-- >From lionel.smith@law.oxford.ac.uk Fri Nov 05 13:54:35 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 2.12 #1) id 11jjp5-0005nv-00 for restitution@maillist.ox.ac.uk; Fri, 5 Nov 1999 13:54:35 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11jjnp-0006M8-00 for restitution@maillist.ox.ac.uk; Fri, 5 Nov 1999 13:53:17 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11jjmZ-0007e7-00 for restitution@maillist.ox.ac.uk; Fri, 5 Nov 1999 13:51:59 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Fri, 5 Nov 1999 13:51:15 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: LQR Content-Type: text/plain; charset="us-ascii" ; format="flowed" In the new LQR, Oct 99: R Williams, note on Dimond v Lovell and Hardwick v Hudson (cases on recovery by a plaintiff in respect of services provided by a 3d party) S Meier and R Zimmermann, note on KB v Lincoln, observing the potential for a move towards a model of restitution for payments which were not due P Birks, review of DM Wright, The Remedial Constructive Trust R Nolan, review of F Rose ed, Restitution and Banking Law Also lots of other good lawyers' law ... And for those who have not yet heard, McLachlin J has been appointed the new Chief Justice of Canada (story at ). L >From lionel.smith@law.oxford.ac.uk Fri Nov 19 12:40:56 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 2.12 #1) id 11onLU-0004Ad-00 for restitution@maillist.ox.ac.uk; Fri, 19 Nov 1999 12:40:56 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11onK8-0001YW-00 for restitution@maillist.ox.ac.uk; Fri, 19 Nov 1999 12:39:32 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11onK7-0001ZC-00 for restitution@maillist.ox.ac.uk; Fri, 19 Nov 1999 12:39:31 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Fri, 19 Nov 1999 12:38:27 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Review essay Content-Type: text/plain; charset="us-ascii" ; format="flowed" There is a review essay of Hanoch Dagan's book, "Unjust Enrichment: A Study of Private Law and Public Values": M. Heller and C. Serkin, "Revaluing Restitution: From the Talmud to Postsocialism" (1999) 97 Michigan Law Review 1385. Anyone interested in restitution of property in the former communist countries of central and eastern Europe will find some discussion of these issues and references to all the recent literature. Lionel >From lionel.smith@law.oxford.ac.uk Mon Nov 22 09:32:12 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 2.12 #1) id 11pppU-0004Zr-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 09:32:12 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11ppo5-0007Gq-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 09:30:45 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11ppo5-0006lY-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 09:30:45 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 22 Nov 1999 09:29:44 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "ben mcfarlane" Subject: Archer's woes I am somewhat concerned that the RDG monopoly on e-restitution is under threat. Michael Zander of the LSE is currently alerting those alighting on the BBC news website that Jeffrey Archer (the novelist formerly known as a mayoral candidate) might have to pay back the damages he received in his libel action against the Daily Star "under a concept known as unjust enrichment". Loath as I am to see Jeff's problems increased, can unjust enrichment really add to his woes in this way ? (For those of you unlucky enough not to take the News of the World, the problem is caused by the fact that one of Jeff's friends has now alleged that Jeff asked him to lie under oath at the libel trial.In the event, this friend was not called as a witness). Ben McFarlane >From charles.mitchell@kcl.ac.uk Mon Nov 22 10:21:39 1999 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pqbL-0004uo-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 10:21:39 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id KAA12691 for ; Mon, 22 Nov 1999 10:20:12 GMT Message-Id: <3.0.6.32.19991122101845.00794710@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Mon, 22 Nov 1999 10:18:45 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable It's unclear to me from the newspaper reports I have read exactly how Lord Archer's conspiracy with his friend to lie about their imaginary dinner date is alleged to have affected the outcome of his libel action against the Daily Star. As I understand the story, the friend never actually lied in court about this, as evidence relating to the night in question was not pursued in argument. However, if the paper were able to establish that the outcome of Lord Archer's libel action was materially affected by his and his friend's perjury, then I think that Michael Zander is right, and the paper should have a claim in unjust enrichment to recover its money on the ground that it was paid pursuant to Lord Archer's improper use of legal process. For cases along these lines, see eg our dear old friend Moses v Macferlan; Duke of Cadaval v Collins (1836) 4 A & E 858; and cases cited in G & J Chap 16. Alternatively, the paper might argue that the libel damages awarded represented the profits of the wrong of conspiracy committed by Lord Archer and his friend, and seek an order for disgorgement. If this worked, then the friend would be jointly and severally liable too, and the =A312,000 he got from the News of the World for his story would look rather small alongside the =A3500,000 he might potentially have to pay the Daily Star. Since all this money went to Lord Archer, I would expect he would be first in line to pay, on the principle, qui sentit commodum sentire debet et onus. However, if Lord Archer were to declare himself bankrupt (it's been known to happen), then the friend might find himself in difficulties. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 e-mail: charles.mitchell@kcl.ac.uk >From swh10@cus.cam.ac.uk Mon Nov 22 13:25:00 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11ptSm-0006Tw-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 13:25:00 +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 3.093 #1) id 11ptRM-0004V7-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 13:23:32 +0000 Message-Id: <3.0.1.32.19991122132347.007d6780@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 Nov 1999 13:23:47 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Archer's woes In-Reply-To: <3.0.6.32.19991122101845.00794710@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" The interview is at : http://news.bbc.co.uk/hi/english/uk_politics/newsid_530000/530828.stm What is actually said on unjust enrichment as follows (Zander is being interviewed) "Q: As far as the Daily Star's lost libel case is concerned, this is relevant now not necessarily because it re-opens the matter of Jeffrey Archer and the prostitute, but it goes to the heart of his integrity and believability in a case like this doesn't it? A: That's right. They wouldn't have to prove he was with the prostitute, they would only have to establish that if the story had been known at the time then the jury's decision might have been different. And therefore, we can no longer rely on the jury's verdict, therefore "please can we have our money back?". Whether Jeffrey Archer would be minded to defend that, I have no idea. It would be an interesting one to watch. Q: By what mechanism do you re-open a libel case? A: It would be an action to recover - under a concept which is known as unjust enrichment. It would be an action for damages. " This is such a strange thing to say that we must wonder whether Zander is being misreported. Substantive grounds of recovery really have nothing to do with it. The question is procedural : can the earlier judgment be re-opened, on the ground that there is now some very good evidence that the plaintiff is a liar ? I don't know the answer to that. But either way, it is a procedural question. If it can be, then obviously the money is recoverable, and we hardly need to invoke "unjust enrichment" to explain it. If it cannot be, then I can't see any court allowing a collateral challenge to that refusal, in restitution or anyhow. The interesting question is rather one of tort. If the judgment is set aside, obviously the amount of the damages must be returned, but what of additional losses (eg legal fees thrown away) ? 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 scullymatthew@hotmail.com Mon Nov 22 14:08:44 1999 Received: from law-f282.hotmail.com ([209.185.130.221] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11pu95-0006rJ-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 14:08:44 +0000 Received: (qmail 8684 invoked by uid 0); 22 Nov 1999 14:06:45 -0000 Message-ID: <19991122140645.8683.qmail@hotmail.com> Received: from 194.81.212.29 by www.hotmail.com with HTTP; Mon, 22 Nov 1999 06:06:45 PST X-Originating-IP: [194.81.212.29] From: "Matthew Scully" To: restitution@maillist.ox.ac.uk Subject: Lord Archer Date: Mon, 22 Nov 1999 14:06:45 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Surely the basis of the case against Lord Archer would be failure of basis. The compensation was paid on foot of a judgment which it is now alleged was wrongfully obtained. If this judgment were to be set aside, then money paid under it would be recoverable for failure of consideration. Matthew Scully Oxford Institute of Legal Practice ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From ben_mcfarlane@hotmail.com Mon Nov 22 14:32:43 1999 Received: from law-f144.hotmail.com ([209.185.131.207] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11puWJ-00071K-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 14:32:43 +0000 Received: (qmail 47653 invoked by uid 0); 22 Nov 1999 14:30:45 -0000 Message-ID: <19991122143045.47652.qmail@hotmail.com> Received: from 163.1.103.102 by www.hotmail.com with HTTP; Mon, 22 Nov 1999 06:30:44 PST X-Originating-IP: [163.1.103.102] From: "ben mcfarlane" To: swh10@cus.cam.ac.uk, restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer's woes Date: Mon, 22 Nov 1999 06:30:44 PST Mime-Version: 1.0 Content-Type: text/plain; format=flowed I agree that the question is largely procedural, but it still might be important to know the exact ground under which the money is recoverable if the judgment can be re-opened. I agree too that it seems obvious that the money should be repaid if the judgment can be re-opened, but if it's under "unjust enrichment", presumably Lord Archer is prima facie entitled to a change of position defence. It would be interesting to see if, due to the special facts of this case, his subsequent change of positon might not be "bona fide". However, the more important point is one of categorising the Daily Star's cause of action: if it's restitutionary damages for a wrong, and thus not "autonomous" unjust enrichment or if it's because "it's obvious" why should change of position apply ? More generally, which of these so-called "policy-motivated" (whatever that means) unjust enrichment claims should change of position apply to: might the principle of upholding legality (see e.g. Woolwich) mean change of position should not apply? If so, and if change of position is about valuing enrichments, are these "policy-motivated" cases about enrichment at all? Perhaps, like one of Lord Archer's esteemed novels, a superficially simple plot hides greater complexities and intrigue ? Or perhaps not. Ben McFarlane ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From jonathon.moore@law.oxford.ac.uk Mon Nov 22 14:43:00 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 2.12 #1) id 11pugG-00076y-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 14:43:00 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11puer-0000QP-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 14:41:33 +0000 Received: from dhcp24.bodley-open.ox.ac.uk ([163.1.105.194] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11puer-0004Ok-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 14:41:33 +0000 Message-ID: <001201bf34f7$9f10ad60$c26901a3@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: References: <3.0.1.32.19991122132347.007d6780@pop.cus.cam.ac.uk> Subject: Re: Archer's woes Date: Mon, 22 Nov 1999 14:41:11 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Zander says that The Daily Star's claim would lie in unjust enrichment. Hedley says "This is such a strange thing to say that we must wonder whether Zander is being misreported." Zander's remarks are not strange at all. Hedley is right of course to say (a) that the judgment would first have to be set aside, (b) collateral attack would not be permitted and (c) additional losses are only claimable in tort. But as for the right to recover damages and costs paid, Hedley is wrong to dismiss unjust enrichment as the cause of action. If the judgment is set aside, what are the parties rights then? The answer is that The Daily Star has a claim in unjust enrichment - the specific unjust factor probably being that payment was made under what has turned out to be illegitimate pressure. See Charles Mitchell's input for the authorities. It is not much help saying that if the judgment is set aside "then obviously the money is recoverable". The question is WHY is it recoverable? >From jonathon.moore@law.oxford.ac.uk Mon Nov 22 15:40:49 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 2.12 #1) id 11pvaD-0007aO-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 15:40:49 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pvYp-0007NY-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 15:39:23 +0000 Received: from dhcp24.bodley-open.ox.ac.uk ([163.1.105.194] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pvYo-0004gI-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 15:39:22 +0000 Message-ID: <000801bf34ff$b2e7be20$c26901a3@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: References: <19991122143045.47652.qmail@hotmail.com> Subject: Re: RDG: Archer's woes Date: Mon, 22 Nov 1999 15:39:00 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Ben McFarlane said: 'might the principle of upholding legality (see e.g. Woolwich) mean change of position should not apply? If so, and if change of position is about valuing enrichments, are these "policy-motivated" cases about enrichment at all? ' If I have understood him correctly, the suggestion is that if we discover that change of position is not available for a claim like Woolwich, then the unavailability of change of position throws into doubt the correctness of categorising the claim in Woolwich as lying in unjust enrichment. I don't think that follows. Change of position is only available to answer claims for restitution of unjust enrichment. Lord Goff told us in Lipkin that the defence may not be available for all claims for restitution of unjust enrichment. If it were to turn out that change of position is not available in a Woolwich case, that does not itself mean that Woolwich has nothing to do with unjust enrichment. At best, we could only say that the unavailability of the defence is neutral as to the correct classification of the claim. We are still left with the question - on what principle is that claim based? It is perfectly rationale for the law to say that the claim arises in order to prevent unjust enrichment, but that for this particular claim the defence is not available. Similarly, change of position may not be available because the defendant acted dishonestly. The fact that defendant is liable to restore the wealth transferred to him by the plaintiff even though, at the time of action, the defendant is no longer enriched does not at all mean that the claim is not about enrichment. Jonathon Moore Christ Church College Oxford >From charles.mitchell@kcl.ac.uk Mon Nov 22 15:47:32 1999 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pvgi-0007cd-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 15:47:32 +0000 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id PAA16383 for ; Mon, 22 Nov 1999 15:46:04 GMT Message-Id: <3.0.6.32.19991122154436.0079ed20@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Mon, 22 Nov 1999 15:44:36 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Not a Penny More, Not a Penny Less Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Steve Hedley writes >The question is procedural : can the earlier >judgment be re-opened, on the ground that there is now >some very good evidence that the plaintiff is a liar ? >I don't know the answer to that. But either way, it is a >procedural question. If it can be, then obviously the=20 >money is recoverable, and we hardly need to invoke >"unjust enrichment" to explain it.=20 I think there is an analogy to be drawn here with Woolwich-type cases. To recover money from a public authority which you paid although it was not due, you must first ask the court to declare that the money was not due, and then ask the court to declare that you are therefore entitled to repayment. It may be 'obvious' that once the court has made the first declaration it ought to make the second declaration too, subject to defences, but that doesn't detract from the fact that you have to ask for both declarations if you want to be sure of getting your money back. For until the second declaration is made, positively affirming the defendant's duty to repay the money, it is not legally obliged to do so, however morally undesirable it may be for the defendant to keep it. This point was recently made by Pill LJ in R v Barnet Magistrates' Court, ex p Cantor [1998] 2 All ER 333, at 345, where he said: =91Neither the justices' clerk nor the Crown Prosecution Service have shown any appetite for retaining money paid pursuant to an unlawful order but the =A330,000 is at present to be regarded as public money and the justices, understandably would, before releasing the money, require a plain statement from the Court that it is lawful to do so.' By the same token, I should have thought that to recover the Archer libel damages the paper would have to ask the court to say both (i) that the previous court order directing the paper to pay the damages should be overturned - and as Steve says, procedural rules would no doubt affect the question whether it would succeed in doing this; so far as I understand the facts, I would have thought that to succeed on this point the paper had uphill work ahead of it - and (ii) that the money should therefore be returned because it would be unjust in the light of the first declaration to allow Lord Archer to hang onto it. My own view of the unjust factor at work in this sort of case is that the retention of payments made pursuant to an improper application of legal process should be deemed unjust as a matter of public policy, the policy in question being the preservation of the integrity of the rule of law. In principle I would not have thought that a defendant in this type of case should automatically be classed as a 'wrongdoer' and so refused the change of position defence, since I can imagine cases in which D might have acted in good faith in unleashing the terrors of the law against P, eg because he bona fide thought he was entitled to do so. Where D has acted in bad faith, however, that in itself ought to be enough to deny him access to the defence, following Lipkin Gorman. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 e-mail: charles.mitchell@kcl.ac.uk >From lionel.smith@law.oxford.ac.uk Mon Nov 22 16:08:26 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 2.12 #1) id 11pw0w-0007lw-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:08:26 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pvzX-0000Zh-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:06:59 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pvzX-0001Qt-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:06:59 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 22 Nov 1999 16:05:58 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "Jonathon Moore" Subject: Re: Archer's woes Zander says that The Daily Star's claim would lie in unjust enrichment. Hedley says "This is such a strange thing to say that we must wonder whether Zander is being misreported." Zander's remarks are not strange at all. Hedley is right of course to say (a) that the judgment would first have to be set aside, (b) collateral attack would not be permitted and (c) additional losses are only claimable in tort. But as for the right to recover damages and costs paid, Hedley is wrong to dismiss unjust enrichment as the cause of action. If the judgment is set aside, what are the parties rights then? The answer is that The Daily Star has a claim in unjust enrichment - the specific unjust factor probably being that payment was made under what has turned out to be illegitimate pressure. See Charles Mitchell's input for the authorities. It is not much help saying that if the judgment is set aside "then obviously the money is recoverable". The question is WHY is it recoverable? >From lionel.smith@law.oxford.ac.uk Mon Nov 22 16:14:27 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 2.12 #1) id 11pw6l-0007ot-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:14:27 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pw5N-0006C9-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:13:01 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pw5N-00042z-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:13:01 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Mon, 22 Nov 1999 16:12:00 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "Jonathon Moore" Subject: Re: RDG: Archer's woes Ben McFarlane said: 'might the principle of upholding legality (see e.g. Woolwich) mean change of position should not apply? If so, and if change of position is about valuing enrichments, are these "policy-motivated" cases about enrichment at all? ' If I have understood him correctly, the suggestion is that if we discover that change of position is not available for a claim like Woolwich, then the unavailability of change of position throws into doubt the correctness of categorising the claim in Woolwich as lying in unjust enrichment. I don't think that follows. Change of position is only available to answer claims for restitution of unjust enrichment. Lord Goff told us in Lipkin that the defence may not be available for all claims for restitution of unjust enrichment. If it were to turn out that change of position is not available in a Woolwich case, that does not itself mean that Woolwich has nothing to do with unjust enrichment. At best, we could only say that the unavailability of the defence is neutral as to the correct classification of the claim. We are still left with the question - on what principle is that claim based? It is perfectly rationale for the law to say that the claim arises in order to prevent unjust enrichment, but that for this particular claim the defence is not available. Similarly, change of position may not be available because the defendant acted dishonestly. The fact that defendant is liable to restore the wealth transferred to him by the plaintiff even though, at the time of action, the defendant is no longer enriched does not at all mean that the claim is not about enrichment. Jonathon Moore Christ Church College Oxford >From swh10@cus.cam.ac.uk Mon Nov 22 16:53:38 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pwig-00084b-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:53:38 +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 3.093 #1) id 11pwhG-0002xG-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 16:52:10 +0000 Message-Id: <3.0.1.32.19991122165216.007d1b10@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 Nov 1999 16:52:16 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Re: Archer's woes In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 16:08 22/11/99 +0000, "Jonathon Moore" wrote: >Zander's remarks are not strange at all. > It was his simultaneous claim that it was an action for damages *and* an action for unjust enrichment that I found odd. Especially as it was in answer to the question about the mechanism for re-opening a libel claim. That is precisely the sort of thing that a reporter in a hurry might scribble down, but a lawyer is very unlikely to have said. How many of the people on this list would answer the question "How do you re-open a mistaken judgment ?" with "You would make a claim in unjust enrichment" ? And in the unlikely event that you had said that, would you really follow it with "This is an action for damages" ?. >If the judgment is set >aside, what are the parties rights then? The answer is that The Daily Star >has a claim in unjust enrichment - the specific unjust factor probably being >that payment was made under what has turned out to be illegitimate pressure. I am surprised to hear that the enforcement machinery becomes "illegitimate" simply because the judgment it enforces should never have been made. I would have said that court enforcement machinery is the classic example of *lawful* pressure. >See Charles Mitchell's input for the authorities. Charles has mentioned three cases, none of which makes any mention of "unjust enrichment". I am not sure what your point is. >It is not much help >saying that if the judgment is set aside "then obviously the money is >recoverable". The question is WHY is it recoverable? > I find it somewhat surprising that you can understand what it means to say that a judgment is overturned, and yet feel the need for some explanation of why the money is being returned. "The question is WHY is it recoverable" answers itself. As an analogy, consider someone who says "I understand that this man's criminal conviction has been quashed, but why are they letting him out of jail ?" Wouldn't that be a strange thing to say ? As for Charles' latest point, that the party who has to return the money may : "require a plain statement from the Court that it is lawful to do so" the answer is that the court is merely recognising a pre-existing obligation. It is a common thing in litigation for someone to say "I know I am liable, but I need to be able to prove to others that that is the reason I paid". But I am surprised to hear that the court is *creating* the liablity when it gives the requested confirmation. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== >From charles.mitchell@kcl.ac.uk Mon Nov 22 17:18:08 1999 Received: from angelo.kcl.ac.uk ([137.73.66.5]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11px6O-0008E9-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:18:08 +0000 Received: from pc102.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by angelo.kcl.ac.uk with SMTP id RAA18070 for ; Mon, 22 Nov 1999 17:16:41 GMT Message-Id: <3.0.6.32.19991122171655.0079d100@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Mon, 22 Nov 1999 17:16:55 +0000 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Is it meaningful to speak of a party having a right without a correlative remedy? Steve appears to think so, when he writes that he is 'surprised' to hear that 'the court is *creating* the liability when it gives the requested confirmation' that the recipient of a payment which is not due must repay it. Why did the Law Commission recommend that the courts be given the power to make restitutionary orders in the context of RSC Ord 53 proceedings? Because it thought that the plaintiff in a judicial review action who succeeded in having a public demand declared ultra vires would otherwise have no right in those proceedings to recover money paid pursuant to such a demand. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 e-mail: charles.mitchell@kcl.ac.uk >From jonathon.moore@christ-church.oxford.ac.uk Mon Nov 22 17:35:06 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 2.12 #1) id 11pxMo-0008Lo-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:35:06 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pxLQ-0003aN-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:33:40 +0000 Received: from dhcp24.bodley-open.ox.ac.uk ([163.1.105.194] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pxLP-0004ow-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:33:39 +0000 Message-ID: <001e01bf350f$aae9e4e0$c26901a3@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: References: <3.0.1.32.19991122165216.007d1b10@pop.cus.cam.ac.uk> Subject: Re: RDG: Re: Archer's woes Date: Mon, 22 Nov 1999 17:33:18 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Steve Hedley writes: ' "The question is WHY is it recoverable" answers itself.' We seem to be having trouble moving away from answering the question "If event X happens, what legal result follows?" by saying "It's obvious!" without more. It seems to me that when a judgment is set aside, we should say that money paid pursuant to that judgment is recoverable because: 1. As things have turned out, there was no legal basis for the payment, and our system of law says that when that is so the payment must be returned; or 2. As things have turned out, the plaintiff's consent to the payment was vitiated in a manner which the law says warrants restitution The Germans would, I think, say 1. We say 2. In either case, the claim is one where the law raises a right of recovery in order to prevent the defendant being unjustly enriched. The mere fact that the older cases mentioned by Charles Mitchell did not use the words "unjust enrichment" hardly vindicate Hedley's view that the cases had nothing to do with that well-recognised (though only recently articulated) principle. Of course my analysis of the law's response to the setting aside of a judgment is based on the assumption that the law gives the plaintiff a right to recover money paid under that judgment independently of a court order to that effect. Charles Mitchell cites Pill LJ in R v Barnet Magistrates' Court, ex p Cantor [1998] 2 All ER 333, at 345 and the Law Commission to support the assertion that there is no right of recovery until the court says so. If Charles is correct, then my analysis is wrong. But in relation to Hedley's views, we can put that to one side, for Hedley and I agree that the "court is [not] *creating* the liability when it gives the requested confirmation". In other words, Hedley and I both say that the right of recovery arises independently of the court order. So we return to the point at which we started. I say that the right of recovery is raised by the law in order to reverse the defendant's unjust enrichment. He says that the explanation of the obligation is so obvious it does not need explaining. Jonathon Moore Christ Church College >From swh10@cus.cam.ac.uk Mon Nov 22 17:48:00 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pxZI-0008Qp-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:48:00 +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 3.093 #1) id 11pxXm-0006UO-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 17:46:26 +0000 Message-Id: <3.0.1.32.19991122174631.007f4c30@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 Nov 1999 17:46:31 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Archer's woes In-Reply-To: <3.0.6.32.19991122171655.0079d100@law-mail.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 17:16 22/11/99 +0000, "Charles Mitchell" wrote: >Is it meaningful to speak of a party having a right without a correlative >remedy? Steve appears to think so, when he writes that he is 'surprised' >to hear that 'the court is *creating* the liability when it gives the >requested confirmation' that the recipient of a payment which is not due >must repay it. Pardon me, but I have been arguing *precisely* that the one cannot exist without the other. It is *because* they cannot exist separately that it makes no sense to say that one is based on procedural considerations but the other on unjust enrichment. >Why did the Law Commission recommend that the courts be >given the power to make restitutionary orders in the context of RSC Ord 53 >proceedings? Because it thought that the plaintiff in a judicial review >action who succeeded in having a public demand declared ultra vires would >otherwise have no right in those proceedings to recover money paid pursuant >to such a demand. > Well, if you want to equate a public authority's demand for an unlawful tax with a court's demand for compliance with a judgment that turns out to be misguided, that's up to you. I would have said that the two situations were rather different, not least because the need for finality in adjudication is far greater in the case of the courts. 