The nature and scope of restitution : vitiated transfers, imputed contracts and disgorgement /
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| Author / Creator: | Jaffey, Peter. |
|---|---|
| Imprint: | Oxford ; Portland, Or. : Hart, 2000. |
| Description: | xxviii, 445 p. ; 24 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/4388707 |
Table of Contents:
- Table of cases
- Table of statutes
- Part I. Introduction
- 1.. Vitiated transfers, imputed contracts, and disgorgement
- Introduction
- A brief survey of the subject matter
- At common law
- In equity
- Three claims
- Restitution for vitiated transfers
- Non-contractual claims for payment: imputed contracts
- Disgorgement
- The implied contract theory of restitution
- Restitution as "unjust enrichment at the expense of the plaintiff"
- Objections to the theory of unjust enrichment
- Unjust enrichment and uncertainty
- A substantive and a remedial sense of restitution
- "Theoretical argument"
- Part II. Claims for payment: restitution and contract
- 2.. Contract and exchange
- Contract and restitution
- Exchange and agreement
- The classical theory
- The reliance theory
- The usual contract remedies
- Specific performance
- Withdrawal and mitigation
- Damages and the expectation measure
- Accrued liabilities and contractual payment provisions
- The quantum meruit
- The nature of the quantum meruit
- The restitutionary analysis; contractual performance as a conditional transfer
- The quantum meruit under the reliance theory
- Reliance, benefit, and the measure of liability
- The quantum meruit on frustration or in favour of a party in breach
- Prepayments and total failure of consideration
- Claims in respect of prepayments
- The restitutionary conditional transfer theory
- Prepayments and total failure of consideration under the reliance theory
- "Failure of consideration" and the contractual doctrine of consideration
- When is there total failure?
- Forfeiture of a prepayment made by a party in breach
- Frustration
- Frustration and the reliance theory
- The Law Reform (Frustrated Contracts) Act 1943 and the reliance theory
- The Act and restitutionary principles
- 3.. Imputed contracts and restitutionary claims for payment
- Introduction
- The two conditions
- Imputed contracts
- Necessitous intervention
- Benefits conferred by mistake
- Compulsory discharge of the defendant's liability
- The use claim
- Ineffective contracts
- The restitutionary conditional transfer theory
- Void contracts
- Voidable contracts
- Unenforceable contracts
- "Pre-contractual" claims
- Privity and restitutionary claims against third parties to a contract
- Free acceptance and unconscientious receipt
- The nature of the liability
- Unconscientiousness
- Defendant's knowledge of the plaintiff's mistake
- Injurious reliance and unjust sacrifice
- Injurious reliance
- Unjust sacrifice
- The theory of "death of contract"
- 4.. The use claim
- The nature of the use claim
- The use claim and disgorgement compared
- The use claim and compensation compared
- The "opportunity to bargain" argument
- The restrictive covenant cases
- The use claim and Phillips v Homfray
- Phillips v Homfray as an authority against the use claim for land?
- Phillips v Homfray and "negative benefit"
- The measure of liability
- A reasonable fee: the relevant factors
- Must the plaintiff choose between the use claim and compensation?
- The rationale and scope of the use claim
- The rationale
- The use claim and property
- The restrictive covenant cases
- The use claim and contract
- The use claim and "misappropriation"
- Part III. Reversing vitiated transfers: restitution and property
- 5.. The vitiating factors
- Introduction
- Lack of authority and incapacity
- Lack of authority
- Artificial entities and incapacity or ultra vires
- Incapacity of people
- Mistake
- The scope of mistake as a vitiating factor
- Mistake of law
- Misprediction
- Carelessness, assumption of risk and submission to an honest claim
- Mistake in contract
- Duress
- The nature of duress
- Overborne will
- Illegitimate pressure
- Threats and offers and economic duress
- Vitiation, wrongfulness and "illegitimacy"
- Duress of circumstances as a vitiating factor
- Incompetence, undue influence and inadequate bargaining ability
- Incompetence
- Undue influence
- Inadequate bargaining ability and "unconscionable bargains"
- "Inequality of bargaining power"
- Payments of tax
- Other supposed vitiating and "unjust" factors
- Absence of juristic basis
- 6.. Vitiated transfers and contracts
- Vitiated transfers under valid contracts
- Transfers under void contracts
- The basis of the restitutionary claim
- Categories of void contract
- Illegal contracts
- The effect of illegality
- The problem with illegal contracts
- 7.. Change of position, surviving value and bona fide purchase
- Strict liability
- Change of position and surviving value
- Change of position
- Surviving value
- Surviving value and consequential value received
- A wider unfairness defence?
