|
|
Property, Subsidiarity, and Unjust Enrichment(9) |
|
V. Conclusion
The relationship between unjustified enrichment and other claims is complex. Understanding it depends not only upon an understanding of the overall function of the law of unjustified enrichment, but also upon the history and philosophy underlying the structure of private law in a particular system. The common law does not know "subsidiarity" by that name, but elements of that relationship appear to be embedded in the law. As the common law of unjust enrichment develops, it can be expected that the policies which have been discussed herein will need to be addressed, and their impact on unjust enrichment liability analysed.
Footnotes
1 St. Hugh's College, Oxford. I would like to thank Dr. Simon Whittaker for his thoughtful comments, although any remaining errors are my own. I acknowledge with gratitude the financial assistance of the Arts and Humanities Research Board, and also the kind hospitality of the Faculty of Law, McGill University where much of the research for this paper was done and a working version presented. I am grateful for the helpful suggestions I received at that time.
2 "In the very short space of seventy-five years we have created a monster": J.P. Dawson, Unjust Enrichment [:] A Comparative Analysis (1951), 30.
3 Throughout the paper, I expressly exclude the case where the first transferee has gone on to transfer the thing to some other person, gratuitously or for some exchange value. Such a possibility complicates the analysis considerably. The papers in this collection on 'Indirect Enrichment' address the matter.
4 Since later in the paper I will have occasion to refer to "equity" in the civilian sense, I have used "Equity" and "Equitable" where the reference is to that system of law. Although many consider this inelegant, I make no apologies for following the example of such as Professor F.W. Maitland and Sir George Jessel M.R.
5 Citadel General Assurance Co. v. Lloyds Bank Canada [1997] 3 S.C.R. 805, 152 D.L.R. (4th) 411, required a showing of carelessness. See now Twinsectra Ltd. v. Yardley, unreported, 28 April 1999, English C.A., paras. 101-111, apparently assuming that liability depends upon a showing of dishonesty.
6 It would be wider if the unjust enrichment claim did not require the proof of any level of knowledge on the part of the defendant. This position is advocated in P.B.H. Birks, 'Misdirected Funds: Restitution from the Recipient', [1989] Lloyds Maritime and Commercial Law Quarterly 296 ff; Lord Nicholls of Birkenhead, 'Knowing Receipt: The Need for a New Landmark', in: W. Cornish et al. (eds.), Restitution: Past, Present and Future (1998), 231 ff and J. Martin, 'Recipient Liability after Westdeutsche', [1998] Conveyancer and Property Lawyer 13 ff. It has not yet been adopted judicially. It is arguable that even if a claim in unjust enrichment may arise upon the defendant's interference with the plaintiff's Equitable proprietary rights, a level of knowledge on the part of the defendant must be established: L.D. Smith, 'Property, Unjust Enrichment and the Structure of Trusts' forthcoming in (2000) 116 Law Quarterly Review.
7 Choice of law rules were in issue in Macmillan Inc. v. Bishopsgate Investment Trust plc, [1996] 1 W.L.R. 387 (C.A.), a case which generated some of the academic discussion relating to the issue now under consideration.
8 W. Swadling, 'A Claim in Restitution?' [1996] Lloyds Maritime and Commercial Law Quarterly 63 ff, 65.
9 Kleinwort Benson Ltd. v. Lincoln City Council [1998] 4 All E.R. 513, 542h, [1998] 3 W.L.R. 1095 (H.L.), per Lord Goff.
10 Sadler v. Scott [1947] 1 D.L.R. 712 (B.C.C.A.); L.D. Smith, The Law of Tracing (1997), 291-292.
11 Gaius, Institutes, trans. W.M. Gordon and O.F. Robertson (1988), IV, 4. This text appears in Justinian's Institutes 4, 6,14.
12 R. Zimmermann, The Law of Obligations[:] Roman Foundations of the Civilian Tradition (1990), 941n152, suggests that the condiction was extended to furtum at a time when the words "dare oportere" ("ought to give") had not acquired a technical meaning confined to a duty to transfer ownership. Similarly, Institutes of Gaius, Part II, comm. F. de Zulueta (1953), 229: "[Gaius'] explanation is acceptable, though some prefer the doubtful explanation that in primitive times possession even by a thief gave ownership."