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 swh10@cus.cam.ac.uk Mon Nov 22 18:33:59 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pyHn-0000Ir-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 18:33:59 +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 3.093 #1) id 11pyGN-0001Wp-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 18:32:31 +0000 Message-Id: <3.0.1.32.19991122183235.007ee210@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 Nov 1999 18:32:35 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Re: RDG: Re: Archer's woes In-Reply-To: <001e01bf350f$aae9e4e0$c26901a3@moorejp> References: <3.0.1.32.19991122165216.007d1b10@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 17:33 22/11/99 -0000, "Jonathon Moore" wrote: >We seem to be having trouble moving away from answering the question "If >event X happens, what legal result follows?" by saying "It's obvious!" >without more. I think that before you studied unjust enrichment, the answer would have been obvious to you too. No doubt the reason is capable of elaboration in words if some purpose were served by it. But what we are discussing is whether digesting the "unjust enrichment" theory has made our under- standing of the legal system better (as you contend) or worse (as I contend). If it were *not* obvious to a particular person that the money should be returned, why should they be any more convinced on hearing that the return was mandated by some "principle of unjust enrichment" ? By the way, how *do* you explain the fact that when a criminal conviction is quashed, we let the defendant out of jail ? Is that "unjust enrichment", too ? And what would you say to someone who didn't find it obvious that he should be let out ? >The Germans would, I think, say 1. We say 2. In either case, the claim is >one where the law raises a right of recovery in order to prevent the >defendant being unjustly enriched. The English legal system got by for most of its history without invoking the idea of "unjust enrichment". How does describing it as "unjust enrichment" improve our understanding of it ? Or are you falling back on saying that *that* is obvious ? >The mere fact that the older cases >mentioned by Charles Mitchell did not use the words "unjust enrichment" >hardly vindicate Hedley's view that the cases had nothing to do with that >well-recognised (though only recently articulated) principle. > I am afraid that in a precedent-based system, the "mere fact" that the concept is not mentioned cannot be dismissed so easily. You should be more wary of citing cases for propositions which were not mentioned in them. I realise that some introductory textbooks cite Moses v. Macfarlane as providing some support for the theory of unjust enrichment, but that argument is a rather tortuous one. It is wrong to cite the case as if it provided unequivocal support for the theory; the "mere facts" are against this. >So we return to the point at which we started. I say that the right of >recovery is raised by the law in order to reverse the defendant's unjust >enrichment. He says that the explanation of the obligation is so obvious it >does not need explaining. > Isn't it interesting that you keep on attacking me for saying it is obvious, yet you don't deny that it *is* obvious ? I say again : If it were not *already* obvious to a given person that the money is recoverable, how would a reference to "unjust enrichment" help ? Bear in mind, in answering, that most people who talk about "unjust enrichment" are not making a moral judgment, but merely saying that the enrichment is reversible. What, then, does "unjust enrichment" add ? 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 jonathon.moore@christ-church.oxford.ac.uk Mon Nov 22 19:13:33 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 2.12 #1) id 11pyu5-0000Vv-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:13:33 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pysh-00045s-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:12:07 +0000 Received: from dhcp24.bodley-open.ox.ac.uk ([163.1.105.194] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11pysh-0002iS-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:12:07 +0000 Message-ID: <000501bf351d$6bc59da0$c26901a3@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: References: <3.0.1.32.19991122165216.007d1b10@pop.cus.cam.ac.uk> <3.0.1.32.19991122183235.007ee210@pop.cus.cam.ac.uk> Subject: Re: RDG: Re: Archer's woes Date: Mon, 22 Nov 1999 19:11:46 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Steve Hedley's latest contribution falls back on a familiar theme that I suppose he will never let go of - that discussion of the principle of unjust enrichment is a complete waste of time. Some people just don't believe that. The courts don't either. Let's take just one example. It used to be thought that, outside contract, rights of subrogation comprised a miscellany which could not be explained by reference to a single principle. The House of Lords have now said unequivocally that that is wrong: Banque Financière de la Cité v Parc (Battersea) [1999] 1 AC 221 (HL). In fact, rights of subrogation outside contract are explained by the principle of unjust enrichment. There we are: the principle has helped to better the law. Is that not a useful purpose served by those who have shown that the principle of unjust enrichment exists? In a precedent-based system, I am afraid Banque Financière, and (for example) Lord Steyn's reference to the "established principles of unjust enrichment", just cannot be overlooked. Of course unjust enrichment does not just explain complex topics like subrogation. It also explains cases in which even the pedestrian would, when asked what the result should be, say 'That's obvious!'. And by explaining the obvious cases, no doubt the principle will help to explain more and more difficult cases as well. >From peter.birks@all-souls.oxford.ac.uk Mon Nov 22 19:34:12 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 2.12 #1) id 11pzE4-0000cI-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:34:12 +0000 Received: from heraldgate2.oucs.ox.ac.uk ([163.1.2.50] helo=frontend2.herald.ox.ac.uk ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pzCg-0006Ml-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:32:46 +0000 Received: from squire.asc.ox.ac.uk ([163.1.128.121] helo=squire) by frontend2.herald.ox.ac.uk with smtp (Exim 2.02 #1) id 11pzCf-0004Lb-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:32:45 +0000 Message-Id: <1.5.4.32.19991122193405.00e0a1b0@ermine.ox.ac.uk> X-Sender: birks@ermine.ox.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 22 Nov 1999 19:34:05 +0000 To: restitution@maillist.ox.ac.uk From: Peter Birks Subject: judgments reversed (1) The most important things that I know on this are D.M.Gordon, 'The Effect of Reversal of Judgment on Acts done between Pronouncement and Reversal' (1958) 74 L.Q.R. 517 Commonwealth v. McCormack (1984) 155 C.L.R. 273 Barder v Caluori [1988] AC 20 (HL) (2) Moses v Macferlan shows that there is no need to reverse the judgment if you can show that the plaintiff committed a civil wrong in suing, for then the payment under the judgment is merely the measure of, or included in the measure of, damages, and the judgment itself stands. PB Peter B H Birks, QC, DCL, FBA Regius Professor of Civil Law All Souls College Oxford OX1 4 AL Tel: 44 - (0)1865-279338 Fax: 44 - (0)1865 279299 Home: Oak Trees, Sandy Lane, Boars Hill. Oxford OX1 4AL Tel: 44 - (0)1865-735625 >From james.edelman@magdalen.oxford.ac.uk Mon Nov 22 19:34:42 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 2.12 #1) id 11pzEY-0000cY-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 19:34:42 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11pzC0-0004RE-00; Mon, 22 Nov 1999 19:32:04 +0000 Received: from jamie.magd.ox.ac.uk ([163.1.184.108] helo=jamie.magdalen) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11pzC0-0007fe-00; Mon, 22 Nov 1999 19:32:04 +0000 Message-ID: <017a01bf351f$fc881be0$6cb801a3@jamie.magdalen> From: "James Edelman" To: "Steve Hedley" , Subject: Re: RDG: Re: Archer's woes Date: Mon, 22 Nov 1999 19:30:08 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 I think Steve Hedley is quite right when he says that describing something as "unjust enrichment" does not enhance our understanding of why a particular response is given. But wasn't Jonathon saying that the response was to be given not because of "unjust enrichment" but because (rightly or wrongly) once the judgment is set aside an action could be brought for illegitimate pressure. Surely it is vital to understand why it is that a particular action can be compelled. I don't read Jonathon's comments as appealing to "unjust enrichment" as a panacea in itself. For me, the example given by Mr Hedley can be used to illustrate this. Historically , to get released because a conviction was wrongful a prisoner had to show that he or she was being "falsely imprisoned". It was not enough that conviction was 'unconstitutional'. The prisoner did this by bringing a writ of habeas corpus. This was effectively an order to show cause why the person was imprisoned. If cause could not be shown, release was directed. The writ operated not as a review of the correctness of any decision to imprison (judicial or otherwise) but to direct any imprisonment which was found to be unlawful. This is the mechanism and reason why an overturned conviction can lead to release. It can be compelled by legal process. Indeed, historically, it was by no means obvious that an unlawful conviction should lead to release. In the 16th century there was much debate about the scope of this writ. For me, though, the action to set aside the judgment is an action for fraud. It is a new proceeding. It is not like an appeal from conviction. The "personal obligation" which arises to repay money obtained under the judgment when that action is made out is a restitutionary obligation arising as a result of the fraud, which "infects the whole body of the judgment": Jonesco v Beard [1930] AC. -----Original Message----- From: Steve Hedley To: restitution@maillist.ox.ac.uk Date: 22 November 1999 18:36 Subject: Re: RDG: Re: Archer's woes >At 17:33 22/11/99 -0000, "Jonathon Moore" wrote: >>We seem to be having trouble moving away from answering the question "If >>event X happens, what legal result follows?" by saying "It's obvious!" >>without more. > > >I think that before you studied unjust enrichment, the answer would >have been obvious to you too. No doubt the reason is capable of elaboration >in words if some purpose were served by it. But what we are discussing is >whether digesting the "unjust enrichment" theory has made our under- >standing of the legal system better (as you contend) or worse (as I >contend). If it were *not* obvious to a particular person that the money >should be returned, why should they be any more convinced on >hearing that the return was mandated by some "principle of unjust >enrichment" ? > >By the way, how *do* you explain the fact that when a criminal >conviction is quashed, we let the defendant out of jail ? Is that "unjust >enrichment", too ? And what would you say to someone who didn't >find it obvious that he should be let out ? > > > >>The Germans would, I think, say 1. We say 2. In either case, the claim is >>one where the law raises a right of recovery in order to prevent the >>defendant being unjustly enriched. > >The English legal system got by for most of its history without invoking >the idea of "unjust enrichment". How does describing it as >"unjust enrichment" improve our understanding of it ? Or are you >falling back on saying that *that* is obvious ? > > > >>The mere fact that the older cases >>mentioned by Charles Mitchell did not use the words "unjust enrichment" >>hardly vindicate Hedley's view that the cases had nothing to do with that >>well-recognised (though only recently articulated) principle. >> > >I am afraid that in a precedent-based system, the "mere fact" that the >concept is not mentioned cannot be dismissed so easily. You should >be more wary of citing cases for propositions which were not mentioned >in them. I realise that some introductory textbooks cite Moses v. >Macfarlane as providing some support for the theory of unjust enrichment, >but that argument is a rather tortuous one. It is wrong to cite the case >as if it provided unequivocal support for the theory; the "mere facts" are >against this. > > > >>So we return to the point at which we started. I say that the right of >>recovery is raised by the law in order to reverse the defendant's unjust >>enrichment. He says that the explanation of the obligation is so obvious it >>does not need explaining. >> > > >Isn't it interesting that you keep on attacking me for saying it is obvious, >yet you don't deny that it *is* obvious ? > >I say again : If it were not *already* obvious to a given person that the >money is recoverable, how would a reference to "unjust enrichment" >help ? Bear in mind, in answering, that most people who talk about >"unjust enrichment" are not making a moral judgment, but merely saying >that the enrichment is reversible. What, then, does "unjust enrichment" >add ? > > > > > 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 > >=================================================== > > > >___________________________________________________________________________ _____ >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 lionel.smith@st-hughs.oxford.ac.uk Mon Nov 22 23:37:39 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 2.12 #1) id 11q31f-0001fc-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:37:39 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11q30H-0002ym-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:36:13 +0000 Received: from max22.public.ox.ac.uk ([192.76.27.22]) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11q30E-0002Tf-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:36:11 +0000 Subject: Date: Mon, 22 Nov 99 23:39:45 +0000 x-sender: lawf0014@sable.ox.ac.uk x-mailer: Claris Emailer 1.1 From: Lionel Smith To: Mime-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Message-Id: approved: eregion From: "James Edelman" Subject: Re: RDG: Re: Archer's woes I think Steve Hedley is quite right when he says that describing something as "unjust enrichment" does not enhance our understanding of why a particular response is given. But wasn't Jonathon saying that the response was to be given not because of "unjust enrichment" but because (rightly or wrongly) once the judgment is set aside an action could be brought for illegitimate pressure. Surely it is vital to understand why it is that a particular action can be compelled. I don't read Jonathon's comments as appealing to "unjust enrichment" as a panacea in itself. For me, the example given by Mr Hedley can be used to illustrate this. Historically , to get released because a conviction was wrongful a prisoner had to show that he or she was being "falsely imprisoned". It was not enough that conviction was 'unconstitutional'. The prisoner did this by bringing a writ of habeas corpus. This was effectively an order to show cause why the person was imprisoned. If cause could not be shown, release was directed. The writ operated not as a review of the correctness of any decision to imprison (judicial or otherwise) but to direct any imprisonment which was found to be unlawful. This is the mechanism and reason why an overturned conviction can lead to release. It can be compelled by legal process. Indeed, historically, it was by no means obvious that an unlawful conviction should lead to release. In the 16th century there was much debate about the scope of this writ. For me, though, the action to set aside the judgment is an action for fraud. It is a new proceeding. It is not like an appeal from conviction. The "personal obligation" which arises to repay money obtained under the judgment when that action is made out is a restitutionary obligation arising as a result of the fraud, which "infects the whole body of the judgment": Jonesco v Beard [1930] AC. -----Original Message----- From: Steve Hedley To: restitution@maillist.ox.ac.uk Date: 22 November 1999 18:36 Subject: Re: RDG: Re: Archer's woes >At 17:33 22/11/99 -0000, "Jonathon Moore" wrote: >>We seem to be having trouble moving away from answering the question "If >>event X happens, what legal result follows?" by saying "It's obvious!" >>without more. > > >I think that before you studied unjust enrichment, the answer would >have been obvious to you too. No doubt the reason is capable of elaboration >in words if some purpose were served by it. But what we are discussing is >whether digesting the "unjust enrichment" theory has made our under- >standing of the legal system better (as you contend) or worse (as I >contend). If it were *not* obvious to a particular person that the money >should be returned, why should they be any more convinced on >hearing that the return was mandated by some "principle of unjust >enrichment" ? > >By the way, how *do* you explain the fact that when a criminal >conviction is quashed, we let the defendant out of jail ? Is that "unjust >enrichment", too ? And what would you say to someone who didn't >find it obvious that he should be let out ? > > > >>The Germans would, I think, say 1. We say 2. In either case, the claim is >>one where the law raises a right of recovery in order to prevent the >>defendant being unjustly enriched. > >The English legal system got by for most of its history without invoking >the idea of "unjust enrichment". How does describing it as >"unjust enrichment" improve our understanding of it ? Or are you >falling back on saying that *that* is obvious ? > > > >>The mere fact that the older cases >>mentioned by Charles Mitchell did not use the words "unjust enrichment" >>hardly vindicate Hedley's view that the cases had nothing to do with that >>well-recognised (though only recently articulated) principle. >> > >I am afraid that in a precedent-based system, the "mere fact" that the >concept is not mentioned cannot be dismissed so easily. You should >be more wary of citing cases for propositions which were not mentioned >in them. I realise that some introductory textbooks cite Moses v. >Macfarlane as providing some support for the theory of unjust enrichment, >but that argument is a rather tortuous one. It is wrong to cite the case >as if it provided unequivocal support for the theory; the "mere facts" are >against this. > > > >>So we return to the point at which we started. I say that the right of >>recovery is raised by the law in order to reverse the defendant's unjust >>enrichment. He says that the explanation of the obligation is so obvious it >>does not need explaining. >> > > >Isn't it interesting that you keep on attacking me for saying it is obvious, >yet you don't deny that it *is* obvious ? > >I say again : If it were not *already* obvious to a given person that the >money is recoverable, how would a reference to "unjust enrichment" >help ? Bear in mind, in answering, that most people who talk about >"unjust enrichment" are not making a moral judgment, but merely saying >that the enrichment is reversible. What, then, does "unjust enrichment" >add ? > > > > > 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 > >=================================================== > > > >___________________________________________________________________________ _____ >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 lionel.smith@st-hughs.oxford.ac.uk Mon Nov 22 23:37:42 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 2.12 #1) id 11q31i-0001fr-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:37:42 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11q30J-0005wG-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:36:15 +0000 Received: from max22.public.ox.ac.uk ([192.76.27.22]) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11q30I-0002Tf-00 for restitution@maillist.ox.ac.uk; Mon, 22 Nov 1999 23:36:15 +0000 Subject: Date: Mon, 22 Nov 99 23:39:49 +0000 x-sender: lawf0014@sable.ox.ac.uk x-mailer: Claris Emailer 1.1 From: Lionel Smith To: Mime-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Message-Id: approved: eregion From: Peter Birks Subject: judgments reversed (1) The most important things that I know on this are D.M.Gordon, 'The Effect of Reversal of Judgment on Acts done between Pronouncement and Reversal' (1958) 74 L.Q.R. 517 Commonwealth v. McCormack (1984) 155 C.L.R. 273 Barder v Caluori [1988] AC 20 (HL) (2) Moses v Macferlan shows that there is no need to reverse the judgment if you can show that the plaintiff committed a civil wrong in suing, for then the payment under the judgment is merely the measure of, or included in the measure of, damages, and the judgment itself stands. PB Peter B H Birks, QC, DCL, FBA Regius Professor of Civil Law All Souls College Oxford OX1 4 AL Tel: 44 - (0)1865-279338 Fax: 44 - (0)1865 279299 Home: Oak Trees, Sandy Lane, Boars Hill. Oxford OX1 4AL Tel: 44 - (0)1865-735625 >From swh10@cus.cam.ac.uk Tue Nov 23 07:40:20 1999 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qAYm-0002my-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 07:40:20 +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 3.093 #1) id 11qAXL-0002ps-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 07:38:52 +0000 Message-Id: <3.0.1.32.19991123073911.007ce100@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Tue, 23 Nov 1999 07:39:11 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Archer - 6 Red Herrings - SUMMARY OF DISCUSSION In-Reply-To: <000501bf351d$6bc59da0$c26901a3@moorejp> References: <3.0.1.32.19991122165216.007d1b10@pop.cus.cam.ac.uk> <3.0.1.32.19991122183235.007ee210@pop.cus.cam.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" For the benefit of Lord Archer and others, I summarise the views so far expressed on whether he will have to pay anything back to the Daily Star. 1. Nearly everyone seems agreed that the procedure comes first - If the Daily Star can't re-open the judgment against them, that is the end of the matter. The one argument to the contrary relies heavily on Moses v. Macfarlane, and does not refer to the unity of court structure imposed in 1875, one object of which was to stop one part of the legal system contradicting another in this way. Analogies with the re-opening of other types of judgment (eg criminal convictions) have been explored in argument, but no consensus has been reached. 2. If the Daily Star can re-open the case, 6 possible grounds of recovery have been mentioned : A. Unjust enrichment (Zander) B. Improper use of process and/or wrongdoing (Mitchell) C. Failure of basis or of consideration (Scully) D. Illegitimate pressure (Moore) E. Fraud (Edelman) F. Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay (Hedley) 3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible. 4. No-one has yet mentioned Mistake/Ignorance, but this is presumably only a matter of time. After all, someone clever enough to find a "mistake" in the Kleinwort Benson case can surely find one here (or, indeed, anywhere). For that matter, the money was also paid under a "necessity", and there seems to have been an "absence of consideration". It might shorten the discussion if someone were to suggest some grounds that *can't* apply. 5. No-one has asked whether the multiplicity of possible grounds tells us something about the breadth and vacuity of the explanatory concepts, or whether it tells us that this is a freak instance of liability. 6. A number of cases have been cited. In only 2 of them is the proposition for which it was cited *both* relevant *and* actually present in the judgment (unless the view is taken that subrogation is relevant to this discussion, in which case the count is 3). No-one seems to be suggesting that the matter is concluded by authority. No-one has yet mentioned the Bricklayers' Hall case, which is a great deal more relevant than any of those which have been mentioned. But again, this is presumably just a matter of time. Hoping that this is helpful, 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 gerhard.dannemann@law.oxford.ac.uk Tue Nov 23 08:49:01 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 2.12 #1) id 11qBdF-0002vz-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 08:49:01 +0000 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qBbr-0007ca-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 08:47:35 +0000 Received: from max14.public.ox.ac.uk ([192.76.27.14] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qBbq-0006t3-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 08:47:34 +0000 Message-ID: <383A539C.77B8EBF9@law.ox.ac.uk> Date: Tue, 23 Nov 1999 09:43:08 +0100 From: Gerhard Dannemann X-Mailer: Mozilla 4.51 [en] (Win95; I) X-Accept-Language: de MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: condictio archeri Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I don't know whether this is of any help, but this case shows nicely how a condictio indebiti functions on the borderline between substantive law and procedure. We are looking at an action for the recovery of money which was not due. However, as long as the judgment stands, the payment was not indebiti - the judgment being the causa for the payment. Once the judgment is set aside, there is no legal ground for the payment, and the Daily Star could recover. The Steven Hedley ground for recovery, namely "Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay", looks to me like a colloquial formulation of the principle of the condictio indebiti: only a lunatic would deny that you have to give back what you were not entitled to receive in the first place. Steve may or may not be surprised. English law is different. The "condictio indebiti" or the "lunatic principle", or the mere invokation of "unjust enrichment" will not do; we have to find a specific ground for recovery, or unjust factor. Mistake is normally the best bet, but problematic: was the Daily Star really mistaken about either fact or law? I have my doubts. And if they were not mistaken, can there be fraud? Illegitimate pressure is very difficult - a judgment can hardly be called illegitimate. Failure of consideration will not do, as no consideration was ever to be expected. The broader "failure of basis" may do, but is tnis not the condictio indebiti in disguise? So we have restitution for wrongs left as a ground for recovery. I think this is the best bet for English law, but this seems to place a clear case of payment which was not due into enrichment for wrongs, which does not normally deal with cases of subtractive enrichment. This looks like one of the cases where the unjust factor approach is struggling a little - similar to CTN Cash & Carry v Gallagher where indeed recovery was not allowed although payment had clearly not been due - Lord Archer may take some consolation from this case. (The condictio indebiti has its own problems, but that is a different matter.) -- Gerhard Dannemann http://iuscomp.org >From peter.birks@all-souls.oxford.ac.uk Tue Nov 23 09:12:28 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 2.12 #1) id 11qBzw-00032k-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:12:28 +0000 Received: from heraldgate2.oucs.ox.ac.uk ([163.1.2.50] helo=frontend2.herald.ox.ac.uk ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qByX-0003sC-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:11:01 +0000 Received: from squire.asc.ox.ac.uk ([163.1.128.121] helo=squire) by frontend2.herald.ox.ac.uk with smtp (Exim 2.02 #1) id 11qByX-0005Q6-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:11:01 +0000 Message-Id: <1.5.4.32.19991123091224.00dfc2d0@ermine.ox.ac.uk> X-Sender: birks@ermine.ox.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 23 Nov 1999 09:12:24 +0000 To: restitution@maillist.ox.ac.uk From: Peter Birks Subject: only a lunatic ... It is only in the last few years that 'It is obvious that ...' and 'It is fair that ...' have made a bid to become respectable arguments among lawyers. The only thing that is obvious to me is that different people and generations have different views on the self-evident, that many self-evident truths have turned out to be false, and some, as we now think, not only false but wicked: 'It is obvious that the sun goes round the earth.' 'It is obvious that no woman can enter a learned profession.' 'It is obvious that no jew is fit to hold a chair in a university.' It is both puzzling and disheartening that a senior member of Newton's university should rely, militantly, on an argument of this kind. In the only modern case that I know in which the matter of repayment of sums paid under a judgment subsequently reversed was discussed, the liability to repay when the reversing court had made no order for repayment was contested all the way to the HCA: Commonwealth v. McCormack (1984) 155 C.L.R. 273. Someone evidently thought the conclusion less than obvious. Peter B H Birks, QC, DCL, FBA Regius Professor of Civil Law All Souls College Oxford OX1 4 AL Tel: 44 - (0)1865-279338 Fax: 44 - (0)1865 279299 Home: Oak Trees, Sandy Lane, Boars Hill. Oxford OX1 4AL Tel: 44 - (0)1865-735625 >From jonathon.moore@christ-church.oxford.ac.uk Tue Nov 23 09:41:44 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 2.12 #1) id 11qCSG-0003Ax-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:41:44 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qCQr-0004aX-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:40:17 +0000 Received: from max120.public.ox.ac.uk ([192.76.27.120] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qCQo-0006sF-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:40:15 +0000 Message-ID: <000001bf3596$b2bc13a0$a397fea9@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: Subject: Date: Tue, 23 Nov 1999 09:34:10 -0000 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_002D_01BF3595.E543FAA0" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 This is a multi-part message in MIME format. ------=_NextPart_000_002D_01BF3595.E543FAA0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Steve Hedley says "5. No-one has asked whether the multiplicity of possible=20 grounds tells us something about the breadth and vacuity of=20 the explanatory concepts, or whether it tells us that this is=20 a freak instance of liability." The "multiplicity" to which he refers is detailed as follows: "2. If the Daily Star can re-open the case, 6 possible grounds of=20 recovery have been mentioned : A. Unjust enrichment (Zander) B. Improper use of process and/or wrongdoing (Mitchell) C. Failure of basis or of consideration (Scully) D. Illegitimate pressure (Moore) E. Fraud (Edelman) F. Once the judgment has been set aside, no-one but a=20 lunatic would deny there is a duty to repay (Hedley)" In fact, points B and D clearly fall under A., whilst as a legal = explanation of the right to recover point F hardly seems to belong in = the list. A claim to recover an unjust enrichment must always specify a = ground, or unjust factor, why the particular enrichment in question is = unjust. As to point B, a claim to recover a benefit under compulsion is = a claim to reverse an unjust enrichment: Goff & Jones, p 457, citing on = the specific question under discussion Dr Drury's Case (1610) 8 Co 141b, = 143a. As to point D, a claim to recover a payment made for a basis = which has failed is a claim to reverse an unjust enrichment - eg Pavey = and Mathews Pty Ltd v Paul. =20 Hedley would say that we cannot refer to a case as supporting an = assertion that it is best explained by the established principles of = unjust enrichment unless the judges used the exact words "unjust = enrichment". Two things: First, those words were used in Pavey and = Mathews. Secondly, 99% of all the cases on non-contractual subrogation = to date did not use those words. But we know now that those cases are = best explained by the established principles of unjust enrichment: = Banque Financi=E8re de la Cit=E9 v Parc (Battersea) [1999] 1 AC 221 = (HL). =20 This second point means that it is quite a legitimate form of legal = discourse to say that some older cases, such as those declaring that a = litigant has a right to recover money paid pursuant to a judgment later = set aside, may be another example of the established principles of = unjust enrichment in operation. Contributions to date should therefore be summarised as follows: 1. Unjust enrichment: Once the judgment is set aside, there is a = right to recover the sums paid to Lord Archer, which right is best = explained as based on the principles of unjust enrichment, the unjust = factor probably being compulsion (Moore, retracting the use of the word = 'illegitimate'), or the public policy of upholding the rule of law = (Mitchell) or possibly failure of basis (Scully). It may also be that = English law is heading towards a system of unjust enrichment in which it = is not necessary to establish a specific unjust factor. Instead, the = law gives, or should give, a right to recover any money paid which was = not due - that is, a condictio indebiti (Dannemann) 2. Restitution for wrongs: If an independent civil wrong can be = established Lord Archer may be required to make restitution of the sums = gained pursuant to that wrong (Edelman), and it is possible that this = right may be forced even without setting aside the first judgment = (Birks). _________________ Jonathon Moore Christ Church College Oxford OX1 1DP UK ------=_NextPart_000_002D_01BF3595.E543FAA0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
Steve Hedley says
 
