mentions that they are instituting a daily email list of new acquisitions. For info, email . Lionel >From lionel.smith@law.oxford.ac.uk Fri Oct 02 09:31:32 1998 Received: from (oxmail.ox.ac.uk) [129.67.1.1] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zP1Yi-0004fD-00; Fri, 2 Oct 1998 09:31:32 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zP1Yi-000185-00 for restitution@maillist.ox.ac.uk; Fri, 2 Oct 1998 10:31:32 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.03 #1) id 0zP1Yf-0003yl-00 for restitution@maillist.ox.ac.uk; Fri, 2 Oct 1998 10:31:30 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 2 Oct 1998 10:31:55 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: new publications Now out from the Mansfield Press: 1. [1998] Restitution Law Review. This year's issue contains five articles (one being a reprint of an essay on money had and received published in 1802); nine case notes; regional digests from ten jurisdictions; one review article (by Lord Millett, of Chambers, Resulting Trusts); and nine book reviews. 2. A. Skelton, Restitution and Contract. xviii and 108 pp, index. This book explores the availability of claims in unjust enrichment consequent upon the discharge of contracts, looking at money vs. non-money claims, the requirement of total failure, and much else, taking a broad view of all common law jurisdictions. Mansfield Press, PO Box 639, Oxford UK OX3 7HD. Lionel >From lionel.smith@law.oxford.ac.uk Mon Oct 05 14:35:32 1998 Received: from (oxmail.ox.ac.uk) [163.1.2.9] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zQBjY-0002L7-00; Mon, 5 Oct 1998 14:35:32 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zQBjY-0002sD-00 for restitution@maillist.ox.ac.uk; Mon, 5 Oct 1998 15:35:32 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.03 #1) id 0zQBjW-0002aW-00 for restitution@maillist.ox.ac.uk; Mon, 5 Oct 1998 15:35:31 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Mon, 5 Oct 1998 15:35:54 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: SCC & RLR 1. You can subscribe to an email mailing list which will notify of you of Supreme Court of Canada judgments on the day of release, along with catchwords. Send the message "subscribe jurinet-l [Your Name]" to . 2. More information on the new RLR: Articles: Sir William Evans, "An Essay on the Action for Money Had and Received" (1802= ) Graham Virgo, "The Law of Restitution and the Proceeds of Crime: A Survey of English Law" Prof Andrew Tettenborn, "Third Party Cheques - Security or Snare?" George Panagopoulos, "Cross-Border Tracing" Dirk A Verse, "Improvements and Enrichment: A Comparative Analysis" Notes: Andrew Dickinson, "Restitution and the Conflict of Laws in the House of Lord (Kleinwort Benson v Glasgow City Council) Graham Virgo, "Clarifying Restitution for Wrongs" (Attorney-General v Blake) Robert Chambers, "Indefeasible Title as a Bar to a Claim in Restitution" (Pyramid Building Society v Scorpion Hotels Pty Ltd) Steven B Elliott, "Restitutionary Compensatory Damages for Breach of =46iduciary Duty?" (Swindle v Harrison) Charles Mitchell, "Subrogation, Unjust Enrichment and Remedial Flexibility" (Banque Financi=E8re de la Cit=E9 v Parc (Battersea)) Kit Barker, "Equitable Title and Common Law Conversion: The Limits of the =46usionist Ideal" (MCC Proceeds v Lehman Brothers International (Europe)) Peter Jaffey, "Failure of Consideration and Reliance in Contract" (Stocznia Gdanska SA v Latvian Shipping) Craig Rotherham, "Transfers into an Overdrawn Account in Breach of Trust" (Citadel General Assurance Co v Lloyds Bank Canada) Prof HLE Verhagen and NED Faber, "A Trace of Chase Manhattan in the Netherlands?" (Ontvanger v Hamm) Regional Digest Asia Pacific, Australia, Canada, England and Wales, European Union, Israel, New Zealand, Scotland, South Africa, USA Review Article Lord Millett on Chambers, Resulting Trusts Reviews Sir Robert Walker on Smith, Law of Tracing E O'Dell on Burrows & McKendrick, Cases & Materials on the Law of Restitution and McMeel, Casebook on Restitution Prof A Tettenborn on Rose, ed, Failure of Contracts Prof R Evans-Jones on Swadling, ed, The Limits of Restitutionary Claims G Panagopoulos on Ashe and Rider, eds, International Tracing of Assets G Panagopoulos on Howard, ed, Butterworths Money Laundering Law R Grantham on Cato, Restitution in Australia and New Zealand =46D Rose noticing reprint of Jackson, History of Quasi-Contract in English = Law >From lionel.smith@law.oxford.ac.uk Mon Oct 05 14:43:13 1998 Received: from (oxmail.ox.ac.uk) [163.1.2.9] by maillist.ox.ac.uk with esmtp (Exim 1.82 #2) id 0zQBqz-0002Mu-00; Mon, 5 Oct 1998 14:43:13 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zQBqy-0002zd-00 for restitution@maillist.ox.ac.uk; Mon, 5 Oct 1998 15:43:12 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.03 #1) id 0zQBqw-0000Zl-00 for restitution@maillist.ox.ac.uk; Mon, 5 Oct 1998 15:43:11 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 5 Oct 1998 15:43:35 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion Date: Mon, 5 Oct 1998 15:35:54 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: SCC & RLR 1. You can subscribe to an email mailing list which will notify of you of Supreme Court of Canada judgments on the day of release, along with catchwords. Send the message "subscribe jurinet-l [Your Name]" to . 2. More information on the new RLR: Articles: Sir William Evans, "An Essay on the Action for Money Had and Received" (1802) Graham Virgo, "The Law of Restitution and the Proceeds of Crime: A Survey of English Law" Prof Andrew Tettenborn, "Third Party Cheques - Security or Snare?" George Panagopoulos, "Cross-Border Tracing" Dirk A Verse, "Improvements and Enrichment: A Comparative Analysis" Notes: Andrew Dickinson, "Restitution and the Conflict of Laws in the House of Lord (Kleinwort Benson v Glasgow City Council) Graham Virgo, "Clarifying Restitution for Wrongs" (Attorney-General v Blake) Robert Chambers, "Indefeasible Title as a Bar to a Claim in Restitution" (Pyramid Building Society v Scorpion Hotels Pty Ltd) Steven B Elliott, "Restitutionary Compensatory Damages for Breach of Fiduciary Duty?" (Swindle v Harrison) Charles Mitchell, "Subrogation, Unjust Enrichment and Remedial Flexibility" (Banque Financiere de la Cite v Parc (Battersea)) Kit Barker, "Equitable Title and Common Law Conversion: The Limits of the Fusionist Ideal" (MCC Proceeds v Lehman Brothers International (Europe)) Peter Jaffey, "Failure of Consideration and Reliance in Contract" (Stocznia Gdanska SA v Latvian Shipping) Craig Rotherham, "Transfers into an Overdrawn Account in Breach of Trust" (Citadel General Assurance Co v Lloyds Bank Canada) Prof HLE Verhagen and NED Faber, "A Trace of Chase Manhattan in the Netherlands?" (Ontvanger v Hamm) Regional Digest Asia Pacific, Australia, Canada, England and Wales, European Union, Israel, New Zealand, Scotland, South Africa, USA Review Article Lord Millett on Chambers, Resulting Trusts Reviews Sir Robert Walker on Smith, Law of Tracing E O'Dell on Burrows & McKendrick, Cases & Materials on the Law of Restitution and McMeel, Casebook on Restitution Prof A Tettenborn on Rose, ed, Failure of Contracts Prof R Evans-Jones on Swadling, ed, The Limits of Restitutionary Claims G Panagopoulos on Ashe and Rider, eds, International Tracing of Assets G Panagopoulos on Howard, ed, Butterworths Money Laundering Law R Grantham on Cato, Restitution in Australia and New Zealand FD Rose noticing reprint of Jackson, History of Quasi-Contract in English Law >From lionel.smith@law.oxford.ac.uk Wed Oct 07 10:31:08 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zQpw4-0001FX-00 for restitution@maillist.ox.ac.uk; Wed, 7 Oct 1998 10:31:08 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zQpw0-0004Pv-00 for restitution@maillist.ox.ac.uk; Wed, 7 Oct 1998 10:31:04 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.03 #1) id 0zQpvy-0006Lq-00 for restitution@maillist.ox.ac.uk; Wed, 7 Oct 1998 10:31:03 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Wed, 7 Oct 1998 10:31:27 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Responses to UE Just to follow up one part of Charles' interesting posting, in the context of injunctions he said >Laying to >one side the question whether Parliament truly intended to exclude the >possibility that patentees might be entitled to additional remedies for >infringement of their patents besides those specified in the Act, In Beloit Canada Ltd v Valmet-Dominion Inc [1997] 3 FC 497, [1998] RLR =A767= , the Canadian Federal Court of Appeal held that you could have an accounting of profits for infringement of a patent even though the Patent Act does not mention it (bizarrely, given that it was recently overhauled, and that the Trade-marks Act and Copyright Act both do mention it). Lionel >From charles.mitchell@kcl.ac.uk Thu Oct 08 10:41:03 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRCZD-00053m-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 10:41:03 +0100 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 KAA20767 for ; Thu, 8 Oct 1998 10:38:11 +0100 (BST) Message-Id: <1.5.4.32.19981008093324.006974f8@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, 08 Oct 1998 10:33:24 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: 007, restitution, and the vindication of property rights revisited In the Times today, Gotha City v Sotheby's is the stuff of spy thrillers. It concerned a claim by the Federal Republic of Germany to recover a painting which was looted by the Russians from the ducal family of Saxe-Coberg-Gotha in Germany in 1946, and which later found its way back to the West, passing through various hands before it was put up for sale at Sotheby's in 1992. The remedies sought by the FRG, which claimed ownership of the painting (the City of Gotha asserted possessory title), were declaratory relief, an order of delivery up, and/or damages for conversion. The main issues in the case were (i) whether the FRG could establish title to the painting, and if so (ii) whether its claim was time-barred under the German law of limitation. Moses J held for the FRG on both issues. According to the Times reporter, Moses J stated that the FRG's claim was 'a restitutionary proprietary claim to protect and enforce rights deriving from the plaintiffs' ownership of the painting', and that 'assertion of those rights depended on the plaintiffs' assertion of title.' The case has not yet reached LEXIS, and it is unclear from the Times report exactly what he meant by the word 'restitutionary' here. Nor is it clear whether he viewed the plaintiffs' claim as founded upon equitable or common law principles (though we may note that the case was heard in QBD). It looks like a vindicatio to me, though ('Please say, O Court, that the painting is ours' - to paraphrase Peter Birks on Macmillan v Bishopsgate in [1997] NZLRev at p 650). 