-- >From lionel.smith@law.oxford.ac.uk Mon Mar 01 11:10:34 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 10HQao-0003jT-00 for restitution@maillist.ox.ac.uk; Mon, 1 Mar 1999 11:10:34 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10HQZ9-0003Jx-00 for restitution@maillist.ox.ac.uk; Mon, 1 Mar 1999 11:08:51 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10HQZ8-0008PD-00 for restitution@maillist.ox.ac.uk; Mon, 1 Mar 1999 11:08:51 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 1 Mar 1999 11:07:38 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Equitable Compensation In today's Times, a report of a judgment of Blackburne J given on 2 Feb in a set of 12 claims (out of over 400) brought by the Nationwide BS against solicitors, seeking to shift losses cause by mortgage fraudsters: Nationwide BS v. Various Solicitors (No 3). Another crack at causation, and it seems another use of "restitutionary" to mean "compensatory." The judge rejected attempts to reduce liability for breach of fiduciary duty on the basis of contributory negligence. In another case, Nationwide BS v. Thimbleby & Co., 26 Feb, he also rejected such an argument where the claim was deceit. Both cases are available on New Law Online, the former under the name Nationwide BS v Balmer Radmore (a firm) & ors. Lionel >From gordon.goldberg@buckingham.ac.uk Mon Mar 01 13:41:06 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10HSwT-0004Qn-00 for restitution@maillist.ox.ac.uk; Mon, 1 Mar 1999 13:41:05 +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 NAA14781; Mon, 1 Mar 1999 13:39:20 GMT Message-Id: <199903011339.NAA14781@gateway.buckingham.ac.uk> From: "Gordon Goldberg" To: "Gerard McMeel" , "Gordon Goldberg" Cc: Subject: Re: Retention of Title in Contracts of Sale of Goods Date: Mon, 1 Mar 1999 13:47:08 -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 Indian Herbs (UK) Ltd v Hadley and Ottoway Ltd (Court of Appeal, 21 January 1999, Smith Bernal Transcript, Appeal number 98/0996/1) from the summary by Gerard McMeel, for which I thank him, seems to me to be (in effect) an application of equitable set-off, as exemplified and explained in Hanak v. Green [1958] 2 Q.B. 9. If so and with respect, I do not believe it to help in my problem, which assumes there to be no wrong on the part of the seller capable of being set off against the buyer's breach of contract. ---------- > From: Gerard McMeel > To: Gordon Goldberg > Cc: restitution@maillist.ox.ac.uk > Subject: RDG: Retention of Title in Contracts of Sale of Goods > Date: 22 February 1999 13:21 > > > 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 s.evans@law.unimelb.edu.au Mon Mar 01 23:12:49 1999 Received: from smtp1.unimelb.edu.au ([128.250.20.111] helo=aquila.its.unimelb.EDU.AU) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10Hbrk-00063I-00 for restitution@maillist.ox.ac.uk; Mon, 1 Mar 1999 23:12:49 +0000 Received: from law.unimelb.edu.au (pc165-112.law.unimelb.EDU.AU [128.250.165.112]) by SMTP.UNIMELB.EDU.AU (PMDF V5.2-29 #31573) with ESMTP id <01J8CNBM3NAC9375KS@SMTP.UNIMELB.EDU.AU> for restitution@maillist.ox.ac.uk; Tue, 2 Mar 1999 10:10:29 +1100 Date: Tue, 02 Mar 1999 10:10:42 +1100 From: Simon Evans Subject: Roxborough v Rothmans To: restitution@maillist.ox.ac.uk Message-id: <36DB1E72.A2DE0E17@law.unimelb.edu.au> Organization: Faculty of Law, University of Melbourne MIME-version: 1.0 X-Mailer: Mozilla 4.5 [en] (Win98; I) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en Readers of the list may be interested in the recent decision of Emmett J in the Federal Court of Australia in Roxborough v Rothmans of Pall Mall Australia Ltd [1999] FCA 107 (18 February 1999) . Simplifying somewhat - The applicants were tobacco retailers; the respondent was their supplier. Under New South Wales legislation, retailers and wholesalers were obliged to hold licences to sell tobacco by retail or wholesale. The licence fee was calculated by reference to the value of tobacco sold in a relevant period. If the wholesaler held a wholesale licence and paid the licence fee in relation to tobacco, the retailer did not have to pay a retail licence fee in relation to that tobacco. In this case, the wholesaler did hold such a licence and did pay the wholesale licence fee in relation to the tobacco. But it invoiced the retailers for the amount of the licence fee as a separate item on the invoice for the tobacco. The High Court held that the licensing legislation was invalid. (Simplifying somewhat and omitting the long history that lead to this point - under the Constitution, the States cannot levy duties of excise; the Court held that the licence fees were in substance duties of excise and therefore the legislation imposing them was invalid.) The retailers sought to recover from their supplier, the wholesaler, the amount they had paid (as they saw it) on account of the invalid licence fee. Emmett J dealt separately with arguments based on: "* Breach of an implied promise to refund the amounts if Rothmans did not subsequently pay a licence fee. * Restitution for total failure of consideration by reason of failure by Rothmans to perform an implied promise to pay a licence fee. * Restitution of payments made under invalid legislation giving rise to unjust enrichment of Rothmans. * Constructive trust in respect of the amounts in question. [based on Mason CJ's observations in Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited (1994) 182 CLR 51 referring to the dissenting judgment of Judge Learned Hand in 123 East Fifty-Fourth Street v United States (1946) 157 F Rep (2d) 68] * Restitution for payments made under a mistake. * Contravention of section 52 of the Trade Practices Act. " Emmett J rejected all the claims. One significant problem for the retailers was that the source of their obligation to pay an amount referable to the licence fee was their contract with the supplier, not the invalid legislation. Another was that they would have paid the invoiced amount to obtain a supply of tobacco irrespective of the validity of the legislation. -- Simon Evans, s.evans@law.unimelb.edu.au, +61 3 9344 4751 >From lionel.smith@law.oxford.ac.uk Wed Mar 03 10:43:12 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 10I97Q-0003Oc-00 for restitution@maillist.ox.ac.uk; Wed, 3 Mar 1999 10:43:12 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10I95k-0007Wg-00 for restitution@maillist.ox.ac.uk; Wed, 3 Mar 1999 10:41:28 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10I95i-0007GK-00 for restitution@maillist.ox.ac.uk; Wed, 3 Mar 1999 10:41:27 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <199903011339.NAA14781@gateway.buckingham.