"5.  No-one has asked whether the = multiplicity=20 of possible
grounds tells us something about the breadth and vacuity = of=20
the explanatory concepts, or whether it tells us that this is
a = freak=20 instance of liability."
 
The "multiplicity" to which he refers = is detailed=20 as follows:
 
"2. If the Daily Star can re-open the = case, 6=20 possible grounds of
recovery have been mentioned=20 :

     A. Unjust enrichment=20 (Zander)
     B. Improper use of process and/or=20 wrongdoing (Mitchell)
     C. Failure of basis or = of=20 consideration (Scully)
     D. Illegitimate = pressure=20 (Moore)
     E. Fraud=20 (Edelman)
     F. Once the judgment has been set = aside,=20 no-one but a
lunatic would deny there is a duty to repay =20 (Hedley)"
 
In fact, points B and D clearly fall = under A.,=20 whilst as a legal explanation of the right to recover point F hardly = seems to=20 belong in the list.  A claim to recover an unjust enrichment = must=20 always specify a ground, or unjust factor, why the particular enrichment = in=20 question is unjust.  As to point B, a claim to recover a benefit = under=20 compulsion is a claim to reverse an unjust enrichment: Goff & = Jones, p=20 457, citing on the specific question under discussion Dr Drury's = Case=20 (1610) 8 Co 141b, 143a.  As to point D, a claim to recover a = payment made=20 for a basis which has failed is a claim to reverse an unjust enrichment = - eg=20 Pavey and Mathews Pty Ltd v Paul. 
 
Hedley would say that we cannot refer = to a case as=20 supporting an assertion that it is best explained by the established = principles=20 of unjust enrichment unless the judges used the exact words "unjust=20 enrichment".  Two things: First, those words were used in Pavey and = Mathews.  Secondly, 99% of all the cases on non-contractual = subrogation to=20 date did not use those words.  But we know now that those cases are = best=20 explained by the established principles of unjust enrichment: Banque = Financi=E8re=20 de la Cit=E9 v Parc (Battersea) [1999] 1 AC 221 (HL).  =
 
This second point means that it is = quite a=20 legitimate form of legal discourse to say that some older cases, such as = those=20 declaring that a litigant has a right to recover money paid pursuant to = a=20 judgment later set aside, may be another example of the established = principles=20 of unjust enrichment in operation.
 
Contributions to date should = therefore be=20 summarised as follows:
 
1.    Unjust = enrichment:  Once=20 the judgment is set aside, there is a right to recover the sums paid to = Lord=20 Archer, which right is best explained as based on the principles of = unjust=20 enrichment, the unjust factor probably being compulsion (Moore, = retracting the use=20 of the word 'illegitimate'), or the public policy of upholding the rule = of law=20 (Mitchell) or possibly failure of basis (Scully).  It may also be = that=20 English law is heading towards a system of unjust enrichment in which it = is not=20 necessary to establish a specific unjust factor.  Instead, the law = gives,=20 or should give, a right to recover any money paid which was not due = - that=20 is, a condictio indebiti (Dannemann)
 
2.    Restitution for = wrongs: If an=20 independent civil wrong can be established Lord Archer may be required = to make=20 restitution of the sums gained pursuant to that wrong (Edelman), and it = is=20 possible that this right may be forced even without setting aside the = first=20 judgment (Birks).
 
 
_________________
 
Jonathon Moore
Christ Church = College
Oxford=20 OX1 1DP
UK
 
 
------=_NextPart_000_002D_01BF3595.E543FAA0-- >From lionel.smith@law.oxford.ac.uk Tue Nov 23 09:49:24 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 2.12 #1) id 11qCZg-0003EB-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:49:24 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qCYI-0001Je-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:47:58 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qCYH-0000k3-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 09:47:57 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Tue, 23 Nov 1999 09:46:57 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: Peter Birks Subject: only a lunatic ... It is only in the last few years that 'It is obvious that ...' and 'It is fair that ...' have made a bid to become respectable arguments among lawyers. The only thing that is obvious to me is that different people and generations have different views on the self-evident, that many self-evident truths have turned out to be false, and some, as we now think, not only false but wicked: 'It is obvious that the sun goes round the earth.' 'It is obvious that no woman can enter a learned profession.' 'It is obvious that no jew is fit to hold a chair in a university.' It is both puzzling and disheartening that a senior member of Newton's university should rely, militantly, on an argument of this kind. In the only modern case that I know in which the matter of repayment of sums paid under a judgment subsequently reversed was discussed, the liability to repay when the reversing court had made no order for repayment was contested all the way to the HCA: Commonwealth v. McCormack (1984) 155 C.L.R. 273. Someone evidently thought the conclusion less than obvious. >From james.edelman@magdalen.oxford.ac.uk Tue Nov 23 10:11:51 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 2.12 #1) id 11qCvP-0003XP-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:11:51 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qCu0-0005US-00; Tue, 23 Nov 1999 10:10:25 +0000 Received: from jamie.magd.ox.ac.uk ([163.1.184.108] helo=jamie.magdalen) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11qCu0-0004QW-00; Tue, 23 Nov 1999 10:10:24 +0000 Message-ID: <004901bf359a$b0afa500$6cb801a3@jamie.magdalen> From: "James Edelman" To: Cc: "Nye Perram" Subject: A related point to Professor Birks' comments Date: Tue, 23 Nov 1999 10:08:29 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 Professor Birks refers us to the decision of Cth v McCormack where a judgment was set aside and money paid under the original judgment was sought to be recovered. Of course, these proceedings require no allegation of fraud, like the re-opening of an original judgment. However the basis or reason for such decisions becomes even more important when, as a friend mentioned this morning, one considers the recent Australian decision of Abadee J in a case called GH Varley v Thompson where a defence of change of position was allowed to the Cth v McCormack type claim. Jamie Edelman >From Andrew.Dickinson@cliffordchance.com Tue Nov 23 10:18:13 1999 Received: from mailone.cliffordchance.com ([193.129.243.246] helo=lon-msg-300.cliffordchance.com) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qD1Z-0003cH-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:18:13 +0000 Received: from lon-msg-400.cliffordchance.com ([10.54.2.79]) by lon-msg-300.cliffordchance.com with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id X1TZL4ZV; Tue, 23 Nov 1999 10:20:43 -0000 Received: from lon-msg-400.cliffordchance.com (unverified) by lon-msg-400.cliffordchance.com (Content Technologies SMTPRS 2.0.15) with ESMTP id for ; Tue, 23 Nov 1999 10:20:09 +0000 Received: by LON-MSG-400 with Internet Mail Service (5.5.2448.0) id ; Tue, 23 Nov 1999 10:20:08 -0000 Message-Id: From: Andrew.Dickinson@CliffordChance.com To: restitution@maillist.ox.ac.uk Subject: Archer - 2 questions Date: Tue, 23 Nov 1999 10:19:20 -0000 X-Mailer: Internet Mail Service (5.5.2448.0) Without wishing to prolong the debate, I have two questions for the main protagonists: 1. For Steve Hedley: I agree that the obvious conclusion is that, if Mr Archer's judgment is set aside, he must repay the money. A Judge might not think it necessary to analyse this before making an order. But such order must have a legal basis. If one asks why money that has been paid under a judgment that has now been set aside should be returned, the layman's answer may well be either that it was improperly obtained or that it would be improper to retain it. But which? If the latter, why cannot this be categorised with other cases in which benefits conferred (or their value) must be returned so that similar treatment can be ensured in analogous cases? Is your instinctive objection to the concept of "unjust enrichment" and the recognition that certain enrichments must be returned or to the desire of "restitution enthusiasts" to break each case (however obvious) into the 3 (4 including defences) stage analysis that has now become familiar (even in the case law). 2. For Jonathon Moore, may I ask why you have deserted the prefix "illegitimate" before "compulsion"? For me, this is a word whose meaning and content can only be derived from the authorities, which distinguish between forms of compulsion (or pressure) that the law regards as acceptable (e.g. most threats to sue) and forms of compulsion that the law regards as unacceptable (e.g. gun to head) giving rise to legal consequences including the obligation to restore benefits conferred under the compulsion. To say that the reason for ordering Mr Archer to restore the money is "compulsion" would seem to tell only half the story - it begs the question as to where the line must be drawn - the term "illegitimate" at least emphasises that there is a line to be drawn but does not (on its own) tell us where to place it. Andrew Andrew Dickinson International Law Group Clifford Chance 200 Aldersgate Street London EC1A 4JJ Tel: 0171 282 7606 Fax: 0171 600 5555 *********************************************************************** The information in this email and in any attachments is confidential and intended solely for the attention and use of the named addressee(s). This information may be subject to legal professional or other privilege or may otherwise be protected by work product immunity or other legal rules. It must not be disclosed to any person without our authority. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are not authorised to and must not disclose, copy, distribute, or retain this message or any part of it. >From lionel.smith@law.oxford.ac.uk Tue Nov 23 10:26:57 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 2.12 #1) id 11qDA1-0003kq-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:26:57 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qD8c-0005ue-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:25:30 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qD8b-00064p-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:25:30 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Tue, 23 Nov 1999 10:24:29 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "James Edelman" Date: Tue, 23 Nov 1999 10:08:29 -0000 Professor Birks refers us to the decision of Cth v McCormack where a judgment was set aside and money paid under the original judgment was sought to be recovered. Of course, these proceedings require no allegation of fraud, like the re-opening of an original judgment. However the basis or reason for such decisions becomes even more important when, as a friend mentioned this morning, one considers the recent Australian decision of Abadee J in a case called GH Varley v Thompson where a defence of change of position was allowed to the Cth v McCormack type claim. Jamie Edelman >From james.edelman@magdalen.oxford.ac.uk Tue Nov 23 10:28:03 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 2.12 #1) id 11qDB5-0003mO-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:28:03 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qD9g-0003ib-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:26:36 +0000 Received: from jamie.magd.ox.ac.uk ([163.1.184.108] helo=jamie.magdalen) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11qD9g-0006T7-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:26:36 +0000 Message-ID: <001701bf359c$f3a04340$6cb801a3@jamie.magdalen> From: "James Edelman" To: Subject: RDG: A related point to Professor Birks' comments Date: Tue, 23 Nov 1999 10:24:40 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 >Professor Birks refers us to the decision of Cth v McCormack where a >judgment was set aside and money paid under the original judgment was sought >to be recovered. Of course, these proceedings require no allegation of >fraud, like the re-opening of an original judgment. However the basis or >reason for such decisions becomes even more important when, as a friend >mentioned this morning, one considers the recent Australian decision of >Abadee J in a case called GH Varley v Thompson where a defence of change of >position was allowed to the Cth v McCormack type claim. > >Jamie Edelman > >From james.edelman@magdalen.ox.ac.uk Tue Nov 23 10:31:18 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 2.12 #1) id 11qDEE-0003py-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:31:18 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qDCq-0002VP-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:29:52 +0000 Received: from jamie.magd.ox.ac.uk ([163.1.184.108] helo=jamie.magdalen) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11qDCp-0007VM-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 10:29:51 +0000 Message-ID: <000a01bf359d$681c83a0$6cb801a3@jamie.magdalen> From: "James Edelman" To: Subject: RDG: A related point to Professor Birks' comments Date: Tue, 23 Nov 1999 10:27:55 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 Professor Birks refers us to the decision of Cth v McCormack where a judgment was set aside and money paid under the original judgment was sought to be recovered. Of course, these proceedings require no allegation of fraud, like the re-opening of an original judgment. However the basis or reason for such decisions becomes even more important when, as a friend mentioned this morning, one considers the recent Australian decision of Abadee J in a case called GH Varley v Thompson where a defence of change of position was allowed to the Cth v McCormack type claim. Jamie Edelman >From scullymatthew@hotmail.com Tue Nov 23 11:24:53 1999 Received: from law-f44.hotmail.com ([209.185.130.32] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11qE44-0004WZ-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 11:24:52 +0000 Received: (qmail 58517 invoked by uid 0); 23 Nov 1999 11:22:50 -0000 Message-ID: <19991123112250.58516.qmail@hotmail.com> Received: from 194.81.212.22 by www.hotmail.com with HTTP; Tue, 23 Nov 1999 03:22:50 PST X-Originating-IP: [194.81.212.22] From: "Matthew Scully" To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Re: Archer's woes Date: Tue, 23 Nov 1999 11:22:50 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed I had always been taught that the law is made up of a sequence of syllogisms. Minor premise (facts) + major premise (law) = conclusion (legal consequence). Unjust enrichment creeps into the Lord Archer issue to explain the leap from the setting aside of the judgment to the repayment of money paid under it. Just as: Minor: Criminal conviction quashed Conclusion: Person let out leaves room for Major: person detained other than by virtue of a valid judicial determination must be let out and this major premise belongs to the law of civil liberties in the same way: Minor: civil judgment for damages set aside Conclusion: the damages must be repaid leaves room for Major: money paid under a judgment which has been set aside must be repaid. Whether this major premise is a specific rule or part of a wider general principle, I will not comment on. However, it seems *reasonable* to classify it as part of a Law of *Restitution*. Those who deny that there is any need for this because the repayment of the money is *obvious* should perhaps try to think of it this way: it is because it is so obvious that we cannot deny a place for the Law of Restitution. Lord Wright pointed out that no civilised legal system can be without principles dealing with unjust enrichment. Just because these principles are obvious does not mean that we do not need them to be expounded. That would be tantamount to saying that just because it is obvious that, when a conviction is quashed, the person should be let out, there is no need to expound the principles of Civil Liberties. Matthew Scully. Oxford Institute of Legal Practice. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From scullymatthew@hotmail.com Tue Nov 23 11:34:47 1999 Received: from law-f303.hotmail.com ([209.185.130.92] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11qEDe-0004bL-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 11:34:46 +0000 Received: (qmail 20449 invoked by uid 0); 23 Nov 1999 11:32:47 -0000 Message-ID: <19991123113247.20448.qmail@hotmail.com> Received: from 194.81.212.22 by www.hotmail.com with HTTP; Tue, 23 Nov 1999 03:32:47 PST X-Originating-IP: [194.81.212.22] From: "Matthew Scully" To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer - 6 Red Herrings - SUMMARY OF DISCUSSION Date: Tue, 23 Nov 1999 11:32:47 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Steve Hedley wrote: >6. A number of cases have been cited. In only 2 of them is >the proposition for which it was cited *both* relevant *and* >actually present in the judgment (unless the view is taken >that subrogation is relevant to this discussion, in which case >the count is 3). No-one seems to be suggesting that the >matter is concluded by authority. No-one has yet mentioned >the Bricklayers' Hall case, which is a great deal more >relevant than any of those which have been mentioned. >But again, this is presumably just a matter of time. Precisely because in that case, the arbitral award was considered res judicata. The appropriate approach would have been to have it set aside (not possible in that case, perhaps possible for Lord Archer's judgment) and then sue for restitution of the damages paid for failure of consideration (the judgment constituting the basis of payment). Matthew Scully. Oxford Institute of Legal Practice. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From arianna.pretto@brasenose.oxford.ac.uk Tue Nov 23 13:11:28 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 2.12 #1) id 11qFjE-0005Ff-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 13:11:28 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qFhp-0004mu-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 13:10:01 +0000 Received: from dhcpsx23.bnc.ox.ac.uk ([163.1.174.23] helo=sxii-b-3.bnc.ox.ac.uk.ox.ac.uk) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qFho-00039W-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 13:10:00 +0000 From: "arianna pretto" To: Subject: Civilian remarks Date: Tue, 23 Nov 1999 13:10:03 -0000 X-MSMail-Priority: Normal X-Priority: 3 X-Mailer: Microsoft Internet Mail 4.70.1155 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 7bit Message-Id: After listing possible grounds of recovery S Hedley writes: "3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible." and "It might shorten the discussion if someone were to suggest some grounds that *can't* apply." I don't know if the group includes comparative remarks among what makes discussion of the grounds more perceptible. In Italy our civil procedure (art 395) code only lists 6 grounds on which you can obtain the 'revisione' of a civil judgement (roughly comparable to your having a judgement reversed). They can be briefly summarised as follows: 1) the parties' dolus to the detriment of the opponent (which would support the view that fraud is relevant); 2) decision was rendered on the basis of evidence acknowledged as false after delivery of the judgement; 3) discovery, after the decision was delivered, of relevant documents that could not be produced during the trial due to force majeure; 4) decision is the result of a mistake of fact evidenced in the proceedings (eg contradictory assumptions etc); 5) decision is contrary to res previously judicata; 6) decision is the consequence of the dolus perpetrated by the judge, provided that in respect of such dolus a judgement has been delivered (this is a case of fraud too, I am afraid, and the wicked contend it is far from alien to our joyful Mediterranean mentality). Note that these are only grounds on which the judgement may be set aside and are NOT concerned with restitution in the first place. Evidence a contrario of this is that unjust enrichment as a causative events is not listed among them. Restitution is but one further development. The repayment issue is dealt with in very concisely (art 402), by simply saying that 'within the decision that reverses the judgement the judge orders restitution (more precisely: eventuale restituzione) of what may have been paid on the basis of the reversed judgement'. This, however, needs interpreting. Restitution is defined in the code as 'eventuale restituzione', which can be roughly translated as 'possible, if the circumstances suggest it as reasonable'. I guess this will normally be the case, but the sense of imperspicuity characterising this adjective (and indeed more often than occasionally Italian civil justice itself) should at least discourage us from taking for granted that restitution is obvious. Arianna Pretto ---------- From: Steve Hedley To: restitution@maillist.ox.ac.uk Subject: RDG: Archer - 6 Red Herrings - SUMMARY OF DISCUSSION Date: 23 November 1999 07:39 For the benefit of Lord Archer and others, I summarise the views so far expressed on whether he will have to pay anything back to the Daily Star. 1. Nearly everyone seems agreed that the procedure comes first - If the Daily Star can't re-open the judgment against them, that is the end of the matter. The one argument to the contrary relies heavily on Moses v. Macfarlane, and does not refer to the unity of court structure imposed in 1875, one object of which was to stop one part of the legal system contradicting another in this way. Analogies with the re-opening of other types of judgment (eg criminal convictions) have been explored in argument, but no consensus has been reached. 2. If the Daily Star can re-open the case, 6 possible grounds of recovery have been mentioned : A. Unjust enrichment (Zander) B. Improper use of process and/or wrongdoing (Mitchell) C. Failure of basis or of consideration (Scully) D. Illegitimate pressure (Moore) E. Fraud (Edelman) F. Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay (Hedley) 3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible. 4. No-one has yet mentioned Mistake/Ignorance, but this is presumably only a matter of time. After all, someone clever enough to find a "mistake" in the Kleinwort Benson case can surely find one here (or, indeed, anywhere). For that matter, the money was also paid under a "necessity", and there seems to have been an "absence of consideration". It might shorten the discussion if someone were to suggest some grounds that *can't* apply. 5. No-one has asked whether the multiplicity of possible grounds tells us something about the breadth and vacuity of the explanatory concepts, or whether it tells us that this is a freak instance of liability. 6. A number of cases have been cited. In only 2 of them is the proposition for which it was cited *both* relevant *and* actually present in the judgment (unless the view is taken that subrogation is relevant to this discussion, in which case the count is 3). No-one seems to be suggesting that the matter is concluded by authority. No-one has yet mentioned the Bricklayers' Hall case, which is a great deal more relevant than any of those which have been mentioned. But again, this is presumably just a matter of time. Hoping that this is helpful, 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 =================================================== ____________________________________________________________________________ ____ 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 A.M.Tettenborn@exeter.ac.uk Tue Nov 23 13:14:32 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qFmC-0005Gq-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 13:14:32 +0000 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (NAA122777); Tue, 23 Nov 1999 13:13:03 GMT Message-Id: <3.0.5.32.19991123131259.007fa320@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Tue, 23 Nov 1999 13:12:59 +0000 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: Archer's woes Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable There is some English authority that may be of use. In Ward v Wallis [1900] 1 QB 675 P sues D for a debt, mistakenly giving credit for =A375 paid on account. D, who knows the facts, pays the balance & gets a discharge for the whole sum. Held: P can recover =A375 as money had & received. Also Duke de Cadaval v Collins 4 A & E 858, where P sues D and arrests him for a bogus debt. D pays up. Held: D recovers what he has paid as money had & received on the basis of illegitimate application of legal process. True, there is also authority that you can't get back money paid under a subsisting judgment (De Medina v Grove 10 QB 152). But factor in the proposition that an action will lie at common law to get rid of a judgment fraudulently obtained (Halsbury, Judgments & Orders, old vol 26, para 555) and you seem to have something approaching an answer. SmLC, ii, 389 ff is a useful quarry of authority here. 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 >From duncan.sheehan@corpus-christi.oxford.ac.uk Tue Nov 23 13:52:21 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 2.12 #1) id 11qGMn-0005WP-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 13:52:21 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qGLN-0001Kl-00; Tue, 23 Nov 1999 13:50:53 +0000 Received: from corp0380 (helo=localhost) by sable.ox.ac.uk with local-smtp (Exim 2.12 #1) id 11qGLM-0002xY-00; Tue, 23 Nov 1999 13:50:52 +0000 Date: Tue, 23 Nov 1999 13:50:48 +0000 (GMT) From: Duncan Sheehan To: Steve Hedley cc: restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer - 6 Red Herrings - SUMMARY OF DISCUSSION In-Reply-To: <3.0.1.32.19991123073911.007ce100@pop.cus.cam.ac.uk> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Dear All, I must confess firstly that while I am clever enough to find a mistake in Kleinwort Benson I am not clever enough to find one here, but that is a by the by. The main point surely is that Hedley is right to say that only a lunatic would deny that the Daily Star can recover if the judgment is set aside. I guess that the answer to the question whether this is possible is that it is on the basis of fraud. If this is so then it must surely be the fact that the judgment is set aside that allows recovery. I recognise that this is getting dangerously near to saying that because something was not due it is recoverable; however, I think we can draw, whether this is strictly necessary or not, an analogy with an unenforceable contract of loan. If I lend 20 pounds to a 10 year old I cannot get that money back in a court either in an action for the contract debt or in an action in unjust enrichment (whatever the basis for that might be). This is because such an action would indirectly enforce an unenforceable contract. If a court in a libel case makes an order that the Daily Star pay Jeffrey Archer X pounds and that is overturned for fraud (say) surely it is tantamount to leaving the judgment in force to say that Archer gets to keep the money. That is why it is obvious (at least why it is obvious to me) and why only a lunatic would deny it. Duncan Sheehan >From Jason.Neyers@jus.gov.on.ca Tue Nov 23 15:29:45 1999 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qHt3-0006Q6-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 15:29:45 +0000 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id ; Tue, 23 Nov 1999 10:27:56 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF580342521D@JUS00AEX0310> From: "Neyers, Jason (JUS)" To: "'restitution@maillist.ox.ac.uk'" Subject: Lord Archer & Prof. Hedley Date: Tue, 23 Nov 1999 10:28:20 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain; charset="iso-8859-1" In his summary of the discussion so far Prof. Hedley commented as follows: "3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible. 4. No-one has yet mentioned Mistake/Ignorance, but this is presumably only a matter of time. After all, someone clever enough to find a "mistake" in the Kleinwort Benson case can surely find one here (or, indeed, anywhere). For that matter, the money was also paid under a "necessity", and there seems to have been an "absence of consideration". It might shorten the discussion if someone were to suggest some grounds that *can't* apply." I take these comments to be a criticism of the concept of Unjust Enrichment as framed in England and therefore, in Prof. Hedley's opinion, a criticism of the concept of unjust enrichment in general. Perhaps it is worth noting that there are other ways to frame a cause of action in unjust enrichment that is not dependent on the overly technical English concept of unjust factors. For example, in Canadian private law (common and civil) the cause of action in unjust enrichment requires: 1) An Enrichment; 2) Corresponding Deprivation; & 3) Lack of juridical reason for the deprivation (a juridical reason being a contract, a gift, or a judgment). Using the Canadian formulation, once the judgment has been set aside on procedural grounds, the money must be returned by Lord Archer since the Newspaper did not intend to give the money through a contract or as a gift and there is no judgment justifying retention. Perhaps a formulation such as this would place the concept of unjust enrichment in a better light with Prof. Hedley by removing the quest for various equally plausible, yet redundant, unjust factors and explain why a "self-evident" return was justified on some legal principle beyond fairness or equity. As a side-note, I would also be interested in hearing from those in the discussion group why this Canadian formulation of the cause of action in unjust enrichment is "conceptually" inferior to that being offered in England (i.e. an argument better than: X case taught us ... or Lord X instructs that ... because in this area of law, without academic writing and conceptual theorizing, English cases might still be denying that the concept of unjust enrichment even existed). Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From lionel.smith@law.oxford.ac.uk Tue Nov 23 16:17:29 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 2.12 #1) id 11qIdF-0006qC-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 16:17:29 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qIbq-00001r-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 16:16:02 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qIbq-0007xP-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 16:16:02 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Tue, 23 Nov 1999 16:15:03 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "Neyers, Jason (JUS)" Subject: Lord Archer & Prof. Hedley In his summary of the discussion so far Prof. Hedley commented as follows: "3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible. 4. No-one has yet mentioned Mistake/Ignorance, but this is presumably only a matter of time. After all, someone clever enough to find a "mistake" in the Kleinwort Benson case can surely find one here (or, indeed, anywhere). For that matter, the money was also paid under a "necessity", and there seems to have been an "absence of consideration". It might shorten the discussion if someone were to suggest some grounds that *can't* apply." I take these comments to be a criticism of the concept of Unjust Enrichment as framed in England and therefore, in Prof. Hedley's opinion, a criticism of the concept of unjust enrichment in general. Perhaps it is worth noting that there are other ways to frame a cause of action in unjust enrichment that is not dependent on the overly technical English concept of unjust factors. For example, in Canadian private law (common and civil) the cause of action in unjust enrichment requires: 1) An Enrichment; 2) Corresponding Deprivation; & 3) Lack of juridical reason for the deprivation (a juridical reason being a contract, a gift, or a judgment). Using the Canadian formulation, once the judgment has been set aside on procedural grounds, the money must be returned by Lord Archer since the Newspaper did not intend to give the money through a contract or as a gift and there is no judgment justifying retention. Perhaps a formulation such as this would place the concept of unjust enrichment in a better light with Prof. Hedley by removing the quest for various equally plausible, yet redundant, unjust factors and explain why a "self-evident" return was justified on some legal principle beyond fairness or equity. As a side-note, I would also be interested in hearing from those in the discussion group why this Canadian formulation of the cause of action in unjust enrichment is "conceptually" inferior to that being offered in England (i.e. an argument better than: X case taught us ... or Lord X instructs that ... because in this area of law, without academic writing and conceptual theorizing, English cases might still be denying that the concept of unjust enrichment even existed). Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From axelrod@andromeda.rutgers.edu Tue Nov 23 17:42:26 1999 Received: from andromeda.rutgers.edu ([128.6.10.4]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qJxP-0007lI-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 17:42:25 +0000 Received: from andromeda.rutgers.edu (nwk-law143.rutgers.edu [128.6.79.127]) by andromeda.rutgers.edu (8.8.8/8.8.8) with ESMTP id MAA25241; Tue, 23 Nov 1999 12:40:29 -0500 (EST) Message-ID: <383AD00E.11A8ADFD@andromeda.rutgers.edu> Date: Tue, 23 Nov 1999 12:34:06 -0500 From: Allan Axelrod X-Mailer: Mozilla 4.7 [en] (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: Peter Birks CC: restitution Subject: Re: RDG: judgments reversed References: Content-Type: multipart/alternative; boundary="------------052B6E728E66ED4545307DFD" --------------052B6E728E66ED4545307DFD Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Peter Birks wrote: > (1) The most important things that I know on this are > D.M.Gordon, 'The Effect of Reversal of Judgment on Acts done between > Pronouncement and Reversal' (1958) 74 L.Q.R. 517 > Commonwealth v. McCormack (1984) 155 C.L.R. 273 > Barder v Caluori [1988] AC 20 (HL) > (2) Moses v Macferlan shows that there is no need to reverse the judgment > if > you can show that the plaintiff committed a civil wrong in suing, for then > the payment under the judgment is merely the measure of, or included in > the > measure of, damages, and the judgment itself stands. > > PB > > > > > __________________________________________________ > suppose: money has been received under a judgment which would not have issued had some facts been known the facts may be so serious as totally to defeat the entire substantive basis for the judgment, or to reduce the substantive measure of recovery or the unknown facts might constitute procedural errors which leave the substantive basis and measure of recovery untouched there will be rules as to whether the discovery of particular sorts of error defeats the usual conclusiveness of a judgment there will be rules as to whether a defeating error can be corrected by setting aside the judgment or by an independent action as with Macferlan described above where the error correction is effected by the first step of setting aside the judgment, there must be rules as to further proceedings: 1] it could be the rule that, whatever the sort of error, moneys received under the judgment must be repaid, and a proceeding commenced anew toward the substantive judgment to which the original plaintiff is entitled on the facts if any 2] it could be the rule that the original plaintiff would not be required, in the proceeding to set aside the judgment, to yield up everything received and then commence a new proceeding, but could instead, in the set-aside proceeding, establish her substantive rights if any as a set-off or reduction which ever the procedural structure, it is OBVIOUS that after proceedings are completed in any case in which the judgment is not conclusive, the judgment holder will have that to which she is substantively entitled and will not have that to which she is not substantively entitled obvious rules tend to be given names--and a name for the rule that a judgment recipient sometimes has to give some of it back--could be called restitution without shocking too many legal minds, and the ground for the restitution might be 'unjust enrichment' again without jarring too many of the profession? it is however true that the rules as a whole need not be described as containing an element of 'resitution for unjust enrichment' but simply as implementing a system whereby plaintiffs get and keep only that to which they are substantively entitled on the facts of which the system takes cognizance. american papers have led me to believe that lord archer has been abolished?? --------------052B6E728E66ED4545307DFD Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit  