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 eodell@dux4.tcd.ie Thu Oct 08 12:25:58 1998 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRECk-0005d0-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 12:25:58 +0100 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 MAA16045 for ; Thu, 8 Oct 1998 12:25:52 +0100 (BST) Date: Thu, 8 Oct 1998 12:25:52 +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: Re: RDG: 007, restitution, and the vindication of property rights revisited Cue: searchlight, background music (dum, dum-dum, DUM, dum, ...), silhouette (in profile with gun, then turning face on with gun outstretched) and cut to the chase: First, reserving my position on the appropriateness or existence of a common law vindicatio (like Christianity and Western Civilization, it's much too early to tell, but I think that it could be a good idea), I'd like to make a comment on Charles's note to the list on Gotha v Sotheby's. Second, it is settled, I think, that if I can follow or trace my property into your hands, and you have converted it, it is settled law that I can sue you for the proceeds. But if I had followed to traced it into your hands, and it is still there, it is an open question whether I can simply sue you for its return or for an award of money reflecting the value of the property in your hands.The former is the tort of conversion; the latter, if it exists, is the snark-like vindicatio. Since a proprietary interest of some sort is necessary for both claims, then, in both cases, the bank starts out by praying 'Please say, O Court, that the painting is ours'. After that, in the tort of conversion, the bank would pray 'Please say, O Court, that since it was sold by the defendants, we are therefore entitled to the proceeds in their hands'; whereas, in the 'vindicatio', the bank would pray 'Please say, O Court, that we can therefore have it [or its value in money] back'. Hence, simply because the bank used the form of prayer 'Please say, O Court, that the painting is ours', it does not follow that they pleaded a 'vindicatio', because it is also appropriate to found a claim in coversion. Charles tells us that the Times tells him (isn't this hearsay ?) that Gotha sought, inter alia, damages for conversion. Hence, the structure of the action (as reported in the Times and described by Charles) seems entirely appropriate, and it follows that it is unlikely that Gotha v Sotheby's can be put with Macmillan v Bishopsgate as a 'vindicatio' pattern case. Third, best regards to all of the list members for whom this time of the year sees the start of the academic and legal year, and therefore the beginning of madness and mayhem ... 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 Oct 08 13:15:04 1998 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zREyG-0005oi-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 13:15:04 +0100 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 NAA18047 for ; Thu, 8 Oct 1998 13:12:13 +0100 (BST) Message-Id: <1.5.4.32.19981008120724.0069ec3c@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, 08 Oct 1998 13:07:24 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Bond is back A brief response to Eoin's comment: I find it hard to tell from the Times Report exactly which remedy/ies the FRG sought against which of the defendants, how the FRG's argument was put, and in respect of which remedy/ies Moses J made his comments. A fuller report of the case will no doubt make these matters clearer. 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 junger@samsara.law.cwru.edu Thu Oct 08 14:58:33 1998 Received: from samsara.law.cwru.edu ([129.22.184.108]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRGaO-0006CM-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 14:58:32 +0100 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.8.7/8.8.7) with ESMTP id JAA21610; Thu, 8 Oct 1998 09:59:10 -0400 Message-Id: <199810081359.JAA21610@samsara.law.cwru.edu> To: restitution@maillist.ox.ac.uk, junger@samsara.law.cwru.edu, "Peter D. Junger" Subject: Re: RDG: 007, restitution, and the vindication of property rights revisited In-reply-to: Your message of "Thu, 08 Oct 1998 12:25:52 BST." Date: Thu, 08 Oct 1998 09:59:09 -0300 From: "Peter D. Junger" If I understand correctly what Gotha v Sotheby's is all about, there was a very similar case some years ago in the United States (except that there was not such a complex change of possession before it got into the hands of the defendants): KUNSTSAMMLUNGEN zu WEIMAR v. ELICOFON, 678 F.2d 1150 (1982). The opinion of the U.S. Court of Appeals begins: In this diversity suit involving two foreign countries (East Germany and WestGermany), a foreign national, and an American citizen, we are asked to determine the ownership of two priceless Albrecht Duerer portraits executed around 1499. They were stolen in 1945 from a castle located in what is now East Germany and fortuitously discovered in 1966 in the Brooklyn home of Edward I. Elicofon, an American citizen, where they had been openly displayed by him tofriends since his good-faith purchase of them over 20 years earlier without knowledge that they were Duerers. The search for an answer to the deceptively simple question, "Who owns the paintings?," involves a labyrinthian journey through 19th century German dynastic law, contemporary German property law, Allied Military Law during the post-War occupation of Germany, New York State law, and intricate conceptions of succession and sovereignty in international law. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists >From lionel.smith@law.oxford.ac.uk Thu Oct 08 15:49:12 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRHNQ-0006O8-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 15:49:12 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zRHNM-0004Mm-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 15:49:08 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zRHNJ-0001ud-00 for restitution@maillist.ox.ac.uk; Thu, 8 Oct 1998 15:49:06 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <1.5.4.32.19981008093324.006974f8@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 8 Oct 1998 15:49:29 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: 007, etc. By the miracle of New Law Online , on which sad to say one needs an account, I hoped to see a transcript, but it is not there yet. I am told that there that "the city of Gotha and the Federal Republic of Germany claimed the return of the painting in conversion against Cobert." But it must be said that the case is primarily concerned with a very interesting conflicts point about whose limitation period applies. Under the Torts (Interference with Goods Act) 1977, s. 3, as under prior statutes dating from 1854, a court exercising common law jurisdiction can order specific delivery in a claim for conversion, trespass to chattels, and what used to be called detinue. So just because they asked for (and got) their painting back does not mean that the claim was a vindicatio as such. It is a good old tort of interference with a possessory right, followed by the exercise of a very sensibly created discretionary jurisdiction which permits defendants to be ordered to give things back (as they could not by common law courts before 1854). It may look like a vindicatio, but whether it is one or not depends on what we mean by that. My understanding of the traditional usage is that it depends not on the order ultimately made but on the *form* of the claim. If what we mean by vindication is a claim of the form, "that is mine (& o court please say so)" then this painting claim is not a vindicatio, nor does the common law even as amended by statute have one. Lionel >From birks@ermine.ox.ac.uk Fri Oct 09 11:48:58 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRa6U-0000Ag-00 for restitution@maillist.ox.ac.uk; Fri, 9 Oct 1998 11:48:58 +0100 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zRa6P-0000hb-00 for restitution@maillist.ox.ac.uk; Fri, 9 Oct 1998 11:48:53 +0100 Received: from platform.asc.ox.ac.uk ([163.1.128.124]) by ermine.ox.ac.uk with smtp (Exim 2.03 #1) id 0zRa6P-0008I0-00 for restitution@maillist.ox.ac.uk; Fri, 9 Oct 1998 11:48:53 +0100 Message-Id: <1.5.4.32.19981009104511.00d29de0@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: Fri, 09 Oct 1998 11:45:11 +0100 To: restitution@maillist.ox.ac.uk From: Peter Birks Subject: vindicatio This is a tiny contribution to the 007 discussion, and I think that Lionel has made it already. But the point is important. If it is not open to doubt, it might as well be nailed. If it is open to doubt, let the doubts emerge. The point is that the question whether one is looking at a vindicatio cannot be answered by looking to the nature of the order that the court makes or can make. The Roman vindicatio went thus: 'If it appears that the painting which is the subject of this action belongs to Aulus Agerius by Quirtary title, judge, unless in your discretion the painting is given back, condemn Numerius Negidius for whatever that painting is worth; if it does not appear, absolve him.' ('by Quiritary title' is just a poetic twiddle = 'at civil law' or, as we would say 'at common law'.) In classical Roman law the universal rule was that judges had to reduce the matter to a money judgment, giving rise to a judgment debt -- a personal obligation to pay the amount of the award. The character of the vindicatio is not affected by that. It is determined by what the Romans called the 'intentio' of the pleading, that part in which the plaintiff set out the proposition upon which he took his stand: 'I say that this painting is mine by Quiritary title!' That is, the crucial factor is that the plaintiff's claim is the bare assertion of a proprietary entitlement. By contrast in an English action of conversion or, in more modern terms, interference with goods, the plaintiff stands on a wrong. This is no less true in the light of the undoubted fact that the assertion of the wrong is parasitic upon a right to possess. The wrong consists precisely in interference with a res which the plaintiff had a right to possess: 'I say that, because you have wrongfully interfered with such and such a painting which I had a right to possess, you ought to pay me damages.' Such an allegation can be made to do the work of a vindicatio but cannot be described as a vindicatio. It is not a pure or bare assertion of proprietary entitlement. The classical vindicatio and our modern discretion to order specific surrender of the subject-matter of an action for interference with goods show, respectively, that a pure proprietary claim (a vindicatio) can be reduced to a personal money judgment and a personal claim arising from a wrong can lead to specific recovery. It is at this level and only at this level that the word 'remedy' has some work to do. That is, it is useful to describe that which a court will actually do about a right which is successfully asserted and, in particular, useful in identifying those cases in which what a court will do or order done diverges in some degree from simple realization of the right successfully asserted. In 90 cases out of 100, the 'remedy' is an order for the specific realization of the right. But it need not be. In a vindicatio it cannot be, because the assertion is inert: 'That is mine!' But it is not only in the vindicatio that the remedy can be diverge from simple realization of the right on which the plaintiff stood. From this it follows that, at least so long as one is classifying claims, one must not be misled by the nature of the 'remedy' (scil. by what the court can order done in the event of the claimant's success). 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 jerrym@mweb.co.za Fri Oct 09 21:22:00 1998 Received: from mailcrunch.cis.co.za ([196.2.16.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRj30-0002Ud-00 for restitution@maillist.ox.ac.uk; Fri, 9 Oct 1998 21:21:59 +0100 Received: from jerry ([196.2.59.171]) by mailcrunch.cis.co.za (8.8.8/8.8.8) with SMTP id WAA09866 for ; Fri, 9 Oct 1998 22:26:20 -0200 (GMT) From: "JERRY MARGOLIUS" To: Subject: RESTITUTION & HARDSHIP Date: Fri, 9 Oct 1998 22:19:52 +0200 Message-ID: <01bdf3c2$2c628120$ab3b02c4@jerry> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_000B_01BDF3D2.EFEB5120" 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_000B_01BDF3D2.EFEB5120 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Panelist We are urgently seeking cases on hardship (mental, financial and other) = which could be associated with a restitution claim. Any comments Thank you Jerry jerrym@mweb.co.za ------=_NextPart_000_000B_01BDF3D2.EFEB5120 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Dear Panelist
 
We are urgently seeking cases on = hardship=20 (mental, financial and other) which could be associated with a = restitution=20 claim.
