King’s college london school of law 2001-2002 the law of restitution (llb module) The object of the course



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KING’S COLLEGE LONDON

SCHOOL OF LAW

2001-2002


THE LAW OF RESTITUTION

(LLB module)


The object of the course

The object of the course is to enable students to form an understanding of the Law of Restitution, and to develop their analytical and critical faculties, so that their ability to tackle practical problems, to think for themselves, and to express themselves clearly is enhanced.


Teaching methods

There will be one 2-hour seminar a week throughout the year. The course will be taught by Charles Mitchell.


Preparing for class and working in class

You should come to classes ready to participate in discussion, to show yourselves familiar with the relevant cases and literature, and to formulate and express your own views of their meaning and significance in a well-informed and coherent manner. By doing this you will benefit us, you will benefit one another, and you will benefit yourselves. By applying your minds to the material in a positive way you will form your own understanding of it, which will stand you in better stead than a set of received opinions. If you have a point to make, make it. If you have a question, ask it. Classes will be more useful - and more fun - for everyone if everyone makes the effort to prepare for classes properly and shares the benefit of his or her thoughts with everyone else.


Each seminar is accompanied by a seminar sheet with references to materials which you will find it useful to read in preparation for class. Bracketed materials are suggestions for further reading if you wish to follow up on a particular interest. Copies of materials marked with a hash ‘#’ are kept in the Restitution box in the library.
Assessment

60% of the final mark awarded to students taking the course will be based on the end of year examination, in which students must answer three questions. 40% of the final mark will be based on two written work assignments submitted during the year. Each of the three answers written in the exam will be marked out of 20; each of the two pieces of assessed written work will be marked out of 20; these five marks will be added together to give a final mark out of 100.


The exam

The exam will be three and a half hours in length, and you must answer three questions from a choice of six. There will be a Part A, consisting of three essay questions, and a Part B, consisting of three problem questions. You will be required to answer at least one question from each part. The exam will be limited open book: you will be permitted to take in a copy of A Burrows and E McKendrick, Cases and Materials on the Law of Restitution (OUP, Oxford, 1997). You may underline or highlight passages of your copy, and mark pages eg with strips of paper or Post-It stickers, but you must not annotate your copy or any sticker etc attached to it - ie you must not write words or numbers on them. The idea of a limited open book exam is to save you from having to memorize all the details of the cases and materials. It does not save you from having to think about what these mean before you enter the examination hall. You should aim to be as familiar with the subject as you would be for a closed book exam, and you should not reduce your revision time nor your preparation for classes during the year in the belief that Burrows and McKendrick will save you on the day.


The assessed written work

Four pieces of written work will be set over the course of the year, two per semester. In each semester, the first piece of written work will be marked and returned as usual, and will not count towards a student’s final grade in the subject. In each semester, the second piece of written work (‘the assessed written work’) will count towards the student’s final grade.