Peter Birks wrote:

(1) The most important things that I know on this are
D.M.Gordon, 'The Effect of Reversal of Judgment on Acts done between
Pronouncement and Reversal' (1958) 74 L.Q.R. 517
Commonwealth v. McCormack (1984) 155 C.L.R. 273
Barder v Caluori [1988] AC 20 (HL)
(2) Moses v Macferlan shows that there is no need to reverse the judgment
if
you can show that the plaintiff committed a civil wrong in suing, for then
the payment under the judgment is merely the measure of, or included in
the
measure of, damages, and the judgment itself stands.

PB
 
 
 

__________________________________________________
 


suppose:

money has been received under a judgment  which would not have issued had some facts been known

the facts may be so serious as totally to defeat the entire substantive basis for the  judgment, or to reduce the substantive measure of recovery

or the unknown facts might constitute  procedural errors which leave the substantive basis and measure of recovery untouched

there will be rules as to whether the discovery of particular sorts of error defeats the usual conclusiveness of a judgment

there will be rules as to whether a defeating error can be corrected by setting aside the judgment or by an independent action as with Macferlan described above

where the error correction is effected by the first step of setting aside the judgment, there must be rules as to further proceedings:

1]  it could be the rule that, whatever the sort of error, moneys received under the judgment must be repaid, and a  proceeding commenced anew toward the substantive judgment to which the original plaintiff is entitled on the facts if any

2] it could be the rule that the original plaintiff would not be required, in the proceeding to set aside the judgment, to yield up everything received and then commence a new proceeding,  but could instead, in the set-aside proceeding,  establish her substantive rights if any as a set-off or reduction

which ever the procedural structure, it is OBVIOUS that after  proceedings are completed in any case in which the judgment is not conclusive, the judgment holder will have that to which she is substantively entitled and will  not have that to which she is not substantively entitled

obvious rules tend to be given names--and a name for the rule that a judgment recipient sometimes has to give some of it back--could be called restitution without shocking too many legal minds, and the ground for the restitution might be 'unjust enrichment' again without jarring too many of the profession?

it is however true that the rules  as a whole  need not be described as containing an element of 'resitution for unjust enrichment'  but simply as implementing a system whereby plaintiffs get and keep only that to which they are substantively entitled on the facts of which the system takes cognizance.