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Wed, 3 Mar 1999 10:40:14 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Re: RDG: Re: Retention of Title in Contracts of Sale of Goods Gordon Goldberg wrote: >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 If we assume that the ROT buyer has paid =A3400 of a contractual price of =A3450, then misses an instalment thereby committing a breach which is stipulated to be one which allows the seller to terminate the contract, and the seller terminates and repossesses, and the goods are worth say =A3250 so the seller's position is better than its contractual expectation interest, I read Lord Goff as suggesting that the buyer could have a claim in unjust enrichment for =A3200, that is the enrichment of the seller over and above its expectation interest. The breaching buyer is allowed to sue for failure of consideration/basis but its recovery is limited to an amount which protects the seller's expectation. Notionally the buyer's claim is to recover =A3400 paid on a consideration which failed, but the claim is reduce= d so that the seller (as the non-breaching party) has its expectation protected. Or I suppose it could be conceptualized as a counterclaim for breach of contract. With which principle and/or authority does that conflict? Is it that the buyer had the use of the goods for some time and so the consideration/basis did not really fail? Lionel >From A.M.Tettenborn@exeter.ac.uk Thu Mar 04 09:55:39 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 10IUqx-0007oh-00 for restitution@maillist.ox.ac.uk; Thu, 4 Mar 1999 09:55:39 +0000 Received: from pc0274 [144.173.75.19] by hermes via SMTP (JAA14493); Thu, 4 Mar 1999 09:53:54 GMT Message-Id: <3.0.5.32.19990304095352.00799970@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Thu, 04 Mar 1999 09:53:52 +0000 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: contribution Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" An interesting point for contribution fanatics. My chattel is converted by A and then subsequently by B. If I recover against A, can A claim contribution against B once he has paid up? Rix J suggests that the answer is Yes in the recent cheque litigation to hit the headlines, Middle Temple v Lloyds Bank (unrep as far as I know, 21.1.99). MT's cheque made out to its insurers, Sun Alliance, is stolen. It arrives in the hands of S in Turkey. S persuades a Constantinople bank, to whom he is otherwise unknown, to collect it for him. The bank gets Lloyds to collect payment in London. The cheque is credited to S's newly opened account in Constantinople, the money disappears and S drops out of the picture while enjoying the hospitality of the Turkish police. Both banks are liable in conversion, neither being able to show it wasn't at fault under the Cheques Act 1957, s.4. Having decided on the facts that the Turkish bank promised to indemnify Lloyds so as to give Lloyds a right to be held harmless, Rix J says that had this not been the case he would have ordered contribution under the 1978 Act, splitting responsibility 75-25 in Lloyds' favour. Can this be right? There seems no previous instance of contribution between serial converters A and B. Furthermore, there is, I would have thought, an arguable point of principle against it: namely, can it be said that A and B are liable in respect of the same loss? They have admittedly converted the same thing: but that is not necessarily conclusive of the matter. Does anyone have any thoughts? 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James phone 561 540 6213 _________________________________________________________________ our mailing address is EMAIL KING and Associates 1790 Bonhill Rd Mississauga Ontario Canada 561 540 6213 TO BE REMOVED EMAIL frankj@eastmail.com OR CALL 800 636-6773 X 4692 >From charles.mitchell@kcl.ac.uk Mon Mar 08 10:55:04 1999 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10Jxge-0005ui-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 10:55:04 +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 KAA07665 for ; Mon, 8 Mar 1999 10:46:42 GMT Message-Id: <1.5.4.32.19990308105001.006acb6c@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, 08 Mar 1999 10:50:01 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Re: RDG: contribution I agree with Andrew Tettenborn that it is not necessarily true that in every situation where A and B serially convert C's chattel, they will be liable to C for the same loss - and he is of course right to say that to the extent that they are not liable for the same loss a contribution claim will not lie between them. If, for example, A has the chattel temporarily in his possession and is then in the process of returning it undamaged to C when B steals it and destroys it, it seems conceivable to me that a court might think it too draconian to award the whole value of the chattel as damages against A, although it would feel no such qualm when assessing the damages payable by B. A and B are both liable for the same tort - they have converted the same chattel - but A has merely kept C out of possession for a short period of time, whereas B has kept him out of possession forever. However, I doubt whether this example corresponds to the facts of Middle Temple v Lloyd's Bank. The only cases