The assessed written work should be typed or word-processed, single-spaced, using only one side of the paper. Font size should be no smaller than Times New Roman 12. Pages should be numbered. The upper word limit is 2,000 words. No credit will be given for anything written beyond the upper word limit. You should indicate at the end the number of words written. You should not use endnotes or footnotes. All references should be incorporated into the text of your work. To ensure objectivity in the marking process, you should not write your name on your assessed written work, but should put your student number (which can be found on your sessional card) on a cover sheet which will be issued to you, and also on each sheet of your assessed written work. Please do not encase your work in plastic folders.
The assessed written work will be set at least three weeks before the deadline for its submission. The work must be submitted to the School Office by 4 pm on the date specified when the work is set. If, due to illness or other good cause, you cannot submit the work on time, you must obtain prior consent to late submission from the Associate Head, Academic Affairs, Professor Keith Ewing. If such prior consent to late submission is granted, Professor Ewing will substitute such an alternative deadline as he feels to be appropriate in the circumstances. A penalty will be incurred if a piece of assessed written work is submitted after the deadline, and the prior consent of Professor Ewing not obtained: for each week or part of a week that the work is late, 4 marks will be deducted from the total awarded for that piece of work, down to a minimum mark of zero. Difficulties with obtaining access to, or other difficulties caused by, word-processing facilities will not count as good cause for late submission. It is your responsibility to obtain the necessary access to the required facilities, and to ensure that the work is produced in the correct format and on time. You are reminded that you must make adequate back-up copies of work in progress.
All pieces of assessed written work will be marked blind by two internal examiners, and referred to the external examiner, with the examination scripts at the end of the year: ie you should think of these pieces of work as parts of your final exam taken early. They will not be returned to you, and you will not be informed of the marks awarded for your assessed written work until after the meeting of the LLB Examinations Board in June 2001.
If you fail your final exams and have to retake them next year, you may choose whether to carry forward the marks awarded for your assessed written work, or to submit new or revised pieces of assessed written work next year. If you choose either of the latter options, you must get in touch with the course co-ordinator to discuss the nature of the assessed written work to be submitted and the deadline for submission. If you are granted permission to withdraw from your final exams on the ground of mitigating circumstances, then you may carry forward the marks awarded for your assessed written work, or alternatively submit new or revised written work, provided that the course co-ordinator is satisfied that the mitigating circumstances affected your ability to write your assessed written work. In this case, again, you must get in touch with the course co_ordinator to discuss the nature of the assessed written work to be submitted and the deadline for submission.

Each student taking the Restitution course must sign a ‘Declaration on Plagiarism’ to indicate that he or she has read and understood the College regulations and guidance on plagiarism. This requirement is in addition to the requirement that each student consents to abide by all applicable College regulations, indicated by signing an enrolment form. The College’s Notes of Guidance on Plagiarism (contained in the Regulations Concerning Students) are reproduced below. You are asked to read them carefully before signing and returning the attached declaration form to your teacher at the end of the first seminar. Please note that plagiarism includes the appropriation of another person’s ideas without acknowledgement. Collaboration with a fellow student on a piece of written work is therefore an examination offence.




A Note of Guidance on Plagiarism

(from the College’s Regulations Concerning Students)


You are reminded that all work submitted as part of the requirements for any examination of the College or of the University of London must be expressed in your own words and incorporate your own ideas and judgments. Plagiarism is the inclusion of statements - thoughts or words usually from another person’s work - in your own written work without any indication that the statements are a quotation. It is possible for plagiarism to occur in examination scripts but particular care should be taken in course work and essays and reports written in your own time.
Direct quotations from the published or unpublished work of others must always be identified as such by being placed inside quotation marks, and a full reference to their source must be provided in the proper form. Failure to provide a source or to put quotation marks around material that is directly copied from somewhere else gives the appearance that the comments are your own. Remember that a series of short quotations from several different sources, if not clearly identified as such, constitutes plagiarism just as much as does a single unacknowledged long quotation from a single source.
Similarly, the direct copying of your own original writings qualifies as plagiarism if the factt hat the work has been or is to be presented elsewhere is not clearly stated.
You should note that even paraphrasing - summarizing another person’s ideas or judgments in your own words - can be plagiarism if you do not acknowledge the origin in your text or include the work paraphrased in your bibliography.
Plagiarism is a serious examination offence. Failure to observe the requirements indicated above may lead to an allegation of cheating, and can result in action being taken under the College’s disciplinary code. Penalties can include awarding zero marks for work in which plagiarism has been detected and non-assessment of other work related to the achievement of your degree, etc.
Every department provides guidance on how to present your work so as to minimize the possibility that you might unwittingly infringe the plagiarism rules. If you are in any doubt about what is or is not possible you should consult your tutor or course leader as soon as possible.

KING’S COLLEGE LONDON
School of Law
Academic Session 2001-2002


DECLARATION ON PLAGIARISM

STUDENT NAME ................................