 american papers have led me to believe that lord archer has been abolished?? --------------052B6E728E66ED4545307DFD-- >From mpmcinne@julian.uwo.ca Tue Nov 23 18:12:45 1999 Received: from pony.its.uwo.ca ([129.100.2.63]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qKQK-0007yv-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 18:12:17 +0000 Received: from julian.uwo.ca by pony.its.uwo.ca with ESMTP id NAA04244; Tue, 23 Nov 1999 13:10:33 -0500 (EST) Message-ID: <383AD90C.9AF65594@julian.uwo.ca> Date: Tue, 23 Nov 1999 13:12:28 -0500 From: Mitchell McInnes Organization: University of Western Ontario X-Sender: "Mitchell McInnes" (Unverified) X-Mailer: Mozilla 4.61 [en]C-CCK-MCD {University of Western Ontario} (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Lord Archer & Prof. Hedley References: Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I write in response to Mr Neyers' suggestion that the Canadian action in unjust enrichment is different than its English counterpart and therefore possibly more amenable to the type of claim being discussed. The cases and literature do, indeed, occasionally suggest that the third element of the Canadian cause of action proceeds on the basis of the absence of any reason (eg gift or contract) as to why the defendant should retain the enrichment, rather than on the basis of a positive reason why as to the plaintiff should enjoy recovery: see eg Peter v Beblow (SCC 1993 per McLachlin) Campbell v Campbell (Ont CA 1999), Beatson "Restitution in Canada: Commentary" in Restitution: Past, Present & Future. Typically, however, Canadian courts require the plaintiff to prove a positive unjust factor, in essentially the manner as English courts: see eg County of Carleton v City of Ottawa (mistake); Air Canada v BC (mistake); Citadel Assurance v Lloyds Bank (knowing receipt); Peel v Canada. Moreover, although Dickson J in Pettkus v Becker authoritatively stated the third element of the Canadian action to consist of "an absence of juristic reason for the enrichment," he also: (i) specifically stated that common law has never been willing to grant relief upon mere proof of an enrichment and a corresponding deprivation, but rather has always insisted upon proof of a specific reason for awarding restitution, and (ii) invoked the unjust factor of free acceptance (the controversial nature of that concept is irrelevant to the present issue - as is the controversial nature of the concept of knowing receipt, which was noted above). As a matter of precedent, then, the better position is that Dickson J's formulation of the third element in unjust enrichment was not intended to place Canadian law on a different path than English law. That proposition finds support in the fact that Canadian courts, notwithstanding the language of Pettkus v Becker, commonly refer to "unjust factors," rather than to "absence of juristic reason for the enrichment": see eg Citadel Assurance v Lloyds Bank. Mr Neyers, however, insists that the English formulation (proof of an unjust factor) cannot be preferred to the Canadian formulation (absence of juristic reason) on the basis of mere precedent. Two further points therefore are made in response. First, as Dickson J noted in Pettkus v Becker, whereas the civilian tradition permits restitution simply because the defendant has no good claim to it, the common law tradition requires proof positive as to why the plaintiff should enjoy relief. While that proposition at root is based on precedent, it does not offend Mr Neyers' objection to arguments of the form "X case taught us ... or Lord X instructs that...". It is more substantial than that. Second, it seems preferable to endorse a formulation of the third element of the cause of action in unjust enrichment that provides the courts with as much assistance as possible. (That is particularly true in Canada where judges increasingly and disturbingly seem inclined to decide cases on the basis of amorphous notions of justice and "equity.") And in that regard, an approach that categorizes the factors that historically have supported restitution in the common law tradition (but that allows for incremental and analogical extensions) seems far preferable to an approach that simply requires a judge to determine whether or not some (undefined) juristic reason exists for the fact that the defendant received an enrichment from the plaintiff. Mitchell McInnes University of Western Ontario >From Jason.Neyers@jus.gov.on.ca Tue Nov 23 21:35:39 1999 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qNb9-0000Pq-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 21:35:39 +0000 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id ; Tue, 23 Nov 1999 16:34:06 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF5803425220@JUS00AEX0310> From: "Neyers, Jason (JUS)" To: "'restitution@maillist.ox.ac.uk'" Cc: "'mpmcinne@julian.uwo.ca'" Subject: Response to Prof. McInnes Date: Tue, 23 Nov 1999 16:34:26 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain; charset="iso-8859-1" Dear Professor McInnes, Thank-you for your response to my first submission to the RDG. Generally, I agree with many of the points that you made, especially with your elucidation of the cases as being incoherent and with the point that many Canadian judges are confused as to juristic reason. I just had a few queries. 1. In your response to my e-mail you stated: "whereas the civilian tradition permits restitution simply because the defendant has no good claim to it, the common law tradition requires proof positive as to why the plaintiff should enjoy relief." To what group of cases or legal principles are you referring to with this statement? Are you referring only to the UE cases? If you are, it hardly seems correct to use a line of thought that I am attacking to prove that my point is incorrect as a matter of logic. That begs the question. Also, I don't think that pointing to the cases with the "unjust factors" of mistake or duress helps your argument much because the presence of these factors equally shows that the plaintiff did not truly intend the transfer as a gift or as part of a contract (hence no juristic reason). Is another body of private law principle that sets up this point? I just can't think of what it is offhand. It seems as a matter of logic that if I went to court to ask for a piece of property back, all I would have to show was that I was the owner/best possessor and that the defendant had no claim to the property better than my own. Do I have to show "proof positive" to get relief? If I do, is this requirement based upon principle or is it merely a procedural requirement / holdover from a more formulaic era? As applied to an UE claim, it seems as a matter of logic that I should merely have to prove that the deprivation came from me and that you are not entitled to it. What does the intermediate "proof positive" step add, except a layer of discretion that judges can use to withhold relief on the "basis of amorphous notions of justice and equity"? 2. In response to my e-mail you stated: " it seems preferable to endorse a formulation of the third element of the cause of action in unjust enrichment that provides the courts with as much assistance as possible... And in that regard, an approach that categorizes the factors that historically have supported restitution in the common law tradition (but that allows for incremental and analogical extensions) seems far preferable to an approach that simply requires a judge to determine whether or not some (undefined) juristic reason exists." While this is a valid practical point (one proved by quite a few strange judgments), it says little about the logical implications of the juristic reason approach to UE. I could simply answer back that judges only need to be better informed as to what a juristic reason is. It is not a nebulous concept, as you implicitly claim, but simply one that is misunderstood by outcome and policy driven Canadian judges. If they understood the concept as it was meant to be understood (i.e as it is understood by [Quebec] civilians) there would be no problem whatsoever. It seems to me that there is an equal danger that Canadian judges will use the concept of "unjust factors" to achieve their desired policy goals. Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From jonathon.moore@christ-church.oxford.ac.uk Tue Nov 23 22:10:29 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 2.12 #1) id 11qO8r-0000gk-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 22:10:29 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qO7S-0001YH-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 22:09:02 +0000 Received: from max128.public.ox.ac.uk ([192.76.27.128] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qO7L-0000Xr-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 22:08:55 +0000 Message-ID: <000701bf35ff$48f7df80$68f7fea9@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: References: Subject: Re: Archer - 2 questions Date: Tue, 23 Nov 1999 22:08:09 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Andrew Dickinson writes: > Without wishing to prolong the debate, I have two questions for the main > protagonists: > > 2. For Jonathon Moore, may I ask why you have deserted the prefix > "illegitimate" before "compulsion"? For me, this is a word whose meaning > and content can only be derived from the authorities, which distinguish > between forms of compulsion (or pressure) that the law regards as acceptable > (e.g. most threats to sue) and forms of compulsion that the law regards as > unacceptable (e.g. gun to head) giving rise to legal consequences including > the obligation to restore benefits conferred under the compulsion. To say > that the reason for ordering Mr Archer to restore the money is "compulsion" > would seem to tell only half the story - it begs the question as to where > the line must be drawn - the term "illegitimate" at least emphasises that > there is a line to be drawn but does not (on its own) tell us where to place > it. > I quite agree that saying that the unjust factor is compulson does not draw the line very clearly between pressure which does, and pressure which does not, give rise to a right in unjust enrichment. I was persuaded to drop the word 'illegitimate' because, in relation to a claim in unjust enrichment (as opposed to a civil wrong), it seems strange to use the word 'illegitimate' in relation to pressure which was lawful. Even if the claim in unjust enrichment depends on the judgment first being set aside, it still may not be appropriate to describe the unjust factor as illegitimate pressure. On the other hand, at present I would cling to 'compulsion' simply because G&J put it there (p 457), citing a case which seems to support that stance (ie Dr Drury's Case). If that is right, then perhaps we should say that this is one of those relatively rare cases of lawful compulsion which gives a right to restitution of unjust enrichment. But I am the first to admit that other explanations, most of which I regard as very respectable, have also been proffered by contributions to this list. >From lionel.smith@st-hughs.oxford.ac.uk Tue Nov 23 23:57:24 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 2.12 #1) id 11qPoK-0001WH-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 23:57:24 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qPmw-0003fB-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 23:55:58 +0000 Received: from max82.public.ox.ac.uk ([192.76.27.82]) by sable.ox.ac.uk with smtp (Exim 2.12 #1) id 11qPmu-0001Dd-00 for restitution@maillist.ox.ac.uk; Tue, 23 Nov 1999 23:55:57 +0000 Subject: Date: Tue, 23 Nov 99 23:59:32 +0000 x-sender: lawf0014@sable.ox.ac.uk x-mailer: Claris Emailer 1.1 From: Lionel Smith To: Mime-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Message-Id: approved: eregion From: "Neyers, Jason (JUS)" Subject: Response to Prof. McInnes Dear Professor McInnes, Thank-you for your response to my first submission to the RDG. Generally, I agree with many of the points that you made, especially with your elucidation of the cases as being incoherent and with the point that many Canadian judges are confused as to juristic reason. I just had a few queries. 1. In your response to my e-mail you stated: "whereas the civilian tradition permits restitution simply because the defendant has no good claim to it, the common law tradition requires proof positive as to why the plaintiff should enjoy relief." To what group of cases or legal principles are you referring to with this statement? Are you referring only to the UE cases? If you are, it hardly seems correct to use a line of thought that I am attacking to prove that my point is incorrect as a matter of logic. That begs the question. Also, I don't think that pointing to the cases with the "unjust factors" of mistake or duress helps your argument much because the presence of these factors equally shows that the plaintiff did not truly intend the transfer as a gift or as part of a contract (hence no juristic reason). Is another body of private law principle that sets up this point? I just can't think of what it is offhand. It seems as a matter of logic that if I went to court to ask for a piece of property back, all I would have to show was that I was the owner/best possessor and that the defendant had no claim to the property better than my own. Do I have to show "proof positive" to get relief? If I do, is this requirement based upon principle or is it merely a procedural requirement / holdover from a more formulaic era? As applied to an UE claim, it seems as a matter of logic that I should merely have to prove that the deprivation came from me and that you are not entitled to it. What does the intermediate "proof positive" step add, except a layer of discretion that judges can use to withhold relief on the "basis of amorphous notions of justice and equity"? 2. In response to my e-mail you stated: " it seems preferable to endorse a formulation of the third element of the cause of action in unjust enrichment that provides the courts with as much assistance as possible... And in that regard, an approach that categorizes the factors that historically have supported restitution in the common law tradition (but that allows for incremental and analogical extensions) seems far preferable to an approach that simply requires a judge to determine whether or not some (undefined) juristic reason exists." While this is a valid practical point (one proved by quite a few strange judgments), it says little about the logical implications of the juristic reason approach to UE. I could simply answer back that judges only need to be better informed as to what a juristic reason is. It is not a nebulous concept, as you implicitly claim, but simply one that is misunderstood by outcome and policy driven Canadian judges. If they understood the concept as it was meant to be understood (i.e as it is understood by [Quebec] civilians) there would be no problem whatsoever. It seems to me that there is an equal danger that Canadian judges will use the concept of "unjust factors" to achieve their desired policy goals. Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From swh10@cus.cam.ac.uk Wed Nov 24 07:58:28 1999 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qXJs-0002bO-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 07:58:28 +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 3.10 #1) id 11qXIS-0005ks-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 07:57:00 +0000 Message-Id: <3.0.1.32.19991124075716.007dbe20@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 24 Nov 1999 07:57:16 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Red herrings - An addtional consignment In-Reply-To: <19991123112250.58516.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" The discussion has ranged very widely indeed, and I need to put my remarks under several headings. NON-SERIOUS ISSUES 1. Abolition of Lord Archer. Allan Axelrod suggests that the problem is moot because Lord Archer has in fact been "abolished". This is not so, and I suspect that in fact the Conservative Party have something much more lingering and painful in mind for him. What Allan may be referring to is the recent abolition of voting rights of hereditary peers, on which further information is available at http://www.parliament.uk/. 2. Godwin's Law. This law states that if any argument on the Internet is prolonged, it is inevitable that one side will accuse the other of being no better than the Nazis. This law has been confirmed by the remarks of Peter Birks, who says that if I am allowed to argue for a conclusion as obvious, or to say that no sane person would believe the contrary, then there is nothing to stop me saying that >'It is obvious that no jew is fit to hold a chair in a university.' Presumably this is a different Peter Birks from the one who argued in 1985 that certain types of enrichment may be identified from the fact that no reasonable man would deny that they are enrichments (Introduction to Restitution, p116). Of course, Peter may mean merely that not every proposition starting with the words "It is obvious that ..." is true. But I am surprised that he cannot find a politer way to say it. 3. Isaac Newton. Peter also suggests that >It is both puzzling and disheartening that a senior member of >Newton's university should rely, militantly, on an argument of >this kind. I am unfamiliar with Isaac Newton's views on the law of unjust enrichment, and know of no reason to suppose that he would have supported Peter over me. And writing as one who has actually studied physics at university level, I regard it as obvious (that word again) that physics has different objects and different methods from those used by lawyers. SERIOUS ISSUES : THE EFFECT OF SETTING ASIDE A JUDGMENT It is pleasing to see various differing views expressed on this, from a variety of jurisdictions. Some views are indistinguishable from my own, such as Duncan Sheehan's view that : >it is tantamount to leaving >the judgment in force to say that Archer gets to keep the money That is it in a nutshell. There are not two distinct things, firstly the setting aside of the judgment, and secondly the return of the money. It is all one thing. And someone who didn't already understand that one thing would not be helped by saying that it was concerned with "unjust enrichment". There are really three main views to the contrary, the first. two of which are not necessarily incompatible with one another, or indeed very far from my own. 1. Some point out that a court which queries an earlier judgment may do other things than simply reverse it and order repayment. This is Allan Axelrod's point, and (if I understand it) Arianna Pretto's as well. Certainly yes, and it may be that what will happen in the Archer case is that something different will be ordered (such as a retrial of the issues). This is all absolutely true, but it is a different problem. We were discussing one possible thing that the court might do, and how to characterise that. The problem is not essentially altered by pointing out that there are other things the court can do. 2. Some admit that it is obvious that a complete reversal of the judgment entails return of the money, but say that "unjust enrichment" is a neat label to apply to this. So Allan Axelrod says : >obvious rules tend to be given names--and a name for the >rule that a judgment recipient sometimes has to give some >of it back--could be called restitution without shocking too >many legal minds, and the ground for the restitution might >be 'unjust enrichment' again without jarring too many of the >profession? This is of course exactly what we would expect an American to say, precisely because "unjust enrichment" carries so little theoretical baggage in the US. And were I in America, I might agree. But in England, "unjust enrichment" is not understood that way. The term brings in a whole raft of theoretical concepts, and I'm opposing that here because those concepts don't fit. (I'm not convinced as to how well they fit anywhere else either, but I am trying to deal with one issue at a time.) I'm not clear in my mind how far the Australian cases quoted carry us. Commonwealth v. MacCormack certainly comes awfully close to saying that the recovery is obvious -- and the only legal tag applied is "restitutio in integrum", which is compatible with just about any legal theory you care to name. Varley v Thompson I can't locate -- it isn't in the AUSTLII database. Perhaps someone else can comment ? 3. Some say this is "unjust enrichment", meaning by this that the whole theoretical apparatus of unjust enrichment theory applies. That is where the fun starts, because there are a number of theories floating around. SERIOUS ISSUES : UNJUST ENRICHMENT I think it is in danger of being forgotten here that English Law is NOT committed to a theory of "unjust factors". This is simply an academic idea. "Unjust factors" have only ever been referred to in 4 cases (as of Tuesday evening, when I searched the LEXIS database), and there is a very long way to go before they can be said to be an accepted part of the law. (Of course, Jonathon Moore will point out that there is a much wider body of case law which possibly *may* be explained by reference to "unjust factors"; which is true but again does not carry the matter beyond academic opinions. There is a long and inglorious tradition of treating the least judicial reference to "unjust enrichment" as support for the entire Birksian theoretical edifice. But Jonathon will understand that more is required before it is genuinely part of the common law.) So the question of how useful they are is a very topical and important one, and it is a good thing that this has played such a prominent part in this discussion. It is clear that this discussion has not shown the "unjust factors" in a good light. Even after it has become clear that the matter is controversial, we still have active support for the factor's being : 1. Compulsion (Jonathon Moore) 2. *Illegitimate* compulsion (Andrew Dickinson - a different thing, as is clear from their explanations) 3 Failure of consideration (Matthew Scully) It is not clear whether the other factors referred to on earlier days are now being given up by their proponents. I am not sure that James Edelman's "fraud" and Gerhard Dannemann's "restitution for wrongs" would properly be called additional "unjust factors", but they are certainly additional explanations within the framework of theory of which the "unjust factors" form a part. What is startling is that there seems to be so little constraint on the creation of new or expanded unjust factors. As I have said already, perhaps this is just a freak case. But if the proliferation and overlap of unjust factors illustrated here is in any way typical, then plainly the theory is in trouble. As Gerhard Dannemann implies, this problem goes away if we adopt the German perspective (and we have had an interesting exchange of views on whether the Canadian law can be said to be adopting a similar perspective). If, then, English law had adopted not merely unjust enrichment, but unjust enrichment on that particular model, then the Archer case would not be a difficult one. As Gerhard makes clear, of course, that would not mean that we would not have other, possibly very serious, problems in its place ! 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 peter.birks@all-souls.oxford.ac.uk Wed Nov 24 12:36:24 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 2.12 #1) id 11qbeq-0004dT-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 12:36:24 +0000 Received: from heraldgate2.oucs.ox.ac.uk ([163.1.2.50] helo=frontend2.herald.ox.ac.uk ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qbdQ-0006hR-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 12:34:56 +0000 Received: from squire.asc.ox.ac.uk ([163.1.128.121] helo=squire) by frontend2.herald.ox.ac.uk with smtp (Exim 2.02 #1) id 11qbdQ-0001jV-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 12:34:56 +0000 Message-Id: <1.5.4.32.19991124123627.00e219bc@ermine.ox.ac.uk> X-Sender: birks@ermine.ox.