vaguely like this which I am aware of are the cases which I cite at [1997] RLR 30, at n 28, which tell us that where successive acts of negligence are committed against the same victim, the tortfeasors cannot be said to be liable in respect of the same loss, and so no contribution claim will lie between them, if the actions of the second tortfeasor break the chain of causation between the victim's loss and the actions of the first tortfeasor - ie where the first tortfeasor can invoke the doctrine of novus actus interveniens, he will escape liability both to the victim in tort and to the second tortfeasor in an action for contribution. At 09:53 04/03/99 +0000, you wrote: >An interesting point for contribution fanatics. My chattel is converted by >A and then subsequently by B. If I recover against A, can A claim >contribution against B once he has paid up? Rix J suggests that the answer >is Yes in the recent cheque litigation to hit the headlines, Middle Temple >v Lloyds Bank (unrep as far as I know, 21.1.99). > >MT's cheque made out to its insurers, Sun Alliance, is stolen. It arrives >in the hands of S in Turkey. S persuades a Constantinople bank, to whom he >is otherwise unknown, to collect it for him. The bank gets Lloyds to >collect payment in London. The cheque is credited to S's newly opened >account in Constantinople, the money disappears and S drops out of the >picture while enjoying the hospitality of the Turkish police. Both banks >are liable in conversion, neither being able to show it wasn't at fault >under the Cheques Act 1957, s.4. Having decided on the facts that the >Turkish bank promised to indemnify Lloyds so as to give Lloyds a right to >be held harmless, Rix J says that had this not been the case he would have >ordered contribution under the 1978 Act, splitting responsibility 75-25 in >Lloyds' favour. > >Can this be right? There seems no previous instance of contribution between >serial converters A and B. Furthermore, there is, I would have thought, an >arguable point of principle against it: namely, can it be said that A and B >are liable in respect of the same loss? They have admittedly converted the >same thing: but that is not necessarily conclusive of the matter. > >Does anyone have any thoughts? > > >AMT >Andrew Tettenborn >Bracton Professor of Law > >Tel: 01392-263189 / +44-392-263189 (international) >Fax: 01392-263196 / +44-392-263196 (international) > >Snailmail: School of Law, > University of Exeter, > Amory Building, > Rennes Drive, > Exeter EX4 4RJ > England > >___________________________________________________________________________ _____ >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 >. > > ________________________________________________________________________ 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 charles.mitchell@kcl.ac.uk Mon Mar 08 11:48:24 1999 Received: from mail.kcl.ac.uk ([137.73.66.6]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10JyWG-0006Qj-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 11:48:24 +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 LAA28564 for ; Mon, 8 Mar 1999 11:40:02 GMT Message-Id: <1.5.4.32.19990308114321.0067e46c@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, 08 Mar 1999 11:43:21 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: I reproduce below a note of a recent case concerning a strike-out claim in which it was held that Nelson v Rye is wrong in every respect, and in which the plaintiff's breach of confidence claim was struck out because it was analysed as a restitionary claim for which a 6 year limitation period applied from the date the confidential information was given (1982) even though the main payment derived from the information was received only in 1997. Comments anyone? >Contract - Limitation - Breach of fiduciary duty - Whether claims for breach of fiduciary duty time-barred - Limitation Act 1980 ss 5, 21, 23, 36 - Coulthard v Disco Mix Club Ltd - Chancery Division - Mr J Sher QC (sitting as a Deputy High Court Judge) - 01.03.99 > >FACTS >The plaintiff worked as a disc jockey and produced so-called mega-mixes of recordings by original artists. He became involved in the 1980s with the second and third defendants and a company set up by them, the first defendant, "DMC". The plaintiff claimed that under various agreements he was entitled to ten per cent of the gross income of the company's business and ten per cent of the proceeds of sale of a magazine which was an integral part of the business. He further claimed an account in respect of the exploitation of his mega-mixes under alleged agreements with the defendants on the basis of breach of contract and deliberate and dishonest breach of fiduciary duty giving rise to liability as constructive trustees. The defendants applied to strike out the writ and statement of claim. They argued that most of the claims were time barred. > >ISSUES >(1) Whether the plaintiff's claims should be struck out. >(2) Whether the claims for breach of fiduciary duty were time barred. > >HELD >(1) The claim for ten per cent of the proceeds of sale of the magazine could not be struck out without a trial. The case was not incredible and it was for the trial judge to decide the existence and terms of the alleged agreement. It would be wrong to try to evaluate the evidence and dispose of the issue on a striking-out application. However, the claim for ten per cent of the company's income in the circumstances bordered on the absurd and would be struck out. Other claims that there was a partnership and for breach of confidence were hopeless and would also be time-barred. They would be struck out. The plaintiff's claims in respect of infringement of copyright by the release of certain back catalogue compilations should not be struck out. >(2) The claims for breach of fiduciary duty in respect of under-accounting arose under the various alleged management and agency agreements and were contractual claims barred by s 5 and 23 of the Limitation