vi Preface Quartahl Reuicu: and Current Legal Problems, Butterworths, Pty Ltd, publishers of the [ournal of Contract Law, the University of Toronto Press, publishers of the Unh'ersity of To rOil to Law [ourna! and the Editorial Committees of the Cambridge Law lou mill, the Canadian [ournal Contents of Law and [urisprudence (formerly the University of Western Ontario Law Revieio), and of Current Legal Problems for permission to use works originally published in those journals. /sbbreuiatious Over the years participants in the Oxford BCL Restitution class IX Table of Cases have provided enthusiasm and perceptive questioning (often from a X Commonwealth perspective) which has helped me to clarify and Table of Statutes xxviii develop my thoughts. Faculty and students at the National University 1. What Can Restitution Do For You? of Singapore, Osgoode Hall Law School, the University of Western 1 Australia and the University of Virginia, institutions at which I have 2. Benefit, Reliance, and the Structure of Unjust Enrichment 21 been fortunate enough to teach, also contributed to my understanding of a subject which can sometimes appear elusive. Merton College and 3. Discharge for Breach: Instalments, Deposits, and Other the Faculty of Law at Oxford have provided supportive and stimulating Payments Due Before Completion 45 environments in which to work and my Merton colleague, John Barton, has patiently dealt with many questions. I am also indebted to many 4. Gap-filling and Risk-reversal 78 others who commented on drafts of the articles on which these essays 5. Duress, Restitution, and Contract Renegotiation are based, but primarily to Peter Birks who, first as a teacher and later as -I- 95 a colleague, stimulated my interest in this subject and who also found ....f.. 6. Mistaken Payments in the Law of Restitution 137 time to read and comment on the new material in Essays 5 and 9 and the postscripts to Essays 6 and 7. 7. Unrequested Payment of Another's Debt 177 Finally, this book is dedicated to Charlotte, Sam and Hannah whose patient tolerance of my preoccupation with its subject was far greater 8. The Nature of Waiver of Tort 206 than I was entitled to expect. Merton Coilege J.B. 9. Unfinished Business: Integrating Equity 244 Oxford Index 259 12 November 1990
The k~.II,lifli number of m courts are the T'hcre I" \ igol juJgl;" and ac can do to ,)'''I~ Contents in the U K .10' the first on th lii!ht on the .... EDITOR'S PREFACE ix and equity • .II THE CONTRIBUTORS xiii recent landm TABtE OF CASES xiv Peter Birks TABLE 011 LEGISLATION xxxi in (he Lnivei TABLE OF INTERNATIONAL INSTRUMENTS xxxv oulsCollcg 10 Ilu LJTT 0 I. Equity's Identification Rules 1 edited man) David Hayton ran gin!! fron He was mad 2. The Legal and Moral Limits of Common Law Tracing 23 1995 and is:! Paul Matthews
3. Tracing, Mixing and Laundering 73 Stephen Moriarty 4. Tracing the Proceeds of Crime: an Inequitable Solution? 95 Helen Norman 5. The Involuntary Launderer: The Banker's Liability for Deposits of the Proceeds of Crime 115 Simon Gleeson 6. Change of Position 135 Richard Nolan 7· After Change of Position: Good Faith Exchange in the Modem Law of Restitution 191 Kit Barker 8. Total Failure of Consideration and Counter-Restitution: Two Issues or One? 217 Ewan McKendrick 9· The Nature of Ministerial Receipt 243 William Swadling
10. Passing On 261 Francis Rose
II. Overview: Tracing, Claiming and Defences 289 Peter Birks
INDEX 349
Contents
LIST 01, CONTRIUU'I OI~S xv fABLE OF CASES xvii TABLEOFSTATUTES xxxiii
l. The Law of Restitution: The Past and the Future Gareth Jones 1
2. Mistake and the Role of the 'Submission to an Honest Claim' SHe Arrowsmith 17
3. Public Authorities, Ultra Vires, and Restitution Andrew Burrows 39
4. Payment of Debts Charged upon Property Richard Sutton 71
5. In Defence of Free Acceptance Peter Birks 105
6. Frustration, Restitution, and Loss Apportionment Ewan McKendrick 147
7. Restitution and Illegal Transactions Brice Dickson 171
8. Restitution as Part of Contract Law S. M. Waddams 197
9. Property and Unjust Enrichment Roy Goode 215
10. Valid, Voidable, Qualified, and Non-Existing Obligations: ....." An Alternative Perspective on the Law of Restitution Daniel Friedmann 247
11. Should There Be Legislative Development of the Law of Restitution? Jack Beatson 279
303 INDEX