 
Any comments
 
Thank you
 
Jerry
jerrym@mweb.co.za
 
------=_NextPart_000_000B_01BDF3D2.EFEB5120-- >From junger@samsara.law.cwru.edu Sat Oct 10 00:50:41 1998 Received: from samsara.law.cwru.edu ([129.22.184.108]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zRmIz-0002rO-00 for restitution@maillist.ox.ac.uk; Sat, 10 Oct 1998 00:50:41 +0100 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.8.7/8.8.7) with ESMTP id TAA25620 for ; Fri, 9 Oct 1998 19:51:15 -0400 Message-Id: <199810092351.TAA25620@samsara.law.cwru.edu> To: restitution@maillist.ox.ac.uk Subject: Re: RDG: vindicatio In-reply-to: Your message of "Fri, 09 Oct 1998 11:45:11 BST." <1.5.4.32.19981009104511.00d29de0@ermine.ox.ac.uk> Date: Fri, 09 Oct 1998 19:51:14 -0300 From: "Peter D. Junger" Peter Birks writes: : By contrast in an English action of conversion or, in more modern terms, : interference with goods, the plaintiff stands on a wrong. This is no less : true in the light of the undoubted fact that the assertion of the wrong is : parasitic upon a right to possess. The wrong consists precisely in : interference with a res which the plaintiff had a right to possess: 'I say : that, because you have wrongfully interfered with such and such a painting : which I had a right to possess, you ought to pay me damages.' Such an : allegation can be made to do the work of a vindicatio but cannot be : described as a vindicatio. It is not a pure or bare assertion of proprietary : entitlement. But the action of conversion is a relatively recent addition to the common law. In the days of Glanvill and Bracton the action that would be used would have been detinue, which, like all praecipe actions, was based on the demandant's right, not on the tenant's (or defendant's) wrong. It was only with the development of conversion, which was used primarily to avoid wager of law, that the action for the recovery of the value of goods belonging to the plaintiff took the form of a tort action, since conversion was, and still is, formally an action on the case. But, as Lord Manfield said in Hambly v. Trott, 1 Cowper 371, 98 Eng. Rep. 1136 (King's Bench 1776), ``Trover is in form a tort, but in substance an action to try property.'' In most of the United States a statutory version of replevin is available for specific restitution of goods, and replevin does not sound in tort. And if damages for conversion is not an adequate remedy at law courts of equity will grant specific restitution, and do so on the ground that the goods in the defendant's possession belong to the plaintiff. Court's of equity enforce rights, they do not ordinarily grant relief against wrongs that have already occurred. Thus I think it is safe to say that all of these actions---detinue, conversion, replevin, and spectific restitution in equity---are droitural in nature. Whether that is sufficient to justify treating them as a vindicatio is a matter on which I am not competent to express an opinion. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists >From junger@samsara.law.cwru.edu Sat Oct 10 18:59:15 1998 Received: from samsara.law.cwru.edu ([129.22.184.108]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zS3IQ-0004mh-00 for restitution@maillist.ox.ac.uk; Sat, 10 Oct 1998 18:59:15 +0100 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.8.7/8.8.7) with ESMTP id NAA26610; Sat, 10 Oct 1998 13:59:13 -0400 Message-Id: <199810101759.NAA26610@samsara.law.cwru.edu> To: johnm@ecn.net.au cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: vindicatio In-reply-to: Your message of "Sat, 10 Oct 1998 20:15:41 +1000." <001001bdf440$7ddc0f20$536407c0@john> Date: Sat, 10 Oct 1998 13:59:13 -0300 From: "Peter D. Junger" "John Murphy" writes: : I'm a bit puzzled by all this. : : As I understand the facts, the painting was stolen. : : It was then sold a number of times (starting presumably with the thief as : first seller) and finished up in the defendant's hands after a sale which, I : assume, took place in London. : : The Sale of Goods Act in Queensland, and, as far as I know, in all : Australian state jurisdictions is based on the English Sale of Goods Act of : about 1894. I am asking this question on the assumption that the English : Sale of Goods Act stil contains the same provisions. : : Section 25 provides that, subject to the Act itself, a buyer from a seller : with a defective title can obtain no better title than the seller's : (disregarding any estoppel against the owner). So far, so good for the FRG. There are undoubtedly going to be some interesting questions as what law to apply, as there were in the Kunstversammlung case in the U.S., but if the common law rule is applied, which is the rule that you just quoted from the Queensland Sale of Goods Act, then the original owner still has the right to repossess the goods, as the original thief got no title and therefore had not title that could be passed on to later purchasers (unless one of the later sales was in a market overt during hours of daylight, which seems improbable). : However, the Act goes on to provide: section 26 that when teh seller of : goods has a voidable title which has not been avoided at sale, a buyer in : good faith without notice acquires good title. But, since the original thief had no title, none of the subsequent purchasers had even voidable title so this provision would not be relevant. : In section 27(1), the Act deals specifically with stolen goods and provides : that, despite any intermediate dealings, property in stolen goods revests in : the owner from whom the goods were stolen upon the prosecution of the thief : to conviction. : : Section 27(2) provides that in the case of goods obtained by wrongful means : short of theft, property does not revest by reason only of the conviction of : the offender, notwithstanding an enactment to the contrary. Since the ``property'' was never never out of the original owner the revesting provisions have no application. So the original owner has, under a common law analysis, always had the property, unless title has been lost by prescription, which is where the question of which law governs is likely to get very hairy. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists >From sfd@holyrood.ed.ac.uk Mon Oct 12 15:15:32 1998 Received: from holyrood.ed.ac.uk ([129.215.38.17] ident=sfd) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zSil2-0000iq-00 for restitution@maillist.ox.ac.uk; Mon, 12 Oct 1998 15:15:32 +0100 Received: from localhost (sfd@localhost) by holyrood.ed.ac.uk (8.8.7/8.8.7) with SMTP id PAA16991 for ; Mon, 12 Oct 1998 15:15:23 +0100 (BST) Date: Mon, 12 Oct 1998 15:15:22 +0100 (BST) From: Scott Dickson To: restitution@maillist.ox.ac.uk Subject: Gotha City and FRG v Sotheby's and Cobert Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=ISO-8859-1 Content-Transfer-Encoding: QUOTED-PRINTABLE This is a brief contribution to the discussion of Gotha City and FRG v Sotheby=92s and Cobert. Like John Murphy, I find the case somewhat puzzlin= g, although for different reasons. First of all, I agree with Charles Mitchell that the case as it appears in = The Times is not very clear - or perhaps just badly reported. It is not clear = how the actions have been pled. A reasonable assumption would be that they are actions for wrongful interference, albeit that they seek the discretionary remedy of delivery up (which is clearly not a vindicatio, for the reasons given by Peter Birks). The full transcript will no doubt reveal all. Second, as highlighted by Lionel, the case contains some interesting confli= cts points. The second matter which was considered by Moses J - according to t= he report in The Times - was whether the limitation period under German law should apply. This is where my puzzlement increases. This is an action in tort; the choice of law rule in tort therefore applies. The new choice of law rule in the Private International Law (Miscellaneous Provisions) Act 19= 95 would not apply here (the acts or omissions were before commencement on 1 M= ay 1996). The *double rule* would therefore apply - the lex fori (English law= ) and the lex loci delicti (also English law - the wrong by the second defendant, Cobert, took place in England). There would therefore be one le= x causae - English law. In fact, in strict terms, this is not a conflicts ca= se at all (at least in respect of the interference claim). This is where it all gets very odd. Moses J appears to dismiss the submiss= ion of counsel for FRG that German law simply did not apply. It was argued by counsel that the case was based on the tort of wrongful interference, the elements of which occurred in England, in respect of property acquired in England. The judge appears to have taken a slightly different view and decided that the claim was a *restitutionary proprietary claim ... deriving from ownership* which necessitated the application of German law to determi= ne the ownership. However, the judge appears to have gone further - deciding that there should be two leges causae, English law and German law, and that they both should govern the question of title and the rights which flowed f= rom that title. German law will be relevant in this action to a degree. I am not convinced= , however, that the door marked *German law* should have been opened on the basis that the claim was a *restitutionary proprietary claim* (whatever tha= t means in the context of an action for wrongful interference with moveables)= =2E It is said in the report that FRG was *asserting* its title. Without wishi= ng to be pedantic, would it not be correct to say that in an action for wrongf= ul interference the title is passive and is not *asserted*? Nevertheless, the title of FRG would have to be established in the action as a precondition t= o a successful claim for wrongful interference. FRG would have to establish title to the painting. It presumably acquired title in Germany at some point prior to the removal of the painting in 1946= =2E It would have to establish that its title was not lost by the removal from Germany nor lost by the subsequent transfers in Germany in 1988 (to Mina Breslav) and in England in 1989 (to Cobert). This can be described - in th= e language of conflicts lawyers - as an incidental question. The main questi= on in the action is - *Did the Defendant wrongfully interfere with property X?= *; the incidental question which is raised is - *Did the Plaintiff own or have some possessory right in property X at the time of the interference?