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 24 Nov 1999 12:36:27 +0000 To: restitution@maillist.ox.ac.uk From: Peter Birks Subject: 'It is obvious that ...' I did not think obviousness was a non-serious issue, though it has indeed been trivialized in order to be dismissed. My point was not that SH was as bad as the Nazis but that every argument in the form 'It is obvous that ...' is anti-rational, in that it evades the giving of reasons and conceals errors. It is obvious that an apple which detaches itself from a tree will fall to the ground. But if we had stopped there we would never have found out why. I dispute the assertion that rationality in law is different from rationality in the natural sciences but, leaving that large question on one side, I take it that SH cannot mean that law differs from physics in not needing to discover reasons. In Chandler v Webster the view was taken that money payable under a valid contract could not be recovered even if the contract was later frustrated and the payer got nothing for his payment. In Fibrosa a different view prevailed. The difference requires to be explained, and it can only be explained through a discussion of the reasons why restitution is given. What advance can we make if one protagonist says that Chandler was obviously right and the other says that it was obviously wrong, and both insist that obviousness is an argument behind which it is not necessary to go? If someone were to maintain money paid under a judgment which was valid at the time of the payment should not be recoverable even if the judgment was later reversed, we would likewise have to meet his argument with an analysis of the reasons why restitution is ordered. I confess that I would hardly know what law was, or how to mark a law examination, if 'It is obvious that ...' were thought to be a good argument. Presumably a student's 'It is obvious ...' would have the same validity as a judge's. Peter B H Birks, QC, DCL, FBA Regius Professor of Civil Law All Souls College Oxford OX1 4 AL Tel: 44 - (0)1865-279338 Fax: 44 - (0)1865 279299 Home: Oak Trees, Sandy Lane, Boars Hill. Oxford OX1 4AL Tel: 44 - (0)1865-735625 >From swh10@cus.cam.ac.uk Wed Nov 24 14:22:37 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qdJd-0005TB-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 14:22:37 +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 3.10 #1) id 11qdIC-0000cS-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 14:21:08 +0000 Message-Id: <3.0.1.32.19991124142134.007ead40@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 24 Nov 1999 14:21:34 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: 'It is obvious that ...' In-Reply-To: <1.5.4.32.19991124123627.00e219bc@ermine.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable I am afraid that Peter's imagination is working overtime. =20 I have insisted that a particular point is obvious. And I=20 have been right to do this, because others working=20 within the same procedural setup have agreed that=20 it is indeed obvious. And the discussion has advanced=20 our understanding, because it has become clear why=20 some others have *not* regarded it as obvious: =20 It is because they are making different assumptions=20 about procedure, assumptions which are more=20 reasonable given the jurisdiction from which they=20 come. Those assumptions have been teased out=20 in argument. So our understanding has been=20 advanced: We understand more about how=20 procedure shapes substantive law, and the=20 relation between them. We have not necessarily=20 come to agreement, but our understanding has=20 been advanced anyway. Yet in Peter's mind, my single insistence on=20 obviousness has been converted into a fantasy=20 world where *every* reply to *every* legal=20 question starts with the words "It is obvious=20 that =85" This bears no resemblance to anything=20 I have said, or am ever likely to say. The ability=20 to call a spade a spade is a very useful one,=20 and all jurists use it on occasion. Indeed, my=20 last message gave an example where Peter=20 himself used it, making claims about what "all=20 reasonable men" would believe (another way of saying that it is obvious and needs no argument). =20 This is part of everyday discourse. It is nothing=20 unusual. It is not objectionable. And whether it=20 is right on a particular occasion is a matter for=20 debate on that occasion. =20 I, for one, would very much prefer it if Peter=20 were to debate the issues which divide us,=20 which he is very well qualified to do. To invent=20 non-issues, or to claim that a perfectly normal=20 and intelligible argument is "anti-rational",=20 does him no credit. Wrong, it may possibly be. Anti-rational, it is not. Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D >From joshua.getzler@law.oxford.ac.uk Wed Nov 24 15:27:20 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 2.12 #1) id 11qeKG-0005yJ-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 15:27:20 +0000 Received: from heraldgate1.oucs.ox.ac.uk ([163.1.2.49] helo=frontend1.herald.ox.ac.uk ident=exim) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qeIp-0003pN-00; Wed, 24 Nov 1999 15:25:51 +0000 Received: from fellow10.sthughs.ox.ac.uk ([163.1.228.70] helo=law.ox.ac.uk) by frontend1.herald.ox.ac.uk with esmtp (Exim 2.02 #1) id 11qeIq-00029S-00; Wed, 24 Nov 1999 15:25:52 +0000 Message-ID: <383C0377.C7717381@law.ox.ac.uk> Date: Wed, 24 Nov 1999 15:25:43 +0000 From: Dr Joshua Getzler Reply-To: joshua.getzler@law.oxford.ac.uk Organization: Faculty of Law and St Hugh's College, University of Oxford X-Mailer: Mozilla 4.6 [en-gb] (Win98; I) X-Accept-Language: en-GB,en,en-* MIME-Version: 1.0 To: Peter Birks CC: restitution@maillist.ox.ac.uk Subject: Re: RDG: 'It is obvious that ...' References: <1.5.4.32.19991124123627.00e219bc@ermine.ox.ac.uk> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit 'All the world agrees that...' was a common starting point for axiomatic reasoning in Mishnah and Talmud. This might seem to be illiberal and coercive as the point of departure is dictated. But a twist must be added. The addition appears from the following midrash: "A young scholar suspected his masters' axioms (..all the world agrees...) and went forth to collect contradictory opinions. He asked from the butcher and the baker in the marketplace, and then presented these opposing views to his masters. They replied impatiently: 'They are not the world. WE are the world'." Coke's artifical reasoners... Joshua Getzler St Hugh's College Peter Birks wrote: > I did not think obviousness was a non-serious issue, though it has indeed > been trivialized in order to be dismissed. My point was not that SH was as > bad as the Nazis but that every argument in the form 'It is obvous that ...' > is anti-rational, in that it evades the giving of reasons and conceals > errors. It is obvious that an apple which detaches itself from a tree will > fall to the ground. But if we had stopped there we would never have found > out why. I dispute the assertion that rationality in law is different from > rationality in the natural sciences but, leaving that large question on one > side, I take it that SH cannot mean that law differs from physics in not > needing to discover reasons. > > In Chandler v Webster the view was taken that money payable under a > valid contract could not be recovered even if the contract was later > frustrated and the payer got nothing for his payment. In Fibrosa a different > view prevailed. The difference requires to be explained, and it can only be > explained through a discussion of the reasons why restitution is given. > What advance can we make if one protagonist says that Chandler was obviously > right and the other says that it was obviously wrong, and both insist that > obviousness is an argument behind which it is not necessary to go? If > someone were to maintain money paid under a judgment which was valid at the > time of the payment should not be recoverable even if the judgment was later > reversed, we would likewise have to meet his argument with an analysis of > the reasons why restitution is ordered. > > I confess that I would hardly know what law was, or how to mark a > law examination, if 'It is obvious that ...' were thought to be a good > argument. Presumably a student's 'It is obvious ...' would have the same > validity as a judge's. > > Peter B H Birks, QC, DCL, FBA > Regius Professor of Civil Law > All Souls College Oxford OX1 4 AL > Tel: 44 - (0)1865-279338 > Fax: 44 - (0)1865 279299 > > Home: Oak Trees, Sandy Lane, > Boars Hill. Oxford OX1 4AL > Tel: 44 - (0)1865-735625 > > ________________________________________________________________________________ > 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 mpmcinne@julian.uwo.ca Wed Nov 24 15:33:24 1999 Received: from pony.its.uwo.ca ([129.100.2.63]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qeQ7-00062O-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 15:33:24 +0000 Received: from julian.uwo.ca by pony.its.uwo.ca with ESMTP id KAA21826; Wed, 24 Nov 1999 10:31:40 -0500 (EST) Message-ID: <383C04E0.159BC86D@julian.uwo.ca> Date: Wed, 24 Nov 1999 10:31:44 -0500 From: Mitchell McInnes Organization: University of Western Ontario X-Sender: "Mitchell McInnes" (Unverified) X-Mailer: Mozilla 4.61 [en]C-CCK-MCD {University of Western Ontario} (Win95; I) X-Accept-Language: en MIME-Version: 1.0 To: restitution@maillist.ox.ac.uk Subject: Canadian Unjust Enrichment Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable X-MIME-Autoconverted: from 8bit to quoted-printable by pony.its.uwo.ca id KAA21826 I thought it best to start a new thread for the purpose of further discussing Mr Neyers' suggestion that the third element of the Canadian common law action in unjust enrichment does (or should) actually require proof of "absence of juristic reason for the defendant's enrichment," rather than proof of an "unjust factor." As the recent Ontario CA decision in Campbell v Campbell illustrates, the issue of some significance and certainly has not received the attention that it deserves. I am thankful to Mr Neyers for having raised it in the RDG.=20 Mr Neyers: "In your response to my e-mail you stated: 'whereas the civilian tradition permits restitution simply because the defendant has no good claim to it, the common law tradition requires proof positive as to why the plaintiff should enjoy relief.' ... [I]t hardly seems correct to use a line of thought that I am attacking to prove that my point is incorrect as a matter of logic." I did not claim that your position was incorrect as a matter of logic (although I am not entirely sure how that term is being used). Rather, I pointed out that, among the reasons for preferring the English formulation to the Canadian formulation is the fact that the English formulation betters accords with common law tradition in the area of unjust enrichment. And given an option, it does, indeed, seem preferable for a common law jurisdiction to adopt an approach that is consistent with common law tradition.=20 Mr Neyers: "I don't think that pointing to the cases with the 'unjust factors' of mistake or duress helps your argument much because the presence of these factors equally shows that the plaintiff did not truly intend the transfer as a gift or as part of a contract (hence no juristic reason)."=20 To the contrary, I believe that the Canadian courts' invocation of unjust factors does support the proposition that, at least on a descriptive level, Canadian law generally is the same as English law with respect to the third element of the action in unjust enrichment. The unjust factors were not merely coincidental features of the cited cases. Rather, they were, as Dickson J explained in Pettkus v Becker, essential elements to the availability of restitutionary relief. The function that they served was to positively justify the imposition of liability. They did not merely provide evidence of a lack of a juristic reason for the defendant's enrichment.=20 Mr Neyers: "It seems as a matter of logic that if I went to court to ask for a piece of property back, all I would have to show was that I was the owner/best possessor and that the defendant had no claim to the property better than my own. Do I have to show 'proof positive' to get relief? If I do, is this requirement based upon principle or is it merely a procedural requirement/holdover from a more formulaic era? As applied to an UE claim, it seems as a matter of logic that I should merely have to prove that the deprivation came from me and that you are not entitled to it. What does the intermediate 'proof positive' step add, except a layer of discretion that judges can use to withhold relief on the 'basis of amorphous notions of justice and equity'?"=20 The proper characterisation of an action to recover property is, of course, a matter of some controversy. As a recent series of articles reveals, opinion is divided as to whether property is a triggering event or merely a response. There also is a growing body of literature that suggests that the causative event is not the action in unjust enrichment, even though the legal response may be restitution. I interpret your statement to support the proposition that the triggering event is unjust enrichment, but one that, anomalously under the orthodox approach, requires proof of the first and second elements, together with disproof of any juristic reason for the enrichment. Presumably, however, if a plaintiff is seeking recovery of her property, she is doing so for a particular reason =96 most commonly, because she did not truly intend for the defendant to enjoy the property as an enrichment. That is to say, she is seeking recovery on the basis of the unjust factor of impaired intention.=20 To further expand upon one point in the preceding paragraph, you indicate that a plaintiff under your theory of unjust enrichment would bear the onus of proving an enrichment, a deprivation and an absence of juristic reason for the enrichment. While the counter-argument admittedly is not conclusive, it would seem rather cumbersome to require a claimant to disprove all possible justifications for the defendant's enrichment. Certainly, the procedure under the orthodox approach, which requires the plaintiff to prove a positive factor supporting relief and then allows the defendant to prove a juristic reason for the enrichment (ie a defence), seems much cleaner.=20 With respect to the second part of your argument, I'm not entirely sure how required proof of an unjust factor necessarily increases the courts' scope of discretion. I've always thought that one of the great benefits of enumerating specific unjust factors is the fact that it makes "justice" look "downward to the cases," rather than "upwards to the sky." Are you suggesting that certainty would be increased if judges were subject to fewer guidelines and constraints? Or are you suggesting that certainty would be increased if judges were subject to the guidelines and constraints that you propose? If the latter, what are the guidelines and constraints that you propose?=20 Mr Neyers: "[Y]ou stated: 'it seems preferable to endorse a formulation ... that provides the courts with as much assistance as possible... And in that regard, an approach that categorizes the factors that historically have supported restitution in the common law tradition ... seems far preferable to an approach that simply requires a judge to determine whether or not some (undefined) juristic reason exists.' While this is a valid practical point ... it says little about the logical implications of the juristic reason approach to UE. I could simply answer back that judges only need to be better informed as to what a juristic reason is. It is not a nebulous concept, as you implicitly claim, but simply one that is misunderstood by outcome and policy driven Canadian judges. If they understood the concept as it was meant to be understood (i.e as it is understood by [Quebec] civilians) there would be no problem whatsoever." This seems to go the heart of your position. As I understand it, you simply would prefer that Canadian common law jurisdictions adopt the civilian approach, rather than the traditional common law approach. That certainly is a possible avenue of development. However, it also suffers from a number of drawbacks. As previously noted, it simply is not the way that Canadian common law courts currently do business or have ever done business. Moreover, it re-introduces all of the same concerns that have been raised in the past in response to the suggestion that "absence of consideration" is a sufficient basis of relief.=20 In light of those concerns, I wonder what benefits would accrue from your proposal, such that the courts would be justified in departing from established practice.=20 Mitchell McInnes >From gerhard.dannemann@law.oxford.ac.uk Wed Nov 24 15:43:55 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 2.12 #1) id 11qeaJ-0006BS-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 15:43:55 +0000 Received: from ermine.ox.ac.uk ([163.1.2.13]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qeYu-0002Jq-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 15:42:28 +0000 Received: from max29.public.ox.ac.uk ([192.76.27.29] helo=law.ox.ac.uk) by ermine.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qeYs-0004vQ-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 15:42:27 +0000 Message-ID: <383C0656.FD22F2DA@law.ox.ac.uk> Date: Wed, 24 Nov 1999 16:37:58 +0100 From: Gerhard Dannemann X-Mailer: Mozilla 4.51 [en] (Win95; I) X-Accept-Language: de MIME-Version: 1.0 To: "Maillist, Restitution" Subject: Archer: the obvious and the classification of restitution claims Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Some further comments on what is obvious and what is a claim in unjust enrichment. The Archer example (I learn, incidentally, from reading German papers at my temporary home in Munich, that he remains a Lord, but no longer a member of the conservative fraction in the UK's upper chamber) is a good illustration for the various models of classifying unjust enrichment claims and how they interact with other areas of the law. What is obvious to anyone but a lunatic, as Steve Hedley puts it, is that the money paid under the judgment which now turns out to be based on false and apparently fabricated facts, should be returned - at least if the judgment is reversed. I agree that this looks obvious, but not much more obvious that if the government requires the payment of taxes which later are found not to be exigible it must pay them back. It took the House of Lords to sort out in Woolwich Building Society v IRC that these overpaid taxes can be claimed back, and English law was fairly hostile towards such a claim before the House of Lords ruled otherwise. Peter Birks reminds us that the law of gravity was discovered because somebody (Isaac Newton, if I am not mistaken) no longer thought it obvious that an apple, once detached from a tree, falls to the ground. Law is more culturally charged than physics. In law, usually, anything which is "obvious" has a base in beliefs which are widely shared within a given population, but which may be considered "lunatic" by a different population. It is obvious in the UK that any person has the right to change his or her name by title deed. It is obvious in Germany that this is impermissible and would lead to chaos, a rise in the crime rate, and the downfall of occidental society in general. So, the "obvious" in law is usually consensus. If we are lucky, we discover a rational reason behind such consensus which allow us to distinguish, particularly in less "obvious" cases, between claims which should be allowed and those which should not. Now back to Archer. I suppose that in all those societies from which we have received contributions to this debate people would generally agree that under the assumed circumstances Lord Archer should give the money back to the Daily Star - certainly if the judgment is overturned. But would they agree on why it should be given back? I think the easiest explanation is "because he should not have got it in the first place". This may or may not be coupled with sentiments of "because he cheated". The condictio indebiti follows the first explanation. It allows for the recovery of an enrichment made at another person's expense which is not supported by a valid legal ground, and has no problem in turning the seemingly obvious into a legal claim. But the simplest explanations are not always the best, and are not always simple if looked at from a different angle. If we return to physics: the geocentric explanation that the sun and the planets move around the earth looks simpler from the perspective of a person on the earth looking at the sun than the heliocentric explanation. The same geocentric explanation, however, creates terrible problems when looking at the complicated cylces and epicycles which the planets appear to pursue from the viewpoint of the earth. (Present wisdom has it, at any rate, that the sun and all planets rotate around each other, although this is not noticed much in the movement of the sun because of its large mass.) The law of unjust enrichment is highly interlinked with other areas of the law and can wreak considerable havoc on them by allowing or not allowing a claim. The contractual rule that a contract for the performance of an illegal act (beating up another person) becomes irrelevant if the thug, after having beaten up the victim, can claim a quantum meruit. The procedural rule that a judgment is final after all possibilities of appeal have been exhausted becomes equally irrelevant if we allow unjust enrichment claims to return payments made under this judgment while leaving the judgment itself intact. The condictio indebiti approach functions in a legal system which has written its substantive law (contract in particular, but also property) with a view towards something like a general unjust enrichment action. Somebody agreees to help a friend to paint his rooms, and after having fallen out with the friend, claims a quantum meruit. No problem in continental legal systems which have gratuitous contracts for work or services which give a valid legal cause for keeping the enrichment. The requirement of an unjust factor protects the recipient of the help in English law where there is no such gratuitous contract. The "friend" cannot claim under mistake, because he was not mistaken, nor under failure of consideration, because no consideration was to be expected. The combination of a condictio indebiti with the lack of gratuitous contracts is more problematic. Likewise, in continental legal systems, form requirements will often contain an additional provision which will validate a transaction once it has been completed without observance of this form - namely, in order to prevent unjust enrichment from undoing a contract which has been fully performed. English statutory form requirements will not always have such a similar rule - traditionally, once such a transaction was completed, it could not be undone by actions for money had and received, or for quantum meruit, because this always required a specific ground or unjust factor. Similar problems arise within gaming and betting contracts. The combination of a prohibitory norm and a condictio indebiti means that a disappointed gambler can claim back his or her stake. A condictio indebiti approach requires a contractual rule which defends a completed gaming or betting transaction against unjust enrichment claims - e.g., by making this a "non-actionable" contract. This is why I think that, in English law, it is not helpful to resort to either "the obvious", or a very broad "failure of basis", or the condictio indebiti, to explain why Archer should give the money back - this creates a host of problems elsewhere (I would be interested to hear from our Canadian colleagues, though, how Canadian law copes with all these problems). I said in my last contribution that restitution for wrongs looks like the best bet. Another avenue, though, would be to modify the "illegitimate" requirement for compulsion to allow for the illegitimate use of a perfectly legal or legitimate means in order to pursue a claim which, under the given facts, was without merit. Broadening compulsion (as suggested by Jonathon Moore) would help English law to cope with some cases where it has so far distributed rather harsh justice. Gerhard Dannemann -- Dr. Gerhard Dannemann Erich Brost University Lecturer in German Civil and Commercial Law University of Oxford Tel/Fax +49 (0)89 2899 6695 (until March 2000) http://iuscomp.org >From jonathon.moore@christ-church.oxford.ac.uk Wed Nov 24 17:43:42 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 2.12 #1) id 11qgSE-0007Wy-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 17:43:42 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qgQo-0000ma-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 17:42:14 +0000 Received: from max160.public.ox.ac.uk ([192.76.27.160] helo=moorejp) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qgQn-0003g8-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 17:42:14 +0000 Message-ID: <005d01bf36a3$324dec80$a222fea9@moorejp> Reply-To: "Jonathon Moore" From: "Jonathon Moore" To: Subject: Unjust factors Date: Wed, 24 Nov 1999 17:41:52 -0000 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_005A_01BF36A3.31522760" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2314.1300 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 This is a multi-part message in MIME format. ------=_NextPart_000_005A_01BF36A3.31522760 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Steve Hedley has an uncanny ability, if that is the right word, to claim = victory from the jaws of defeat. Witness his comments on unjust = factors. He claims that=20 =20 'a theory of "unjust factors" is simply an academic idea'=20 which forms no part of actual law. Astonishingly, he says that the = proof lies in the results of his LEXIS search for that exact phrase. = Presumably, that search did not bring to Hedley's attention Portman = Building Society v Hamlyn Taylor Neck (a firm) [1998] 4 All ER 202. At = 206 Millett LJ, now Lord Millett, said: "... any claim to restitution raises the questions (1) Has the defendant = been enriched? (2) If so, is his enrichment unjust? (3) Is his = enrichment at the expense of the plaintiff? There are several factors = which make it unjust for a defendant to retain the benefit of his = enrichment; mistake is one of them." No doubt Hedley will say ' Ah! There! You see? The word "factors" = comes *before* the word unjust!' _________________ Jonathon Moore Christ Church College Oxford OX1 1DP UK ------=_NextPart_000_005A_01BF36A3.31522760 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