This worl ofe Fellc schc Contents the I whi. Table of Cam A xxv TabL~ of Legislation oft! xlvii Roman Law foe, u List of Contributors mal lvii d~ and Introduction sdu Andrew Burrous and Alan Rodger ani uni I THE ENGLISH LAW OF UNJUST ENRICHMENT his allt AND RESTITUTION the 1. The Evolution of the Species 13 gen Francis Rose 1 eo'll General Concepts res' Absence of Basis: The New Scheme ern 2. Birksian 33 Andrew Burrows leg pU' 3. Three Enrichment Issues 49 Robert Stevens Am 4. Some Thoughts on Change of Position 65 Co Gareth Jones 5. The Role of Fault in the Law of Restirution 83 Lo Graham Virgo in 6. Subrogation: Persistent Misunderst:andings 105 Charles Mitchell 7. Tracing 119 Lionel Smith 8. Gain-Based Damages and Compensation 141 James Edelman
Some Particular Unjust Factors 9. Unlawful Statutes and Mistake of Law: Is There a Smile on the Face of Schrodinger's Cat? 163 Jack Beatson 10. The Further Travails of Duress 181 Ewan McKendrick Contents Contents xxiii This lOUI 23. work 11. Undue Influence: Beyond Impaired Consent and Wrongdoing The Rornanizarion of Spain: The Contribution of City Laws in ofCi the Light of the Lex Irnitana towards a Rdational Analysis 201 439 FeUo [osepl: Georg Wolf Mindy C/;m- Wishart schol Absent Parties and Bloody-Minded Judges 12. Unjust Enrichment, Discharge for Breach, and the Primacy 24. 455 the II Ernest Metzger whic of Contract 223 As Gerard McMetL 25. 'You Never Can Tell with Bees': Good Advice from Pooh for oftn Students of the Lex Aquilia 475 focu Property, Insolvency, and Restitution Arianna Pretto-Sakmann map 13. Resulting Trusts 247 26. Late Arrivals: The Appendix in Justinian's Digest Reconsidered 497 dre\\ Rabm Chambers T01'lY Honore and. 14. [one: V Jones: Property or Unjust Enrichment? 265 27. Logic and Experience in Roman Law 513 scho Peter Mi/lat David Johnston an it univ 15. Unjust Delivery 277 28. Unjust Enrichment: The Tenant's Tale 525 rusv William Swadlillg Eltjo Schrage aUt} 16. The Avoidance ofTransacrions in Insolvency Proceedings and thel Rescitutionary Defences 299 IV LEGAL HISTORY gene Roy Goode n 29. Bezoar-Stones, Gall-Stones, and Gem-Stones: A Chapter in cove the History of the Tort of Deceit 545 resti II THE COMPARATIVE LAW OF UNJUST John Baker enri ENRICHMENT AND RESTITUTION 30. Denials Ancient and Modern, with some Roman Footnotes 561 lega 17. Resrimrion mer Termination for Breach of Contract German Jeffrey Hackney pup Law after me Reform of 2002 323 31. Rumford Market and the Genesis of Fiduciary Obligations 577 &inhard Zimmm1UJnll And Joshua Gazier Cor 18. No Basis: A Comparative View 343 32. Slavery and the Roman Law of Evidence in Eighteenth-Century and Sonja Meier Scotland 599 19. Unjust Enrichment as Absence of Basis: Can English Law Cope? 363 John W Cairns Lor Gerhard Dannmumn 33. Sir William Jones and the Nature of Law 619 inC 20. The Fallacy of'Restirucion for Wrongs' David Ibbetson Thomas Krebs 379 21. Peter Birks and Scots Enrichment Law Hector MacQ;uen 401 The Publications of Peter Birks 1969-2005 641 Compiled by Eric Descheemaeker
[II ROMAN LAW Index 653 22. What did Damnum Iniuria Actually Mean' Alan Rodger . 421 PHILOSOPHICAL FOUNDATIONS OF The-Law of Unjust Enrichment •
EDITED BY Robert Chambers Charles Mitchell ~ James Penner
OXFORD 1 d o OXFORD V NIV81l.SlTY PIl.8SS CI G~.lt CI,,,.nd The moral rights 01the authors have bee II asserted PART II NORMATIVE FOUNDATIONS Crewn copyright nw ISBN 978-0-19-956775-1 8. The Meaning of Loss and Enrichment 211 I 3 5 7 9 10 8 6 4 2 James Edelman 9. Two Kinds of Enrichment 242 Robert Chambers vi Can tellts PART IV UNJUST ENRICIlMENT AND PROPERTY List of Contributors 10. Philosophical Foundarions of Proprietary Remedies 281 Lionel Smith II. Value, Property, and Unjust Enrichment: Kit Barker is Associate Professor at [he TC Beirne School of Law at the University of Trusts of Traceable Proceeds 306 Queensland. [ames Penner Robert Chambers is Professor of Property Law at Univcrsiry College London. 12. Property, Uniust Enrichment, and Defective Transfers 335 Hanoch Dagan is Dean and Professor of Law at the Tel-Aviv University Buchmann Charlie Webb Faculty of Law. James Edelman is Fellow and Tutor in Law at Keble College, Oxford, Professor of PART V REASONS FOR RESTrTUTION Law at the University of Oxford, and Conjoint Professor at the University of New South Wales. 13. 'Mistakes of Law' and Legal Reasoning: Interpreting Kleimoon Benson u Lincoln City Council 373 Dennis Klimchuk is Associate Professor in the Department of Philosophy and the Aruna Nair Faculty of Law at the University of Western Ontario. 14 Unjust Enrichment and the Idea of Publ ic Law 394 Mitchell Melones is Professor of Law at the University of Alberta. Charks Mitchell and Peter Oliver Charles Mitchell is Professor of Law at King's College London. 