* The legal systems which may be relevant to this part of the enquiry are German = law (in its widest sense), English law and the law applicable in the Soviet Uni= on (if there were any transfers in the Soviet Union - it is not clear from the report). However, it would seem to me that these legal systems are relevant only to = the question of title, not to the question of interference. Each system would = be applied as the lex situs at the time a transfer was effected and would determine whether property passed to the transferee. In Scots law stolen property is tainted with a vitium reale (or labes reali= s) which prevents a thief from passing a good title. With the addition of the rule nemo dat quod non habet (which has been quaintly rendered in Scots - o= r nearly in Scots - as: ye cannae gie whit ye dinnae hae) any transferee from= a thief or a transferee later in the chain will not become owner. As an asid= e, it should be noted that there is authority in Scots law to the effect that = an intermediate purchaser of stolen property who has later sold the property f= or profit will be liable to account to the owner for the profit made if the property is ultimately irrecoverable. There is also authority - somewhat t= hin - that an intermediate purchaser who sells the property on in bad faith wil= l be liable to account to the owner for the full value should the property by irrecoverable (si dolo desiit possidere, dolus pro possessione habetur). The real difficulty in all of these cases arises when a good title to stole= n moveable property is acquired under a foreign law (qua lex situs) and the property is then brought back to the UK to be sold here (see Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496). In Winkworth property was stolen in England but then removed to Italy. It was held that a purchaser = in Italy obtained a good title which would be recognised in England. Coming back to the limitation point, once FRG=92s title is established the enquiry reverts to the main question - *Did the Defendant wrongfully interf= ere with property X?*. Limitation in the context of this case concerns rights = of action, not titles. Once the incidental question is disposed of, the singl= e law which applies to the alleged interference (the cause of action) is Engl= ish law. The question of foreign limitation simply does not arise in that context. The English limitation rule in tort would apply. It would appear that the judge decided to consider the effect of the German limitation period to determine whether the title was still assertable. To = me this seems a false enquiry for two reasons: (i) the title was not being *asserted* and (ii) limitation relates to the action before the court not t= he title. The system of law which confers the title cannot, in my view, also regulate its extinction when the property has subsequently been transferred under ot= her systems of law (in this case, English law and possibly Soviet law). It is = to wield a blunt stick to conclude that since at least three putative transfer= s were made - two in Germany and one in England - that therefore the two lege= s causae must be German law and English law. It is similarly fuzzy reasoning= to suggest that both systems must apply to all matters before the court - including the existence of the title and the interference therewith - with = no room for depecage. If we are to believe the report, does it mean that the interference aspect (the main question and the cause of action) is also to = be judged by German law? Has the claim suddenly become an eingriffskondiktion (the interference action in the Wilburg-von Caemmerer taxonomy in German la= w)? The suggestion may seem absurd; however, the terms of the report leave the door open. The judge was put in a difficult position by his decision to allow German l= aw into the court to regulate all the elements of the claim. To get round the offending limitation rule in German law the judge had to carry out what loo= ks like a rather artificial manoeuvre. If German law had only been allowed to operate in a tight sphere there would have been little difficulty. As it w= as, the solution was either an artificial escape route or a finding that Englis= h public policy excluded the operation of the German limitation rule (always = a dangerous finding to make). I should qualify all of the above by saying that it is somewhat speculative= =2E It is simply not clear from the report how the judge has approached this claim. I look forward to reading the full transcript and hope that it discloses more focus than the report. Scott Dickson Intrant of the Faculty of Advocates Tutor in International Private Law, The University of Edinburgh scott.dickson@ed.ac.uk >From lionel.smith@law.oxford.ac.uk Mon Oct 12 17:33:33 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zSkub-0001Yt-00 for restitution@maillist.ox.ac.uk; Mon, 12 Oct 1998 17:33:33 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zSkuT-0003SV-00 for restitution@maillist.ox.ac.uk; Mon, 12 Oct 1998 17:33:25 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zSkuR-0005Fd-00 for restitution@maillist.ox.ac.uk; Mon, 12 Oct 1998 17:33:24 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 12 Oct 1998 17:33:44 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Gotha City The judgment is now on New Law Online. Unfortunately, leaving aside esoteric points of copyright law, I am sure that I am bound by contract or at least good manners not to reproduce it in whole on the RDG. At some risk to my soul I will put in a bit. Scanning the lengthy judgment I do not see the pleadings set out anywhere but I see this: "The Federal Republic of Germany claims ownership of the painting. The City of Gotha asserts a possessory title to it. The plaintiffs claim declaratory relief, an order for delivery up and/or damages on the grounds that Cobert converted the painting by taking constructive delivery of it in March 1989, by consigning it to Sotheby's for sale at that time, by offering it for sale through Sotheby's to the City of Gotha in October 1991 and/or by demanding its return from Sotheby's in August 1993." I guess a declaration of legal ownership (only possible by statute) would be the closest thing we might have to a vindicatio, but without more it might be thought a rather weak thing to be deserving of the name. Interestingly although Moses J stated several conclusions he did not seem actually to make an order or a declaration. I will not burden the list with the conflicts points although I will send lengthier extracts to those interested. Suffice to say that Moses J thought that under the Foreign Limitation Periods Act 1984 it *is* possible to have two leges causae (otherwise you might need to distinguish between foreign substantive limitation periods and procedural ones); that here the German limitation period had not expired (30 years); and (obiter) even if it had expired he would have disapplied it because it is contrary to the policy evidenced in s. 4 of the Limitation Act 1980 (time does not run against the victim of a theft). Lionel >From sfd@holyrood.ed.ac.uk Mon Oct 12 18:33:25 1998 Received: from holyrood.ed.ac.uk ([129.215.38.17] ident=sfd) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zSlqX-0001oq-00 for restitution@maillist.ox.ac.uk; Mon, 12 Oct 1998 18:33:25 +0100 Received: from localhost (sfd@localhost) by holyrood.ed.ac.uk (8.8.7/8.8.7) with SMTP id SAA17788; Mon, 12 Oct 1998 18:33:16 +0100 (BST) Date: Mon, 12 Oct 1998 18:33:15 +0100 (BST) From: Scott Dickson To: Lionel Smith cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Gotha City In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII On Mon, 12 Oct 1998, Lionel Smith wrote: > The judgment is now on New Law Online. Unfortunately, leaving aside > esoteric points of copyright law, I am sure that I am bound by contract or > at least good manners not to reproduce it in whole on the RDG. At some risk > to my soul I will put in a bit. The full transcript is now available from the mechancial recording department at the Royal Courts of Justice. It is on disk and it is free! My copy should arrive later this week - although I will be happy to e-mail it to all who are interested in it, would it be easier to post it on the list in some way? Scott Dickson Intrant of the Faculty of Advocates Tutor in International Private Law, The University of Edinburgh scott.dickson@ed.ac.uk >From lionel.smith@law.oxford.ac.uk Tue Oct 13 09:39:19 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zSzzD-0003Ov-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 09:39:19 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zSzz5-0001cx-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 09:39:11 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zSzz3-0005AD-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 09:39:10 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 13 Oct 1998 09:39:32 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Scots Law In the new LQR (Oct 98): Parker Hood, "Unjustified Enrichment in Scots Law: A Further Step Towards Rationalisation" (1998) 114 LQR 559, noting Shilliday v. Smith 1998 S.L.T. 976, definitively recognising a general principle of unjustified enrichment in Scots law. Lionel >From lionel.smith@law.oxford.ac.uk Tue Oct 13 12:30:13 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zT2eb-0004BI-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 12:30:13 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zT2eT-0000nU-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 12:30:05 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zT2eR-0006ed-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 12:30:04 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 13 Oct 1998 12:30:25 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: City of Gotha again One part of the conflicts reasoning in this case might be of general interest on the RDG. The relevant statute was the Foreign Limitation Periods Act 1984 and the question was whether under its terms German limitation law applied. The plaintiffs argued, like Scott Dickson, that German law had nothing to do with anything as the tort was committed in England by a Panamanian company which acquired the painting in England. Moses J: "I cannot accept this submission, attractive though its simplicity be. The claim under Section (2)(1) of the Torts (Interference With Goods) Act 1977 is classified in Goff & Jones The Law of Restitution (4th Edition)(pages 75 to 76) as a restitutionary proprietary claim. It is a claim to protect and enforce rights deriving from the plaintiffs' ownership of the painting. Assertion of those rights depends upon the plaintiffs' assertion of title which, it is accepted, must be determined under German law. [since the plaintiffs' title derived from juridical acts taking place Germany.] Comments? >From sfd@holyrood.ed.ac.uk Tue Oct 13 15:29:36 1998 Received: from holyrood.ed.ac.uk ([129.215.38.17] ident=sfd) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zT5SC-0004yV-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 15:29:36 +0100 Received: from localhost (sfd@localhost) by holyrood.ed.ac.uk (8.8.7/8.8.7) with SMTP id PAA11055; Tue, 13 Oct 1998 15:29:24 +0100 (BST) Date: Tue, 13 Oct 1998 15:29:24 +0100 (BST) From: Scott Dickson Reply-To: Scott Dickson To: Lionel Smith cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: City of Gotha again In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Lionel has kindly given us more from the decision of Moses J. It relates to the central questions - what type of claim was it and which law should apply? Moses J rejected the *attractive and simple* submission of counsel for FRG that German law should not apply because the claim was one in tort. Now that more flesh is appearing on the decision we can take a better view of the reasoning. I am now more worried than puzzled. We seem to have a clear