-- >From eodell@dux4.tcd.ie Mon Feb 01 15:38:49 1999 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 107LR2-0008Qb-00 for restitution@maillist.ox.ac.uk; Mon, 1 Feb 1999 15:38:48 +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 PAA29840 for ; Mon, 1 Feb 1999 15:37:23 GMT Date: Mon, 1 Feb 1999 15:37:23 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: Clamato Steven Elliott asks: >I wonder if anyone can help me with the Cadbury Schweppes decision. > >My view is that since FBI could and would have developed a competing >product >before the 1983 end of the licence period, its wrong did not >cause CS any loss. Does this view fail to distinguish between the wrong and the injury ? In tort, a builder might have been negligent this day last year but the building might not have fallen down on top of me until today. The wrong occurred last year, the injury occurred today, and last year's wrong caused today's injury (in the sense that but for the builder's negligence, the house would not have fallen down). Similarly, if, as seems correct, the breach of confidence consisted in the misue of the information, the wrong occurred when the information was misused, that is to say, a year before marketing of the competing product began. However, it was not until the marketing began a year later that the injury occurred. The wrong - the breach of confidence - occurred last year, the injury occurred a year later, and last year's wrong caused today's injury (in the sense that but for the breach of confidence, the *particular competing* product which was developed would not have been developed). Notwithstanding the parentheses, I think that there is something in the causation point: >If FBI had not used the secret recipe it would nonetheless have >been able to produce an equivalent product in the same time and >also before the expiry of the licence in 1983, and would have done so. It questions whether there is in fact any loss the following year because the same outcome could have been reached in a non-wrongful way. But even if the builder could have built an unsafe house without being negligent, it doesn't change the fact that he was negligent in this case and that his negligence caused my injury. As I understand the common law (and of course it is only a partial undertanding subject to correction) the proper comparison is simply the state of facts without the relevant wrong; there is no warrant to substitute non-negligent action leading to the same outcome; and without the negligence, the house should not have been unsafe. Simlarly, even if a manufacturer can make a drug with unfortunate side-effects without being negligent doesn't diminish its responsibility if it is negligent in its manufacture of a batch which causes the same side effects. On the facts without the negligence, and without substituting non-negligent action leading to the same outcome, the drug should not have had the side effect. Likewise here just because FBI could have reached the same result without breaching confidence doesn't alter the fact that they did breach confidence and that the breach of confidence resulted in losses on the facts. On the facts without the relevant wrong, and without substituting the non-breacing development of a similar (or even exactly the same) competing product, the situation would simply have been the marketing of Clamato without a competitor. [I said that it was my belief that the common law simply compared with the actual outcome the situation which would have obtained without the relevant wrong. This examination of what the state of facts would have been without the relevant wrong is characterised, by German law, as the elimination method of testing caustion. However, German law goes further and proposes also a substitution test of causation. If I am wrong, and the common law too applies a substitution test, then we might learn from the German law as to when each is appropriate: it applies the elimination method to acts and the substitution method to omissions, substituting lawful action for ommission and comparing the outcome with what had actually occurred (all of this is discussed in Markesinis _The German Law of Torts. A Comparative Introduction_). Steven Elliott's objections would apply substitution to acts, which even German law seems not to do.] Finally, I have to pose the question which has puzzled me since I became familiar with the case: why would anyone want to drink Clamato (or a competitor) anyway ? :) Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353- 1) or (01) 608 1178 Dublin 2 fax (+ 353- 1) or (01) 677 0449 Ireland mobile/cellular (+ 353-86) or (086) 286 0739 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) >From SMITHL@falaw.lan.mcgill.ca Wed Feb 03 19:21:36 1999 Received: from sirocco.cc.mcgill.ca ([132.206.27.12]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 1087rk-0002A6-00 for restitution@maillist.ox.ac.uk; Wed, 3 Feb 1999 19:21:36 +0000 Received: from lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) by sirocco.cc.mcgill.ca (8.9.1/8.9.1) with SMTP id OAA07994 for ; Wed, 3 Feb 1999 14:20:09 -0500 (EST) Message-Id: <199902031920.OAA07994@sirocco.cc.mcgill.ca> Received: by MicroMailer 3.71 (.Lan.McGill.CA) on Wednesday, 03 February 1999, 13:54:23 EST From: "Lionel Smith" Organization: McGill University - Faculty of Law To: restitution@maillist.ox.ac.uk Date: Wed, 3 Feb 1999 13:54:00 EST5EDT MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Priority: normal X-mailer: Pegasus Mail for Windows (v2.42a) approved:eregion Date sent: Wed, 3 Feb 1999 18:23:03 GMT To: Lionel Smith From: eodell@tcd.ie (Eoin O' Dell) Subject: Leading Cases of 20th Century Hello all This is a little off-list, and is a shameless plug, but anyway: ______________________________________________________________ Dear Colleagues, On behalf of the Irish Association of Law Teachers, I write to give you notice of our annual conference, and to ask you to consider presenting a paper at the conference. The conference will be on the theme "The Leading Cases of the Twentieth Century", and will be held in the Killarney Park Hotel, Killarney, Co. Kerry on the weekend of 9-11 April 1999. Killarney has an airport with regular connections from Dublin and London (Stanstead), so getting there should not be too much of a problem. Further information and booking forms will be available soon, and if you would like to attend, please let me know. If you are interested in presenting a paper, please let me know. We take a broad view of what constitutes a leading case, but we think that, in essence, a case will be leading if it is constitutive or emblematic of an area of the law or legal system; it need not be right, but it must represent a crucial legal development which has exercised a profound influence on the law since it was decided. We hope that the selection of cases discussed at the conference will cover many jurisdictions and legal traditions (the Common Law; the Civil Law; European law; International law) and many areas of the law, and will be relatively evenly