15. Unconscionable Enrichrnenr? 417 Peter Oliver is Professor of Law at the University of 0 ttawa, Prince Saprai James Penner is Professor of Property Law at University College London. Index 437 Aruna Nair is Visiting Lecrurer in Law at King's College London. Prince Saprai is Assisranr Professor of Law at the University of Warwick. Lionel Smith is James McGill Professor of Law and Director of the Quebec Research Centre of Private and Comparative Law at the Faculty of Law, McGill University. Stephen A Smith is Professor and William Dawson Scholar ar the Faculty of Law, McGill University. Charlie Webb is Lecturer in Law ar the London School of Economics and Political Science. Ernest J Weinrib is University Professor and Cecil A Wright Professor of Law at the University ofToromo. viii Unjust Enrichment ill CommercialLaw New Zealand Council of Law Reporting: New Zealand Law Reports (NZLR). Mississippi Law Journal R Jackson, 'The Restatement of Restitution' (1938). Contents Oxford Universit),Press (also Clarendon Press, Oxford).: www.oup.com . A Burrows and A Rodger (eds), Mapping the Lnll': EssaysIII Memory of Peter BIrks (2006). P Birks, UlljllSt Enrichment (2005), 2M_edi~on.. P Birks, An introduction to the Law oj RestltlltlOll (1985).. .. P Birks, An Introduction to the Law of Rsstitutian (1989), revised edition. Contributors v Tnble of Cases xi Sweet and Maxwell, London: www.sweetandmaxwell.co.uk Table of Statutes xxix R Goff and G Jones, The U1W of Restitution (1966). G jones,Goff and Jones. The Unv ofRestil1ltioll (2002) 6'h edition. INTRODUCTION H McGregor, McGregoron Damages(1998) 16th edition. James Edelman and Simone Degeling 1 Appeal Cases (App Cas). EnglishReports (ER). PART I: THE NATURE AND THEORY OF UNJUST ENRICHMENT 1. Robert Stevens, Is there a Law of Unjust Enrichment? 11 Tolley Publishing Company 2. Lionel Smith, Unjust Enrichment: Big or Small? 35 P Birks, 'The End of the Remedial Constructive Trust' (1998) 12 Trust Law International 3. Adrian Briggs, Misappropriated and Misapplied Assets and the 202. Conflict of Laws 53 EYer),efforthas been made to contact copyright holders andlor their agents. "While every PART II: ENRICHMENT care has been taken to establish and acknowledge copyright, Lawbook Co. tenders its 4. John McGhee, The Nature of Enrichment Inquiry 79 apology for any accidental infringement. The publisher would be pleased to come to a 5. Steve Hedley, Enrichment 95 suitableagreementwith the rightful owners in each case. PART III: AT THE EXPENSE OF THE CLAIMANT 6. Mitchell Mcinnes, Hambly v Trott and the Claimant's Expense: Professor Birks' Challenge 105 7. Charles Mitchell, Liability Chains 131 8. Graham Virgo, Causation and Remoteness within the Law of Unjust Enrichment 147 PART IV: UNJUST FACTORS 9. James Edelman and Simone Degeling, What is an Unjust Factor? 177 10. Marilyn Warren, Mistake and Unjust Enrichment-The Double Life of the Law and its Progress 197 11. Carmel McLure, Failure of Consideration and the Boundaries of Restitution and Contract 209 12. Kenneth Hayne, Anticipated Contracts that Fail to Materialise 237 13. Robert Chambers and James Penner, Ignorance 253 14. Keith Mason, Economic Duress 275 15. Michael Bryan, Unconscionable Conduct as nn Unjust Factor 295 16. Alan Rodger, An Introduction to Sempra Metals Ltd 317 PARTV: PROPRIETARY REMEDIES 17. Andrew Burrows, The Relationship between Unjust Enrichment and Property: Some Unresolved Issues 333 18. William Swadling, Policy Arguments for Proprietary Restitution 359 x Unjust Enrichment in Commercial Law PART VI: DEFENCES 385 19. John McClmus. Hrollgful COilduct lind Cllc1l~ge~rPos~tic)ll . 1 411 20. Bret Walker, The Defence of Illegality to a Claiu: III UIIJust Enric IlIIe;'t 21. Peter Watts, Imputed Knowledge ill RcstitfltiOllmy Claillls-Rationa es 429 and Rationes Table of Cases 461 Tndex A AIJigroup Coniractors Ply Ltd v ABJ3 Service Pty Ltd 120041 NSWCA 181 231 Abou-Rahmah v Abach» [20061 EWCA Civ 1492; (2007) 1 All ER (Cornm) 827; 1 Lloyd's Rep 115 164, 404, 430 Abrahams v Performing Rights Society [1995 J fCR 1028 25 ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 180, 280,291 ACCe v Saw ton Holdings Pty Ltd [2002] PCA 62; (2002) 189 ALR 76 298 ACCC v Top Snack Foods Pty Ltd [1999] PCA 1618 144 Agip (Africa) Ltd v Jackson [1990) Ch 265; affd (1991 J Ch 547 141,143 Air Canada v British Columbia (1989) 59 DLR (4th) 161 109, 199 Aiton Australia Pry Ltd v Transfield Pty Ltd (1999) 153 FLR 236 246 Akins v NAB Ltd (1994) 34 NSWLR 155 436 Akins v NAB Ltd [1998] HCA 