picture that the judge viewed the nature of the action as an action in rem, since it involved the *assertion* of title. As I have indicated before, it seems to me incorrect to categorise this type of claim as an assertion of title. That a claim in tort should be recategorised as something else is odd. That the application of the limitation periods should then be based on this recategorisation is worrying. It was clearly the view of the judge that the German limitation period should be excluded (the irony of course is that there was, in my opinion, no need to consider applying it in the first place). Once it was in some means of throwing it back out had to be found. In conflicts cases this is natural - escape mechanisms are searched for by judges to reach the right result, and if they cannot be found public policy is reluctantly relied upon. However, there is a basic point of taxonomy in play. If tort actions can be reclassified as property actions what is the point of having different branches of the law. Cutting the legal system down and searching for common principles is fine (Danie Visser's lumpers and splitters comes to mind). Nevertheless, some basic structure has to be maintained. In Scots law we have some of the same difficulties. The action for restitution of one's property (*it is mine and I demand it back*) is a property action, but can also be categorised by the response - the restitutionary response. However, as Peter Birks has shown, differentiating between the source of the right or obligation and the response is of fundamental importance. Am I alone in thinking that these have been slightly muddled up in Gotha City? Scott Dickson Intrant of the Faculty of Advocates Tutor in International Private Law, The University of Edinburgh scott.dickson@ed.ac.uk >From junger@samsara.law.cwru.edu Tue Oct 13 18:43:35 1998 Received: from samsara.law.cwru.edu ([129.22.184.108]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zT8Ts-0005aC-00 for restitution@maillist.ox.ac.uk; Tue, 13 Oct 1998 18:43:33 +0100 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.8.7/8.8.7) with ESMTP id NAA31544; Tue, 13 Oct 1998 13:43:40 -0400 Message-Id: <199810131743.NAA31544@samsara.law.cwru.edu> To: Scott Dickson cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: City of Gotha again In-reply-to: Your message of "Tue, 13 Oct 1998 15:29:24 BST." Date: Tue, 13 Oct 1998 13:43:38 -0300 From: "Peter D. Junger" Scott Dickson writes: : However, there is a basic point of taxonomy in play. If tort actions can : be reclassified as property actions what is the point of having different : branches of the law. Even if there is no such reclassification, I still wonder if there is any point to having different branches of the law, other than to allow academics to come up with matters to dispute about that should---at list in the Richterkoenigtum of the Common Law---be of no actual significance or, more legitimately, to allow students and practitioners a convenient way of cataloguing matters that will usually work pretty well in run-of-the-mill cases. : Cutting the legal system down and searching for : common principles is fine (Danie Visser's lumpers and splitters comes to : mind). Nevertheless, some basic structure has to be maintained. Possibly. But surely in Common Law jurisdictions that structure should be the native structure of the Common Law, not the alien structures of the Romanists and the Civilians. And those of an academic bent who do categorize Common Law actions seldom if ever speak of proprietary actions in the context of chattels. There are real actions that are, or were, proprietary, and personal actions that have been divided into contract actions and tort actions (and sometimes quasi-contract actions.) (Today the old real actions like the old writ of right have all been replaced by ejectment which is in form an action of trespass, even though both the trespasser and the trespassee, as well as the trespass itself, are fictions.) But this division of personal actions into contract actions and tort actions seems to have been based more on Roman law categories than on anything in the Common Law. The writ in an action of detinue (and the writ in an action of debt, for that matter) was in form indistinguishable from the writ in the ``praecipe'' action known as a Writ of Right to recover a parcel of land. Thus detinue and debt (which are not tort actions and not contract actions) were basically proprietary. At least detinue was as proprietary as any real action, since it was an action to recover a specific chattel. (Although, of course, the defendant had the option of returning the chattels value, rather than the chattel itself.) But no common law action, no matter how proprietary it was, required any recognition of something like ownership or _dominium_ or, I submit, even property until the action of trover and conversion evolved out of the tort action of trepass on the case. : In Scots : law we have some of the same difficulties. The action for restitution of : one's property (*it is mine and I demand it back*) is a property action, : but can also be categorised by the response - the restitutionary response. : However, as Peter Birks has shown, differentiating between the source of : the right or obligation and the response is of fundamental importance. Am : I alone in thinking that these have been slightly muddled up in Gotha : City? I don't know whether you are alone, but I certainly am not with you. As I understand what was going on in Gotha the action there was in effect an action of conversion and the conversion action in England (where replevin has not generally been available except in cases of an unlawful distress and detinue has been abolished by statute) is a, and the only, legal proprietary action for the recovery of goods and chattels. I have already cited Lord Mansfields statement in Hambly v. Trott that conversion is an action that in substance is based on property and is only in form based on tort. (And, by the way, actions for breach of contract at law where the writ used was assumpsit, were also, like trover, tort actions in form since the writ was simply a variant of the general writ of trespass on the case.) But if anyone should doubt that Lord Mansfield was talking about, here is the writ that was used in conversion actions: Trespass on the Case In Trover. George the Fourth, &c., to the Sheriff of ___ greeting. If A.B. shall make you secure of prosecuting his claim, then put by gages and safe pledges, C.D., late of ___ gentleman, that he be before us in eight days of Saint Hilary, wheresoever we shall then be in England, to show for that whereas the said A.B. heretofore, to wit, on the ___ day of --- in the year of our Lord ___ at ___ in the county of --- was lawfully possessed, as of his own property, of certain goods and chattels, to wit, twenty tables and twenty chairs of great value, to wit, of the value of ___ pounds, of lawful money of Great Britain; and being so possessed thereof, he, the said A.B. afterwards, to wit, on the day and year aforesaid, at ___ aforesaid, in the county aforesaid, casually lost the said goods and chattels out of his possession; and the same afterwards, to wit, on the day and year aforesaid, at ___ aforesaid, in the county aforesaid, came to the possession of the said C.D. by finding; Yet the said C.D., well knowing the said goods and chattels to be the property of the said A.B., and of right to belong and appertain to him, but contriving and fraudulently intending, craftily and subtilly, to deceive and defraud the said A.B. in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said A.B. (although often requested so to do); but so to do hath hitherto wholly refused, and still refuses; and afterwards, to wit on the --- day of --- in the year --- at ___ aforesaid, in the county aforesaid, converted and disposed of the said goods and chattels to his, the said C.D.'s own use, to the damage of the said A.B. of pounds, as it is said; and have you there the names of the pledges, and this writ. Witness ourself, at Westminster, the --- day of ___ in the ___ year of our reign. (This form is taken from the 1824 edition of John Henry Stephen's _Treatise on the Principles of Pleading in Civil Actions_.) Note the critical allegations that the goods were the plaintiff's ``property''. None of the older proprietary actions needed to use this term, which first appears in the writ of trover and conversion and which is not formally a proprietary action, but rather is in form a tort action. But the critical point that the plaintiff has to prove in a conversion action is that the goods are his property, and only then does he have to prove that the defendant conveted the goods to his own use. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists >From lionel.smith@law.oxford.ac.uk Wed Oct 14 10:23:58 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zTN9y-00071k-00 for restitution@maillist.ox.ac.uk; Wed, 14 Oct 1998 10:23:58 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zTN9q-0005OS-00 for restitution@maillist.ox.ac.uk; Wed, 14 Oct 1998 10:23:50 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zTN9o-0001Qx-00 for restitution@maillist.ox.ac.uk; Wed, 14 Oct 1998 10:23:49 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 14 Oct 1998 10:24:09 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Clayton's Case In Keefe v. Law Society of New South Wales, 10 Sep 1998, at , the NSW CA has added its voice to the emerging view that Clayton's Case has nothing to do with tracing. The case is mostly about professional misconduct (as so many tracing cases are ...) Lionel >From swh10@cus.cam.ac.uk Wed Oct 14 13:20:43 1998 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zTPv1-0007zf-00 for restitution@maillist.ox.ac.uk; Wed, 14 Oct 1998 13:20:43 +0100 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by taurus.cus.cam.ac.uk with smtp (Exim 2.05 #5) id 0zTPur-0003fF-00 for restitution@maillist.ox.ac.uk; Wed, 14 Oct 1998 13:20:33 +0100 Message-Id: <3.0.1.32.19981014132036.007c78c0@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, 14 Oct 1998 13:20:36 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Gotha City Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Many thanks to Scott Dickson, who has copied the case to me from his RCJ disk. It is now online on my restitution page, which is at http://www.law.cam.ac.uk/restitution/restitution.htm Follow Cases ===> England and Wales ====> Gotha Be warned that it is large ! About 28,000 words, or 200K if you think in those terms. Happy reading ..... 