Steve Hedley has an uncanny ability, if = that is the=20 right word, to claim victory from the jaws of defeat.  Witness his = comments=20 on unjust factors.  He claims that
   
    'a theory of "unjust = factors" is=20 simply an academic idea'
 
which forms no part of actual = law. =20 Astonishingly, he says that the proof lies in the results of his LEXIS = search=20 for that exact phrase.  Presumably, that search did not bring to = Hedley's=20 attention Portman Building Society v Hamlyn Taylor Neck (a firm) [1998] = 4 All ER=20 202.  At 206 Millett LJ, now Lord Millett, said:
 
"... any claim to restitution raises = the questions=20 (1) Has the defendant been enriched?  (2) If so, is his enrichment=20 unjust?  (3) Is his enrichment at the expense of the = plaintiff?  There=20 are several factors which make it unjust for a defendant to retain the = benefit=20 of his enrichment; mistake is one of them."
 
No doubt Hedley will say ' Ah!  = There! =20 You see?  The word "factors" comes *before* the word = unjust!'
 
 
_________________
 
Jonathon Moore
Christ Church = College
Oxford=20 OX1 1DP
UK
 
------=_NextPart_000_005A_01BF36A3.31522760-- >From swh10@cus.cam.ac.uk Wed Nov 24 18:17:23 1999 Received: from taurus.cus.cam.ac.uk ([131.111.8.48] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qgyo-0007uh-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 18:17:23 +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 3.10 #1) id 11qgxN-0006dU-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 18:15:53 +0000 Message-Id: <3.0.1.32.19991124181616.007f96d0@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Wed, 24 Nov 1999 18:16:16 +0000 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: Unjust factors In-Reply-To: <005d01bf36a3$324dec80$a222fea9@moorejp> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 17:41 24/11/99 -0000, "Jonathon Moore" wrote: >Steve Hedley has an uncanny ability, if that is the right word, >to claim victory from the jaws of defeat. Witness his comments >on unjust factors. He claims that > > 'a theory of "unjust factors" is simply an academic idea' > >which forms no part of actual law. Astonishingly, he says that >the proof lies in the results of his LEXIS search for that exact >phrase. Presumably, that search did not bring to Hedley's >attention Portman Building Society v Hamlyn Taylor Neck >....(a firm) [1998] 4 All ER 202. At 206 Millett LJ, now Lord Millett, said: > > >No doubt Hedley will say ' Ah! There! You see? The word "factors" >comes *before* the word unjust!' As anyone in this discussion can confirm for themselves, what I actually said was : >I think it is in danger of being forgotten here that English Law >is NOT committed to a theory of "unjust factors". This is simply >an academic idea. "Unjust factors" have only ever been referred >to in 4 cases (as of Tuesday evening, when I searched the LEXIS >database), and there is a very long way to go before they can be >said to be an accepted part of the law. Yes, indeed Portman v. Hamlyn was one of the 4 cases. I presume that Jonathon has some understanding of common law method, and accordingly does not imagine that a brief reference to a concept in a handful of judgments makes that a settled part of the law. That being so, I am not sure what his point is. I am sure he is capable of explaining it better than he has done. There is a serious point here, of course, and that is of what would count as adequate evidence that English common law has accepted the "unjust factors". The minimal number of references so far hardly indicates that the theory has taken hold. And the turmoil of academic theory, of which we have seen plenty on this list, is another factor casting doubt on its stability. I think that if Jonathon were to read all of the contributions to this discussion, and not simply mine, he would realise that the factors are not so widely accepted as he assumes. 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 Jason.Neyers@jus.gov.on.ca Wed Nov 24 19:43:15 1999 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qiJv-0008O1-00 for restitution@maillist.ox.ac.uk; Wed, 24 Nov 1999 19:43:15 +0000 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id ; Wed, 24 Nov 1999 14:41:24 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF5803425224@JUS00AEX0310> From: "Neyers, Jason (JUS)" To: "'restitution@maillist.ox.ac.uk'" Cc: "'mpmcinne@julian.uwo.ca'" Subject: RDG: Canadian Unjust Enrichment Date: Wed, 24 Nov 1999 14:41:47 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain Dear Prof. McInnes, Once again I thank-you for your clarifications. I won't take much of your time, but I just wanted to note the following: 1) I think that much of our academic disagreement stems from our appreciation of the history of UE in the cases and in the common law. You interpretation seems to be (I'm sorry if this is incorrect) that there is a grand tradition of unjust enrichment in the common law that has stabilized into the coherent three part English approach. Thus, from this settled core we can work out problem areas in the interface with contract, tort & equity and re-analyze older case law. From my perspective, I do not see such a grand history but rather a nascent principle that is just starting to be worked out tentatively in the cases. Thus, I do not take great solace in proofs that deduce answers from these nascent cases and say that this is the common law tradition (unless these same principles are present in other older areas of the law). Much like Prof. Hedley I don't see much tradition (e.g. dealing with unjust factors) especially when compared with the 1000 year history of contract and tort, and the 100 year history of corporate personality. Even in those "settled" areas of the law, there is still much disagreement on certain core principles. Thus, in my mind, at this early stage, there is still much up for grabs with regards to UE and little to guide us except the core principles of private law and a logical deduction from these principles. That is why I find the civilian paradigm so helpful. They have a longer history with this topic and have thought about this issue in a very rational and principled way. I personally do not see anything "un-common law -like" in borrowing from the civilians on this issue, as there are precedents in the past. For example, as I understand legal history, many of "our" ideas surrounding contract, special contracts (e.g. bailment) and civil responsibility where borrowed from the civil law tradition at the formative stage of the common law. When faced with a difficult problem in private law, I therefore find it prudent to look to the civil law once again. It should be noted that this interaction is two-way, e.g. see the codification of the Trust in the CCQ. 2) On the scope of discretion issue, you may be right that judges may feel bound to only follow the unjust factors that have been listed in the cases and in the major texts. Perhaps this might be easier for judges as well, I'm not sure. From my perspective, and from reading the postings, it seems that the list of unjust factors just keeps growing. I have the feeling that it will just keep growing in order to try and fit strange fact patterns into the law of UE (even if they do not necessarily belong to that area of law) or to do justice in a hard case for a deserving plaintiff. Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From s.evans@law.unimelb.edu.au Thu Nov 25 02:12:20 1999 Received: from smtp2.unimelb.edu.au ([128.250.20.112] helo=cygnus.its.unimelb.EDU.AU) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qoOO-0000qM-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 02:12:19 +0000 Received: from law.unimelb.edu.au (its-dialin2asy8.its.unimelb.edu.au [128.250.138.136]) by SMTP.UNIMELB.EDU.AU (PMDF V5.2-29 #40202) with ESMTP id <01JIR7PKBMY094FDKC@SMTP.UNIMELB.EDU.AU> for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 13:10:41 +1100 Date: Thu, 25 Nov 1999 13:08:19 +1100 From: Simon Evans Subject: Re: RDG: Red herrings - An additional consignment To: restitution@maillist.ox.ac.uk Message-id: <383C9A12.A2D164FB@law.unimelb.edu.au> MIME-version: 1.0 X-Mailer: Mozilla 4.7 [en] (Win95; I) Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit X-Accept-Language: en References: <3.0.1.32.19991124075716.007dbe20@pop.cus.cam.ac.uk> Steve Hedley wrote: > I'm not clear in my mind how far the Australian cases quoted > carry us. Commonwealth v. MacCormack certainly comes > awfully close to saying that the recovery is obvious -- and the > only legal tag applied is "restitutio in integrum", which is compatible > with just about any legal theory you care to name. Varley v > Thompson I can't locate -- it isn't in the AUSTLII database. > Perhaps someone else can comment ? I can't comment but do offer the following information, based on distant memories of the first case and a quick trawl through the citator. The Australian case that seems to say most clearly that when a judgment is set aside recovery is obvious and automatic is Production Spray Painting & Panel Beating Pty Ltd v Newnham (No2) (1992) 27 NSWLR 659 (NSWCA). But it is not so obvious that it doesn't require analysis of several centuries of case law and characterisation of the basis of recovery as restitution. Recovery is denied when it cannot be characterised as restitutionary. The New South Wales Court of Appeal does not identify a specific unjust factor and 'restitution' seems to be a convenient -- content-free? -- label rather than an invocation of the restitution-for-unjust-enrichment paradigm. (Paraphrasing the headnote: When the Supreme Court, as a superior court exercising its supervisory jurisdiction, quashes orders of an inferior court, the claimant is entitled to an unconditional order for the repayment by way of restitution of any sum paid pursuant to those orders. The Supreme Court has no discretion to withhold such relief and no jurisdiction to entertain cross-claims raised by the opponent. The Supreme Court cannot make an order for the recovery of costs incurred by the claimant in the inferior court, as no question of restitution is involved.) The decision seems to have been applied in two further New South Wales cases, both using the language of restitution: Proprietors of Strata Plan 5399 v Feehan (Unreported, Young J, 8 February 1996) and Haig v Minister Administering the National Parks & Wildlife Act 1974 (No3) (1996) 90 LGERA 408. I haven't sighted either of these. There is also a Queensland case, Idemitsu Queensland v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 (Qld CA), in which recovery is put on the basis of 'restitution' without clear elaboration of what that meant (with the result that the appellant's claim for what was essentially compensation failed). One judge put the basis of recovery thus: "This survey shows that the principle on which the courts have for centuries acted is that when an erroneous judgment or order is overturned, whether by means of appeal or by any other procedure, the court will achieve a just result by requiring anything that has been taken from him by the other party by virtue of the wrong decision to be restored. Interest is for this purpose treated as the fruit of money and he who has had the use of money will not be heard to say that there were no fruits. The principle is, as it was in the reign of the first Elizabeth (Eyre v Woodfine Cro Eliz 278; 78 ER 533), one of restitution or restoration. The court is seeking to restore to one party what it has wrongly taken from him and given to the other. It does not seek to restore the successful party to his former position by awarding damages to compensate him for loss flowing from the erroneous judgment or order. There is no basis for an award of damages." There are other cases; I haven't followed them up. Others may care to. -- Dr Simon Evans Faculty of Law University of Melbourne VIC 3010 Phone: +61 3 9344 4751 Fax: +61 3 9347 2392 Email: s.evans@law.unimelb.edu.au WWW: http://www.law.unimelb.edu.au >From hfraser@qldbar.asn.au Thu Nov 25 03:50:32 1999 Received: from dns.qldbar.asn.au ([203.12.171.50]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qpvS-00010g-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 03:50:31 +0000 Received: from hfraser ([192.168.27.130]) by dns.qldbar.asn.au (8.9.1/8.8.3) with SMTP id NAA16081 for ; Thu, 25 Nov 1999 13:48:46 +1000 (EST) Received: by localhost with Microsoft MAPI; Thu, 25 Nov 1999 13:58:11 +1000 Message-ID: From: Hugh Fraser To: "'restitution@maillist.ox.ac.uk'" Subject: Re: RDG: Archer, red herrings - the facts? Date: Thu, 25 Nov 1999 13:49:38 +1000 X-Mailer: Microsoft Internet E-mail/MAPI - 8.0.0.4211 MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Steve Hedley's mention of a case in which I appeared, Idemitsu Queensland v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 (Qld CA), prompts me to mention that an illuminating discussion of the case law concerning restitutution of moneys paid under a judgment subsequently set aside may be found in Brooking J's judgment in NAB v Bond Brewing Holdings [1991] VR 386 at 591-598 (upon which the Queensland Court relied). It has here been reported as a fact that Mr Archer's apparently false alibi was not in fact tendered in evidence at the trial. If this is true, the academic debate is not less interesting, but perhaps it is more academic. Hugh Fraser QC >From lionel.smith@law.oxford.ac.uk Thu Nov 25 09:49:30 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 2.12 #1) id 11qvWs-0001Yu-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:49:30 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qvVT-0000dO-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:48:03 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qvVS-0005j3-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:48:02 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Thu, 25 Nov 1999 09:47:05 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: "Neyers, Jason (JUS)" Subject: RDG: Canadian Unjust Enrichment Dear Prof. McInnes, Once again I thank-you for your clarifications. I won't take much of your time, but I just wanted to note the following: 1) I think that much of our academic disagreement stems from our appreciation of the history of UE in the cases and in the common law. You interpretation seems to be (I'm sorry if this is incorrect) that there is a grand tradition of unjust enrichment in the common law that has stabilized into the coherent three part English approach. Thus, from this settled core we can work out problem areas in the interface with contract, tort & equity and re-analyze older case law. From my perspective, I do not see such a grand history but rather a nascent principle that is just starting to be worked out tentatively in the cases. Thus, I do not take great solace in proofs that deduce answers from these nascent cases and say that this is the common law tradition (unless these same principles are present in other older areas of the law). Much like Prof. Hedley I don't see much tradition (e.g. dealing with unjust factors) especially when compared with the 1000 year history of contract and tort, and the 100 year history of corporate personality. Even in those "settled" areas of the law, there is still much disagreement on certain core principles. Thus, in my mind, at this early stage, there is still much up for grabs with regards to UE and little to guide us except the core principles of private law and a logical deduction from these principles. That is why I find the civilian paradigm so helpful. They have a longer history with this topic and have thought about this issue in a very rational and principled way. I personally do not see anything "un-common law -like" in borrowing from the civilians on this issue, as there are precedents in the past. For example, as I understand legal history, many of "our" ideas surrounding contract, special contracts (e.g. bailment) and civil responsibility where borrowed from the civil law tradition at the formative stage of the common law. When faced with a difficult problem in private law, I therefore find it prudent to look to the civil law once again. It should be noted that this interaction is two-way, e.g. see the codification of the Trust in the CCQ. 2) On the scope of discretion issue, you may be right that judges may feel bound to only follow the unjust factors that have been listed in the cases and in the major texts. Perhaps this might be easier for judges as well, I'm not sure. From my perspective, and from reading the postings, it seems that the list of unjust factors just keeps growing. I have the feeling that it will just keep growing in order to try and fit strange fact patterns into the law of UE (even if they do not necessarily belong to that area of law) or to do justice in a hard case for a deserving plaintiff. Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From lionel.smith@law.oxford.ac.uk Thu Nov 25 09:54:34 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 2.12 #1) id 11qvbm-0001cO-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:54:34 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qvaM-0000sk-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:53:06 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qvaM-00038z-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 09:53:06 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Thu, 25 Nov 1999 09:52:08 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Content-Type: text/plain; charset="us-ascii" ; format="flowed" approved: eregion From: Hugh Fraser Subject: Re: RDG: Archer Steve Hedley's mention of a case in which I appeared, Idemitsu Queensland v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 (Qld CA), prompts me to mention that an illuminating discussion of the case law concerning restitution of moneys paid under a judgment subsequently set aside may be found in Brooking J's judgment in NAB v Bond Brewing Holdings [1991] VR 386 at 591-598 (upon which the Queensland Court relied). It has here been reported as a fact that Mr Archer's apparently false alibi was not in fact tendered in evidence at the trial. If this is true, the academic debate is not less interesting, but perhaps it is more academic. Hugh Fraser QC >From lionel.smith@law.oxford.ac.uk Thu Nov 25 10:49:26 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 2.12 #1) id 11qwSs-0002Al-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 10:49:26 +0000 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11qwRS-0006BN-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 10:47:58 +0000 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11qwRS-0006pA-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 10:47:58 +0000 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Thu, 25 Nov 1999 10:46:59 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Boring administration Content-Type: text/plain; charset="us-ascii" ; format="flowed" The recent discussion has been most stimulating. Here are some issues which have appeared from the list mediator's perspective. 1. If you change the settings in your email program so that your message comes "from" a different address to the one you have subscribed, you will not notice anything in terms of receiving postings (as long as your old address is still good of course; otherwise see below). But if you try to make a posting the server will "bounce" it to me as a "non-member submission." It takes a literal view and does not know that the two addresses are the same person. I can then re-submit your posting so that it appears to have come directly from you, but this causes delay. The solution is for me to unsubscribe your old address and resubscribe you under the "from" address you are now using. You would in this case get a "welcome to the RDG" message which might seem inexplicable. In the recent spate of postings I have done this, in contact with the relevant person, about four times. I hereby announce that in the future I will do it unilaterally. The list can be set up to allow non-member submissions, but then everyone would get the junk email which now bounces to me and is deleted ("make a million dollars in your spare time by sending out junk emails ..."). The people who do these things love especially to find listservs like ours. Also this way I get to keep all the million dollar schemes to myself :-) 2. If your address becomes undeliverable then every posting bounces to me with the error message. As previously announced, if this goes on long enough I will unsubscribe your address. I cannot tell you about this because your address is undeliverable. I cannot re-subscribe you when your email problem is fixed because I will not know. So, if you have a temporary email problem, you might get unsubscribed. You can check whether this happened by sending "who restitution" to . If you get a list of subscribers, you are on it. If you get a message saying only members can have the list, you are not. As to what counts as "long enough" for me to take this unilateral action, I make the decision on pragmatic grounds which almost certainly would not stand up to judicial review. There is no set number of errors I will endure. It is a combination of how busy is the list and how busy am I. 3. Please stop and think whether your posting is likely to be of general interest. In particular, I am not happy that the RDG be used for postings which amount to ad hominem arguments. Also, if you find yourself writing about exactly what someone said in an earlier posting, and exactly what it might have meant, then there is less likelihood that 239 other people want to read it. I am not saying that any posting with a quotation in it must be disallowed, because these are often needed for context. But please be considerate of the person to whom you replying, and also to the rest of the list, and consider a private reply. Lionel >From Jason.Neyers@jus.gov.on.ca Thu Nov 25 16:32:03 1999 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11r1oR-00052U-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 16:32:03 +0000 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id ; Thu, 25 Nov 1999 11:30:25 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF5803425228@JUS00AEX0310> From: "Neyers, Jason (JUS)" To: "'restitution@maillist.ox.ac.uk'" Cc: "'gerhard.dannemann@law.oxford.ac.uk'" Subject: Archer: the classification of restitution claims Date: Thu, 25 Nov 1999 11:30:52 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain; charset="iso-8859-1" This is a follow-up to the e-mail of Dr. Gerhard Dannemann where he suggests that in English law it is not helpful to resort to "obvious" or "failure of basis" reasoning to deal with issues such as Lord Archers in a common law system since any change in UE will affect contract in tort in difficult ways. In that mail he commented that he might be interested in hearing how Canadian courts deal with the problems that he outlined. My answer, as the debate with Prof. McInnes demonstrates, is that one cannot say how Canadian courts deal with these problems because one cannot with certainty say how these courts will deal with unjust enrichment (i.e. unjust factors versus absence of juristic reason). With that in mind, I would like to answer some of your challenges to the "juristic reason" analysis in a common law system (such as England or Canada) because I don't think that many of them are as problematic as they first appear. Many terms have been used to describe this method of UE reasoning in your letter but I am of the opinion that the "juristic reason" terminology is the best with which to continue. Challenge 1: "Illegal contracts and quantum meruit" If it is true that there is a public policy (or rule of public order) which denies the enforcement of illegal contracts then I see no reason why this same public policy would not apply to a claim under UE as well. All it would take is one case to apply the public policy in the new situation. Hardly, an upheaval in the legal system. Challenge 2: "The procedural rule that a judgment is final after all possibilities of appeal have been exhausted becomes equally irrelevant if we allow unjust enrichment claims to return payments made under this judgment while leaving the judgment itself intact". Your point is well taken but under the "juristic reason" analysis a judgment is a sufficient juristic reason to deny recover. I cannot think of a better juristic reason than to say there is a judgment justifying the deprivation. Challenge 3: "The combination of a condictio indebiti with the lack of gratuitous contracts is more problematic." The example: " Somebody agrees to help a friend to paint his rooms, and after having fallen out with the friend, claims a quantum meruit." If I understand your hypothetical correctly the friend was not labouring under a mistake as no consideration was to be expected. Under the "juristic reason" analysis the answer is simple. There is no UE in this case because there is a juristic reason justifying the deprivation -- the friend intended his labour as a gift. A gift is a juridical act in the common law as well. One does not need the idea of gratuitous contacts to analyse this fact pattern and conclude that there should be no recovery. Challenge 4: "form requirements" I think I need more information to comment. Challenge 5: "Gaming & Betting Contracts" See answer to challenge 2. Moreover, what is the problem with the legislator intervening to make this an unactionable contract (similar to the statute of frauds, which is hardly a new innovation)? I do not think that the principles of the common law, or formulations of these principles, should be denied at the onset simply because our public policy interventions will have to be tweaked to account for the evolution. This is especially the case where the change is coherent and (possibly) conceptually better. For example, would you say that concurrent liability in tort and contract should be denied as a principle of common law (if it is the correct principle) merely because there might be difficulties with existing statutes or rules of civil procedure that were drafted before this conclusion. To do so, in my opinion, would be to put pragmatism and ingrained practice before principle and logic. Jason W. Neyers Law Clerk, Ontario Court Of Appeal (416) 327-5107 Jason.Neyers@jus.gov.on.ca >From gordon.goldberg@buckingham.ac.uk Thu Nov 25 18:25:30 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11r3aE-00062v-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 18:25:30 +0000 Received: from stf-law009 ([194.66.205.169]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with SMTP id SAA22348; Thu, 25 Nov 1999 18:24:34 GMT Message-ID: <006201bf3771$1d712650$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: , , , Subject: Lord Archer's Woes: Response to Mr Neyers, Prof. McInnes and Dr Dannemann Date: Thu, 25 Nov 1999 18:15:54 -0000 MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_005F_01BF3771.1D2ACE80" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 This is a multi-part message in MIME format. ------=_NextPart_000_005F_01BF3771.1D2ACE80 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable In my respectful submission, the "Canadian formulation" (even with = Professor McInnes' gloss) smacks of generalization and simplism analogous to the heresy, which tainted Anns v. Merton L.B.C. [1978] A.C. 728 and which = was corrected by Murphy v. Brentwood B.C. [1991] 1 A.C. 398. Not surprisingly in the light of that gloss, I = further respectfully submit that the doctrine of unjust enrichment is having the same corrupting influence in England and Wales as did Anns and that this is demonstrated by Westdeutsche = Landesbank v. Islington L.B.C. [1996] A.C. 669. When applied to a body corporate, the purpose of the ultra vires doctrine is to protect the corporation's capital for the sake both of = its members (in Islington, the ratepayers) and of the outside public, more particularly those who might be its legitimate creditors. This is = remarked upon by Lord Templeman (at 36G) in Hazell v. Hammersmith L.B.C. [1992] 2 A.C. 1, the = case wherein the ultra vires nature of the swap agreement was determined as = an implication from the Local Government Act 1963. Lord Templeman cites = Cotman v. Brougham [1918] A.C. 514, at 520. The leading case is Ashbury Rly Carriage & Iron Co. v. Riche (1875) L.R. 7 H.L.(E.) 653, at 667, 678 & 684. So far as I have seen, both are ignored in Westdeutsche at the higher levels of the judicial hierarchy. Yet they state the policy implicit in the Building Societies = Act 1836, which warranted the denial, in Sinclair v. Brougham, that an = action would lie for money had and received. Goff & Jones' The Law of = Restitution (4th ed., London 1993, by Jones at 62-68 & 498-505) shows that, where a contract is forbidden and consequently = rendered either void or unenforceable by statute, it is a matter of the interpretation of the statute whether or not money paid thereunder is recoverable as money had and received by the payee to the use of the = payer. Without taking into acount the like policy in the Local Government Acts, = how is one to determine whether or not the implication of the availability of an action for money had and = received creates such inconsistency, absurdity, or inconvenience, as Lord Blackburn told us in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743 at 765, the golden (and sole) rule of = documentary (including statutory) interpretation is designed to avoid? With due diffidence as to my ability to understand the distinction = after only a year (and that almost a decade ago) of teaching mercantile law in Scotland, I respectfully suggest the analogy of condictio causa data causa non secuta to provide (as condictio indebiti does not) an explanation of what I respectfully submit to be the patent liability to = repay money recovered under a judgment, once the judgment is unconditionally set = aside. As I understand it, the former condiction is itself analogous to the = action for money had and received on a total failure of consideration. Consideration cannot fail, unless it first be present - McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 337 at 406. Though, = in a simple contract, not every causa sine qua non amounts to consideration, = consideration always constitutes such causa or, as common lawyers put it, a condition. "In = consideration (or because) of your selling me Blackacre, I promise to pay you =A3X" = can be expressed just as well as "If you sell me Blackacre, I promise to pay = you =A3X". Hence, presumably, the conditions (unlike the mere warranties) of = a contract are said to go to the consideration. "The Daily Star" was obliged to pay Lord Archer his = damages and costs if he entered judgment against the paper. In other words, "The Daily Star" paid Lord Archer his damages and costs in consideration of the entry of the judgment, which he won against the = paper. Hence, perhaps, judgments are said to be contracts of record. If the judgment be set aside, the consideration (though once present) will have failed totally. Alternatively, the contract (of record) having been set = aside ab initio for the fraud of one of the three parties (plaintiff, = defendant and court), restitutio in integrum must follow - cf. Erlanger = v. New Sombrero Phosphate Co. (1878) 3 App. Cas. 1218. I, too, respectfully urge caution in looking to the civilians for = guidance beyond analogies. No legal system can digest concepts = fundamentally alien to it - Williams v. Britannic Merthyr Steam Coal Co. = (1924) 40 T.L.R. 687, at 688(1) per Rowlatt, J., and Mongomery, Q.C., = and Sharp v. Thomson [1995] Times Law Reports 439 ("The Times" = 25/7/95).=20 ------=_NextPart_000_005F_01BF3771.1D2ACE80 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
In my respectful submission, the "Canadian=20 formulation" (even with Professor
McInnes' gloss) smacks of=20 generalization and simplism analogous to the
heresy, which tainted = Anns=20 v. Merton L.B.C. [1978] A.C. 728 and which was corrected = by=20 Murphy v. Brentwood
B.C. [1991] 1 A.C. = 398. Not=20 surprisingly in the light of that gloss, I further respectfully submit = that the=20 doctrine of
unjust enrichment is having the same corrupting influence = in=20 England and
Wales as did Anns and that this is demonstrated by=20 Westdeutsche Landesbank
v. Islington L.B.C. [1996] = A.C.=20 669.
     When applied to a body corporate, the = purpose=20 of the ultra vires
doctrine is to protect the corporation's capital = for the=20 sake both of its
members (in Islington, the ratepayers) and of the = outside=20 public, more
particularly those who might be its legitimate = creditors. This=20 is remarked upon by Lord
Templeman (at 36G) in Hazell v.=20 Hammersmith L.B.C. [1992] 2 A.C. 1, the case
wherein the = ultra vires=20 nature of the swap agreement was determined as an
implication from = the Local=20 Government Act 1963. Lord Templeman cites Cotman
v.=20 Brougham [1918] A.C. 514, at 520. The leading case is = Ashbury=20 Rly
Carriage & Iron Co. v. Riche (1875) = L.R. 7=20 H.L.(E.) 653, at
667, 678 & 684. So far as I have seen, both are = ignored=20 in Westdeutsche
at the higher levels of the = judicial
hierarchy.=20 Yet they state the policy implicit in the Building Societies = Act
1836, which=20 warranted the denial, in Sinclair v. Brougham, that an = action
would lie for money had and received. Goff & Jones' The = Law of=20 Restitution (4th ed., London 1993, by Jones at 62-68 &
498-505) = shows=20 that, where a contract is forbidden and consequently rendered
either = void or=20 unenforceable by statute, it is a matter of the
interpretation of the = statute=20 whether or not money paid thereunder is
recoverable as money had and = received=20 by the payee to the use of the payer.
Without taking into acount the = like=20 policy in the Local Government Acts, how
is one to determine whether=20 or
not the implication of the availability of an action for money had = and=20 received creates
such inconsistency, absurdity, or = inconvenience,
as Lord=20 Blackburn told us in River Wear Commissioners v.
Adamson = (1877) 2 App. Cas. 743 at 765, the golden (and sole) rule of = documentary=20 (including statutory) interpretation is
designed to=20 avoid?
    With due diffidence as to my ability to = understand=20 the distinction after only
a year (and that almost a decade ago) of = teaching=20 mercantile law in
Scotland, I respectfully suggest the analogy of=20 condictio causa data
causa non secuta to provide (as = condictio=20 indebiti does not)  an
explanation of what I respectfully = submit to=20 be the patent liability to repay money
recovered under a judgment, = once the=20 judgment is unconditionally set aside.
As I understand it, the former = condiction is itself analogous to the action
for money had and = received on a=20 total failure of consideration.
Consideration cannot fail, unless it = first be=20 present - McRae v.
Commonwealth Disposals Commission = (1951)=20 84 C.L.R. 337 at 406. Though, in a
simple contract, not every = causa sine=20 qua non amounts to consideration, consideration = always
constitutes such=20 causa or, as common lawyers put it, a condition. "In=20 consideration
(or because) of your selling me Blackacre, I promise to = pay you=20 £X" can be
expressed just as well as "If you sell me=20 Blackacre, I promise to pay you