48; (1998) 194 CLR 395 , 303 Alati v Kruger (1955) 94 CLR 216 226,314,361 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 - 246 Alev, The [1989J 1 lloyd's Rep 138 155 Alexander v Vane (1836) 1 M &W 511; 150 ER 537 85 AI/Vaughan & Co Ltd (in rec) v Royscot Trust pic [) 999)1 All ER (Cornm) 856 283.291 Allcard v Skinner (1887) LR 36 Ch D 145 191,312,360.361,383 Allied Air Conditioning Inc v British Columbia (1994) 109 DLR (4th) 463 109 Amadio Pty Ltd v Henderson (1998) 81 FCR 149 184 Arnec Developments Ltd v Jury's Hotel Management (UK) Ltd [2001) 1 ELGR 81 120 AMIEU v Peerless Holdings Pty Ltd (2000) 103 FCR 577 _ 288 Amministrazione delle Pinanze dello Stato v SpA San Giorgio [1983] ECR 3595 109,164 Anderson v Lambie [1953] SC 94 319,320 Andrew Shelton v Alpha Healthcare [2002J VSC 248; (2002) 5 VR 577 82,301 Anglo Petroleum Ltd v TFB (Mortgages) Ltd [2007J EWCA Civ456 __ 458 Anisminic v Foreign Compensation Commission (1969) 2 AC 147 373 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991) 1VR 637 288 ANZ Banking Group Ltd v Karam [2005) NSWCA 344; (2005) 64 NSWLR 149 277,280,285,291 ANZ Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 3,179,199,200 Aotearoa International Ltd v Scancarriers A/S [1985J 1 NZLR 513 279 Arab Monetary Fund v Hashim [1993 J 1 Lloyd's Rep 543; affd [1996] 1 Lloyd's Rep 589 - 64 ArmitagevNurse[1998jCh241 189 Armory v Delamirie (1722) Stra 505; 96 ER 664 127,366 Ashby v White (1703) 2 Ld Raym 938; 92 ER 126 124, 125,126 Ashington Piggeries Ltd v Christopher Hill Ltd (1972) AC 441 240 Hart Publishing Oxford UK Contents Distributed in the United rates by I orthwestern University Press 625 Colfax Evanston Preface VII Illinois Table of Cases 60208-4210 USA IX Distributed in Australia and New Zealand by Misnomer Peter Birks Federation Press Pty Ltd 1 PO Box 45 2 Misnomer: A Response Annandale, NSW 1038 Andrew Tettenborn Au tralia 31 3 The History of Quasi-Contract in English Law Distributed in Netherlands, Belgium and Luxembourg by J.H. Baker lnrersenria, Churchillaan 108 37 B2900 Schoten 4 The Later History of Restitution Antwerpen John H. Langbein 57 Belgium 5 Propriety Restirurionary Claims © The contributors severally, 1998 Roy Goode 63 6 Three Questions on Proprietary Claims Han Publishing is a specialist legal publisher based in Oxford, England. To order Sarah Worthington further copies Q£ this hook or to request a list of other publications please write to: 79 7 Conflicts of Interest, Unjust Enrichment and Wrongdoing Han: Publishing, 19 Whitehouse Road, Oxford, OX14PA R.C. Nolan Telephone: +44 (0)1865434459 Fax: +44 (0) 1865794882 87 email: [email protected] 8 Conflicts of Interest, Unjust Enrichment, and Wrongdoing: A Commentary British Library Cataloguing in Publication Data David Fox 127 Data Available 9 Restitution for Wrongs: The Basis of Liabiliry ISBN 1-901362-42-6(clorh) Daniel Friedmann 133 10 Civil Disgorgement of Wrongdoers' Gains: The Temptation to Do Justice Neil Andrews 155 11 Work Done in Anticipation of a Contract Which Does Not Materialise Ewan McKendrick 163 Typeset in Sabon 12 Work Done in Anticipation of a Contract Which Does Not by John Saunders Design & Production, Reading Materialise: A Response Printed in Great Britain on acid-free paper Steve Hedley by Biddies ltd, Guildford and Kings Lynn. 195 vi Contents 13 Restitution and Con trucrive Trust ir Peter AWlert 199 14 Resrirution and Constructive Trusts: A Commentary Preface A.}. Oakley 219 15 Knowing Receipt: The Need for a ew Landmark Lord Nicholls 231 16 Knowing Receipt: The Need for a New Landmark: Some Reflections This year will see the retirement of Gareth Jones from the Downing Charles Harpion 247 Professorship of the Laws of England at Cambridge University, after a distin- guished tenure of that Chair for nearly a quarter of a century. The Law 17 Equitable Doctrine and Discretion In Remedies Faculty at the University decided to honour his great contribution to the devel- Paul Finn 251 opment and teaching of the law, not just by a volume of essays written in his 18 Restitution in Canada honour, but by a Conference at which papers would be presenred and Beverly McLachlin 275 discussed, and by the subsequent publication of those papers. This volume contains the fruit of that imaginative decision. 