distributed throughout the century. We hope that the papers will take a fresh look at the facts and holdings of the relevant cases, and at the consequences the cases and attendant doctrines have had. The IALT has been in contact with a leading publishing house with a view to publishing the conference papers. Yours sincerely, Eoin O'Dell President, Irish Association of Law Teachers. ____________________________________________________________ List-members might forgive the plug on the grounds that there will (probably) be a paper on Sinclair v Brougham, which is a leading case in the sense described above, though the story will be of how it is a misleading case and hence of its decline. Furthermore, list-members should know that we particularly welcome leading cases from Canada, Australia, New Zealand and the US. So, if you want more details, want to come along, or want to present a paper, please let me know. Best regards, Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie President, Irish Association of Law Teachers Trinity College ph (+ 353- 1) or (01) 608 1178 Dublin 2 fax (+ 353- 1) or (01) 677 0449 Ireland mobile/cellular (+ 353-86) or (086) 286 0739 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) >From hwt20@hermes.cam.ac.uk Tue Feb 09 01:09:51 1999 Received: from red.csi.cam.ac.uk ([131.111.8.70] ident=exim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10A1gV-000395-00 for restitution@maillist.ox.ac.uk; Tue, 9 Feb 1999 01:09:51 +0000 Received: from hwt20 (helo=localhost) by red.csi.cam.ac.uk with local-smtp (Exim 2.05 #3) id 10A1f3-0001Dn-00; Tue, 9 Feb 1999 01:08:21 +0000 Date: Tue, 9 Feb 1999 01:08:21 +0000 (GMT) From: "H.W. Tang" X-Sender: hwt20@red.csi.cam.ac.uk To: Eoin O' Dell cc: restitution@maillist.ox.ac.uk Subject: Re: The Aliakmon In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII I am a student in this area and would appreciate guidance to the following problem. I am trying to square Lord Brandon's judgment in The Aliakmon with the law of restitution. As all of you are no doubt well aware, Lord Brandon held that to enable a person to claim in negligence for loss caused to him by reason or damage to property, he must have had either legal ownership of a possessory title to the property. It is not enough for him to have only had contractual rights in relation to such property which had been adversely affected by the damage. The scenario I am thinking of is this. Suppose I am the buyer of some goods where the contract states that risk has already passed to me but not the property even though I have already have paid the purchase price. In other words I have contractual rights to the goods. A rogue comes and misappropriate and take the goods. I go to the seller and the seller says "tough luck" risks has passed to you and I am not going to lend you my name to sue the rogue and there is nothing in the contract that says I can compel him to do the same. In such a case I would not be able to sue for conversion following the case of the Aliakmon. In such a case: (1)would I be able to sue for unjust enrichment? (2)If not, why? (3)If the reason is because I do not have title to the goods, how does that square in with Professor Birks' argument that property is merely a response and not an event? I look forward to your response on the above. Regards Tang Hang Wu >From A.M.Tettenborn@exeter.ac.uk Tue Feb 09 11:42:13 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10ABYT-0004Se-00 for restitution@maillist.ox.ac.uk; Tue, 9 Feb 1999 11:42:13 +0000 Received: from sc556 [144.173.96.46] by hermes via SMTP (LAA14708); Tue, 9 Feb 1999 11:40:43 GMT Message-Id: <199902091140.LAA14708@hermes> From: A.M.Tettenborn@exeter.ac.uk To: hwt20@hermes.cam.ac.uk Date: Tue, 9 Feb 1999 11:40:42 -0800 MIME-Version: 1.0 Content-type: text/enriched; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: RDG: Re: The Aliakmon CC: restitution@maillist.ox.ac.uk Priority: normal References: In-reply-to: X-mailer: Pegasus Mail for Win32 (v3.01d) 0100,0100,0100Times New RomanRe putative thieves of the steel aboard the Aliakmon: can you, the frustrated buyer, sue them in restitution? To take the three questions in turn: (1) No. (2) Oddly enough, isn't the answer here that the thief has been enriched, but at the seller's expense and not mine? That is, that the seller can sue, but I can't: and if the seller doesn't choose to, then that's fine for the thief and none of my business. To expand. If someone steals my goods and sells them I can sue him for restitution. And he would not (I suspect) be allowed to wriggle off the hook by saying "Oh well, I admit they were your goods and I shouldn't have swiped them, but in fact it's no skin off your nose since you had agreed that someone else would have to pay you for them in any event." The case has some parallels with the conception of a defence of "passing on", rightly rejected in English law: a potential restitution plaintiff who has got reimbursement, or compensation, or some other right from a third party should be allowed to reap the benefit of it himself rather than allowing it to exonerate the defendant. (3) I don't think this arises. Andrew Tettenborn School of Law University of Exeter.Arial Andrew Tettenborn Bracton Professor of Law University of Exeter Tel: 01392-263189 >From SMITHL@falaw.lan.mcgill.ca Tue Feb 09 14:59:54 1999 Received: from sirocco.cc.mcgill.ca ([132.206.27.12]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10AEdR-0005XN-00 for restitution@maillist.ox.ac.uk; Tue, 9 Feb 1999 14:59:33 +0000 Received: from lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) by sirocco.cc.mcgill.ca (8.9.1/8.9.1) with SMTP id JAA22045 for ; Tue, 9 Feb 1999 09:54:25 -0500 (EST) Message-Id: <199902091454.JAA22045@sirocco.cc.mcgill.ca> Received: by MicroMailer 3.71 (.Lan.McGill.CA) on Tuesday, 09 February 1999, 09:54:03 EST From: "Lionel Smith" Organization: McGill University - Faculty of Law To: restitution@maillist.ox.ac.uk Date: Tue, 9 Feb 1999 09:53:23 EST5EDT MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Aliakmon Priority: normal X-mailer: Pegasus Mail for Windows (v2.42a) If you had a personal right against the seller to the goods, maybe you would have a personal right against the seller to the traceable proceeds of the goods remaining in the seller's patrimony? That is, the seller's claim in conversion against the thief. This might seem a bit odd but it does not seem possible that the seller can keep the price of the goods and the unimpaired right to sue the thief for their full value. It is true that you bought "risky goods" but it does not follow that if the goods are stolen you cannot at least have the residue of what they leave behind (ie a claim against the thief). It is just like being a third party indemnity insurer: you indemnify against eg theft, but you are entitled to any claims resulting from the insured risk. On this solution (ie your right to take over the seller's action is a personal right against the seller) you take the risk of the seller's insolvency, which seems correct; cf Zimmermann