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Table of Cases | xv | |
Table of Legislation | xxix | |
Works Frequently Cited | xxv | |
Introduction | 1 | |
Part I | A Map Through the Law of Restitution | |
1. | A Map Through the Law of Restitution | 5 |
1. | The Existence of a Separate Law of Restitution | 5 |
2. | The Elements of a Restitutionary Claim | 7 |
2.1 | Enrichment | 7 |
2.2 | At the Plaintiff's expense | 9 |
2.3 | Unjust Receipt of the Value of the Benefit | 9 |
3. | Personal and Proprietary Remedies--Proprietary Restitution | 11 |
3.1 | The Nature of Proprietary Restitution | 13 |
3.2 | Proprietary Claims and Proprietary Restitution | 13 |
3.3 | Circumstances giving rise to Proprietary Restitution | 14 |
4. | Restitution for Wrongs | 15 |
4.1 | Availability of Restitution for Wrongs | 15 |
4.2 | Taxonomic Location of Restitution for Wrongs | 16 |
5. | Tracing | 17 |
5.1 | What is Tracing? | 17 |
5.2 | Why do we Trace? | 18 |
5.3 | Tracing at Law and in Equity | 19 |
6. | Defences | 21 |
6.1 | Change of Position | 21 |
6.2 | Defence of Bona Fide Purchaser | 22 |
Part II | Characterisation of Restitutionary Claims | |
2. | Characterisation in General | 27 |
1 | The Need for Characterisation | 27 |
2 | The Process of Characterisation | 29 |
2.1 | Problems Associated with Characterisation | 29 |
2.2 | The "Thing" to be Characterised? | 31 |
3. | Characterisation of Restitutionary Claims | 37 |
1 | One Issue or Several? | 37 |
2 | The Arguments in Favour of a Single Characterisation issue | 38 |
2.1 | Consistent with the Approach in Relation to Contract and Tort | 38 |
2.2 | Permutations of Legal Systems | 40 |
2.3 | Consistent with Authority | 42 |
2.4 | Macmillan v. Bishopsgate: Which is the Issue? | 43 |
4. | Specific Restitutionary Characterisations | 47 |
1 | Restitution and Contract | 47 |
1.1 | Independent Restitutionary Issue | 48 |
1.2 | The Scope of the Restitutionary Issue | 53 |
1.3 | Restitution for Breach of Contract | 57 |
2 | Characterisation of Equitable Rights and Obligations | 57 |
3 | Proprietary Restitution | 61 |
3.1 | The Proprietary Approach | 62 |
3.1.1 | Characterisation of Issues Affecting Property | 62 |
3.1.2 | Proprietary Restitution as Part of the Law of Property | 65 |
3.2 | The Restitutionary Approach to Characterisation | 66 |
3.2.1 | A Pure Restitutionary Characterisation | 67 |
3.3 | The "Equity" Aspect of Proprietary Restitution | 70 |
3.3.1 | The in personam Nature of Equity | 71 |
3.3.2 | In personam Characterisation of Proprietary Restitution | 74 |
3.3.3 | Equitable Interests Created via Consensual Transfers | 75 |
3.4 | The Hybrid Approach to the Characterisation of Proprietary Restitution | 76 |
3.4.1 | The Scope of the Ancillary Proprietary Issue | 79 |
4 | Characterisation of Restitution for Wrongs | 81 |
4.1 | Characterisation as "Wrongs" | 82 |
4.2 | Cases Dealing with International Restitution for Wrongs | 84 |
4.3 | Characterisation of Equitable Wrongs | 86 |
4.3.1 | Characterisation of Equitable Wrongs as Breaches of Trust | 88 |
4.3.2 | Characterisation of Equitable Wrongs as Breaches of Contract | 88 |
4.3.3 | Characterisation of Equitable Wrongs as "Wrongs" | 90 |
4.3.4 | Claims for "Knowing Receipt" | 91 |
5 | A Separate Issue of Tracing? | 94 |
5.1 | The Tracing Problem | 94 |
5.2 | The Approaches | 95 |
5.2.1 | Procedural or Substantive Issue? | 96 |
5.2.2 | A Separate Choice of Law Rule? | 97 |
5.2.3 | Characterisation of Tracing | 99 |
5.2.4 | Interest in the Tracing Process | 100 |
5.3 | Ancillary Issues | 101 |
5.3.1 | Intermediate Purchases or Acquisitions | 101 |
5.3.2 | Tracing in Equity and at Law | 102 |
6 | Negotiorum Gestio | 103 |
5. | Theoretical Issues | 106 |
1 | Renvoi | 106 |
2 | The Incidental Question | 107 |
Part III | Choice of Law Rules for Restitutionary Issues | |
6. | The Existing Authorities | 111 |
1 | Introduction | 111 |
2 | Dicey and Morris | 112 |
3 | U.S. Restatement | 115 |
4 | Other Academic Opinion | 120 |