19 Restitution in Canada: A Commentary The Conference was entitled "Restitution: Past, Present and Future", and so J. Beatson 297 was intended to celebrate Gareth's extraordinary contribution to that subject, 20 What is the Law of Restitution About? both as author and teacher. The occasion was a tremendous success. As the Graham Virgo 305 reader will discover, the papers were of a very high standard, and contained original work of considerable significance. They demonstrate of themselves 21 What is the Law of Restitution About: A Commentary the determination of the contributors to show their admiration for Gareth and William Swadling 331 his work. But further evidence of this was provided by the extraordinarily large number of lawyers-judges, practitioners, law teachers and postgrad- Index 339 uate students-who attended the Conference; by the liveliness of the discus- sions which followed the presentation of the papers; and above all, by the spirit of the Conference. I have never attended a more enjoyable occasion. Everybody seemed to be party to a benign conspiracy to generate a combina- tion of high scholarship and sheer fun. I believe that Gareth's presence of the Conference contributed a great deal to this outcome. There can be no doubt about the standing of Gareth Jones in the world of legal scholarship, not only in this country but also in the USA. This is because Gareth is not only a distinguished author. He is also, beyond doubt, one of the finest law teachers in the common law world. It is the principal function of a professor to profess; and Gareth has performed that function with such skill that he has been invited back, again and again, to teach law and equity in American Law Schools. But it is perhaps his work in the development of the Law of Restitution which is his greatest contribution, and for which he will be principally remembered. I know how lucky I was to find Gareth as my collaborator in the enterprise which became Goff and Jones on Restitution. We were introduced by Brian Simpson, who had already introduced Gareth to his future wile, Vivienne. Gareth was the ideal co-author-hard-working, good tempered, and generous to a fault. But it is not I alone who am in his debt for his great contribution to this subject. It is the whole community of common lawyers who reaped that Table of Contents Preface v Essayists ...... ix Seminar Participants ...... xi Table of Cases xiii Chapter I A Topography of the Law of Restitution...... 1 Gareth Jones 2 Restitution in Australian Law...... 20 Keith Mason Q.C. 3 Unjust Enrichment, Restitution and Proprietary Remedies. 47 The Hon. Mr Justice W. M. C. Gummow 4 Mistaken Payments, Change of Position and Restitution .. 87 P. A. Butler 5 Compulsion in Commercial Dealings ...... 138 Nicholas Seddon 6 Restitution from the Executive: A Tercentenary Footnote to the Bill of Rights ...... 164 Peter Birks 7 Ineffective Transactions ...... 206 J. W. Carter 8 What Should be Done for Mistaken Improvers? ...... 241 R. J. Sutton 9 Unjust Sacrifice and the Officious Intervener ...... 297 Garry A. Muir Index ...... 353 vii Contents Contributors xiii 1. Understanding Unjust Enrichment: An Introduction 1 Jason W. Neyers 1. Introduction 1 II. Unjust Enrichment Across the Commonwealth 3 Ill. The Theory of Unjust Enrichment 4 IV. The Nature of Enrichment 5 V. Emerging Topics 6 VI. Unjust Enrichment in the Family 7 VII. Conclusion 9 2. The English Law of Restitution: A Ten-Year Review 11 Andrew Burrows I. Introduction: A Decade of Development 11 II. Mistaken Payments 14 III. Change of Position 19 IV. Proprietary Restitution 23 V. Future Developments? 29 VI. Conclusion 33 3. Unjust Enrichment (Dis)Contented 35 Gerald H.L. Fridman 4. Unjust Enrichment and Unconscionability in Australia: A False Dichotomy? 47 Michael Bryan I. Introduction 47 II. The Recognition of the Unjust Enrichment Principle in Australia 50 III. Unconscionability in Australia 56 A. Unconscionable Dealings 57 B. Unconscionable Enforcement of LegaJ Rights 62 IV. Unconscionability Within the Law of Restitution 66 A. Defences 71 B. Remedies 74 V. Conclusion 76 5. Understanding the Unjust Enrichment Principle in Private Law: A Study of the Concept and its Reasons 79 Kit Barker Viti Contents Contents IX l. Introduction 79 (i) Recovery of Contractual Prepayments 151 H. A Brief History of Debate: Identifying Roles for (ii) Payment for Work Done Under a Contract: Uniust Enrichment 82 The Quantum Meruit 155 Ill. Theory: A Closer Look at Principles, Rules and Categories 90 D. The Non-Contractual Quantum Meruit 156 A. Principles and Rules: Unjust Enrichment as a E. Restitution, Wrongdoing and 'Restitution for Legal Principle 90 Wrongs' 159 B. Principles and Legal Categories: Unjust Enrichment (i) Disgorgement 159 as a Category 92 (ii) The Use Claim or 'Restitutionary