and du Plessis, [1994] RLR 14 at 34 (Kondiktion der Kondiktion; our case is Kondiktion der Conversion). I think this insolvency risk is overridden somehow for indemnity insurers but I am away from my books and don't know whether the principles would cover buyers. Charles Mitchell? Lionel Lionel Smith During 1-12 February 1999: Faculty of Law, McGill University 3644 Peel St., Montreal, Quebec, Canada H3A 1W9 Tel. + 1 514 398 6694, Fax + 1 514 398 4659 smithl@falaw.lan.mcgill.ca [mail to lionel.smith@law.ox.ac.uk is automatically forwarded] >From duncan.sheehan@corpus-christi.oxford.ac.uk Tue Feb 09 19:15:22 1999 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 10AId0-0006oN-00 for restitution@maillist.ox.ac.uk; Tue, 9 Feb 1999 19:15:22 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10AIbN-0005NG-00; Tue, 9 Feb 1999 19:13:41 +0000 Received: from corp0380 (helo=localhost) by sable.ox.ac.uk with local-smtp (Exim 2.11 #1) id 10AIbN-0003bO-00; Tue, 9 Feb 1999 19:13:41 +0000 Date: Tue, 9 Feb 1999 19:13:41 +0000 (GMT) From: Duncan Sheehan To: Lionel Smith cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Aliakmon In-Reply-To: <199902091454.JAA22045@sirocco.cc.mcgill.ca> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Dear All, I may be be missing something here, but, and I know that Lionel Smith is not overly keen on this, could one not fit the case into Peter Birks' idea of interceptive subtraction? Broadly this states that if you know that something is coming to you and it is certain that it is going to arrive, as it is, presumably, here in that you could sue the seller for breach of contract were he to refuse to deliver, you can sue someone who sweeps in and grabs the property before it does arrive. The classic idea, if I recall correctly, is where X is about to hand over a 20 pound note, say, to Y, Z grabs it and runs off before Y has it in his hand. Property passes on delivery but Y can still sue sue Z. I don't remember the details so my question is; Am I talking nonsense? Duncan Sheehan >From hwt20@hermes.cam.ac.uk Tue Feb 09 23:39:39 1999 Received: from red.csi.cam.ac.uk ([131.111.8.70] ident=exim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10AMkl-0007SL-00 for restitution@maillist.ox.ac.uk; Tue, 9 Feb 1999 23:39:39 +0000 Received: from hwt20 (helo=localhost) by red.csi.cam.ac.uk with local-smtp (Exim 2.05 #3) id 10AMjI-0003ry-00; Tue, 9 Feb 1999 23:38:08 +0000 Date: Tue, 9 Feb 1999 23:38:08 +0000 (GMT) From: "H.W. Tang" X-Sender: hwt20@red.csi.cam.ac.uk To: A.M.Tettenborn@exeter.ac.uk cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Re: The Aliakmon In-Reply-To: <199902091140.LAA14708@hermes> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Thank you all for the replies to the problem that I have raised. The context which I am considering The Aliakmon is this. Prof. Birks has taught us that all obligations whether in personam or in rem are creatures of events. In other words, rights in personam or rights in rem are merely responses to events. The events/causative factors that give rise to such responses are consent, wrong, unjust enrichment and others. This has been stated as neccesarily exhaustive and a categorical truth in many of Prof. Birks' articles. Prof Birks in an article in New Zealand Law Journal has argued that title is inert and that it needs teeth. The teeth is provided by the law of obligation. Thus, it is erroneous to state that the continuing retention of title can trigger restitution because to do so would be to conflate events/causative factors with responses. Prof Birks goes on to dismiss the argument that the defendant is not and cannot be enriched at the plaintiff's expense when the plaintiffs retain title because in the eyes of the law the plaintiffs are still the owner of the property. Prof Birks argue that the logic of this argument is the logic of technicality because while the defendant may not be technically enriched, he is factually enriched by the possession of the property and the fact that the defendant has the immediate spending power and disposal. It is in this context that we Return to the situation of the putative thieves on the Aliakmon (as Prof Tenttenborn calls it). From Prof Tettenborn's analysis (which I tend to agree), demonstrate, I the buyer cannot sue the rogue that has taken my property because the enrichment was not at my expense but at the expense of the seller. Why is this so? I would argue that this is because the enrichment while factually may be argued to be at my expense is not so legally due to the fact that I do not have title to the goods. Thus, I would reach the (tentative) conclusion that from the putative thieves on the Aliakmon example that: (1) a factual enrichment does not suffice to establish a claim for unjust enrichment; and (2) more importantly, title is not inert and merely a response to events. As argued above title may be important even at the events/causative stage. At the very least it is important in determining at whose expense the enrichment was. I would appreciate some critique on the weakness/fallacies of the argument above. Regards Tang Hang Wu Hughes Hall Cambridge On Tue, 9 Feb 1999 A.M.Tettenborn@exeter.ac.uk wrote: > 0100,0100,0100Times New RomanRe putative thieves of the steel aboard the Aliakmon: can you, the > frustrated buyer, sue them in restitution? > > > > To take the three questions in turn: > > > > (1) No. > > > (2) Oddly enough, isn't the answer here that the thief has been enriched, > but at the seller's expense and not mine? That is, that the seller can sue, > but I can't: and if the seller doesn't choose to, then that's fine for the thief > and none of my business. > > To expand. If someone steals my goods and sells them I can sue him > for restitution. And he would not (I suspect) be allowed to wriggle off > the hook by saying "Oh well, I admit they were your goods and I > shouldn't have swiped them, but in fact it's no skin off your nose since > you had agreed that someone else would have to pay you for them in > any event." The case has some parallels with the conception of a > defence of "passing on", rightly rejected in English law: a potential > restitution plaintiff who has got reimbursement, or compensation, or > some other right from a third party should be allowed to reap the benefit > of it himself rather than allowing it to exonerate the defendant. > > > > (3) I don't think this arises. > > > > Andrew Tettenborn > > School of Law > > University of Exeter.Arial > > > Andrew Tettenborn > Bracton Professor of Law > University of Exeter > Tel: 01392-263189 > >From charles.mitchell@kcl.ac.uk Wed Feb 10 14:05:19 1999 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10AaGV-0001R1-00 for restitution@maillist.ox.ac.uk; Wed, 10 Feb 1999 14:05:19 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.2/8.9.2) with SMTP id NAA02644 for ; Wed, 10 Feb 1999 13:57:53 GMT Message-Id: <1.5.4.32.19990210140129.006954b0@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: Wed, 10 Feb 1999 14:01:29 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell I am unhappy about interceptive subtraction for the reasons Lionel sets out in his 1991 OJLS piece. I therefore think it must be right to say that the buyer has no direct action against the thief in tort or UE. I also agree with Lionel that subrogation could nonetheless get the buyer out of his hole, but I would add that although the subrogation solution could be reached via a UE analysis, a court might equally well imply a subrogation term into the contract without invoking UE at all. In our case, X and Y enter a contract for the sale of goods. The contract provides that Y will sell the goods to X, that title to the goods does not pass until delivery, but that the risk of loss prior to delivery is to be borne by X. The contract gives X no express right to be subrogated to any right of action which Y might have against Z in the event that Z negligently damages or converts the goods after X is put on risk but prior to delivery. Assuming that it is right to say that X has no standing to sue Z directly in the event that Z does either of these things, but that Y does have such a right, it seems to me that a court might well conclude that a subrogation term should be implied into the contract because: 1) A reasonable bystander would say 'of course not', if asked whether X and Y both contemplated that Y should be able to keep X's payment and also enforce his right against Z for himself and so effectively be paid twice for his goods. And 2) He would also say 'of course not' if asked whether X and Y both contemplated that as between X and Z it should be X rather than Z who should pay Y. In answer to Lionel's question whether an insured's cause of action against a 3rd party is held on trust for his indemnity insurer, this idea was floated in Lord Napier & Ettrick v Hunter, but expressly left undecided by the HL. McGillivray and Parkington para 22-70 argue against it because it would make it difficult for a 3rd party to know whether he was safe to compromise the insured's claim or even whether he was safe to pay the insured without also getting a discharge from the insurer. Personally I think the HL was wrong to give the insurer any proprietary right at all, even to the proceeds of the insured's action once completed, but that's another story ... Charles PS Tracing enthusiasts will be interested to read the Ont CA's discussion of the lowest intermediate balance rule in Law Soc of Upper Canada v Toronto Dominion Bank, unrep, 7th Dec 1998. ________________________________________________________________________ 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 gerhard.dannemann@law.oxford.ac.uk Wed Feb 10 16:19:01 1999 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 10AcLt-0001yh-00 for restitution@maillist.ox.ac.uk; Wed, 10 Feb 1999 16:19:01 +0000 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10AcKR-0007Fi-00 for restitution@maillist.ox.ac.uk; Wed, 10 Feb 1999 16:17:31 +0000 Received: from dhcp6.english.ox.ac.uk ([163.1.114.206] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 2.10 #2) id 10AcKQ-0000eU-00 for restitution@maillist.ox.ac.uk; Wed, 10 Feb 1999 16:17:30 +0000 Message-ID: <36C1B09D.22DBA1C6@law.ox.ac.uk> Date: Wed, 10 Feb 1999 16:15:25 +0000 From: Gerhard Dannemann X-Mailer: Mozilla 4.03 [en] (Win95; I) MIME-Version: 1.0 To: Restitution Maillist Subject: City of Gotha v Sotheby's (High Court) Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit This judgment concerns recovery of a priceless painting looted in Germany after the war, and traded by Moscovite art smugglers during the 1980ies. Main points: - A judgment by Mr Justice Moses of the High Court becomes the first judicial authority on a 100 year old provision of the German Civil Code. - Conflict of laws: restitution and proprietary claims - Conflict of laws: limitation of actions in cases of double actionability in restitution and tort - Application of foreign law, interpretation of foreign statutes Published at the new location of the German Law Archive at: http://iuscomp.org/gla (follow the links) Gerhard Dannemann http://iuscomp.org >From SMITHL@falaw.lan.mcgill.ca Thu Feb 11 15:49:59 1999 Received: from sirocco.cc.mcgill.ca ([132.206.27.12]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10AyNF-00064U-00 for restitution@maillist.ox.ac.uk; Thu, 11 Feb 1999 15:49:54 +0000 Received: from lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) by sirocco.cc.mcgill.ca (8.9.1/8.9.1) with SMTP id KAA16593 for ; Thu, 11 Feb 1999 10:47:56 -0500 (EST) Message-Id: <199902111547.KAA16593@sirocco.cc.mcgill.ca> Received: by MicroMailer 3.71 (.Lan.McGill.CA) on Thursday, 11 February 1999, 10:47:21 EST From: "Lionel Smith" Organization: McGill University - Faculty of Law To: restitution@maillist.ox.ac.uk Date: Thu, 11 Feb 1999 10:46:59 EST5EDT MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Priority: normal X-mailer: Pegasus Mail for Windows (v2.42a) approved: eregion Date sent: Tue, 09 Feb 1999 22:51:41 -0500 From: David Stevens To: Lionel Smith Subject: Re: RDG: Aliakmon Another analysis, similar to some of the arguments made and assuming we are not bound by precedent: (1)(a) It should be possible for purchaser - P - to sue the thief -T- for intentional interefence with P's right to performance under the contract of sale. P owns the prestation of seller's - S's - promise and the economic value of this property is diminished by T's taking from S. T's taking was intentional. T's intentional taking caused S's incapacity to perform, which is the loss to P. Maybe this does not work because T does not know about P's prestation and the taking is therefore not intetnional in the requisite way. If so, then, (b) T is at least negligent. In intentionally taking T acts unreasonably with regard to the rights of others who ought to be within his contemplation when acting. These others include possible purchasers from S. Note: It should not be an objection to this analysis that P owns only a prestation, not a material object. The economic value of prestations is harmed by removing the capacity to perform them; the economic value of material objects is harmed by destroying them; trade secrets are harmed by telling the world. The economic value of the opera singer's promise to perform at time t1 for X is harmed when she sings at time t1 for Y. If Y causes that harm intentionally (or negligently), Y injures X's property and must pay for the harm caused. Tell the NY Stock exhange that promises are not property. (2) If T is still around, as the initial question suggests, and if T still has the object stolen, then P should sue S for breach of contract. P should tell S "deliver" and when S does not deliver, S is in breach. S is not excused from that breach just because he lacks possession of the object. The object, arguably, has not succumbed to any of the risks in the contract of sale. (3) If T has only proceeds of the object and the object is "lost", then P should be able to sue T in ue only if there is the implied term in the contract of sale that Charles suggests. Of course, if it is there, then