£X". Hence, presumably, = the=20 conditions (unlike the mere warranties) of a contract are said to go to=20 the
consideration. "The Daily Star" was obliged to pay Lord = Archer=20 his damages
and costs if he entered judgment against the paper. In = other=20 words, "The
Daily Star" paid Lord Archer his damages and = costs=20 in
consideration of the entry of the judgment, which he won against = the=20 paper.
Hence, perhaps, judgments are said to be contracts of record. = If=20 the
judgment be set aside, the consideration (though once present) = will=20 have
failed totally. Alternatively, the contract (of record) having = been set=20 aside ab initio for the fraud of one of the three parties = (plaintiff,=20 defendant and court), restitutio in integrum must follow - = cf.=20 Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. = Cas.=20 1218.
    I, too, respectfully urge caution in looking = to the=20 civilians for guidance beyond analogies. No legal system can digest = concepts=20 fundamentally alien to it - Williams v. Britannic Merthyr = Steam Coal=20 Co. (1924) 40 T.L.R. 687, at 688(1) per Rowlatt, J., and = Mongomery,=20 Q.C., and  Sharp v. Thomson [1995] Times Law Reports = 439=20 ("The Times" 25/7/95).
------=_NextPart_000_005F_01BF3771.1D2ACE80-- >From scullymatthew@hotmail.com Thu Nov 25 18:52:46 1999 Received: from law-f199.hotmail.com ([209.185.130.109] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11r40c-0006Cw-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 18:52:46 +0000 Received: (qmail 29650 invoked by uid 0); 25 Nov 1999 18:50:46 -0000 Message-ID: <19991125185046.29649.qmail@hotmail.com> Received: from 163.1.138.236 by www.hotmail.com with HTTP; Thu, 25 Nov 1999 10:50:46 PST X-Originating-IP: [163.1.138.236] From: "Matthew Scully" To: restitution@maillist.ox.ac.uk Subject: Archer: the classification of restitution claims Date: Thu, 25 Nov 1999 18:50:46 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed In response to Jason Neyers (replying to Dr. Dannemann): >Your point is well taken but under the "juristic reason" analysis a >judgment >is a sufficient juristic reason to deny recover. I cannot think of a >better >juristic reason than to say there is a judgment justifying the deprivation. Which is precisely why restitution can only be contingent on having the judgment set aside. Res judicata is undeniably a defence to a claim for restitution (cf. the Dublin Bricklayers' Hall case). The judgment is the "juristic basis" (the French would say "cause"; English lawyers have taken to using the expression "consideration"; in both cases, these concepts are distinguished from their contractual homonyms). When the judgment is set aside, the basis/cause/consideration "fails" and a right to restitution arises. I see no reason why reference to "juristic reason" should cause any difficulty in Lord Archer's case. He also notes (re gratuitous contracts): >Under the "juristic >reason" analysis the answer is simple. There is no UE in this case because >there is a juristic reason justifying the deprivation -- the friend >intended >his labour as a gift. A gift is a juridical act in the common law as well. >One does not need the idea of gratuitous contacts to analyse this fact >pattern and conclude that there should be no recovery. In continental legal systems (at any rate, in French Law), there is no such thing as a contract without "cause", a notion which corresponds to consideration, except that there is no requirement that it be valuable. Thus, a gift is analysed as a contract, the cause for which is a "liberal intention". Which is why, when a relationship of friendship is proven to have been a sham, it may be possible to rescind gifts (although I am presently unable to specify the circumstances...). In the case of gratuitous provision of services, this will give rise to a restitutionary claim. Matthew Scully. Oxford Institute of Legal Practice. _________________________________________________________________ Matthew Roch Scully 147, Kingston Road, 4, Crestfield Park, Oxford OX2 6RP. Dublin 9, +44-1865-512376 Ireland. Mobile +44-7974-943987 +353-1-8377953 Ce que j'ecris n'est pas pour les petites filles... (Th. Gautier) ...pour les petits garcons non plus. _________________________________________________________________ ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From ben_mcfarlane@hotmail.com Thu Nov 25 21:41:14 1999 Received: from law-f55.hotmail.com ([209.185.131.118] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11r6dd-0006pW-00 for restitution@maillist.ox.ac.uk; Thu, 25 Nov 1999 21:41:14 +0000 Received: (qmail 5760 invoked by uid 0); 25 Nov 1999 21:39:14 -0000 Message-ID: <19991125213914.5759.qmail@hotmail.com> Received: from 163.1.103.104 by www.hotmail.com with HTTP; Thu, 25 Nov 1999 13:39:14 PST X-Originating-IP: [163.1.103.104] From: "ben mcfarlane" To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer ad nauseam Date: Thu, 25 Nov 1999 13:39:14 PST Mime-Version: 1.0 Content-Type: text/plain; format=flowed I suppose it is one of the advantages of legal debate (or perhaps one of the weaknesses of internet discussion groups), that seemingly simple questions can give rise to ever more fundamental issues. The reason I asked the original question (it seems a long time ago) was not because I was unsure as to whether the money could be recovered should the judgment be set aside. I was unsure about the practical consequence of categorising this as being part of the law of unjust enrichment (most notably re change of position). I'm still none the wiser. It seems a bit of a shame to spill lakes of virtual ink in asking whether this claim is one of unjust enrichment or not without knowing the consequences of deciding either way. I am aware that any debate about whether something is an example of unjust enrichment is valuable in the sense of clarifying and testing our notions of what unjust enrichment is. But what would either the Daily Star or Archer have to gain as a result of categorising this claim as grounded on unjust enrichment ? I thought Archer might claim it to use cofposition. Jonathon Moore pointed out that calling a claim one in unjust enrichment did not mean cofp would necessarily apply. Is it the case then that the question of whether Archer can defend a claim by saying "But I spent the money in good faith on things other than those I would otherwise have bought" can best be answered by directly saying should this defence apply without using the language of unjust enrichment at all ? I should perhaps close by noting that although the very language I have used to ask these questions may inflame some, I have only asked questions and have hopefully said nothing at all ! ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From gordon.goldberg@buckingham.ac.uk Fri Nov 26 10:27:46 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11rIbS-000097-00 for restitution@maillist.ox.ac.uk; Fri, 26 Nov 1999 10:27:46 +0000 Received: from stf-law009 ([194.66.205.169]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with SMTP id KAA27402; Fri, 26 Nov 1999 10:30:57 GMT Message-ID: <001a01bf37f8$1b54e9b0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: "Matthew Scully" , Subject: Re: Archer: the classification of restitution claims Date: Fri, 26 Nov 1999 10:22:13 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 I should be grateful for Matthew Scully's kindness, if he would explain why the French use of "cause" and the English use of "consideration", to designate a judgment as the "juristic basis" of an obligation, are both to be distinguished from their "contractual homonyms". Why, when used in a contractual context, are they not the same words, rather than homonyms? -----Original Message----- From: Matthew Scully To: restitution@maillist.ox.ac.uk Date: 25 November 1999 19:03 Subject: RDG: Archer: the classification of restitution claims >In response to Jason Neyers (replying to Dr. Dannemann): > >>Your point is well taken but under the "juristic reason" analysis a >>judgment >>is a sufficient juristic reason to deny recover. I cannot think of a >>better >>juristic reason than to say there is a judgment justifying the deprivation. > >Which is precisely why restitution can only be contingent on having the >judgment set aside. Res judicata is undeniably a defence to a claim for >restitution (cf. the Dublin Bricklayers' Hall case). The judgment is the >"juristic basis" (the French would say "cause"; English lawyers have taken >to using the expression "consideration"; in both cases, these concepts are >distinguished from their contractual homonyms). When the judgment is set >aside, the basis/cause/consideration "fails" and a right to restitution >arises. I see no reason why reference to "juristic reason" should cause any >difficulty in Lord Archer's case. > >He also notes (re gratuitous contracts): > >>Under the "juristic >>reason" analysis the answer is simple. There is no UE in this case because >>there is a juristic reason justifying the deprivation -- the friend >>intended >>his labour as a gift. A gift is a juridical act in the common law as well. >>One does not need the idea of gratuitous contacts to analyse this fact >>pattern and conclude that there should be no recovery. > >In continental legal systems (at any rate, in French Law), there is no such >thing as a contract without "cause", a notion which corresponds to >consideration, except that there is no requirement that it be valuable. >Thus, a gift is analysed as a contract, the cause for which is a "liberal >intention". Which is why, when a relationship of friendship is proven to >have been a sham, it may be possible to rescind gifts (although I am >presently unable to specify the circumstances...). In the case of >gratuitous provision of services, this will give rise to a restitutionary >claim. > >Matthew Scully. >Oxford Institute of Legal Practice. > > >_________________________________________________________________ >Matthew Roch Scully > >147, Kingston Road, 4, Crestfield Park, >Oxford OX2 6RP. Dublin 9, >+44-1865-512376 Ireland. >Mobile +44-7974-943987 +353-1-8377953 > >Ce que j'ecris n'est pas pour les petites filles... (Th. Gautier) >...pour les petits garcons non plus. >_________________________________________________________________ > >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com > >___________________________________________________________________________ _____ >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 scullymatthew@hotmail.com Fri Nov 26 13:16:17 1999 Received: from law-f262.hotmail.com ([209.185.130.178] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11rLEX-0001WC-00 for restitution@maillist.ox.ac.uk; Fri, 26 Nov 1999 13:16:17 +0000 Received: (qmail 16292 invoked by uid 0); 26 Nov 1999 13:14:17 -0000 Message-ID: <19991126131417.16291.qmail@hotmail.com> Received: from 194.81.212.22 by www.hotmail.com with HTTP; Fri, 26 Nov 1999 05:14:17 PST X-Originating-IP: [194.81.212.22] From: "Matthew Scully" To: restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer ad nauseam Date: Fri, 26 Nov 1999 13:14:17 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed In response to Ben's posting, classification of rules of law rarely has direct practical consequences, hence the traditional aversion to academic analyses shown by practitioners in the Common Law world. This does not mean that attempts to classify rules of law are futile. Classification enhances our understanding of the law, pushes us to draw analogies and comparisons between different rules and ultimately hopefully contributes to developments in the law whichlead to a more coherent and logical legal system. The law is a tool of practice but that does not mean that any exercise devoid of direct practical consequences is a waste of time. With respect to Lord Archer's case, it matters little from a practical point of view whether we say that repayment of the damages is an obvious consequence of setting the judgment aside or an application of the law of restitution (change of position is surely not open where the reason for setting the judgment aside makes it impossible to say that JA acted in good faith...). However, the debate is useful in that it contributes to our understanding of how the legal system works. Surely that is reason enough. Matthew Scully. Oxford Institute of Legal Practice. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From Jason.Neyers@jus.gov.on.ca Fri Nov 26 15:14:38 1999 Received: from jus00aex0300.jus.gov.on.ca ([142.107.170.135]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11rN51-00029b-00 for restitution@maillist.ox.ac.uk; Fri, 26 Nov 1999 15:14:37 +0000 Received: by jus00aex0300.jus.gov.on.ca with Internet Mail Service (5.5.2448.0) id ; Fri, 26 Nov 1999 10:12:56 -0500 Message-ID: <8D394232A687D211A0DD0008C7A4DF580342522E@JUS00AEX0310> From: "Neyers, Jason (JUS)" To: "'restitution@maillist.ox.ac.uk'" Cc: 'Gordon Goldberg' Subject: RE: the classification of restitution claims Date: Fri, 26 Nov 1999 10:13:23 -0500 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2448.0) Content-Type: text/plain Dear Mr. Gordon, Just a couple of questions/comments for you: 1) What is wrong with "generalization and simplism"? Shouldn't we be striving for the simplest and most coherent explanation of the phenomenon in question (a scientific measure of the best explanation)? In this case, the phenomenon being the common law rules that are not considered part of contract or tort. 2) Where does the "generalization and simplism" (and coherence) of the Canadian formulation leads us astray? If you are using the Westdeutsche case as an example, I do not think that you have proved your point. If you are correct about cases like Westdeutsche and there is a legislative norm in the some Act that prohibits the return of any money paid, then clearly the case is wrongly decided. This does not mean that the principle of UE is incorrect. Nothing in the Canadian formulation instructs judges to give money back if the legislator demands that the judge do otherwise! In fact, one could say that the clear statutory norm is a juristic reason justifying the deprivation. In order to prove your point, you are going to need a better set of facts to show the principle wrong. 3) At the end, you say that no legal system can digest concepts that are fundamentally alien to it. Fair enough. But is unjust enrichment fundamentally alien to the common law? Which ancient principle (such as the two-part division of property into equitable and legal titles) does the principle of unjust enrichment infringe upon? Also, at what point do you draw the line to say what is alien or not? At 1950, 1900, the Judicature Acts, 1800, 1300? In some senses, the unifying ideas of fault and contract and the principled reasoning of Donoghue v. Stevenson are alien to the older common law of the forms of action, divided court structure, and specific pleading. Why should the evolution of the common law be stymied and frozen in 1999 and anything not included said to be alien? What would the common law be like if someone had done this is 1920? >From ben_mcfarlane@hotmail.com Fri Nov 26 16:45:56 1999 Received: from law-f309.hotmail.com ([209.185.131.13] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11rOVQ-0002x6-00 for restitution@maillist.ox.ac.uk; Fri, 26 Nov 1999 16:45:56 +0000 Received: (qmail 12464 invoked by uid 0); 26 Nov 1999 16:43:56 -0000 Message-ID: <19991126164356.12463.qmail@hotmail.com> Received: from 194.83.240.14 by www.hotmail.com with HTTP; Fri, 26 Nov 1999 08:43:56 PST X-Originating-IP: [194.83.240.14] From: "ben mcfarlane" To: scullymatthew@hotmail.com, restitution@maillist.ox.ac.uk Subject: Re: RDG: Archer ad nauseam Date: Fri, 26 Nov 1999 08:43:56 PST Mime-Version: 1.0 Content-Type: text/plain; format=flowed I have to say that I disagree that "classification of rules of law rarely has direct practical consequences"; the main achievement of restitution lawyers has been to avoid the unwelcome practical consequences of poor classification: e.g. the label "quasi-contract" preventing a personal claim in Sinclair v Brougham because the D did not have the power to contract for the repayment of the loan. You cannot simply divorce having a "coherent and logical legal system" from the goal of having direct practical consequences. The point of gathering cases together in an attempt to show that e.g. there is a rule allowing recovery where the P did not intend to confer a benefit on the D is precisely to avoid restrictions on recovery such as the total failure of consideration rule in contract or the mistake of law bar. I'm not saying that either of these rules are necessarily wrong, just that the attempt to enunciate a principle of unjust enrichment based on non-intent does have a practical relevance. I am making this point because I believe it is very important that restitution lawyers have a vital role to apply here. However, a desire to argue and argue about issues without practical consequences is what gives restitution a bad name, and rightly so, law is not about angels and pins it's about whether people can sue each other. So again I would return to the question of why Archer or the Daily Star would care if this obligation to return the money if the judgment is reversed is based on unjust enrichment. It is disingenuous to say cofposition would not apply on the facts of this case not only because we do not know precisely what the test of good faith but also because it is easy to imagine a case where judgment is reversed and the D is in good faith. This present debate will "contribute to our understanding of how the legal system works" only if there is such a practical consequence of categorising this as unjust enrichment. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From scullymatthew@hotmail.com Sun Nov 28 20:18:04 1999 Received: from law-f249.hotmail.com ([209.185.130.214] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11sAlo-0000y8-00 for restitution@maillist.ox.ac.uk; Sun, 28 Nov 1999 20:18:04 +0000 Received: (qmail 5607 invoked by uid 0); 28 Nov 1999 20:16:03 -0000 Message-ID: <19991128201603.5606.qmail@hotmail.com> Received: from 163.1.138.231 by www.hotmail.com with HTTP; Sun, 28 Nov 1999 12:16:02 PST X-Originating-IP: [163.1.138.231] From: "Matthew Scully" To: gordon.goldberg@buck.ac.uk, restitution@maillist.ox.ac.uk Subject: Archer: the classification of restitution claims Date: Sun, 28 Nov 1999 20:16:02 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Gordon Goldberg wrote: >I should be grateful for Matthew Scully's kindness, if he would explain why >the French use of "cause" and the English use of "consideration", to >designate a judgment as the "juristic basis" of an obligation, are both to >be distinguished from their "contractual homonyms". Here are my tentative suggestions... (1) "Consideration" Firstly, because in contract, a mere promise is capable of constituting consideration. In the case of "failure of consideration", what is at issue is failure of the promised counter-performance. The promise alone is not enough (cf. Fibrosa SA v. Fairbairn Lawson). Secondly, because contractual consideration is for value. As Dr. Dannemann pointed out, however, failure of consideration is conceivable in the case of a gratuitous contract. Thirdly because of the extension of the notion of "failure of consideration" to cover failure of basis, a broader and more subjective notion cf. Westdeutsche Landesbank and Guinness Mahon where it is clear that although the counter-performance has been realised (since payment and counter-payment were made at each stage), there is a failure of "consideration" by virtue of the fact that the local authority in each case was not obliged to perform and could have pulled out if it were losing. In other words, the failure of consideration stems from the absence of risk in these speculative contracts. The existence of risk and the prospect of winning is surely the basis of any speculative contract. In the Lord Archer case, there is no contract, so it may be futile to focus on this distinction. The "failure of consideration" notion of consideration is what is relevant, i.e. the basis for payment. If the judgment is set aside, it fails as a basis and the damages are recoverable. (2) "Cause" Contractual "cause" encompasses two separate concepts: the counter-performance or promise thereof and the motivation behind the contract (e.g. in the case of a lease, the former concept corresponds to the enjoyment of the premises in return for paying the rent and the latter refers to the intended use for the premises). "Cause" in the sense of juridical reason is simply the reason for making the payment. So, having entered into the above lease, the lessee will simply pay the rent because of the contract. The prospect of enjoying the premises is only relevant as the "cause" for entering into the contract. Aside from considerations of withholding rent for not being allowed to use the premises, if the rent is paid and the lessee is then not allowed to use the premises, there is no "absence of cause" because the contract constitutes the cause, there is merely a right to sue for damages or teminate for breach of contract. As to restitution on termination, this can be analysed as a case of restitution of "enrichment without cause" since, when the contract is unwound, the cause of the payment of the rent disappears. As such, this reminds us of the judgment that we have been discussing. Whatever may be wrong with the judgment, it is a valid "cause" for the payment until it is set aside. Matthew Scully Oxford Institute of Legal Practice. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From scullymatthew@hotmail.com Sun Nov 28 20:37:04 1999 Received: from law-f258.hotmail.com ([209.185.130.174] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11sB4C-0000zm-00 for restitution@maillist.ox.ac.uk; Sun, 28 Nov 1999 20:37:04 +0000 Received: (qmail 36523 invoked by uid 0); 28 Nov 1999 20:35:02 -0000 Message-ID: <19991128203502.36522.qmail@hotmail.com> Received: from 163.1.138.231 by www.hotmail.com with HTTP; Sun, 28 Nov 1999 12:35:02 PST X-Originating-IP: [163.1.138.231] From: "Matthew Scully" To: ben_mcfarlane@hotmail.com, restitution@maillist.ox.ac.uk Subject: Date: Sun, 28 Nov 1999 20:35:02 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Ben Mc Farlane referred to: >the label "quasi-contract" >preventing a personal claim in Sinclair v Brougham because the D did not >have the power to contract for the repayment of the loan. Did it really? Or was it just the perverse consequences emanating from their Lordships' misunderstanding of the notion of quasi-contract? Good classification and affixing appropriate labels are not the same thing. Whether we call a particular branch of the law quasi-contract or restitution is one thing, what cases we group under the chosen heading is another. My point was that, while the direct consequences may be purely academic (and in many cases I conced that they will not), the indirect consequences of the specific choices of rules we make in implementing a coherent legal system justify the academic exercise of classification. Assuming that there is no DIRECT practical consequence in this case (because setting aside the judgment surely constitutes a total failure of consideration and, well, let us assume Lord Archer is in bad faith), Ben mentioned a hypothetical case where the defendant might be in good faith. To know whether or not such a defendant would be entitled to CoP is an important INDIRECT practical consequence of a debate which, in the absence of DIRECT practical consequences, some would prefer to label futile. Matthew Scully. Oxford Institute of Legal Practice. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com >From gordon.goldberg@buckingham.ac.uk Mon Nov 29 14:31:20 1999 Received: from gateway.buckingham.ac.uk ([194.83.163.1]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.12 #1) id 11sRpn-0004Pt-00 for restitution@maillist.ox.ac.uk; Mon, 29 Nov 1999 14:31:19 +0000 Received: from stf-law009 ([194.66.205.169]) by gateway.buckingham.ac.uk (8.8.5/8.8.5) with SMTP id OAA10677; Mon, 29 Nov 1999 14:34:45 GMT Message-ID: <006e01bf3a75$a55ec7a0$a9cd42c2@stf-law009.buckingham.ac.uk> From: "Gordon Goldberg" To: "Matthew Scully" , Subject: Re: Archer: the classification of restitution claims Date: Mon, 29 Nov 1999 14:25:54 -0000 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 4.72.3612.1700 X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3612.1700 Content-Transfer-Encoding: quoted-printable X-MIME-Autoconverted: from 8bit to quoted-printable by gateway.buckingham.ac.uk id OAA10677 Thank you for this answer. As at present advised and so with two reservations, I respectfully accept everything in it. I readily concede t= hat both reservations may be mere, but I hope harmless, pedantries. 1. If consideration consists of a promise and the promise is not fulfille= d then, in my respectful submission, the promise has failed and, with it, t= he consideration. 2. I regret that I cannot recall, and I have been unable to find, Dr Dannemann=92s reference to =93failure of consideration =85 in the case of= a gratuitous contract=94. I beg your pardon if, consequently, I have not appreciated the significance of your examples. To me they illustrate that what the common law regards as sufficiency of =93consideration=94 varies according to the circumstances. Only the promisee=92s act or forbearance,= or his promise to act or forbear, at the request of the promisor will do for= a simple contract. However, the covenantor=92s seal suffices in a specialty= and the entry of judgment in Lord Archer=92s contract of record. Thus, in my respectful submission, you have throughout used =93consideration=94 in th= e one sense, rather than in two or more. In the latter case there would have be= en two or more words with different meanings, but the same form: i.e., two o= r more homonyms. -----Original Message----- From: Matthew Scully To: gordon.goldberg@buck.ac.uk ; restitution@maillist.ox.ac.uk Date: 28 November 1999 20:33 Subject: RDG: Archer: the classification of restitution claims >Gordon Goldberg wrote: > >>I should be grateful for Matthew Scully's kindness, if he would explain why >>the French use of "cause" and the English use of "consideration", to >>designate a judgment as the "juristic basis" of an obligation, are both= to >>be distinguished from their "contractual homonyms". > >Here are my tentative suggestions... > >(1) "Consideration" > >Firstly, because in contract, a mere promise is capable of constituting >consideration. In the case of "failure of consideration", what is at is= sue >is failure of the promised counter-performance. The promise alone is no= t >enough (cf. Fibrosa SA v. Fairbairn Lawson). Secondly, because contract= ual >consideration is for value. As Dr. Dannemann pointed out, however, fail= ure >of consideration is conceivable in the case of a gratuitous contract. >Thirdly because of the extension of the notion of "failure of consideration" >to cover failure of basis, a broader and more subjective notion cf. >Westdeutsche Landesbank and Guinness Mahon where it is clear that althou= gh >the counter-performance has been realised (since payment and counter-payment >were made at each stage), there is a failure of "consideration" by virtu= e of >the fact that the local authority in each case was not obliged to perfor= m >and could have pulled out if it were losing. In other words, the failur= e of >consideration stems from the absence of risk in these speculative contracts. > The existence of risk and the prospect of winning is surely the basis= of >any speculative contract. > >In the Lord Archer case, there is no contract, so it may be futile to fo= cus >on this distinction. The "failure of consideration" notion of consideration >is what is relevant, i.e. the basis for payment. If the judgment is set >aside, it fails as a basis and the damages are recoverable. > >(2) "Cause" > >Contractual "cause" encompasses two separate concepts: the >counter-performance or promise thereof and the motivation behind the >contract (e.g. in the case of a lease, the former concept corresponds to the >enjoyment of the premises in return for paying the rent and the latter >refers to the intended use for the premises). "Cause" in the sense of >juridical reason is simply the reason for making the payment. So, havin= g >entered into the above lease, the lessee will simply pay the rent becaus= e of >the contract. The prospect of enjoying the premises is only relevant as the >"cause" for entering into the contract. Aside from considerations of >withholding rent for not being allowed to use the premises, if the rent = is >paid and the lessee is then not allowed to use the premises, there is no >"absence of cause" because the contract constitutes the cause, there is >merely a right to sue for damages or teminate for breach of contract. A= s to >restitution on termination, this can be analysed as a case of restitutio= n of >"enrichment without cause" since, when the contract is unwound, the caus= e of >the payment of the rent disappears. As such, this reminds us of the >judgment that we have been discussing. Whatever may be wrong with the >judgment, it is a valid "cause" for the payment until it is set aside. > >Matthew Scully > >Oxford Institute of Legal Practice. > >______________________________________________________ >Get Your Private, Free Email at http://www.hotmail.com > >________________________________________________________________________= ___ _____ >This message was delivered through the Restitution Discussion Group, an >international internet LISTSERV devoted to all aspects of the law of unj= ust >enrichment. To subscribe, send "subscribe restitution" in the body of a >message to . To unsubscribe, send "unsubscr= ibe >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 david_mcgill19@hotmail.com Mon Nov 29 22:18:30 1999 Received: from law-f13.hotmail.com ([209.185.131.76] helo=hotmail.com) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.12 #1) id 11sZ7u-0007eu-00 for restitution@maillist.ox.ac.uk; Mon, 29 Nov 1999 22:18:30 +0000 Received: (qmail 34736 invoked by uid 0); 29 Nov 1999 22:16:28 -0000 Message-ID: <19991129221628.34735.qmail@hotmail.com> Received: from 139.133.7.20 by www.hotmail.com with HTTP; Mon, 29 Nov 1999 14:16:28 PST X-Originating-IP: [139.133.7.20] From: "David MacDonald" To: restitution@maillist.ox.ac.uk Subject: Lord Archer Cause of Action: A response to a suggestion of Gordon Goldberg. Date: Mon, 29 Nov 1999 22:16:28 GMT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Gordon Goldberg wrote: "I respectfully suggest the analogy of condictio causa data causa non secuta to provide (as condictio indebiti does not) an explanation of what I respectfully submit to be the patent liability to repay money recovered under a judgment, once the judgment is unconditionally set aside. As I understand it, the former condiction is itself analogous to the action for money had and received on a total failure of consideration." I would respectfully submit that the Mr Goldberg misunderstands the condictio causa data, causa non secuta as it operates in the law of Scotland. The condiction, properply understood, applies where A confers a benefit on B for a future purpose(outwith contract) which fails. I would simply refer MR Goldberg to Shilliday v Smith (1998) S.L.T. 976. Mr Goldberg is also quite correct to regard the condictio indebiti as inappropriate to a possibly Archer Type case. A condictio indebiti applies where A confers a benefit on B to discharge a legal duty which is turns out to be undue. Payments which are undue are received without a legal basis, and therefore cannot be retained. In my view the Archer type case falls outwith the condictio indebiti, though at first sight it may be tempting to inlude it within the condiction. Ex facie the Daily Star has conferered a benefit on B in order to discharge its legal liability(the decree of damages concludued against them), and then subsequently the decree being set aside the the payment is 'undue'. However, to accede to this proposition would be fallacious, and would involve the court altering retrospectively the basis of the transfer. The payment was made and was legally exigible at the time of the decree. It would be wholly inappropriate for a court later to change the proper basis of such a transfer. It might be that the House of Lords in Kleinwort Benson v Lincon City Council did just this, but i respectfully dissent from such an approach, and take the view that the retrospective nature of a judicial pronouncement cannot alter that essential fact. All it can do, properly understood is declare that the decision null, it cannot falsify history. However in my view, in Scots law, an Archer type case would have a means of recovery, and this is by way of the condiction sine causa. This condiction applies where A confers a benefit on B for a purpose which fails. The purpose of the transfer having failed, there can be no lagal ground for retaining such a benefit. The paradigm case in this area is the mistaken gift. I give B £100 thinking it to be his birthday, when in fact it is actually C(his twin brother) birthday. The purpose of the transfer was to gift £100 to C, but in fact the purpose of the transfer has failed because it has mistakenly been given to B. Therefore, the purpose having failed, no legal ground exists to retain that £100, and B is bound to repay it to A. Take the Archer case, the Daily Star paid the claim to Archer for the purpose of performing its tortious liability. The purpose for the transfer(the award of having damages) having failed due to the judgement being set aside, the money is recoverable. What in effect the Archer type case does is exemplify the inadequacy of a system cohered around a series of unjust factors, say English Law, which only very uncomfortably is able to embrace an alien concept such as unjust enrichment. Whereas a system based on the principle that benefits retained without a legal basis should be repaid is more adequately able to evolve and meet new situations which society may from time to time throw up. A rigid system of unjust factors will be found wanting where society, and its infinite possible range of human interactions, conjours a novel situation. This can be seen most notably by the invention of the idea of 'no consideration' by the House of Lords in Woolwich Equitable Building Society v IRC. Where in essence the court was forced to forego an analysis of the vitiation of the intent of the transferor, and look instead to the ultra vires nature of the demand. Whatever might have been said in some of the postings there can be no doubt that academic lawyers have an important part to play in rationalising a seemingly incoherent body of case-law, and proposing a taxomony for a system based on a unifrying concept of unjust enrichment. Courts through the nature of judicial decisions, and the adversarial system, do not have time to embark on the esoteric. They are constrained by and restricted, to an extent by precedent. But in making an informed decision on how the law should develop, judges should, and quite properly do, have regard to the views and rationalisations of academics, however misconceived ultimately they may be. ______________________________________________________ Get Your Private, Free Email at http://www.hotmail.com