Damages' 161 IV. Reasons in Unjust Enrichment Law: (iii) Waiver of Tort 162 Philosophical Foundations 95 1II. Conclusion 163 A. The Value of Reasons in Understanding Rules 95 B. Reasons in Unjust Enrichment Law 96 8. Enrichment Revisited 165 (i) Corrective Justice 97 Mitchell McInnes (ii) Beyond Corrective Justice 101 1. Introduction 165 V. Conclusions and Implications 106 II. Autonomy and Enrichment 169 6. A. Objective Benefit 169 Unjust Enrichment and Corrective Justice 111 Dennis KlimcJmk (i) Pure Services 171 r. (ii) Time of Receipt 172 Preliminaries 111 II. Aristotle B. Subjective Devaluation 174 III. 114 C. Satisfying the Defendant's Freedom of Choice 175 Aristotle, Torr and Unjust Enrichment 117 rv Kant (i) Request 176 122 V. Universaliza bility (ii) Free Acceptance 180 VI. 124 (iii) Incontrovertible Benefit 183 Duty and Right, Gains and Losses 127 VII. Weinrib's Account Ill. Related Issues 193 VIII. 131 A. Change of Position 193 Conclusion to the Main Argument 132 IX. The Internal Distributive Account B. Quantification of Restitution 198 132 (i) X. Postscript: Unjust Enrichment and Equity No Enrichment 199 136 (ii) Extent of Enrichment 200 7. Two Theories of Unjust Enrichment (iii) Wrong Measure of Relief 203 Peter Jaffe)' 139 C. The Reason for Restitution 206 L Two Theories of Unjust Enrichment 207 A. 139 (i) Strict Liability The Strong Theory and the Weak Theory of (ii) The Defendant's Participation-Principled Unjust Enrichment Reasons for Restitution 209 B. 139 Arguments for the Strong Theory (iii) The Defendant's Participation-Unprincipled C. 142 Restitution and Unjust Enrichment Reasons for Restitution 211 D. Quadration 144 145 IV. Conclusion 219 E. An Intermediate Position II. 145 9. Planting Another's Field: Unrequested Improvements Evaluating the Strong Theory of Unjust Enrichment 146 Under Jewish Law 221 A. The Raw Material: Unjust Enrichment Claims in the Weak Sense Ernest J. Weinrib B. Restitution and Property 146 1. The Case of the Planted Trees 221 (i) Mistaken Payments 146 II. The Measures of Remuneration 223 146 (ii) Payment Without Authority III. Incontrovertible Benefit 228 c. Restitution and Contract 149 IV. The Demise and Rebirth of Incontrovertible Benefit 235 151 V. Conclusion 243 x Contents Contents xi 10. Unrequested Benefits in German Law 247 12. Disgorgement for Breach of Contract and Corrective Justice; Thomas Krebs An Analysis in Outline 311 J. Introduction 247 Peter Benson IT. The Basis of the Restitutionary Claim 248 A. The Taxonomy of the Modern German I aw of J. Introduction 311 Unjust Enrichment 249 II. Disgorgement and Property 313 B. The Yerwendungskondiktion 253 HI. Disgorgement and Contract 321 (i) The Verwendungskondiktion in the IV. Conclusion 330 Context of the BGB 253 13. Characterisation of Unjust Enrichment in the (ii) The Verwendungskondiktion and Substantive Conflict of Laws Reasons for Restitution 331 253 Stephen G.A. Pitel III. The Enrichment Inquiry-Devaluation and Revaluation 257 IV. Conclusion 262 I. Introduction 331 II. Characterisation 333 11. Tracing and Unjust Enrichment 263 A. What is Characterised 333 Robert Chambers B. The Approach to Characterisation 335 I. Following, Tracing, and Claiming 263 C. Characterisation Fundamentals 337 U. Claiming Confusion 264 Ill. Unjust Enrichment 338 ill. Sources of Claims Based on Tracing 265 A. A Cause of Action 338 A. Consent 266 (i) The First Challenge 338 B. Statutes 268 (ii) The Second Challenge 341 C. Wrongs 268 B. Unjust Enrichment and Restitution-Terminology D. Continuing Rights 272 Problems 344 (i) The Nature of Property Rights 273 C. Rethinking Quadration 346 (ii) The Nature of a Fund 274 D. Terminology Solutions 347 E. Incident of Rights 276 IV. Characterisation of Unjust Enrichment 349 F. Enforcement of Rights 278 A. Unjust Enrichment and Wrongs 349 G. Unj usr Enrichment 279 B. Unjust Enrichment and Contract 351 IV. Claims to Restitution of Unjust Enrichment 279 Unjust Enrichment and Property 353 A. Personal Claims C. 281 V. Conclusion 357 (i) Tracing Value to the Assets Received by the Defendant 281 14. Restitution on Dissolution of Marital and Other Intimate (ii) Change of Position 283 Relationships: Constructive Trust or Quantum Meruit? 359 B. Liens 284 John D. McCamus C. Beneficial Ownership 285 (i) Trusts I. Introduction 359 (ii) 285 II. The Elements of the Pettkus v Becker Cause of Action 362 Ownership at Common Law 289 (iii) Claims to Recover Assets III. Severing Remedy from the Cause of Action: 290 (iv) Claims to New Assets Peter v Beblow 369 293 (v) Payment of the Purchase Price IV. Striking the Balance between Proprietary and D. Powers 296 Personal Remedies 375 (i) Rescission 299 A. The False Dichotomy of Constructive Trust and (ii) Rectification 300 Quantum Meruit 376 (iii) Tracing 301 B. When Would the Constructive Trust be the V. Conclusion 302 Appropriate Remedial Choice? 