13 The actio furti for damages was available in any case, and could be cumulated with one of (i) the rei vindicatio (ii) the condictio ex causa furtiva or (iii) a contractual action which might lie if, for example, the stolen thing had been deposited with the thief. See Zimmermann (n. 12), 942-943.
14 Zimmermann (n. 12), 942; J.A.C. Thomas, The Institutes of Justinian[:] Text, Translation and Commentary (1975), 295.
15 Institutes of Roman Law by Gaius, trans. & comm. E. Poste, 4 ed. by E.A. Whittuck (1904), 450; this was true whether or not the heir could be shown to have been enriched: P. Pauw, 'Historical Notes on the Nature of the Condictio Furtiva', (1976) 93 South African Law Journal 395 ff, 397. The only disadvantage of the condiction was that it could not be brought against a thief who was not free: Pauw, 396.
16 Zimmermann (n. 12), 943. Election occurred earlier in Roman law than in the common law, and the mere bringing of the condiction would eliminate any prospect of revendication.
17 Zimmermann (n. 12), 922-930.
18 Zimmermann (n. 12), 836n20: "The condictio ex causa furtiva survived as the only application of a condictio which could be brought by the owner." Zimmermann notes that the contrary position is taken in D. Liebs, 'The History of the Roman Condictio Up to Justinian', in: N. MacCormick and P. Birks (eds.), The Legal Mind[:] Essays for Tony Honoré (1986), 163 ff, 165 ff.
19 Gaius III, 200.
20 Zimmermann (n. 12), 840 notes that a condiction could be used by a possessor of land who was evicted. See also Liebs (n. 18), 170. The designation of this type of claim based on loss of possession as condictio possessionis clearly shows the focus on possession, although it is not clear whether it sheds light on the question of whether the condictio ex causa furtiva was the only condiction available where title did not pass. The reason is that the condictio possessionis was arguably a sub-category of the condictio ex causa furtiva: Zimmermann (n. 12), 840n40.
21 In particular, Liebs (n. 18), 171 suggests that an owner could bring a condiction against a finder of property. Note also the final words of Gaius II, 79, indicating that a condiction is available against "thieves and certain other types of possessor" (scil., defendants who are not owners but who have not committed furtum). Again, Zimmermann (n. 12), 840 appears to take the view that such claims were subcategories of the condictio ex causa furtiva.
22 For the history, see R. Zimmermann and J. du Plessis, 'Basic Features of the German Law of Unjustified Enrichment,' [1994] Restitution Law Review 14 ff, 14-20.
23 Zimmermann and du Plessis, [1994] Restitution Law Review 15 quote König: "The terminology is confusing, almost each statement is disputed, the solution of trivial questions is becoming ever more complicated, and there is a grave danger of a loss of perspective."
24 See generally B.S. Markesinis, W. Lorenz and G. Dannemann, The German Law of Obligations, vol. 1 (1997), 741-743.
25 988, 993 cross-refer to the provisions on unjustified enrichment.
26 Markesinis et al. (n. 24), 769.
27 Dawson (n. 2), 96, laid the blame for this over-simplification on Pothier. The same view is expressed in K. Zweigert and H. Kötz, Introduction to Comparative Law, trans. T. Weir (3rd ed., 1998), 545-546.
28 In France, in 1892 in the arrêt Boudier, Req. 15.vi.1892, S. 1893.1.281 note Labbé, D. 1892.1.596; in Quebec, not definitively until Cie Immobilière Viger Ltée v. Laureat Giguère Inc., [1977] 2 S.C.R. 67. The actio de in rem verso was not one of the condictions; it was originally applicable only to a narrow range of cases. For the history of how it came to be used as a general enrichment claim, see Zimmermann (n. 12), 878-884.
29 A prestation is the object of an obligation (art. 1373); it is that which the debtor is bound to render to the creditor.