P could sue in UE at # 2 as well. If it is there, then S is obliged to assign the claim. There would be no insolvency priority for P, however, since the obligation to assign is contractual in origin. (4) But there should be an insolvency priority for the indemnity insurer due to the logic of the promise to indemnify. The insurer promises to pay only the loss caused to the insured by the tortfeasor's fault. That loss is equal to (1) the diminution in the insured's patrimony resulting from the tort MINUS (2) the value of the claim against the torfeasor. Giving the insurer the tort claim is just the simplest way to calculate the value of the insurer's promise. The trustee in bankruptcy cannot ask the insurer for more than this. Lionel Smith During 1-12 February 1999: Faculty of Law, McGill University 3644 Peel St., Montreal, Quebec, Canada H3A 1W9 Tel. + 1 514 398 6694, Fax + 1 514 398 4659 smithl@falaw.lan.mcgill.ca [mail to lionel.smith@law.ox.ac.uk is automatically forwarded] >From SMITHL@falaw.lan.mcgill.ca Thu Feb 11 18:26:48 1999 Received: from sirocco.cc.mcgill.ca ([132.206.27.12]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10B0oc-0006tl-00 for restitution@maillist.ox.ac.uk; Thu, 11 Feb 1999 18:26:18 +0000 Received: from lansend.cc.mcgill.ca (lansend.CC.McGill.CA [132.206.37.4]) by sirocco.cc.mcgill.ca (8.9.1/8.9.1) with SMTP id NAA01746 for ; Thu, 11 Feb 1999 13:24:36 -0500 (EST) Message-Id: <199902111824.NAA01746@sirocco.cc.mcgill.ca> Received: by MicroMailer 3.71 (.Lan.McGill.CA) on Thursday, 11 February 1999, 13:12:51 EST From: "Lionel Smith" Organization: McGill University - Faculty of Law To: restitution@maillist.ox.ac.uk Date: Thu, 11 Feb 1999 13:12:29 EST5EDT MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: last posting Priority: normal X-mailer: Pegasus Mail for Windows (v2.42a) To clarify, the last posting was from David Stevens (McGill), but it came via me and so had my name on it here and there. Lionel >From charles.mitchell@kcl.ac.uk Fri Feb 12 11:25:53 1999 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10BGjJ-0000I5-00 for restitution@maillist.ox.ac.uk; Fri, 12 Feb 1999 11:25:53 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.3/8.9.3) with SMTP id LAA21609 for ; Fri, 12 Feb 1999 11:18:24 GMT Message-Id: <1.5.4.32.19990212112157.00692ebc@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 12 Feb 1999 11:21:57 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Andrew Little has written to me, to point out that the Ont. CA's decisions are now on-line. The LSUC v. TD Bank case is at www.ontariocourts.on.ca/decisions/1998/december/lsuc_dec07.htm Ken Oliphant has also written to suggest that in the Aliakmon type problem the buyer might have an action against the thief in the tort of unlawful interference with trade or business by unlawful means. ________________________________________________________________________ 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 gordon.goldberg@buckingham.ac.uk Mon Feb 15 14:54:27 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10CPPn-0002A9-00 for restitution@maillist.ox.ac.uk; Mon, 15 Feb 1999 14:54:27 +0000 Received: from Law999.buckingham.ac.uk ([194.83.163.235]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id PAA12775 for ; Mon, 15 Feb 1999 15:00:17 GMT Message-Id: <199902151500.PAA12775@gateway.buckingham.ac.uk> From: "Gordon Goldberg" To: Subject: Retention of Title in Contracts of Sale of Goods Date: Mon, 15 Feb 1999 15:00:39 -0000 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1161 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit Please may I have the citation of any case (decided in a Commonwealth jurisdiction under the Sale of Goods Act 1893 [U.K.], or its local equivalent current at the time of the decision, or at common law, or in equity) on a buyer's claim to recover money paid on account of the price of goods which, pursuant to a "Romalpa clause", had themselves been recovered by the seller after their delivery to the buyer. >From lionel.smith@law.oxford.ac.uk Tue Feb 16 10:49:54 1999 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 10Ci4g-0004r3-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 10:49:54 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10Ci3A-0004Ks-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 10:48:20 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10Ci39-00038J-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 10:48:20 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 16 Feb 1999 10:47:07 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith approved: eregion From: "Gordon Goldberg" Subject: Retention of Title in Contracts of Sale of Goods Date: Mon, 15 Feb 1999 15:00:39 -0000 Please may I have the citation of any case (decided in a Commonwealth jurisdiction under the Sale of Goods Act 1893 [U.K.], or its local equivalent current at the time of the decision, or at common law, or in equity) on a buyer's claim to recover money paid on account of the price of goods which, pursuant to a "Romalpa clause", had themselves been recovered by the seller after their delivery to the buyer. >From lionel.smith@law.oxford.ac.uk Tue Feb 16 16:31:22 1999 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 10CnP8-0006QN-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 16:31:22 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10CnNc-0000Bq-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 16:29:48 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10CnNb-00060m-00 for restitution@maillist.ox.ac.uk; Tue, 16 Feb 1999 16:29:48 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 16 Feb 1999 16:28:34 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Retention of Title in Contracts of Sale of Goods >Please may I have the citation of any case (decided in a Commonwealth >jurisdiction under the Sale of Goods Act 1893 [U.K.], or its local >equivalent current at the time of the decision, or at common law, or in >equity) on a buyer's claim to recover money paid on account of the price of >goods which, pursuant to a "Romalpa clause", had themselves been recovered >by the seller after their delivery to the buyer. The closest thing I can think of are the comments of Goff LJ (AHTW) in Clough Mill Ltd. v. Martin [1985] 1 WLR 111 at 117A-118E, suggesting that in such a case there is a claim in unjust enrichment based on failure of consideration, even though the plaintiff/buyer was the one who breached the contract. & see Donaldson MR at 125H-126B, trying to do the same thing by interpretation of the contract, which however is difficult if the breach was one which allowed termination by the seller. Lionel >From lionel.smith@law.oxford.ac.uk Fri Feb 19 12:10:59 1999 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10Doln-00080u-00 for restitution@maillist.ox.ac.uk; Fri, 19 Feb 1999 12:10:59 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10DokF-0006Sz-00 for restitution@maillist.ox.ac.uk; Fri, 19 Feb 1999 12:09:23 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10DokD-0007hy-00 for