377 305 V. Conclusion 379 xn Contents 15. Legitimating 'Legitimate Expectations': A Case Study on Filial Responsibility; Can Parents Recover for Supporting Their Children at University? 383 Jeffrey B. Berryman Contributors 1. introduction 383 II. Reasons for Restitution 384 III. Expectations and Legitimate Expectations 390 KITBARKER,MA, BCl, Senior Lecturer in Law, University of Southampton. IV. Indicia of Legitimate Expectations 400 PETERBENSON, AB, MSc, LLB, Ll.M, Professor of Law, University of V. Conclusion 402 Toronto. 16. The Relation of Unjust Enrichment to Other Legal Concepts 405 JEFFREYB.BERRYMAN,Ll.B, MJuR, LlM, Professor of Law, University of Stephen Waddams Windsor. MICHAEL BRYAN, PIID, MA, BCL, Professor of Law, University of Index 409 Melbourne. ANDREWBURROWS,BCL, MA, LLM, QC, Norton Rose Professor of Commercial Law and Fellow of St Hugh's College, University of Oxford. ROBERT CHAMBERS,BED, LLB, DPHIL, Associate Professor of Law, University of Alberta. GERALDH.L. FRIDMAN,MA, BCL, LLM, QC, FRSC, Emeritus Professor of Law, University of Western Ontario. PETERJAFFEY,BA,LLM, Professor of Law, BruneI University. DENNISKLlMCHUK,BA, MA, PHD, Associate Professor of Philosophy and Law, University of Western Ontario. THOMASKREBS,LLB, BCL, DPHIL,University Lecturer in Commercial Law and Fellow of Brasenose College, University of Oxford. JOHND. MCCAMUS,BA, MA, LLB, LLM, Professor of Law, Osgoode Hall Law School of York University. MiTCHELLMcINNES, BA, LLB, LLM, PHD, Associate Professor of Law, University 0.£ Western Ontario. JASONW. NEYERS,BA, LLB, MST, Assistant Professor of Law, University of Western Ontario. STEPHENG.A. PlTEL, BA, LLB, LLM, PHD, Assistant Professor of Law, University of Western Ontario. STEPHEN WADDAMS, BA, MA, PHD, LLB, LLM, SJD, FRSC, Goodman/Schipper Professor of Law, University of Toronto. ERNESTJ. WEINRIB,BA, PHD, LLB, FRSC, University Professor and Cecil A Wright Professor of Law, University of Toronto. LANDMARK CASES IN THE LAW OF RESTITUTION Edited by Charles Mitchell and Paul Mitchell LANe LAW < Edited by and Paul Contents It is now v unjust enri distinctive Preface and Achnoioledgemenis vii Restitution Notes on Contributors XI for WTong( Table of Cases xiii xxxi they are. I Table of Legislation Before the the very e) 1 Lamp/ugh v Brathwaite (1615) enrichmen DAVID IBBETSON 1 content rru essays, a g 2 Moses v Macferlan (1760) and reappi WARREN SWAIN 19 in the law 3 Taylor u Plumer (1815) early sever LIONEL SMITH 39 century, ar 4 Planche v Colburn (1831) decisions. ~ CHARLES MITCHELL AND CHARLOTTE MITCHELL 65 their case I has been 0 5 Marsh v Keating (1834) persuasive JAMES EDELMAN 97 about som 6 Erlanger v New Sombrero Phosphate Co (1878) is an essen MICHAEL LOBBAN 123 student or this fascina 7 Phillips v Homfray (1883) WILLIAM SWADLlNG 163 8 Allcard v Skinner (1887) CHARLOlTE SMITH 183 9 Sinclair v Brougham (1914) EOIN O'DELL 213 10 Fibrosa Spolka Akcyjl1a u Fairbairn Lawson Combe Barbour Ltd (1942) PAUL MITCHELL 247 11 Re Diplock (1948) TIM AKKOUH AND SARAH WORTHINGTON 285 12 Solie v Butcher (1950) CATHARINE MACMILLAN 325 Index 361 yi Preface This account makes it clear that the task of a Reporter is a challenging one, and in the case ofR3RUE, it has been doubly so, for the law of unjust enrichment has become virtually lost from sight to many American lawyers. The main reason for this lies in the way in which the law of obligations has been taught in US law CONTENTS schools over the past forty years. In Douglas Laycock's words: The restitutionary causes of action dropped out of the curriculum of American law schools in the third quarter of the twentieth century, largely by accident. ... The result Preface is that hardly anyone who graduated from law school in the last forty years has taken a V restitution course. and at least by 1989 (probably a good bit earlier), there was no resti- Con tributo rs IX tution casebook in print. When a lawyer or judge encounters a restitution problem Table of Cases xi today, there is a substantial risk that she will view it as an isolated problem, only dimly Table of Legislation xxi aware that there is a large body of law on restitution and unjust enrichment and that Table oj Otue: Materials XXilJ arguments