30 Artt. 1422, 1491 (réception de l'indu), 1606, 1694, 1838. The regime in artt. 1699-1707 does not appear to govern where the general unjustified enrichment claim of artt. 1493-96 applies because (i) there is no cross-reference to artt. 1699-1707 from artt. 1493-96, as there is from other provisions; (ii) the regime in artt. 1699-1707 is inconsistent with artt. 1493-96. For example, art. 1495 in general excuses restitution to the extent that the enrichment has fallen away, but art. 1702 in general does not; and (iii) on facts which give rise to a claim under artt. 1493-96 the benefit received by the defendant cannot generally be seen as a prestation.
31 Artt. 953, 1700.
32 Artt. 931, 1704.
33 See the definitions in art. 910. This is in contrast to the position in German law, where the provisions on the "owner-possessor relationship" refer to Nutzungen, translated as "emoluments" by Markesinis et al. (n. 24). The term is defined in ' 100 so as to include fruits (itself defined in ' 99 to include revenues) and also (as translated by Markesinis et al.) "the advantages which the use of the thing or right affords."
34 G.S. Challies, The Doctrine of Unjustified Enrichment in the Law of the Province of Quebec (2nd ed., 1952), 63.
35 Dawson (n. 2), 106, on subsidiarity: "In terms this limitation is an adequacy test, reserving the action for cases where no adequate alternative remedy is authorized by the Code."
36 Gagné v. Tremblay [1989] R.J.Q. 1619 (Que. Ct.).
37 As observed in H. Mazaud et al., Leçons de Droit Civil, tome II, vol. 1, F. Chabas, Les Obligations (8th ed., 1991), '709.
38 Civ. (1) 3.vi.1997, J.C.P. 1998.II.10102, note Viney. I am grateful to Jean-Pascal Chazal, Université Jean Monnet (Saint Etienne), for drawing this case to my attention.
39 As does G. Viney in his note, ibid.
40 Some French writers have recognised the difference between strong and weak subsidiarity: for example Chabas (n. ), 706-709.
41 For Quebec, see for example Nadeau v. Doyon [1994] R.J.Q. 2267 (Que. Ct.), citing Quebec and French doctrine. For Germany, Zimmermann and du Plessis, [1994] Restitution Law Review 22-24. For the common law, G. Virgo, 'The Effect of Illegality on Claims for Restitution in English Law', in: W. Swadling (ed.), The Limits of Restitutionary Claims: A Comparative Analysis (1997) 141 ff; Law Commission Consultation Paper No. 154, Illegal Transactions: The Effect of Illegality on Contracts and Trusts (1999), Part II.
42 Dawson took the view that this is not subsidiarity as such: Dawson (n. 2), 106; but that is understandable since he was using the term in the sense which in this paper is denoted by "weak subsidiarity"; see n. . See also B. Nicholas, 'Unjust Enrichment and Subsidiarity', in: F. Santoro Passarelli and M. Lupoi (eds.), Scintillae iuris: studi in memoria di Gino Gorla (1994) 2037 ff, 2044. Still, courts in France (Civ. 12.v.1914, S. 1918.1.41 note Naquet; Civ. (3) 29.iv.1971, G.P. 1971.2.554) and Quebec (Bédard v. Bédard Transport Co., [1960] C.S. 472) have described this as subsidiarity.
43 Willmor Discount Corp. v. Vaudreuil (City) [1994] 2 S.C.R. 210, 227. This conclusion can be expected to remain true under the Civil Code of Quebec. Because the action for reception of a thing not due was prescribed, however, the conclusion could rest on weak subsidiarity: see Section III.2.
44 Gagné v. Tremblay [1989] R.J.Q. 1619 (Que. Ct.).
45 § 993(1), last half-sentence. It is also true in German law that if the plaintiff has an enrichment claim based on a "performance," then he may not bring any other kind of enrichment claim against that defendant. Because this principle has much wider effects, controlling which defendant the plaintiff may sue, it is explained and discussed below, Section III.1.b.i, text around n. .
46 In Quebec, the general enrichment action is subsidiary to all claims, as discussed in the next section. For Germany, see Markesinis et al. (n. 24), 768 (noting that claims against the manager may attract concurrent liability under both regimes).