Act 1980 after six years from accrual of the cause of action. The defendants' duty to account was not a fiduciary duty (Nelson v Rye [1996] 1 WLR 1378 not followed) and the effect of the statute could not be sidestepped by describing contract claims as claims for breach of fiduciary duty. Some of the claims were for deliberate and dishonest breach of fiduciary duty which involved allegations of breach of loyalty and thus represented true breaches of fiduciary duty. However those claims were subject to the Limitation Act 1980 because under s 36 the court would apply the six year time limit for contract claims by analogy (Nelson v Rye [1996] 1 WLR 1378 not followed) because of the correspondence between the claims at law and in equity (Knox v Gye (1872) 5 App Cas 656). The allegations of dishonest under-accounting which were true breaches of fiduciary duty were based on the same factual allegations as the common law claims in fraud and the statute would have been applied to them by a court of equity (Paragon Finance plc v DB Thakerar & Co (NLC 2980712102) applied). Paragon also showed that the plaintiff's claim was not one to which s 21 of the Limitation Act 1980 applied because the defendants were not true trustees and the claim to a constructive trust was only a description of the relief sought in equity. The claims should be struck out as statute-barred. The plaintiff was, however, entitled to accounts in relation to the most recent alleged agreement and in relation to certain actual receipts within the last six years before the proceedings. > >Stephen Barbour, Barrister ________________________________________________________________________ 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 Mar 08 17:49:26 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10K49d-0000Ar-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 17:49:25 +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 RAA15040; Mon, 8 Mar 1999 17:41:09 GMT Message-Id: <199903081741.RAA15040@gateway.buckingham.ac.uk> From: "Gordon Goldberg" To: "Andrew Tettenborn" , "Gerard McMeel" Cc: Subject: Re: RDG: Retention of Title in Contracts of Sale of Goods Date: Mon, 8 Mar 1999 17:48:55 -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 respectfully dissent from any suggestion of anomaly in the judgment of Bramwell, B., in Chinery v Viall (1860) 5 H & N 288. I understand the measure of damages in contract and tort to be so much as is necessary to put the plaintiff in the same position (so far as money can) as that where he would have been if he had not been injured by the defendant. I believe it to be this measure which his Lordship expressed at 295, when he asserted that a party "may maintain an action; but only for the real damage sustained ... [so that] a man cannot by merely changing the form of action entitle himself to recover damages greater than the amount to which he is in law entitled, according to the true facts of the case and the real nature of the transaction". (Conversely, does not the common law's adoption of this measure explain why the damages, awarded for the conversion of a bill of exchange, are generally equal to the face value of the bill, rather than the intrinsic value of the dull paper, ink and words which it comprises and why this form of action is generally no less advantageous than the common count of money had and received?) In my respectful opinion, further justification of the judgment is to be found in the "fundamental principle that one may not at the same time approbate and reprobate" (Howard v. Howard [1965] P. 45 at 73B per Simon, P.). Since the sheep had not been delivered to the plaintiff, he could prove his property in, and consequent right to possess, them only by reliance on (approbation of) the contract between him and the defendant by which they were sold to him. Therefore he could not simultaneously disown his obligation under (reprobate) the contract by refusing to acknowledge that he would have had to pay for the sheep, if they had been delivered to him. In other words, "qui sentit commodum, sentire debet et onus" (2 Inst. 489). --------- > From: Andrew Tettenborn > To: Gerard McMeel ; Gordon Goldberg > Cc: restitution@maillist.ox.ac.uk > Subject: Re: RDG: Retention of Title in Contracts of Sale of Goods > Date: 22 February 1999 15:40 > > 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 duncan.sheehan@corpus-christi.oxford.ac.uk Mon Mar 08 19:37:10 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 10K5pu-0000gu-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 19:37:10 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10K5o7-0006Hg-00; Mon, 8 Mar 1999 19:35:19 +0000 Received: from corp0380 (helo=localhost) by sable.ox.ac.uk with local-smtp (Exim 2.12 #1) id 10K5nl-0004qi-00; Mon, 8 Mar 1999 19:34:57 +0000 Date: Mon, 8 Mar 1999 19:34:57 +0000 (GMT) From: Duncan Sheehan To: Charles Mitchell cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: contribution In-Reply-To: <1.5.4.32.19990308105001.006acb6c@law-mail.kcl.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Dear All, In this example the fraudster gets the Turkish bank to collect Middle Temple's cheque and that Turkish bank persuades Lloyds to collect it in London. I would have thought that in principle Rix J was right to give contribution. They do convert the same thing, the cheque, and as we know that is not necessarily conclusive, but is it not the same act of conversion. The cheque is only collected wrongly once. Both the Turkish bank and Lloyds are involved in that tortious conversion in that the Turkish bank wrongfully induces Lloyds to wrongfully collect the cheque on its behalf, so surely the two banks are both involved in the same act of conversion. There is no serial conversion and they are both liable and hence can claim contribution from each other. Duncan Sheehan >From AXELRODA@wpgate.law3.georgetown.edu Mon Mar 08 20:13:22 1999 Received: from wpgate.law3.georgetown.edu ([141.161.16.100]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 10K6Ov-0000oU-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 20:13:22 +0000 Received: from LAWCAMPUS-Message_Server by wpgate.law3.georgetown.edu with Novell_GroupWise; Mon, 08 Mar 1999 15:11:13 -0500 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Mon, 08 Mar 1999 15:11:11 -0500 From: "Alan Axelrod" To: duncan.sheehan@corpus-christi.oxford.ac.uk, charles.mitchell@kcl.ac.uk Cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: contribution -Reply Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline in the check case, altho each successive collecting bank was a converter = as to O and the owner could choose which to sue, between themselves the = banks are in a contract--as i recall the statement of the case, there had = been some sort of express warranty from early bank to later bank ? in US law the early bank upon a transfer for value, impliedly warrants to = the later that all endorsements are genuine =20 whatever may be the principle which leads to contribution among tort-feasor= s, the function of the warranty implication is to impose the loss = finally on the person who takes from the forger=20 so if owner goes against first bank, the situation is in repose, while if = owner goes against second bank, that bank can recover back against first = bank =20 >From AXELRODA@wpgate.law3.georgetown.edu Mon Mar 08 20:34:51 1999 Received: from wpgate.law3.georgetown.edu ([141.161.16.100]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 10K6ji-0000qw-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 20:34:51 +0000 Received: from LAWCAMPUS-Message_Server by wpgate.law3.georgetown.edu with Novell_GroupWise; Mon, 08 Mar 1999 15:33:02 -0500 Message-Id: X-Mailer: Novell GroupWise 5.2 Date: Mon, 08 Mar 1999 15:32:59 -0500 From: "Alan Axelrod" To: restitution@maillist.ox.ac.uk Subject: stolen check Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline in the check case, altho each successive collecting bank was a converter = as to O and the owner could choose which to sue, between themselves the = banks are in a contract--as i recall the statement of the case, there had = been some sort of express warranty from early bank to later bank ? in US law : the early bank upon a transfer for value, impliedly warrants to the later = that all endorsements are genuine =20 whatever may be the principle which leads to contribution among tort-feasor= s, the function of the warranty implication is to impose the loss = finally on the person who takes from the forger=20 so if owner goes against first bank, the situation is in repose, while if = owner goes against second bank, that bank can recover back against first = bank =20 >From junger@samsara.law.cwru.edu Mon Mar 08 21:04:51 1999 Received: from samsara.law.cwru.edu ([129.22.184.108]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10K7Cl-0000uA-00 for restitution@maillist.ox.ac.uk; Mon, 8 Mar 1999 21:04:51 +0000 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 QAA18143 for ; Mon, 8 Mar 1999 16:03:30 -0500 Message-Id: <199903082103.QAA18143@samsara.law.cwru.edu> To: restitution@maillist.ox.ac.uk Subject: Re: RDG: contribution In-reply-to: Your message of "Thu, 04 Mar 1999 09:53:52 GMT." <3.0.5.32.19990304095352.00799970@pop.ex.ac.uk> Date: Mon, 08 Mar 1999 16:03:29 -0500 From: "Peter D. Junger" Andrew Tettenborn writes: : An interesting point for contribution fanatics. My chattel is converted by : A and then subsequently by B. If I recover against A, can A claim : contribution against B once he has paid up? Rix J suggests that the answer : is Yes in the recent cheque litigation to hit the headlines, Middle Temple : v Lloyds Bank (unrep as far as I know, 21.1.99). : : MT's cheque made out to its insurers, Sun Alliance, is stolen. It arrives : in the hands of S in Turkey. S persuades a Constantinople bank, to whom he : is otherwise unknown, to collect it for him. The bank gets Lloyds to : collect payment in London. The cheque is credited to S's newly opened : account in Constantinople, the money disappears and S drops out of the : picture while enjoying the hospitality of the Turkish police. Both banks : are liable in conversion, neither being able to show it wasn't at fault : under the Cheques Act 1957, s.4. Having decided on the facts that the : Turkish bank promised to indemnify Lloyds so as to give Lloyds a right to : be held harmless, Rix J says that had this not been the case he would have : ordered contribution under the 1978 Act, splitting responsibility 75-25 in : Lloyds' favour. I don't think that this would make much sense in the traditional case where it a tangible that is converted. If A converts O's horse and then B converts the horse from A, if O recovers from B, the result is a forced sale from O to A, so A has a conversion action in his own right, not as a matter of contribution from B. Of course, on the facts given bot A and B ``convert'' the proceeds of the check from O, B subsequent to A. I am not sure how that could happen in a traditional common law conversion action involving chattels. But perhaps the case where A is an auctioneer who sell O's horse for B and B pockets the proceeds would raise somewhat similar problems. As I understand it, both A and B would be converters, as would be C, who brought the horse. But this still seems far removed from the case of the conversion of a check. Of course, being in the U.S., I know nothing about the Cheques Act. -- 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 Tue Mar 09 12:47:49 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 10KLvJ-0003I7-00 for restitution@maillist.ox.ac.uk; Tue, 9 Mar 1999 12:47:49 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10KLtZ-0004KE-00 for restitution@maillist.ox.ac.uk; Tue, 9 Mar 1999 12:46:01 +0000 Received: from br.law.ox.ac.uk ([163.1.105.201]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10KLtY-0006ar-00 for restitution@maillist.ox.ac.uk; Tue, 9 Mar 1999 