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 r.chambers@law.unimelb.edu.au Thu Oct 15 02:59:46 1998 Received: from myriad.its.unimelb.edu.au ([128.250.6.196]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zTchc-00018n-00 for restitution@maillist.ox.ac.uk; Thu, 15 Oct 1998 02:59:45 +0100 Received: from [128.250.165.77] (lawpc77.law.unimelb.EDU.AU [128.250.165.77]) by myriad.its.unimelb.edu.au (8.9.1a/8.9.1) with ESMTP id LAA23156 for ; Thu, 15 Oct 1998 11:59:30 +1000 (EST) X-Sender: chambers@clyde.its.unimelb.EDU.AU Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 15 Oct 1998 11:59:41 +1000 To: restitution@maillist.ox.ac.uk From: Robert Chambers Subject: LeClair v LeClair Discussion group members might be interested in LeClair v LeClair (1998) 159 DLR (4th) 638 (BC CA). A testator had owned a block of flats, which he sold. He went to hospital with terminal lung cancer. His wife had wanted to use the sale proceeds ($610K) to buy a condominium, but he refused. She used a power of attorney to withdraw $300K from the sale proceeds (in a lawyer's trust account) to complete the purchase for herself and to withdraw $10K for other purposes. The testator died 3 weeks later. The wife was the executrix of the testator's estate, which was to be distributed equally between the wife and his son (by a previous marriage). 90% of the estate consisted of the proceeds of sale of the block of flats. After his death, the wife withdrew more money from the trust fund for her own use. In total, she received $152,500 more than the 50% of the estate to which she was entitled under the will. The son sued the wife for conversion, negligence, fraud, and breach of trust, and filed a lis pendens against the title to her condominium. The son and wife agreed (a) that the wife's use of the power of attorney was improper and (b) that the wife had been beneficially entitled to 50% of the value of the block of flats by way of contrustive trust. The wife argued that, since she was beneficially entitled 50% of the sale proceeds by way of constructive trust, and 50% of the remainder as the beneficiary of the will, the son had suffered no loss through her actions. The testator had been aware of the wife's claim to a constructive trust (she had registered a charge against the block of flats under the Land (Wife Protection) Act RSBC 1979, c 223) and the trial judge found that the testator had divided his estate equally between his wife and his son for the purpose of satisfying her claim. If the testator had been aware that the wife was entitled to 50% of the sale proceeds independently of the will, it is likely that he would have made a different testamentary disposition. The BC CA decided that, although a constructive trust is deemed to arise when the event giving rise to that trust occurs (Rawluk v Rawluk (1990) 65 DLR (4th) 161), it is a "remedy" and, relying on Soulos v Korkontzilas (1995) 126 DLR (4th) 637, decided "that a constructive trust is to be given to satisfy 'good conscience', and that it ought not to be granted where it would harm an innocent third party, such as" the son. Therefore, it did not arise since "the unjust enrichment was remedied by the Will" (159 DLR (4th) 638, 651). Assuming, as the BC CA did, that the constructive trust of the block of flats was a response to unjust enrichment (and not raised to perfect a detrimentally relied upon expectation), would it not be better to say that the constructive trust did arise when the unjust enrichment occurred and that it was determined when the testator fulfilled his obligation to make restitution through a testamentary disposition in his wife's favour? In other words, is this an example of consent-based restitution: see P Birks, "Misnomer" in WR Cornish et at, Restitution Past, Present & Future (Oxford, 1998) 1, 19? As a final note, the BC CA did not explain the nature of the son's right to the wife's condominium, but merely said that it "involved a tracing of monies taken by the [wife] from [the testator's] estate and used to purchase her condominium" (159 DLR (4th) 638, 654). It looks like a resulting trust to me: see LD Smith, The Law of Tracing (Oxford, 1997) pp 294-295, 357-358. Robert Chambers University of Melbourne Law School Parkville, Victoria, Australia, 3052 +61-3-9344-6196 (telephone) +61-3-9347-2392 (fax) >From lionel.smith@law.oxford.ac.uk Thu Oct 15 17:02:56 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zTprc-0003lA-00 for restitution@maillist.ox.ac.uk; Thu, 15 Oct 1998 17:02:56 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zTprT-0005br-00; Thu, 15 Oct 1998 17:02:47 +0100 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #2) id 0zTprR-0003f1-00; Thu, 15 Oct 1998 17:02:46 +0100 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 15 Oct 1998 17:03:03 +0000 To: restitution@maillist.ox.ac.uk, simon.gardner@law.ox.ac.uk, b.fehlberg@law.unimelb.edu.au From: Lionel Smith Subject: new cases Greetings, Now available on the Smith Bernal site is the judgment of the CA given 31 July in 8 conjoined O'Brien-type cases, sub nom. Royal Bank of Scotland v. Etridge. You can go directly to or via and search under "etridge". The judgment restates the law, particularly on independent legal advice, and then deals with the eight cases. It marks something of a retrenchment from O'Brien, with the court enforcing all of the guarantees. In most cases the holding is that the bank is not fixed with notice of the vitiating factor nor of the defective legal advice which many of the women were given. Portman Building Soc v Hamlyn Taylor Neck, discussed some weeks ago, is now reported at [1998] 4 All ER 202. Lionel >From r.chambers@law.unimelb.edu.au Thu Oct 22 08:48:58 1998 Received: from myriad.its.unimelb.edu.au ([128.250.6.196]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zWFUO-0001Ow-00 for restitution@maillist.ox.ac.uk; Thu, 22 Oct 1998 08:48:57 +0100 Received: from [128.250.165.77] (lawpc77.law.unimelb.EDU.AU [128.250.165.77]) by myriad.its.unimelb.edu.au (8.9.1a/8.9.1) with ESMTP id RAA28838 for ; Thu, 22 Oct 1998 17:48:37 +1000 (EST) X-Sender: chambers@clyde.its.unimelb.EDU.AU Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 22 Oct 1998 17:48:49 +1000 To: restitution@maillist.ox.ac.uk From: Robert Chambers Subject: review of Smith There is a good review of Lionel Smith, The Law of Tracing (Oxford, 1997), by Laura Hoyano in (1998) 36 Alberta Law Review 810-815. Robert Chambers University of Melbourne Law School Parkville, Victoria, Australia, 3052 +61-3-9344-6196 (telephone) +61-3-9347-2392 (fax) >From Andrew.Dickinson@CliffordChance.com Thu Oct 22 18:11:09 1998 Received: from dee.cliffordchance.com ([194.133.109.2] helo=cliffordchance.com) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zWOGT-0003wq-00 for restitution@maillist.ox.ac.uk; Thu, 22 Oct 1998 18:11:09 +0100 Received: from lon-msg-100.cliffordchance.com ([10.54.2.78]) by dee.cliffordchance.com with ESMTP id <18009>; Thu, 22 Oct 1998 18:01:11 +0000 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, 22 Oct 1998 17:56:56 +0100 Received: by lon-msg-2.cliffordchance.com with Internet Mail Service (5.0.1460.8) id ; Thu, 22 Oct 1998 17:55:26 +0100 Message-Id: <77017288B941D2118B770000F6AA1BD129B98F@LON-MSG-14> From: Andrew.Dickinson@CliffordChance.com To: restitution@maillist.ox.ac.uk Subject: Kleinwort Benson -v- Birmingham Date: Thu, 22 Oct 1998 16:59:03 +0000 X-Mailer: Internet Mail Service (5.0.1460.8) Just to let you know that the judgment in Kleinwort Benson -v- Birmingham is due to be handed down next Thursday, 29 October. 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 mpmcinne@julian.uwo.ca Sat Oct 24 15:09:24 1998 Received: from romeo.its.uwo.ca ([129.100.2.60]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zX4Ng-0003cW-00 for restitution@maillist.ox.ac.uk; Sat, 24 Oct 1998 15:09:24 +0100 Received: from julian.uwo.ca by romeo.its.uwo.ca with ESMTP id KAA02786; Sat, 24 Oct 1998 10:09:07 -0400 (EDT) Message-ID: <3631DFDC.C728C0A9@julian.uwo.ca> Date: Sat, 24 Oct 1998 10:10:36 -0400 From: Mitchell McInnes Organization: University of Western Ontario X-Sender: "Mitchell McInnes" (Unverified) X-Mailer: Mozilla 4.04 [en]C-UWODEC97 (Win95; I) MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: Supreme Court of Canada and Unconstitutional Taxes Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Since 1989, there has been uncertainty regarding the scope of LaForest J's decision in Air Canada v British Columbia. It now appears that it is not as difficult as once seemed for taxpayers to recover payments made pursuant to unconstitutional demands. In Re Eurig Estate (22 October 1998), the appellant was executor of her husband's estate. The province of Ontario required payment of $5710 in probate fees. The Supreme Court of Canada determined that that demand was contrary to s 53 of the Constitution Act and therefore of no force or effect. Writing for a majority, Major J then briefly addressed the restitutionary implications: "45. The final issue is whether the appellant is entitled to a refund of the probate fees of $5,710 paid by her as executor for her late husband's estate. 46. In Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, La Forest J. for three of the six members of the Court held that there is a general rule against recovery of taxes paid under unconstitutional statutes, with exceptions where the relationship between the state and a particular taxpayer resulting in the collection of the tax is unjust or oppressive in the circumstances. 47. Even if this Court were to adopt the rule articulated by La Forest J., it would not prevent recovery by the appellant in this case. An exception has been recognized where taxes are paid under compulsion or protest: Air Canada, supra, at pp. 1209-10. Here, the appellant has challenged the validity of the regulation imposing the probate fee from the outset. She paid the fee in order to fulfil her legal obligations as executor of the estate only after the Ontario Court (General Division) held that the regulation was legally valid. Had the proper decision been rendered at first instance, the appellant would not have paid the fee. It would therefore be inequitable to deny recovery at this stage. 48. The appeal is accordingly allowed with costs and the appellant refunded the $5,710 paid by her." The full decision can be read at: http://www.droit.umontreal.ca/doc/csc-scc/en/rec/index.html Mitchell McInnes University of Western Ontario London, Ontario, Canada >From lionel.smith@law.oxford.ac.uk Wed Oct 28 16:52:05 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYYpJ-0003zK-00 for restitution@maillist.ox.ac.uk; Wed, 28 Oct 1998 16:52:05 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zYYp1-0004aO-00 for restitution@maillist.ox.ac.uk; Wed, 28 Oct 1998 16:51:47 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zYYoc-0008Tq-00 for restitution@maillist.ox.ac.uk; Wed, 28 Oct 1998 16:51:23 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <3631DFDC.C728C0A9@julian.uwo.