restitution@maillist.ox.ac.uk; Fri, 19 Feb 1999 12:09:22 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 19 Feb 1999 12:08:10 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: confidential info Not really restitution, but those who like confidential information might be interested in Bolkiah v. KPMG [1999] 1 All ER 517 (HL). The problem arises where I retain solicitors (in this case, accountants acting like solicitors) and then either (a) after acting for me, the firm wants to act for a party adverse in interest or (b) a member of the firm acting for me moves to another firm acting for a party adverse in interest. This case was (a). The question is whether I can have the firm acting for the other side disqualified on the basis that confidences are bound to leak. The HL has overruled an old CA holding adopting a laxer test, and followed Australian and Canadian authority in favour of a stricter test, and so disqualified KPMG from what looked like a pretty lucrative retainer. Lionel >From gordon.goldberg@buckingham.ac.uk Sun Feb 21 15:35:08 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10EauS-0004uB-00 for restitution@maillist.ox.ac.uk; Sun, 21 Feb 1999 15:35:08 +0000 Received: from Law999.buckingham.ac.uk ([194.83.163.235]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with ESMTP id PAA09909 for ; Sun, 21 Feb 1999 15:40:56 GMT Message-Id: <199902211540.PAA09909@gateway.buckingham.ac.uk> From: "Gordon Goldberg" To: Subject: Retention of Title Date: Sun, 21 Feb 1999 15:41:16 -0000 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1161 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit I thank Andrew Tettenborn and Lionel Smith for their answers to my message of the 15th Feb. My continuing difficulty is that I cannot reconcile with principle and authority the hypothetical reliance on the common count of money had and received by Robert Goff, L.J., in Clough Mill Ltd. v. Martin [1985] 1 W.L.R. 111 at 117A-118E. I can find no help in Westdeutsche Bank v. Islington L.B.C. Though I agree with Lord Goff that it cannot have overruled Sinclair v. Brougham, Neil Cawley and I have respectfully submitted - [1997] L.M.C.L.Q. 406 at 411 n.17 - that in it his Lordship misinterpreted the "annuity cases". >From lionel.smith@law.oxford.ac.uk Mon Feb 22 10:44:55 1999 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 10Esr9-0007QD-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 10:44:55 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10EspZ-0005cz-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 10:43:17 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10EspY-0008Dt-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 10:43:17 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Feb 1999 10:42:04 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Knowing Assistance The HL says there is no tort of assisting in a deceit: Credit Lyonnais Nederland N.V. (now known as Generale Bank Nederland N.V.) v. Export Credits Guarantee Department, 18 Feb 99: (http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990218 /credit.htm). Counsel does not seem to have made an argument by analogy to dishonest assistance in a breach of trust. Lionel >From eodell@dux4.tcd.ie Mon Feb 22 13:01:38 1999 Received: from dux4.tcd.ie ([134.226.1.194]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10EuzS-00080b-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 13:01:38 +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 MAA26433 for ; Mon, 22 Feb 1999 12:59:59 GMT Date: Mon, 22 Feb 1999 12:59:59 GMT Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: Re: Knowing Assistance Hello all; Lionel tells us that >The HL says there is no tort of assisting in a deceit: Credit Lyonnais >Nederland N.V. v. Export Credits Guarantee Department, 18 Feb 99: and that >Counsel does not seem to have made an argument by analogy to >dishonest assistance in a breach of trust. However, Lord Woolf MR (with whom the other four agreed) observed that >For the purposes of the appeal, there were placed before their Lordships >a selection of extracts from the leading text books dealing with the issues >on the appeal. However the extracts provide no support for Mr. Sumption's >contention. Any assistance for his argument is to be found in a carefully >reasoned article by Mr. Philip Sales in the Cambridge Law Journal (1990) pp. >491-514. However, reading that article as a whole, I do not find that it >establishes the Bank's case. Mr. Sales was primarily concerned in that >article with a distinction between conspiracies to injure another by lawful >and unlawful means. In that context he considers the circumstances where a >secondary liability in tort can arise. However the problem with arguments >based on conspiracy or secondary liability is that in both cases liability >would depend upon the deception of the Bank and deceiving the Bank would be >outside the scope of Mr. Pillai's employment. The Sales piece was the obvious one. But it would be interesting to know what the other academic texts which were placed before the HL actually were. Since this is the only reference to them, and since no other speeches were delivered, in theory we shall never know. The argument by analogy with knowing assistance might have been made in one of those text. But does this not suggest that there ought to be a section with the cases cited in judgment, and in argument, on academic work cited in the judgment or in argument, as in the DLRs. How could such an innovation be pressed upon the law report publishers? If it were operating here, it would have been interesting to see if Hoffmann's piece in Birks (ed) Frontiers of Liability or Tugendhat's piece in Rose (ed) Restitution and Banking Law were cited (though it would have been odd had the former been cited and not referred to by Lord Woolf, though, then again, it might not), and it would have been interesting to see why Lord Woolf did not accept, in particular, the arguments made by Tugendhat, which, from memory, seemed well suited to the Bank's claim here. Perhaps others more well read in tort, more adept with these arguments, and more in touch with the details of Hoffmann and Tugendhat could demonstrate why those views would go the way of Sales'. In any event, it is academic (in both the best and the worst senses) so to speculate in the absence of hard evidence as to what was available before the House. Can anyone plug that gap ? Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353- 1) or (01) 608 1178 Dublin 2 fax (+ 353- 1) or (01) 677 0449 Ireland mobile/cellular (+ 353-86) or (086) 286 0739 Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) >From gerard.mcmeel@bristol.ac.uk Mon Feb 22 13:23:26 1999 Received: from dirc.bris.ac.uk ([137.222.10.51]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 10EvKY-00088H-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 13:23:26 +0000 Received: from sis.bris.ac.uk by dirc.bris.ac.uk with SMTP-PRIV (PP) with ESMTP; Mon, 22 Feb 1999 13:18:27 +0000 Received: from law-brno.law.bris.ac.uk (brno.law.bris.ac.uk [137.222.84.104]) by sis.bris.ac.uk (8.9.2/8.9.2) with SMTP id NAA15283; Mon, 22 Feb 1999 13:11:01 GMT From: Gerard McMeel Sender: Gerard.McMeel@bristol.ac.uk Reply-To: gerard.mcmeel@bristol.ac.uk To: Gordon Goldberg Cc: restitution@maillist.ox.ac.uk Subject: RDG: Retention of Title in Contracts of Sale of Goods In-Reply-To: Message-ID: Date: Mon, 22 Feb 1999 13:21:26 +0000 (GMT) Priority: NORMAL X-Mailer: Simeon for Win32 Version 4.1.5 Build (43) X-Authentication: IMSP MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII On Mon, 15 Feb 1999 15:00:39 -0000 Gordon Goldberg wrote: > Please may I have the citation of any case (decided in a Commonwealth > jurisdiction under the Sale of Goods Act 1893 [U.K.], or its local > equivalent current at the time of the decision, or at common law, or in > equity) on a buyer's claim to recover money paid on account of the price of > goods which, pursuant to a "Romalpa clause", had themselves been recovered > by the seller after their delivery to the buyer. > > In Indian Herbs (UK) Ltd v Hadley and Ottoway Ltd (Court of Appeal, 21 January 1999, Smith Bernal Transcript, Appeal number 98/0996/1) a slightly different but analogous question arose. A supplier on "simple" retention of title terms was held to have unlawfully repossessed goods prematurely before the date for payment was due. It was accordingly held to have wrongfully interfered with goods even though it was common ground that the majority of the purchase price was not paid. There had been an interference with the buyer's immediate right to possession. It's claim to set aside a default judgment raising a defence of continuing ownership was rejected. There was a concession by counsel for the buyer that "the plaintiff [buyer] would on principles of unjust enrichment have to account for the purchase price of the goods which had not been paid." (Transcript, p 7). Therefore it seems the usual measure of damages for conversion, that is the value of the goods, was not applicable. Further Mummery LJ concluded: "In my judgment, on the material we have seen and the arguments we have heard, no real purpose would be served by setting aside the default judgment. It turned out in the course of argument that the crucial point between the parties is what goods had been paid for and what goods had not been paid for. It is accepted on behalf of the third defendant [supplier] that, if the goods were paid for, there is no right to repossess them. It is accepted on bealf of the plaintiff that if goods were not paid for, even if the repossession was wrongful, the contractual liability to pay for them is a factor which the plaintiff is under a duty to account for on unjust enrichment principles in the assessment of damages." (p.18). ---------------------- Gerard McMeel Faculty of Law University of Bristol gerard.mcmeel@bristol.ac.uk >From A.M.Tettenborn@exeter.ac.uk Mon Feb 22 15:44:55 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10ExXT-0000Nr-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 15:44:55 +0000 Received: from pc0274 [144.173.75.19] by hermes via SMTP (PAA09499); Mon, 22 Feb 1999 15:40:34 GMT Message-Id: <3.0.5.32.19990222154031.00799b60@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Mon, 22 Feb 1999 15:40:31 +0000 To: Gerard McMeel , Gordon Goldberg From: Andrew Tettenborn Subject: Re: RDG: Retention of Title in Contracts of Sale of Goods Cc: restitution@maillist.ox.ac.uk In-Reply-To: References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" This is a problem that's arisen before, albeit in a slightly different context. In the notorious case of Chinery v Viall (1860) 5 H & N 288 A sells goods to B, causing property to pass to B even tho' B has neither taken delivery of the goods nor paid for them. A then sells & delivers the same goods to C, passing title to C. B sues A for conversion, claiming the full value of the goods and declining to give any credit for the price he hasn't paid (and now won't have to pay since A can't come up with the goods). This is nice work if you can get it: but how do you stop B in his tracks? The court then hummed and hahed before saying "Oh well, there must be an anomalous exception to the general rule of conversion damages". No doubt these days it would do things differently. AT At 13:21 22/02/99 +0000, Gerard McMeel wrote: > >On Mon, 15 Feb 1999 15:00:39 -0000 Gordon Goldberg > wrote: > >> Please may I have the citation of any case (decided in a Commonwealth >> jurisdiction under the Sale of Goods Act 1893 [U.K.], or its local >> equivalent current at the time of the decision, or at common law, or in >> equity) on a buyer's claim to recover money paid on account of the price of >> goods which, pursuant to a "Romalpa clause", had themselves been recovered >> by the seller after their delivery to the buyer. >> >> >In Indian Herbs (UK) Ltd v Hadley and Ottoway Ltd (Court of Appeal, 21 >January 1999, Smith Bernal Transcript, Appeal number 98/0996/1) a >slightly different but analogous question arose. A supplier on "simple" >retention of title terms was held to have unlawfully repossessed goods >prematurely before the date for payment was due. It was accordingly >held to have wrongfully interfered with goods even though it was common >ground that the majority of the purchase price was not paid. There had >been an interference with the buyer's immediate right to possession. >It's claim to set aside a default judgment raising a defence of >continuing ownership was rejected. > >There was a concession by counsel for the buyer that "the plaintiff >[buyer] would on principles of unjust enrichment have to account for >the purchase price of the goods which had not been paid." (Transcript, >p 7). > >Therefore it seems the usual measure of damages for conversion, that is >the value of the goods, was not applicable. > >Further Mummery LJ concluded: > >"In my judgment, on the material we have seen and the arguments we have >heard, no real purpose would be served by setting aside the default >judgment. It turned out in the course of argument that the crucial point >between the parties is what goods had been paid for and what goods had >not been paid for. It is accepted on behalf of the third defendant >[supplier] that, if the goods were paid for, there is no right to >repossess them. It is accepted on bealf of the plaintiff that if goods >were not paid for, even if the repossession was wrongful, the >contractual liability to pay for them is a factor which the plaintiff >is under a duty to account for on unjust enrichment principles in the >assessment of damages." (p.18). >---------------------- >Gerard McMeel >Faculty of Law >University of Bristol > >gerard.mcmeel@bristol.ac.uk > > >___________________________________________________________________________ _____ >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 charles.mitchell@kcl.ac.uk Mon Feb 22 16:36:15 1999 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10EyL9-0000tA-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 16:36:15 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.3/8.9.3) with