12:46:01 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 9 Mar 1999 12:34:14 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: stolen check approved:eregion Date: Mon, 08 Mar 1999 15:32:59 -0500 From: "Alan Axelrod" To: restitution@maillist.ox.ac.uk Subject: stolen check in the check case, altho each successive collecting bank was a converter as to O and the owner could choose which to sue, between themselves the banks are in a contract--as i recall the statement of the case, there had been some sort of express warranty from early bank to later bank ? in US law : the early bank upon a transfer for value, impliedly warrants to the later that all endorsements are genuine whatever may be the principle which leads to contribution among tort-feasor s, the function of the warranty implication is to impose the loss finally on the person who takes from the forger so if owner goes against first bank, the situation is in repose, while if owner goes against second bank, that bank can recover back against first bank >From Aerowalker@bigfoot.com Fri Mar 12 01:39:26 1999 Received: from ppp1654.killeen.n-link.com ([208.24.238.130] helo=sonicserver1) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 10LGuo-0006AT-00 for restitution@maillist.ox.ac.uk; Fri, 12 Mar 1999 01:39:11 +0000 To: From: Subject: Step By Step How To Make $100,000 In 90 Days!!! 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Be prompt, professional, and follow the directions accurately. * Send for the four chapters IMMEDIATELY so you will have them when the orders start coming in because: When you receive a $10 order, you MUST send out the requested product to comply with the U.S. Postal & Lottery Laws, Title 18,Sections 1302 and 1341 or Title 18, Section 3005 in the U.S. Code, also Code of Federal Regs. vol. 16, Sections 255 and 436, which state that "a product or service must be exchanged for money received." * ALWAYS PROVIDE SAME-DAY SERVICE ON THE ORDERS YOU RECEIVE. * Be PATIENT and PERSISTENT with this program. If you follow the instructions exactly, your results WILL be SUCCESSFUL! * ABOVE ALL, HAVE FAITH IN YOURSELF AND KNOW YOU WILL SUCCEED! ******* YOUR SUCCESS GUIDELINES ******* Follow these guidelines to guarantee your success: If you don't receive 10 to 20 orders for chapter #1 within two weeks,continue advertising until you do. Then, a couple of weeks later you should receive at least 100 orders for chapter #2. If you don't,continue advertising until you do. Once you have received 100 or more orders for chapter #2, YOU CAN RELAX, because the system is already working for you, and the cash will continue to roll in! THIS IS IMPORTANT TO REMEMBER: Every time your name is moved down on the list, you are placed in front of a DIFFERENT chapter. You can KEEP TRACK of your PROGRESS by watching which chapter people are ordering from you. If you want to generate more income, send another batch of e-mails and start the whole process again! There is no limit to the income you will generate from this business! ******* T E S T I M O N I A L S ******* My name is Scott Hampton and I live in Portland, Oregon. I am an air line pilot and make very good money doing what I do. Unfortunately I have built up a HUGE debt load from poor business transactions over the past 5 years. I was living paycheck to paycheck even though I make over $60,000 per year as a pilot. I received this email approximately 6 months ago and decided to try it. I promptly ordered the useful book "CREDIT SECRETS REVEALED" and began marketing it aggressively. I was surprised when I found my post office box filled with over 300 orders in less than 30 days. Over the course of the next 3 months I have personally made $113,540! I have been able to pay off my debts quickly and have taken a much needed vacation. The money continues to roll in and I am preparing to do another mailing in about 30 days. All I can say is that I was skeptical but now I am a believer! Scott Hampton, Portland, Oregon I received this email about 1 year ago and immediately tossed it outstating to my wife that I was going to track down the person who sent it to me and give them a piece of my mind. I forgot about it and about 7 months later received it again. However this time I was in very high debt because my son was just accepted to a prestigious school and the tuition was astronomical. I viewed this opportunity differently and decided to try it. I figured I could certainly afford the $40 and had little to lose. Well, I am pleased to say that my son now has a "free" education as a result of this incredible program. I have never seen anything like it in my life. Routinely my PO box has 50-100 letters in it at a time. You MUST try it to believe it. It is like opening a present every day! Walter Hickman Denver, Colorado My wife and I have been married for 3 years now and we just had our second child Heather. We have been living in a 700 square foot apartment with very basic living necessities. We are both working and making ends meet is nearly impossible. My school bills were nearly $30,000 and the monthly payment was making it hard to find money to buy food. In addition to that, I was spending my 12 hour workdays away from my family, putting a strain on them. Late one evening about 10 months ago I received this email. I felt things could not get much worse and decided to at least give it a try. I mailed for the book and began marketing as the instructions indicated. Well, the rest is history. We are now purchasing a new home with 30% down and I am happy to say that my school bill will be paid off in 3 months. I owe it all to this incredible online MLM program! Jeremy Bass, Providence, Rhode Island Believe me, your efforts will certainly be rewarded with this easy,automatic money making wonder! I started about 2 months ago and now have enough money to purchase a new Mercedes convertible. I never thought I'd ever have enough money to purchase the car of my dreams but now I do. This program has