- Change of position on the facts of Lipkin Gorman
- The duty of inquiry
- Surviving value and the duty of preservation
- Ministerial receipt
- Is ministerial receipt an independent defence?
- Ministerial receipt as a procedural constraint
- Transfer received under a contract: bona fide purchase
- The standard case
- The rationale of bona fide purchase and its relation to change of position
- Discharge of debts: bona fide purchase and "good faith discharge"
- Two party cases
- Bona fide purchase and the "restitutio in integrum impossible" rule
- Variants of the defence
- Estoppel
- 8.. Indirect recipients, three party cases and subrogation
- The third party as the cause of vitiation
- The third party as an intermediary
- The third party as a contractor
- Non-intermediary third parties and "interceptive subtraction"
- Interceptive subtraction
- Receipt of a profit by a fiduciary from his position
- Receipt by an agent on behalf of the plaintiff
- Trust, attornment and privity
- Mistaken payment by the third party
- Usurpation of office
- Re Diplock
- Subrogation
- 9.. Restitution and property: a rational scheme
- Restitution and property
- Rights in rem and in personam
- Primary relations in rem and in personam
- Remedial relations and insolvency
- The alternative theory of restitution and property
- The alternative theory
- The orthodox theory
- Defences
- Insolvency
- Specific restitution
- Indirect transfers
- The trust and separation of title
- The trust and separation of benefit and management
- The advantages of separation of title as the response to a vitiated transfer
- Tracing
- Tracing under the orthodox theory
- Tracing under the alternative theory
- Mixtures and "parallel tracing"
- Subrogation and tracing through the discharge of a debt
- Claims to appreciated value and consequential benefits
- Summary
- 10.. Restitution and property: the rational scheme in action
- Introduction
- Money payments and money had and received
- Proprietary or restitutionary?
- Priority and separation of title
- Tracing against indirect recipients and separation of title
- Bona fide purchase
- The claim for breach of the duty of preservation?
- Conversion and transfers of goods or chattels
- Specific restitution
- Priority
- Change of position
- Tracing into the proceeds of sale
- Bona fide purchase and claims against indirect recipients
- Conversion and the "at risk" rule
- The equitable in rem claim and the equitable claim for knowing receipt
- Receipt from a trustee acting in breach of trust
- The claims under the alternative theory
- Problems under the orthodox theory
- Transfers by fiduciaries or agents
- Transfers by stranger-intermediaries
- Fusion, overlap and the fiduciary relationship requirement
- The level of the duty of inquiry and the balance of interests
- Examples of the duty of inquiry
- Determining the level of the duty of inquiry
- Constructive and resulting trusts
- The constructive trust
- The resulting trust
- Moving towards a rational scheme
- Seven steps forward
- Part IV. Disgorgement
- 11.. Disgorgement
- Introduction
- Disgorgement in the case law
- Damages
- Account of profits
- Constructive trust
- Forfeiture of rights acquired by wrongdoing
- Money had and received and waiver of tort
- A summary of the position under the case law
- Disgorgement, punishment and the procedural objection
- The "quasi-punitive" nature of disgorgement
- The "procedural objection"
- Disgorgement in civil proceedings
- Conditions for disgorgement
- The nature of benefits subject to disgorgement
- The relevance of intention
- The innocent donee of wrongful profits
- 12.. Disgorgement for breach of contract
- The legal response to breach of contract
- The position under the reliance theory
- Breach of contractual duty or wrongful non-performance
- Examples of contractual duty
- The rule prescribed by the reliance theory
- Other analyses of the legal response to breach of contract
- Contractual rights as property rights
- Contract and tort: the voluntary nature of contract
- The need for certainty
- The economic theory of efficient breach
- 13.. Fiduciary relationships
- Introduction
- The fiduciary relationship as a contractual relationship under the reliance theory
- The distinctive feature of a fiduciary contract
- The no-conflict rule
- The rationale for the no-conflict rule
- Table A, Article 85 and section 310 of the Companies Act 1985
- Is the fiduciary relationship contractual?
- The "parallel relationship" fallacy
- A mandatory rule?
- Lack of consideration
- Controversial cases of fiduciary relationships
- Borderline cases
- Fictional fiduciary relationships
- Is the no-conflict rule justified?
- Appendix 1. A note on right-liability primary relations
- Appendix 2. A note on law, equity and fusion
- Bibliography
- Index