SMTP id QAA13360 for ; Mon, 22 Feb 1999 16:28:22 GMT Message-Id: <1.5.4.32.19990222163149.0067a4c8@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Feb 1999 16:31:49 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Mistake of law As I expect many members of the group are already aware, a gap left by the HL's decision in Kleinwort v Lincoln CC has now been plugged. Allowing recovery in that case of a payment made under a mistake of law, Lord Goff and the other members of the majority notably failed to tell us what types of mistake should count in actions to recover benefits on the ground of mistake of law. By analogy with the mistake of fact cases the possibilities seemed to include liability mistakes, causative mistakes, and fundamental mistakes. In Nurdin and Peacock plc v D B Ramsden and Co Ltd, [1999] The Times, 18th Feb, Neuberger J has now held that Robert Goff J's causative test in Barclays Bank v Simms 'should apply equally to a case where the money was paid under a mistake of law'. ________________________________________________________________________ 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 swh10@cus.cam.ac.uk Mon Feb 22 18:20:57 1999 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10EzyT-0001qJ-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 18:20:57 +0000 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 2.12 #3) id 10Ezws-0002Yh-00 for restitution@maillist.ox.ac.uk; Mon, 22 Feb 1999 18:19:18 +0000 Message-Id: <3.0.1.32.19990222181906.007e1320@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Mon, 22 Feb 1999 18:19:06 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Mistake of law In-Reply-To: <1.5.4.32.19990222163149.0067a4c8@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" But (at least according to the Times report) Neuberger J added that "It might also be that the payer had to go further and establish, for instance, that the mistake was directly connected to the overpayment and/or was connected to the payer/payee relationship." At 16:31 22/02/99 +0000, Dr Charles Mitchell wrote: >As I expect many members of the group >are already aware, a gap left by the >HL's decision in Kleinwort v Lincoln CC >has now been plugged. Allowing >recovery in that case of a payment made >under a mistake of law, Lord Goff >and the other members of the majority >notably failed to tell us what types >of mistake should count in actions to >recover benefits on the ground of >mistake of law. By analogy with the >mistake of fact cases the possibilities >seemed to include liability mistakes, >causative mistakes, and fundamental >mistakes. In Nurdin and Peacock plc v >D B Ramsden and Co Ltd, [1999] The >Times, 18th Feb, Neuberger J has >now held that Robert Goff J's causative >test in Barclays Bank v Simms 'should >apply equally to a case where the >money was paid under a mistake of law'. >______________________________ > 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 lionel.smith@law.oxford.ac.uk Tue Feb 23 10:19:45 1999 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 10FEwL-00042w-00 for restitution@maillist.ox.ac.uk; Tue, 23 Feb 1999 10:19:45 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10FEul-0000xe-00 for restitution@maillist.ox.ac.uk; Tue, 23 Feb 1999 10:18:07 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10FEuj-0007u6-00 for restitution@maillist.ox.ac.uk; Tue, 23 Feb 1999 10:18:06 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 23 Feb 1999 10:16:55 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Dawson on Unjust Enrichment If there is anyone on the list who has possession (or perhaps a right to immediate possession) of John Dawson's Unjust Enrichment: A Comparative Analysis, could s/he please drop me an eline. Thanks, Lionel >From nonijuice@mailcity.com Sat Feb 27 15:03:41 1999 Received: from oxmail2.ox.ac.uk ([163.1.2.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10GlHJ-0000LK-00; Sat, 27 Feb 1999 15:03:41 +0000 Received: from slip-32-100-252-92.ny.us.ibm.net ([32.100.252.92] helo=somedomain.com) by oxmail.ox.ac.uk with smtp (Exim 2.10 #1) id 10GlFb-00037Q-00; Sat, 27 Feb 1999 15:01:55 +0000 From: Subject: Good Health & Financial Stability Date: Sat, 27 Feb 1999 06:25:24 Message-Id: Bcc: This message is sent in compliance of the new email bill: SECTION 301. Per Section 301, Paragraph (a)(2)(C) of S.1618, further transmissions to you by the sender of this email may be stopped at no cost to you by sending a reply with the word "remove" in the subject line. ************************************************************************** I am contacting you regarding a tremendous business opportunity that is presently exploding and helping people in many countries. This opportunity has exploded in every country it has been introduced, and it presents an even better advantage to you since you are one of the first that will have knowledge of it. There is a remarkable new product that I would like to share with you and it is a Juice called "Tahitian Noni juice". People have been getting phenomenal results using Tahitian Noni. This unique juice has been used for centuries in the South Pacific for diabetes, arthritis,cancer, high blood pressure, depression, relief of pain, allergies, respiratory afflictions, intestinal parasites,addictions, immune system failures,sinus problems, fevers, malignancies or tumors, and other things. It also helps with increased energy. Tahitian Noni is being marketed for the first time on a commercial basis. Now you and your family can experience the wonder of relief where other products have failed. To give you an idea as to how well it has been doing.... In it's first year of operation, July of 1996, the company's goal was one million dollars in sales. It reached that mark in it's fourth month, and actual sales were thirty-nine million dollars for the first year. In July of 1998, the end of its second year, sales were $10 million per month or the equivalent of $120 million per year. In every country that Tahitian NONI has been introduced, the results has been nothing short of fantastic. This includes the U.S., Canada, Jamaica, Puerto Rico, Costa Rica,Sweden, Finland, Norway, the Netherlands, Taiwan, Venezuela, Australia, Malaysia, Japan and the Philippines.... to name a few. We are currently looking for Independent business builders, who are interested in substantially increasing their income. If you are interested in this opportunity , please let us know as soon as possible, so we may work with you in setting up a successful organization. If you, or anyone you know is interested in learning more about this you can email nonijuice@mailcity.com or e.reid@mailcity.com. **Note******************************************************************** By clicking the link above and sending us an email, you are verifying your true interest in our product. This simply states that you desire more information, and not malicious intentions. Thank you for your understanding! **************************************************************************