made me believe in MLM again! Larry Lancaster, Dallas, Texas All my life I have wanted to retire early. Well, here I was, nearly 65 years old with not a cent in my savings account. I had never been able to save money because of high medical bills that I have had since my bypass surgery. I am in debt over $74,000 and must keep working the rest of my life. My stressful corporate life lead to my heart problems and now I am stuck with paying my health bills. Needless to say, I jumped at the chance when I read this email. I mailed out the 4 $10 bills right away and started advertising when I received the complete book. I guess all I can say is that Inever dreamed I'd be in a position like I am now. I have paid off my medical bills and have put over $30,000 into savings. I plan to advertise this program about every 4 months and build up my savings account to over $500,000 so I can retire in about 3 years or less. Believe me, without this amazing MLM program I'd never be in such an enviable position! Frank Statton, Los Angeles, California My name is Mary and I have lived alone since my husband Allen passed away 3 years ago. I have 4 young children and was constantly depending on Welfare and our church family to help get us through our financial crisis. There was always more month at the end of the money and it seems like there was absolutely no way out of this disaster. Even though all our friends have been wonderful to us I finally decided to do something about it. I received this email on the computer I share with my friend. She looked at it and told me it would never work. I decided to at least see how it would work if I tried it. That was about 5 months ago and my life will never be the same again. After one month I was able to purchase a much needed Dodge Caravan for getting the kids around in. I figured that was the end of the money but then the money volume went up by around 4 times! I could not believe it! We now are totally self sufficient and are purchasing a moderate sized home so we can stretch out some. The product itself was very helpful and showed me how to improve my financial well-being considerably. You have to try it to see that it works! Go for it today! Mary Romero, Washington, DC ORDER THE BOOK "CREDIT SECRETS REVEALED" TODAY AND GET STARTED ON YOUR ROAD TO FINANCIAL FREEDOM! WITHOUT ACTION YOUR FUTURE CANNOT CHANGE! TAKE CONTROL OF YOUR FINANCIAL FUTURE NOW!! >From djm@liverpool.ac.uk Fri Mar 12 16:40:31 1999 Received: from mailhub1.liv.ac.uk ([138.253.100.94]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10LUz8-00011G-00 for restitution@maillist.ox.ac.uk; Fri, 12 Mar 1999 16:40:30 +0000 Received: from pcmail2.liv.ac.uk ([138.253.252.15]) by mailhub1.liv.ac.uk with esmtp (Exim 1.92 #1) for restitution@maillist.ox.ac.uk id 10LUxM-0000vP-00; Fri, 12 Mar 1999 16:38:40 +0000 Received: from [138.253.70.26] (helo=pc070026.law.liv.ac.uk) by pcmail2.liv.ac.uk with smtp (Exim 1.92 #1) for restitution@maillist.ox.ac.uk id 10LUxL-0007BZ-00; Fri, 12 Mar 1999 16:38:39 +0000 From: Debra Morris To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Scottish Report In-Reply-To: Message-ID: Date: Fri, 12 Mar 1999 16:38:38 +0000 (GMT) Priority: NORMAL X-Mailer: Simeon for Windows Version 4.1.3 Build (39) X-Authentication: IMSP MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII this may be of interest to list members: Title: Report on Unjustified Enrichment, Error of Law and Public Authority Receipts and Disbursements. Author(s): House of Commons; Scottish Law Commission. Abstract: In this Report the Commission makes recommendations on certain topics connected with the recent judicial abrogation of the rule precluding recovery of benefits conferred under error of law, and with the recovery of ultra vires public authority receipts and disbursements. They also give the results of consultation on the question whether the Commission should undertake a wider review of the law on unjustified enrichment. Series: House of Commons Papers, 1998-99 Place in Series: HC 210 Other info: Scot Law Com No 169 Publisher: The Stationery Office Obtainable from: Dandy Booksellers http://www.soton.ac.uk/~bopadmin/ Date Published: February 1999 Number of pages: 72 ISBN: 0 10 292599 2 Price: 13.40 Keywords: FINANCE - COUNCIL TAX; LAW - LAW COMMISSION; LAW - SCOTTISH LAW COMMISSION; MONEY - TAXES; SOCIAL SECURITY; SOCIAL SECURITY - BENEFITS ---------------------------- ---------------------- Debra Morris Charity Law Unit, University of Liverpool tel. - 0151 794 2825 fax - 0151 794 2829 djm@liverpool.ac.uk >From swh10@cus.cam.ac.uk Mon Mar 15 01:15:39 1999 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 10MLyl-0006gQ-00 for restitution@maillist.ox.ac.uk; Mon, 15 Mar 1999 01:15:39 +0000 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 2.12 #3) id 10MLwx-00020d-00 for restitution@maillist.ox.ac.uk; Mon, 15 Mar 1999 01:13:47 +0000 Message-Id: <3.0.1.32.19990315011238.007ed530@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, 15 Mar 1999 01:12:38 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: RDG : Mistake : Nurdin v. Ramsden Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Full text of Nurdin v. Ramsden is now on the website : go to http://www.law.cam.ac.uk/restitution/restitution.htm and follow Cases; England and Wales; Nurdin. For myself, I cannot see that the case contributes much to the debate on what sorts of mistakes will ground a restitutionary remedy. The payments were plainly meant to discharge a liability for rent, and so, as the rent was not in fact owing, recovery is unsurprising under the "failure of basis" theory. The "mistake" theory runs into rather more difficulties - including an unusually pure example of the "Cretan Liar" paradox for one of the payments - but is saved by Neuberger J on the strength of an implied contract. And we're all in favour of implied contracts, especially when they satisfy the needs of justice, aren't we ? Of course we are. For that matter, Neuberger J makes it perfectly clear that he would have decided the case the same way even if Kleinwort Benson had never happened; insofar as there were any "mistakes" in the case, they were mistakes of fact.. Therefore, while plainly the basis of recovery in "mistake" cases, post Kleinwort Benson, will have to be resolved sooner or later, Nurdin hardly touches on it. 