5 | The English Case Law | 121 |
6 | Other Common Law Cases | 125 |
7. | The Various Proposed Choice of Law Rules | 133 |
1 | The Place of Enrichment Rule | 133 |
1.1 | Arguments in Favour of Place of Enrichment Rule | 133 |
1.2 | Arguments Against the Place of Enrichment Rule | 134 |
1.2.1 | Unsound Foundation | 135 |
1.2.2 | No general "place of enrichment" rule | 135 |
1.2.3 | Ignoring other Elements of a Restitutionary Claim | 136 |
1.2.4 | Arbitrary Result | 137 |
1.2.5 | Meaning of Place of Enrichment | 138 |
2 | Lex Fori | 141 |
3 | Multiple Choice of Law Rules | 143 |
3.1 | Law of the Contract | 143 |
3.2 | Law of the Relationship | 149 |
3.3 | Lex Situs of Immovables | 151 |
4 | Proper Law of the Obligation | 153 |
5 | Proposed Convention on the Law Applicable to Non-Contractual Obligations | 155 |
5.1 | Scope of the Draft Proposal | 155 |
5.2 | Choice of Law Rule | 156 |
8. | Preferred Choice of Law Rule | 159 |
1 | The Essential Element of the Unjust Factor | 159 |
2 | Determining the Proper Law of the Unjust Factor | 166 |
2.1 | Mistake | 168 |
2.2 | Illegitimate Pressure | 169 |
2.3 | Failure of Consideration | 171 |
2.4 | Unauthorised Transfer | 173 |
2.5 | Restitution for Wrongs | 174 |
2.6 | Legal Compulsion | 175 |
2.7 | Ultra Vires Payments | 180 |
2.8 | Illegality and Incapacity | 180 |
3 | Unjust and Unjustified | 181 |
Part IV | Jurisdiction in Restititutionary Claims | |
9. | Jurisdiction Under the Brussels Convention | 187 |
1 | Background to the Convention | 187 |
2 | Interpreting the Convention | 188 |
3 | The Scope of the Convention | 189 |
4 | Application of the Convention | 192 |
4.1 | The General Rule | 192 |
4.2 | Special Jurisdiction | 194 |
4.2.1 | Article 5(1)--Matters Relating to a Contract | 196 |
4.2.2 | Article 5(3)--Matters Relating to Tort, Delict or Quasi-Delict | 197 |
4.3 | Particular Types of Restitutionary Claims | 205 |
4.3.1 | Restitutionary Claims Connected with a Contract--Article 5(1) | 206 |
4.3.2 | Choice of Court Agreements--Article 17 | 219 |
4.3.3 | Proprietary Restitutionary Claims in Relation to Land--Article 16(1) | 221 |
4.4 | Other Particular Types of Restitutionary Claims | 225 |
4.4.1 | Claims in Equity | 225 |
4.4.2 | Proprietary Restitution | 226 |
4.4.3 | Restitution for Wrongs | 228 |
10. | Jurisdiction Under the Common Law Rules | 231 |
1 | Service out of the Jurisdiction | 231 |
2 | Heads of Jurisdiction | 235 |
2.1 | Sub-rule (15): claim for restitution | 235 |
2.1.1 | Questions of Choice of Law | 239 |
2.2 | Sub-rules (5) and (6): claims in relation to contracts | 242 |
2.2.1 | Implied Contract Made within the Jurisdiction | 242 |
2.2.2 | Breach of Implied Contract within the Jurisdiction | 245 |
2.2.3 | The Preferred Approach | 246 |
2.2.4 | Restitutionary Claims Connected with a Contract | 250 |
2.3 | Sub-rule (8): claims in tort | 255 |
2.3.1 | Meaning of "tort" | 255 |
2.3.2 | Damage Sustained within the Jurisdiction | 258 |
2.3.3 | Act Committed within the Jurisdiction | 258 |
2.4 | Sub-rule (10): property within the jurisdiction | 259 |
Conclusion | 261 | |
Appendix | 265 | |
Index | 271 |
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Add Restitution in Private International Law, This important new book fills a large gap in legal literature by examining restitution in private international law,including both the jurisdiction and choice of law questions facing restitutionary claims with international elements. The book begins w, Restitution in Private International Law to the inventory that you are selling on WonderClubX
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Add Restitution in Private International Law, This important new book fills a large gap in legal literature by examining restitution in private international law,including both the jurisdiction and choice of law questions facing restitutionary claims with international elements. The book begins w, Restitution in Private International Law to your collection on WonderClub |