about her particular problem can be tested and refined in light of larger 1. Rights and Value; Means and Ends principles." Ben McFarlane It is to be hoped that R3RUE's appearance, following years of work by the Reporter, Professor Andrew Kull of Boston University, will stimulate American 2. Direct and Indirect Enrichment at the Claimant's Expense in scholars to direct more of their attention towards the topic,' and will enable judges Three-Party Cases 31 and practising lawyers in the US to gain a better appreciation of what it entails. Birke Hacker Our purpose in assembling this collection of essays has been to contribute to this process and at the same time to reflect on the lessons to be learned from R3RUE 3. § 38 and the Lost Doctrine of Failure of Consideration 59 by other legal systems. With this end in mind, we arranged for all the contributors Frederick Wilmot-Smith to meet and discuss a series of papers on R3RUE at a symposium beld in May 2012 at Brasenose College, Oxford. The essays coUected in this book are a result of 4. Duress and Related Forms of Pressure: A Comparative Perspective 89 that meeting. On bebalf of all the contributors, we thank the symposium partici- Jacques du Plessis pants for their constructive engagement with the contributors' work. We also 5. Undue Influence: Lessons from America? III thank Andrew Kull, who came over from the US to be with us and to participate William Swadlmg in our debates. It is a measure of his great achievement that his work has stimu- lated such a high level of interest and engagement among foreign scholars, as well 6. Denials and Defences in the Law of Unjust Enrichment 133 as those from his horne country. [ames Goudkamp and Charles Mitchell Charles Mitchell William Swadling 7. Is There a Defence of Good Consideration? 165 A ndrew Burrows 8. The Distinctiveness of Law and Equity and the Taxonomy of the Constructive Trust 185 Keith Mason 9. Proprietary Remedies for Unjust Enrichment: Demystifying the Constructive Trust and Analysing Intentions 209 ,D ~Y~ 'Restori~g Restitution.to t.he Canon' (2012) 110 Michigan Law Review 929,930. See too J l..a~gbeJn: The later History of Restitution' inWRCornish, R Nolan, J O'Sullivan and G Virgo (eds), Lusina Ho Resrr~non. Past, Present and Future (Oxford, Hart Publishing, 1998); C Saiman, 'Restitution in An_:enca: \.\'hy the US Refuses to Join the Global Restitution Party' (2008) 28 OILS 99. 10. The Restatement ofLiabilities in Restitution 227 I'.J.precess that seems to ~ under way, with the appearance of R3RUE-related special issues of the La ;rlgton alld Lee Law Revtew and the Boston University Law Review. (20 II) 68 Washington and Lee Stephen Smith w evrew865-1641 and (2012) 92 BO'1(111 University Law Review 763-1079. 11. Restitution for Wrongs 251 NichQlas Mcbride 12. Comparisons with Book \11 of the Draft Common Frame of Referellce 285 CONTRIBUTORS Gerhard Dmlllcmlln Index 303 Andrew Burrows QC FBA is a Fellow of All Souls College, Oxford, and Professor of the Law of England at the University of Oxford. Gerhard Dannemann is the Professor of English Law, British Economy, and Politics at Humboldt-Universitat zu Berlin, and a Research Fellow at the Institute of European and Comparative Law, University of Oxford. Jacques du Plessis is a Professor of Law and Head of the Department of Private Law at the University of Stellenbosch. James Goudkamp is a Fellow and Tutor in Law at Balliol College, Oxford, and a University Lecturer in Law at the University of Oxford. Birke Hacker is a Senior Research Fellow at the Max Planck Institute for Tax Law and Public Finance in Munich, and a Fellow of All Souls College, Oxford. Lusina Ho is Harold Hsiao-Wo Lee Professor in Trusts and Equity at the Faculty of Law of the University of Hong Kong. Nicholas McBride is Director of Studies in Law and a Fellow of Pembroke College, Cambridge. Ben McFarlane is a Professor of Law at University College London. The Hon Keith Mason AC QC is a Professorial Visiting Fellow at the Faculty of Law, University of New South Wales. He was formerly Chairman of the New South Wales Law Reform Commission, Solicitor General of New South Wales and President of the Court of Appeal of New South Wales. Charles Mitchell is a Professor of Law at University College London. Steve Smith is James McGill Professor at the Faculty of Law, McGill University. William Swadling is a Fellow of Brasenose College, Oxford, and a Reader in the Law of Property at the University of Oxford. Frederick Wilmot-Smith is a Prize Fellow of All Souls College, Oxford.