MODULE TITLE The Law of Restitution


Declaration:
I hereby confirm that I have read and understood the College regulations

and guidance on plagiarism, as reproduced by the School of Law.

STUDENT SIGNATURE .....................................


DATE .....................................




Books

You should buy G Virgo, The Principles of the Law of Restitution (Clarendon Press, Oxford, 1999), and A Burrows and E McKendrick, Cases and Materials on the Law of Restitution (OUP, Oxford, 1997). Do not write anything in your copy of the casebook! The textbook is referred to on the seminar sheets as ‘V’, the casebook as ‘B & M’.


During the course of the year you will also be referred to some other books, which are kept in the Short Loan section of the Library. These are:
J Beatson, The Use and Abuse of Unjust Enrichment (Oxford, 1991): Beatson, Use & Abuse

P Birks, An Introduction to the Law of Restitution (Oxford, 1985): Birks, Introduction

P Birks, Restitution: The Future (Sydney, 1992): Birks, The Future

P Birks (ed), Laundering & Tracing (Oxford, 1995): Birks, Laundering

P Birks and F Rose (eds), Lessons of the Swaps Litigation (London, LLP, 2000): Birks and Rose, Swaps

A Burrows (ed), Essays on the Law of Restitution (Oxford, 1991): Burrows, Essays

A Burrows, The Law of Restitution (London, 1993): Burrows, Law

A Burrows, Understanding the Law of Obligations (Oxford, 1998): Burrows, Obligations

W R Cornish et al (eds), Restitution - Past, Present and Future (Oxford, 1998): Cornish, Essays

P D Finn (ed), Essays on Restitution (Sydney, 1990): Finn, Essays

G Jones (ed), Goff & Jones on the Law of Restitution, 5th edn (London, 1998): Goff & Jones

F D Rose (ed), Failure of Contracts: Contractual, Restitutionary, and Proprietary Consequences (Oxford, 1997): Rose, Failure of Contracts

F D Rose (ed), Restitution and Banking Law (Oxford, 1988): Rose, Banking

W J Swadling (ed), The Limits of Restitutionary Claims: A Comparative Analysis (London, 1997): Swadling, Limits

W J Swadling and G Jones (eds), The Search for Principle (Oxford, OUP, 1999): Swadling and Jones, Search

Course outline

We shall discuss the following topics in seminars:


SEMESTER 1

Introduction

Week 1: Introduction

Week 2 (Seminar 1): History

Week 3 (Seminar 2): Analysis

Week 4 (Seminar 3): Analysis
Unjust factors (enrichment by subtraction)

Week 5 (Seminar 4): Mistake


[Week 6: Reading Week]
Week 7 (Seminar 5): Duress

Week 8 (Seminar 6): Inequality and disadvantage


Week 9 (Seminar 7): Failure of consideration: frustration of contract

Week 10 (Seminar 8): Failure of consideration: breach of contract I

Week 11 (Seminar 9): Failure of consideration: breach of contract II

Week 12 (Seminar 10): Restitution and incomplete or anticipated contracts

SEMESTER 2

Week 16 (Seminar 11): Emergencies

Week 17 (Seminar 12): Incapacity and ultra vires public demands

Week 18 (Seminar 13): Secondary liability


Unjust factors (enrichment by wrongdoing)

Week 19 (Seminar 14): Breach of contract

Week 20 (Seminar 15): Torts
[Week 21: Reading Week]
Week 22 (Seminar 16): Equitable wrongs
Defences

Week 23 (Seminar 17): Change of position

Week 24 (Seminar 18): Estoppel, counter-restitution impossible, and passing on

Week 25 (Seminar 19): Illegality, incapacity, and statutory policy


Week 26 (Seminar 20): Revision class

SEMINAR 1: HISTORY
Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676

Nightingal v Devisme (1770) 5 Burr 2589; 98 ER 361

Sinclair v Brougham [1914] AC 398, 415 (per Lord Haldane LC)