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 shop235@usa.net Tue Mar 16 09:23:35 1999 Received: from ns.siun.co.jp ([210.225.60.34]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 10Mq4U-0003j4-00; Tue, 16 Mar 1999 09:23:35 +0000 Received: from default by ns.siun.co.jp (2.5 Build 2640 (Berkeley 8.8.6)/8.8.4) with SMTP id SAA00034; Tue, 16 Mar 1999 18:16:56 +0900 Date: Tue, 16 Mar 1999 18:16:56 +0900 Message-Id: <199903160916.SAA00034@ns.siun.co.jp> From: Ten Million To: Ten Million Subject: 10 Million Customers Per Month Guaranteed Excited about E-commerce, but not getting enough traffic to your web-site? Come join the crowd at our paradigm smashing Internet Mall where we’re attracting as many as 10 million visitors a month who could be looking into your store windows and spending dollars for your products and services. Our webmaster will duplicate your website for placement in our mall --- , if you’re willing to pay us a modest sales commission on all items our customers purchase at your location in our mall --- then, we’re practically partners already. We provide the shopping basket and credit card and internet check processing. When our customer buys your product, we send you the money and you ship the product. It’s that easy. If you’d like to work together on this project, call now: 1-888-842-6604. We’ll be pleased to serve you. On April 1, 1999 we will be exposing your product or service to 10 million monthly customers. At that time we will be sending a contract to confirm our agreement. If you would like to get involved call 1-888-842-6604. We will automatically, use the voicemail as confirmation to your acceptance to our joint venture, so please make sure you agree to & state very clearly, : to 1. give minimum of 10 % discount offered to our 10 million monthly customers. 2. Give us the amount of the normal sales commission paid to us per sale. 3. submit your web address 4. leave your phone number, & e-mail address. ****************** Remove Requests ******************* `\|||/ Wishing you the Best! (@@) ooO_(_)_Ooo________________________________ _____|_____|_____|_____|_____|_____|_____|_____| ___|____|_____|_____|_____|_____|_____|_____|____ _____|_____Please pardon the intrusion_|____|_____ To be removed just Reply with the Subject: "REMOVE" and you will be permanently removed from any future mailings. >From lionel.smith@law.oxford.ac.uk Thu Mar 25 14:32:12 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 10QBB6-0006E8-00 for restitution@maillist.ox.ac.uk; Thu, 25 Mar 1999 14:32:12 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 10QB9B-0005iI-00; Thu, 25 Mar 1999 14:30:13 +0000 Received: from [163.1.157.172] (helo=[163.1.157.172]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 10QB9A-0008J9-00; Thu, 25 Mar 1999 14:30:13 +0000 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 25 Mar 1999 14:28:56 +0000 To: restitution@maillist.ox.ac.uk, michael.spence@law.ox.ac.uk From: Lionel Smith >From the High Court of Australia, a new case on promise-keeping constructive trusts and estoppel: Giumelli v. Giumelli, at http://www.austlii.edu.au/au/cases/cth/high_ct/1999/10.html Thanks to Andrew Little. Lionel >From johnm@ecn.net.au Fri Mar 26 00:01:24 1999 Received: from warp.ecn.net.au ([203.22.70.2] ident=qmailr) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 10QK3v-0008QT-00 for restitution@maillist.ox.ac.uk; Fri, 26 Mar 1999 00:01:23 +0000 Received: (qmail 515 invoked from network); 25 Mar 1999 23:46:20 -0000 Received: from unknown (HELO john) (203.22.70.37) by warp.ecn.net.au with SMTP; 25 Mar 1999 23:46:20 -0000 Reply-To: From: "John Murphy" To: "'Restitution Discussion Group'" Subject: Stranger's liability to compensate fiduciary's beneficiary Date: Fri, 26 Mar 1999 10:00:17 +1000 Message-ID: <000301be771b$a3df5f20$536407c0@john> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 I wonder if anyone can help with this problem. F, a fiduciary in respect of B (they are joint venturers, if not partners), his beneficiary concocts a scheme to seize property which is under the immediate control of F but within the scope of F's duty to B. F has urgent need of cash. The property is not cash. So what F does is organise the sale of the property for cash to T, a third party financier, who then leases the property back to the joint venture in circumstances which are immaterial to the point of this query but which indicate that T was a knowing accessory to F's breach - F pocketed the cash. B suffered a direct loss from that and substantial 'consequential' losses. I assume for the purposes of this question that T was, in fact, a knowing accessory for the purposes of the 'second limb' of Barnes v Addy. In general terms, a knowing accessory will be amenable to orders that he should disgorge any profit or benefit obtained from the breach. Apart from the profit T will make from the lease, which is on commercial terms, T received no benefit from the breach. Apparently, T entered the deal because he was asked to do so by A who was a mutual friend of T and F. My difficulty is in finding authority for the proposition that T is liable to compensate B in equity for the whole of the losses B suffered in circumstances where T received no benefit. A collateral question is whether T's buying and leasing back of the property was a participation in a "fraudulent design" (the 'preamble' to the two limbs of accessory liability in Barnes v Addy, or a dealing sufficient to make T a receiver chargeable with the property (the first limb). Thanks John Murphy 160 Hellawell Road Sunnybank Hills Qld 4109 Australia +61 7 3273-7193