Download The Nature and Scope of Restitution: Vitiated Transfers, by Peter Jaffey PDF

By Peter Jaffey

Lately there was huge, immense curiosity within the legislation of restitution, with many new books and educational articles and a couple of very important judgements within the courts. despite the fact that, there continues to be nice controversy and a few confusion, partially for ancient purposes and partially because of carrying on with changes over the rules underlying the sector. there are specific problems over the relation of the legislations of restitution to different parts of legislation, together with agreement and estate legislations. during this new and cutting edge paintings the writer advances a view of the frameword of primary ideas underlying the legislation of restitution which deals a method of figuring out the tangle of conflicting specialists, after which proceeds to ascertain the case legislations in mild of it. As a part of his research, the writer indicates new techniques to figuring out the parts of overlap among restitution, agreement, trusts and estate legislations.

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2. See further Chap. 11 at 375. g. D. Smith (1992), 694. 57 See further Chap. 11. g. Birks (1989a), 316, referring to compensation and restitution for wrongs as alternative “remedial strings”; Barker (1995), 471. The approach is reflected in the entirely separate treatment of restitution for wrongs and punitive damages in LCR (1997); cf Jaffey (1998b). 55 56 Vitiated Transfers, Imputed Contracts, and Disgorgement 19 argued that the separate treatment of these two claims is based on a failure to recognise that they are based on the same principle, but relate to different types of transfer, involving different types of benefit, in one case a transfer of money, and in the other a transfer of services or work.

82 One might say that “restitution” must be understood in a sense that excludes such cases and is confined to unjust enrichment. 85 Disgorgement can in principle arise in relation to any type of wrong and cannot have an implicit substantive sense.

The plaintiff’s wealth is also protected by the law of tort, where the plaintiff suffers loss to his estate through a breach of duty by the defendant, as for example where he negligently or deliberately takes or damages the plaintiff’s property. In the case of tort, the justification for compensating the plaintiff for his loss is that the defendant committed a wrong, and should be responsible for loss caused by it. In the case of the restitutionary claim, the claim does not depend on the commission of a wrong by the defendant; the defendant is held liable because the plaintiff’s loss through the transfer was causally linked to a gain by the defendant of value to which he had no entitlement (causally linked in the sense that the transfer caused both the loss and the gain).

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