Fibrosa Spolka Akcyjna v Fairburn Lawson Combe Barbour Ltd [1943] AC 32, esp 61 (per Lord Wright MR)

[Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221]



Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548, 578 (per Lord Goff)
Goff & Jones, 3-16

Birks, Introduction, 28-39

D Ibbetson, A Historical Introduction to the Law of Obligations, Chap 14
[ P Birks and G McLeod, ‘The Implied Contract Theory of Quasi-Contract: Civilian Opinion Current in the Century before Blackstone’, (1986) 6 OJLS 46, pp 46-53]

[D Ibbetson, ‘Implied Contracts and Restitution: History in the High Court of Australia’, (1988) 8 OJLS 312]

J H Baker, ‘The History of Quasi-Contract’, Chap 2 in Cornish, Essays
Questions

1) On what grounds can it be affirmed that the claim in Moses v Macferlan was an example of what is nowadays called a claim in restitution?


2) ‘Moses v Macferlan is an instance of the action for money had and received’. What does this mean?
3) What was indebitatus assumpsit? What is the relation between indebitatus assumpsit and ‘the action for money had and received’?
4) ‘In our view, the concept of implied contract is, in this context, a meaningless, irrelevant and misleading anachronism’ (Goff and Jones). Show, from Moses v Macferlan, how an ‘implied contract’ came into the picture, and demonstrate that in this context ‘implied’ meant ‘imputed’, ‘fictitious’ or ‘constructive’.
5) In Moses v Macferlan Lord Mansfield invoked the Latin phrase ‘quasi ex contractu’. Where does ‘quasi-contract’ originate?
6) What was the relation between ‘money had and received’ on the one hand and on the other ‘money paid’ and ‘quantum meruit (valebat)’?
7) Once one has looked at these three, money had and received, money paid and quantum meruit (valebat) one has inspected the historical roots of much of the modern law of restitution. What has one most obviously omitted?

INDEBITATUS ASSUMPSIT

for MONEY LENT:
And whereas also the said C.D. afterwards, to wit, on the day and year aforesaid at _______ aforesaid in the county aforesaid, was indebted to the said A.B. in the further sum of _______ pounds of like lawful money for so much money by the said A.B. before that time lent and advanced to the said C.D. at his like instance and request; and being so indebted, he, the said C.D., in consideration thereof afterwards, to wit, on the day and year aforesaid at _______ aforesaid in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last-mentioned sum of money when he, the said C.D., should be thereto afterwards requested:

for MONEY PAID to the use of the defendant:


And whereas also the said C.D. afterwards, to wit, on the day and year aforesaid at ______ aforesaid in the county aforesaid, was indebted to the said A.B. in the further sum of _______ pounds of like lawful money for so much money by the said A.B. before that time paid, laid out and expended to and for the use of the said C.D. at his like instance and request; and being so indebted, he, the said C.D., in consideration thereof afterwards, to wit, on the day and year aforesaid at _______ aforesaid in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last-mentioned sum of money when he, the said C.D., should be thereto afterwards requested:

for MONEY HAD AND RECEIVED to the plaintiff’s use:


And whereas also the said C.D. afterwards, to wit, on the day and year aforesaid at _______ aforesaid in the county aforesaid, was indebted to the said A.B. in the further sum of _______ pounds of like lawful money for so much money by the said C.D. before that time had and received to and for the use of the said A.B.; and being so indebted, he, the said C.D., in consideration thereof afterwards, to wit, on the day and year aforesaid at _______ aforesaid in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last-mentioned sum of money when he, the said C.D., should be thereto afterwards requested:

All these end with the YET clause which alleges breach:


Yet he, the said C.D., not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtilly to deceive and defraud the said A.B. in this behalf, hath not yet paid the said several sums of money or any part thereof to the said A.B. (Although oftentimes afterwards requested). But the said C.D. to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said A.B. of ______ pounds; and therefore he brings his suit, etc.