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 28 Oct 1998 16:51:38 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Supreme Court of Canada and Unconstitutional Taxes Greetings all, and welcome to new members. Mitchell McInnes, in drawing to our attention Re Eurig, noted that the scope of LaForest J's decision in Air Canada v British Columbia is uncertain and that the new decision takes at least some of the sting out of the "fiscal chaos" theory which helped to deny recovery in Air Canada. While we wait with bated breath for Kleinwort Benson v Birmingham and a holding on the mistake of law rule, it is perhaps worth noting that it is not totally clear that Air Canada abolished the distinction between mistakes of law and of fact in Canada. Many academics and courts of appeal (RLRs passim) have taken it in this sense, but La Forest J's statement that the distinction should play no part in the law of restitution was made for himself and two other judges of the six who participated in the decision. Two others expressly refrained from saying anything on the issue, and the sixth, Wilson J., said only that "the mistake of law doctrine, if it is to be retained, should certainly not be extended to monies paid under unconstitutional legislation"; which surely represents a decision not to comment on the rule generally. This may seem like pedantic head counting but as Mitchell noticed, Major J. relied on these numbers in order to bypass "fiscal chaos". He put his point in terms of "whether" the court would adopt La Forest J's theory, clearly implying that the court in Eurig did not feel that the judgment in Air Canada represented a firm holding of the court. If that is right, it must also be true of the mistake of law part. Lionel >From steven.elliott@merton.oxford.ac.uk Wed Oct 28 18:41:56 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYaXb-0004iL-00 for restitution@maillist.ox.ac.uk; Wed, 28 Oct 1998 18:41:56 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zYaXI-00005a-00; Wed, 28 Oct 1998 18:41:36 +0000 Received: from jw109.merton.ox.ac.uk ([163.1.168.109] helo=merton.ox.ac.uk) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zYaX5-00015x-00; Wed, 28 Oct 1998 18:41:23 +0000 Message-ID: <3637652E.97B4AD5A@merton.ox.ac.uk> Date: Wed, 28 Oct 1998 18:40:46 +0000 From: Steven Elliott X-Mailer: Mozilla 4.06 [en] (Win95; I) MIME-Version: 1.0 To: Lionel Smith CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: Supreme Court of Canada and Unconstitutional Taxes References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit All - I note that the plaintiff in Peel (Regional Municipality) v Canada [1992] 3 SCR 762 asked the court to revisit the question of recovery of taxes paid under invalid legislation. In the event the Court decided that Canada was not enriched, but McLachlin J added this: Given these conclusions, I need not address the question of whether the reasons of La Forest J. in Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, created a rule of public policy barring recovery against the government for charges made under invalid legislation, nor is it necessary for the Court to consider whether it wishes to give majority support to such a rule, presuming it to be applicable. That important question may be left to another day. Steven Elliott Lionel Smith wrote: > Greetings all, and welcome to new members. > > Mitchell McInnes, in drawing to our attention Re Eurig, noted that the > scope of LaForest J's decision in Air Canada v British Columbia is > uncertain and that the new decision takes at least some of the sting out of > the "fiscal chaos" theory which helped to deny recovery in Air Canada. > > While we wait with bated breath for Kleinwort Benson v Birmingham and a > holding on the mistake of law rule, it is perhaps worth noting that it is > not totally clear that Air Canada abolished the distinction between > mistakes of law and of fact in Canada. Many academics and courts of appeal > (RLRs passim) have taken it in this sense, but La Forest J's statement that > the distinction should play no part in the law of restitution was made for > himself and two other judges of the six who participated in the decision. > Two others expressly refrained from saying anything on the issue, and the > sixth, Wilson J., said only that "the mistake of law doctrine, if it is to > be retained, should certainly not be extended to monies paid under > unconstitutional legislation"; which surely represents a decision not to > comment on the rule generally. This may seem like pedantic head counting > but as Mitchell noticed, Major J. relied on these numbers in order to > bypass "fiscal chaos". He put his point in terms of "whether" the court > would adopt La Forest J's theory, clearly implying that the court in Eurig > did not feel that the judgment in Air Canada represented a firm holding of > the court. If that is right, it must also be true of the mistake of law > part. > > 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 duncan.sheehan@corpus-christi.oxford.ac.uk Wed Oct 28 19:22:20 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYbAi-00053F-00 for restitution@maillist.ox.ac.uk; Wed, 28 Oct 1998 19:22:20 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zYbAP-00018j-00; Wed, 28 Oct 1998 19:22:01 +0000 Received: from corp0380 (helo=localhost) by sable.ox.ac.uk with local-smtp (Exim 2.05 #3) id 0zYbAP-0004Ua-00; Wed, 28 Oct 1998 19:22:01 +0000 Date: Wed, 28 Oct 1998 19:22:01 +0000 (GMT) From: Duncan Sheehan To: Lionel Smith cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Supreme Court of Canada and Unconstitutional Taxes In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Dear All Even if Air Canada v British Columbia did not abolish the distinction between mistakes of law and those of fact in Canada it seems highly unlikely, even after a bit of pedantic head counting (Lionel Smith's words not mine) that anybody is seriously going to take that and run with it in Canada. If they do they are going to get short shrift rather quickly, I suspect. Duncan Sheehan >From mulland@qsilver.queensu.ca Thu Oct 29 00:38:58 1998 Received: from qsilver.queensu.ca ([130.15.62.41]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYg78-0005lu-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 00:38:58 +0000 Received: from localhost (mulland@localhost) by qsilver.queensu.ca (8.8.8/8.8.8) with ESMTP id TAA20061 for ; Wed, 28 Oct 1998 19:38:36 -0500 (EST) Date: Wed, 28 Oct 1998 19:38:36 -0500 (EST) From: David J Mullan X-Sender: mulland@qsilver1 To: restitution@maillist.ox.ac.uk Subject: Air Canada Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII As someone who has been lurking on this list for some considerable time, I emerge with a considerable degree of trepidation. However, I would venture to suggest that, even though Wilson J. might not have been totally clear on the disappearance of the mistake of law/mistake of fact distinction in Air Canada, she was quite decisive in Air Canada, Canadian Pacific Airlines v. British Columbia [1989] 1 S.C.R. 1133 released the very same day. In that case, she joined with the LaForest group in allowing recovery of moneys paid as a result of a mistaken interpretation of legislation and in doing so expressly said that such recovery was rendered possible by the Court's rejection of the law/fact distinction. That seems to me to have settled the issue. David Mullan, Faculty of Law, Queen's University, Kingston, Ontario >From hanna@sprynet.com Thu Oct 29 09:29:37 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYoOf-0006KM-00; Thu, 29 Oct 1998 09:29:37 +0000 Received: from ip76.an11-new-york4.ny.pub-ip.psi.net ([38.26.22.76] helo=central.cnet.com) by oxmail.ox.ac.uk with smtp (Exim 2.02 #3) id 0zYoOM-00074L-00; Thu, 29 Oct 1998 09:29:18 +0000 From: Message-Id: <989.283923.60555 hanna@sprynet.com> Subject: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Bcc: Date: Thu, 29 Oct 1998 09:29:18 +0000 10/29/98 Y2K Solution! 8 Pine Circle Dr., Silicon Valley, Calif. OTC Company "TCFG" 21 st. Century Frontier Group has through several members of their administrative research department leaked vital information about their companies efforts. Everyone was tight lipped and interviews were refused, and through un-named sources we have learned that the technology and software solution are in the process of being patented! In over 1640 trials, using various data systems the use of the new technology and software solved the Y2K problem 100% of the time. This small publicly traded company "TCFG" which is just 3 years old is through various sources now negotiating with the "Big Boys"! "TCFG" the letters to look for! >From lionel.smith@law.oxford.ac.uk Thu Oct 29 14:04:16 1998 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYsgS-0007jl-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 14:04:16 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #3) id 0zYsgA-0002n6-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 14:03:58 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zYsf9-0008V7-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 14:02:56 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 29 Oct 1998 14:03:11 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Mistake of Law in Canada David Mullan is quite right. Although Air Canada v. BC did not properly bury mistake of law, Canadian Pacific v. BC did so. I am doubly discomfited because I myself have pointed out in the past that what was said about "passing on" in Air Canada v. BC cannot be properly understood without reference to Canadian Pacific v. BC where recovery was allowed. Lionel >From eodell@dux4.tcd.ie Thu Oct 29 15:34:07 1998 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYu5P-0008FE-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 15:34:07 +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 PAA17525 for ; Thu, 29 Oct 1998 15:33:46 GMT Date: Thu, 29 Oct 1998 15:33:46 GMT 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: RDG: Supreme Court of Canada and Unconstitutional Taxes Hello all In the last few minutes before this list is submerged under the tidal wave of comment which I hope will be generated by Kleinwort Benson, I thought I might add my penny's worth to the above thread. It seems to turn on the decision of La Forest J (Lamer and L'Heurreux-Dub=E9 JJ concurring) in Air Canada v BC. As I read his judgment, he (i) abrogated the distinction between mistake of law and mistake of fact, allowing the former to operate as an unjust factor just as much as the latter, but (ii) denied restitution the basis of the defence of passing on, and (iii) bolstered that conclusion by reference to "special considerations" which arise "where the effect of an unconstitutional or ultra vires statute is in issue" (but not though a simple misapplication of a valid statute), which "operate to take this case out of the normal restitutionary framework", which are justified for "public policy" reasons (security of receipt, inefficiency, fiscal chaos), but which could exceptionally be displaced if it would be "unjust or oppressive in the circumstances". As to (i), it is true, as Lionel Smith points out, that Wilson J in Air Canada v BC was cautious as to whether the question properly arose, but she did indicate that she was "in complete agreement with what [La Forest J] ha[d] to say on this subject, and were it necessary for [her] to do so in order to dispose of this case, I would support the minority view expressed by Dickson J in" Nepean v Ontario Hydro. Headcounting, though not ratio, this obiter surely counts more in favour than against, perhaps then 3 1/2 votes in favour of abrogation, and certainly generates the culture against the rule of which Duncan Sheehan wrote. In any event, as David Mullan - and then Lionel Smith - pointed out, Wilson J joined a clear majority on the point in Canadian Pacific v BC, and the combination of the two cases has, at least from the outside looking in, removed the mistake of law bar from Canadian law. As to (ii) and (iii): first, I think that the headcounting is properly applicable in respect of both of them, and second, it is not entirely clear to me from La Forest J's treatment of the issues whether they are in fact the same thing. I do not think that they are, nor do I think that La Forest J thought so. In Murphy v AG [1982] IR 241 (SC), the Irish Supreme Court allowed a taxpayer to have restitution of taxes paid pursuant to an unconstitutional statute; the unjust factor was duress (duress colore offici), and it was subject to the defence of change of position (which operated in respect of potential plaintiffs other than those in the instant case). A significant policy factor justifying the defence of change of position on the facts was the fiscal chaos argument which attracted La =46orest J in Air Canada. But Henchy J for the majority simply bolstered his application of the change of position defence by reference to the policy. He neither equated them, nor allowed the policy to generate a special defence. With La Forest J, I think that the policy bolstered the defence of passing on, and *also* genereated a special defence. If (ii) [the defence of passing on] and (iii) [the special defence generated by the fiscal chaos policy] are properly separable and separated, then, it becomes possible to put Re Eurig in proper context. As I read the extracts provided by Mitchell McInnes, Major J seems to reject the special defence generated by the fiscal chaos policy. This in turn might remove one prop in favour of the passing on defence, but if the special defence and the passing on defence are separate, the rejection of the policy does not necessarily ential the rejection of the passing on defence [in much the same way as the defence of change of position is indepenedently secure, even if the particular policies underlying it in the specific context of Murphy v AG would also fall with Re Eurig]. There might be other problems with the defence which entail its rejection but that is another story. So, my point is this: even if Eurig continues the Peel softening (of which Steven Elliot reminded us) of the policy defence, and ultimately removes the policy from the law, other defences such as change of position and passing on might have been justified in a specific case on the basis of the policy, but the abrogation of the policy does not of necessity carry with it the abrogation of the defences such as change of position or passing on. Is there anything in any of this ? 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 lionel.smith@law.oxford.ac.uk Thu Oct 29 16:45:58 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYvCw-00008Q-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 16:45:58 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zYvCd-0006Fs-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 16:45:39 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zYvBf-0000Vi-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 16:44:40 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 29 Oct 1998 16:44:54 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Kleinwort Benson A few minutes ago the Kleinwort Benson case went on to the web at: The "next page" button at the bottom of each section appears to be missing, so you need to go to "klein02" etc to get each of the nine sections. It is very long. On a very quick scan, mistakes of law now ground recovery in England. By a majority, there is no "settled understanding of the law" defence. One extract from Lord Goff: "Of course, I recognise that the law of restitution must embody specific defences which are concerned to protect the stability of closed transactions. The defence of change of position is one such defence; the defences of compromise, and settlement of an honest claim (the scope of which is a matter of debate), are others. It is possible that others may be developed from judicial decisions in the future. But the proposed "settled understanding of the law" defence is not, overtly, such a defence. It is based on the theory that a payment made on that basis is not made under a mistake at all. Once that reasoning is seen not to be correct, the basis for the proposed defence is, at least in cases such as the present, undermined. " Money paid under completed transactions is recoverable on the basis of mistake. Lionel >From eodell@dux4.tcd.ie Thu Oct 29 17:10:26 1998 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYvac-0000EQ-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 17:10:26 +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 RAA08084 for ; Thu, 29 Oct 1998 17:10:05 GMT Date: Thu, 29 Oct 1998 17:10:05 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Re: RDG: Kleinwort Benson Hello all Lionel has told us that >A few minutes ago the Kleinwort Benson case went on to the web at: > >The "next page" button at the bottom of each section appears to be missing, but at least on the version I have just read, the "previous" button in fact functions as the "next" button. Very odd, but it seemed to work. You could try >"klein02" etc to get each of the nine sections. It is >very long. As to the holding, the following is stated to be the conclusion of Lord Goff (in which the House unanimously concurred - though in individual judgments - except as indicated): "Issue 1: The present rule, under which in general money is not recoverable in restitution on the ground that it has been paid under a mistake of law, should no longe be maintained as part of English law, from which it follows that the facts pleaded by Kleinwort Benson in each action disclose a cause of action in mistake. Issue 1A: There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law. [On a quick read, this seems to have been the point upon which Lords Browne-Wilkinson and Lloyd dissented; Lord Hoffmann having originally been of this view changed his mind and joined the majority] Issue 1B: It is no defence to a claim in English law for restitution of money paid or property transferred under a mistake of law that the defendant honestly believed, when he learnt of the payment or transfer, that he was entitled to retain the money or property. Issue 2: There is no principle of English law that money paid under a void contract is not recoverable on the ground of mistake of law because the contract was fully performed. Issue 3: Section 32(1)(c) of the Limitation Act 1980 applies in the case of an action for the recovery of money paid under a mistake of law." Hence, the Brennan J (honest belief) and Birks (closed transaction) possible answers were rejected. There is much to conjure with here, especially on the nature of the mistake in fact made by the plaintiffs (on which the holding appears to be 3 to 2), and on the proper role of courts of final appeal in overtly changing the law (Introduction to Legal Systems and Methods Coures will be as affected by this decision as Restitution Courses will). But apart from a short paragraph in Lord Goff's judgment, there appears to be nothing on (total) failure of consideration, or on absence of consideration. Perhaps there does not need to be, since mistake is now seen to be a sufficient unjust factor, but the conclusions on that point will surely have knock on effects in those other areas. 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 eodell@dux4.tcd.ie Thu Oct 29 18:28:49 1998 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zYwoT-0000ji-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 18:28:49 +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 SAA27229 for ; Thu, 29 Oct 1998 18:28:29 GMT Date: Thu, 29 Oct 1998 18:28:29 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Lionel's modesty precluded him from mentioning that in his speech in Kleinwort Benson today, Lord Goff gave him and Prof Birks a very honourable mention: "In 1802 Sir William Evans published an Essay on the Action for Money Had and Received. (This has since been published in [1998] R.L.R., the text having been prepared for publication by Professor Peter Birks and Dr. Lionel Smith of Oxford University; copies were helpfully supplied by Professor Birks to Members of the Appellate Committee and to Counsel shortly before the hearing of the present appeals.)" (The reprint of Evans is to be found at [1998] R.L.R. 3 and makes fascinating reading) Later in his speech, Lord Goff comments with approval that "judges are able to welcome the assistance which they receive from a number of distinguished writers" on the subject of the law of restitution of unjust enrichment. Indeed, such comments are a leitmotiv of the speech. The above is therefore just one nugget among many from the academic world which feature in the speeches. 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 mrs@mcr.lmh.ox.ac.uk Thu Oct 29 23:52:04 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zZ1rI-0001j3-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 23:52:04 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zZ1qz-0003fn-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 23:51:45 +0000 Received: from nsa-lmhmcr.lmh.ox.ac.uk ([163.1.138.220] helo=mcr.lmh.ox.ac.uk) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zZ1qR-00034V-00 for restitution@maillist.ox.ac.uk; Thu, 29 Oct 1998 23:51:11 +0000 Received: from NSA_LMHMCR/SpoolDir by mcr.lmh.ox.ac.uk (Mercury 1.40); 29 Oct 98 23:51:12 +0000 Received: from SpoolDir by NSA_LMHMCR (Mercury 1.40); 29 Oct 98 23:50:49 +0000 From: "Matthew Roch Scully" Organization: MCR, Lady Margaret Hall, Oxford, UK To: restitution@maillist.ox.ac.uk Date: Thu, 29 Oct 1998 23:50:42 +0000 MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: RDG: Kleinwort Benson and interruption. Priority: normal In-reply-to: X-mailer: Pegasus Mail for Windows (v3.01b) Message-ID: <9F1255F49@mcr.lmh.ox.ac.uk> On a practical note, has anyone had any problems with an interruption on page /klein04/ of the Internet report? Is there any way to get around this? Matthew Roch Scully, Lady Margaret Hall, Oxford. >From lionel.smith@law.oxford.ac.uk Fri Oct 30 13:23:42 1998 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 0zZEWk-0003Ia-00 for restitution@maillist.ox.ac.uk; Fri, 30 Oct 1998 13:23:42 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.02 #1) id 0zZEWR-0007hF-00 for restitution@maillist.ox.ac.uk; Fri, 30 Oct 1998 13:23:23 +0000 Received: from ug28.sthughs.ox.ac.uk ([163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.05 #3) id 0zZEVk-0000Fw-00 for restitution@maillist.ox.ac.uk; Fri, 30 Oct 1998 13:22:41 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 30 Oct 1998 13:22:55 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Rt Hon Brian Dickson CJC, 1916-1998 RDG members based in Canada will already know that the Rt. Hon. Brian Dickson died in his sleep at his home on 17 October at the age of 82. He was a member of the Supreme Court of Canada 1973-1990, and Chief Justice of Canada 1984-1990. His judgments shaped Canadian law, especially under the Charter of Rights and Freedoms, but many were also important in the law of restitution. Pettkus v. Becker, Hydro Comm of Nepean v. Ontario Hydro, Sorochan v. Sorochan and Hunter v. Syncrude come to mind, but no doubt there were many others. Lionel