SEMINAR 2: ANALYSIS
1) The structure of a claim in unjust enrichment

V 3-11, 119-127

Birks, Introduction, 75-77
2) At the plaintiff’s expense

L D Smith, ‘The Province of the Law of Restitution’, (1992) 71 Can BR 672


3) Unjust factors: causation

Edgington v Fitzmaurice (1885) 29 ChD 459

Holt v Markham [1923] 1 KB 504

Barton v Armstrong [1976] AC 104

Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 971 (per curiam)

Nurdin & Peacock plc v D B Ramsden & Co Ltd [1999] 1 WLR 1249, 1272-3 (per Neuberger J)

Huyton SA v Peter Cremer GmbH & Co [1999] 1 Lloyd’s Rep 620, 636 (per Mance J)
Burrows, Law, 21-27
Questions

1) What is the relationship between unjust enrichment and restitution?


2) What are the key questions in analysing any problem in the law of unjust enrichment?
3) Restitutionary claims can be divided up in a number of different ways. These include:

a) According to whether the plaintiff’s claim is to recover an enrichment obtained by subtraction from her, or to recover an enrichment obtained by a wrong against her. What are the differences between these two types of claim? Does it make sense to speak of ‘restitution for wrongs’?

b) According to the ‘unjust factor’ which underlies the plaintiff’s claim. Where there is enrichment by subtraction, what are the main groups of ‘unjust’ factors? What are the ‘unjust’ factors where there is enrichment by a wrong committed to the plaintiff?

c) According to the nature of the benefit received by the defendant. This division lives on in the language used in the forms of action. Can it be justified? What point, if any, is there in taking notice of the form in which the defendant received value (eg in money, work or goods)?


4) ‘A number of unjust factors (eg mistake, duress, undue influence) are both grounds for recovery in a restitutionary action for unjust enrichment, and reasons for rescinding or avoiding a contract. For this reason, restitution lawyers can learn a lot from looking at contract cases even if they are not themselves concerned with the reversal of unjust enrichment.’ Discuss.
5) By asserting that ‘the phrase “at the expense of” conceals two quite different routes to restitution’, Birks is able to fix the label ‘restitution’ onto cases concerned with the disgorgement of the profits of wrongdoing. Do you agree with Smith’s criticisms of Birks’ analysis?
6) Need an unjust factor be the sole cause of a defendant’s enrichment for a restitutionary claim to lie?
7) What test is used for establishing a causal link between unjust factor and enrichment, and where does the burden of proof lie?

SEMINAR 3: ANALYSIS (cont ...)
4) Enrichment

When a defendant has been paid money, the question whether he has been enriched by the payment is usually uncontroversial. But the question whether he has been enriched when he receives something other than money, e.g. goods or services, is often less straightforward. This is not a question which has been expressly addressed in many of the cases, but it is one which must not be swept under the carpet. The cases listed here should be read solely with a view to discovering the nature of the enrichment which was said to have been conferred on the defendant.


Exall v Partridge (1799) 8 TR 308; 101 ER 1405 (B & M 424)

Boulton v Jones (1827) 2 H & N 564; 157 ER 232

Planché v Colburn (1831) 8 Bing 14; 131 ER 305 (B & M 83)

Greenwood v Bennett [1973] 1 QB 195 (B & M 84)

BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, 799 and 805 (per Robert Goff J) (B & M 54)

Regional Municipality of Peel v Canada (1993) 98 DLR (4th) 140 (B & M 59)

Ministry of Defence v Ashman (1993) 66 P & CR 195 (B & M 56)

Mohammed v Alaga & Co (a firm) [1999] 3 All ER 699
V 58-86, 95-100

Birks, Introduction, 109-117


A S Burrows, ‘Free Acceptance and the Law of Restitution’ (1988) 104 LQR 576, pp 578-580

P Birks, ‘In Defence of Free Acceptance’, Chap 5 in Burrows, Essays, pp 105-109 and 127-146

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