47 Note however the suggestion in A.S. Burrows, 'Free Acceptance and the Law of Restitution,' (1988) 104 Law Quarterly Review 576 ff, 599, that if the common law allows claims based on "free acceptance," these should not be available except where no other basis for a claim exists. The suggestion is adopted in P.B.H. Birks, 'In Defence of Free Acceptance', in: A. Burrows (ed.), Essays on the Law of Restitution (1991) 105 ff, 144-145. This however would probably be weak subsidiarity.
48 That is, the plaintiff must show that the contract was void or unenforceable ab initio, or has been avoided or terminated. German law: Markesinis et al. (n. 24), 45. Quebec law: Challies (n. 34), 95-96; J. Pineau, D. Burman, S. Gaudet, Théorie des Obligations (3rd ed., 1996), 305-306, 601-602. Common law: Pan Ocean Shipping Co. v. Creditcorp Ltd. [1994] 1 W.L.R. 161 164F (H.L.), per Lord Goff; Singh v. Singh (1992), 71 B.C.L.R. (2d) 336, [1993] 2 W.W.R. 59 (C.A.); 337965 B.C. Ltd. v. Tackama Forest Products Ltd. (1992), 67 B.C.L.R. (2d) 1, 91 D.L.R. (4th) 129 (C.A.), leave to appeal refused [1993] 1 S.C.R. v; Building Design 2 Ltd. v. Wascana Rehabilitation Centre, [1992] 6 W.W.R. 343 (Sask. Q.B.); Hesjedal v. Granville Estate (1993), 117 Sask. R. (2d) 111, 109 D.L.R. (4th) 353 (Q.B.); Scott v. Noble (1994), 99 B.C.L.R. (2d) 137 (C.A.); Luscar Ltd. v. Pembina Resources Ltd. (1994), 24 Alta. L.R. (3d) 305, [1995] 2 W.W.R. 153 (C.A.), at paras. 111-122, leave to appeal refused [1995] 3 S.C.R. vii; Windisman v. Toronto College Park Ltd. (1996) 28 O.R. (3d) 29, 132 D.L.R. (4th) 512 (Gen. Div.).
49 R. Zimmermann, 'Restitution After Termination for Breach of Contract in German Law', [1997] Restitution Law Review 13 ff, 17-18 notes that the idea that the relevant provisions in the BGB are a special kind of enrichment claim is no longer accepted by most German jurists. Recovery in French law is usually understood as based on the claim for reception of a thing not due: J. Flour and J.-L. Aubert, Droit Civil[:] Les Obligations, vol. II (6th ed.by J.-L. Aubert, 1994), 26; J. Bell, S. Boyron, and S. Whittaker, Principles of French Law (1998), 421; even if the basis is said to be theoretically different, it is conceded that this is the practical outcome: M. Malaurie, Les Restitutions en Droit Civil (1991), 35. In Quebec, the provisions on "restitution of prestations" in artt. 1699-1707 were added in the new Civil Code for just this type of situation. In the plan of the Code, they belong neither to unjust enrichment nor to contract.
50 Zimmermann, [1997] Restitution Law Review 18, apparently disagreeing with the majority view; D.P. Visser, 'Rethinking Unjustified Enrichment: A Perspective of the Competition between Contractual and Enrichment Remedies', [1992] Acta Juridica 203 ff, 209-210.
51 (1997), 118 Man. R. (2d) 11, [1997] 7 W.W.R. 534 (C.A.).
52 S. Smith, 'Concurrent Liability in Contract and Unjust Enrichment', (1999) 115 Law Quarterly Review 245 ff. See also Visser, [1992] Acta Juridica 231-236.
53 Req. 15.vi.1892, S. 1893.1.281 note Labbé, D. 1892.1.596.
54 Section IV.2.a.
55 Challies (n. 34), 30.
56 This may be contrasted with the words in art. 1494 which establish a relationship of weak subsidiarity between claims in unjustified enrichment and other claims: see Section III.2.
57 Art. 1493. Surprisingly, however, it is suggested in Pineau et al. (n. 48), 406-407, that a claim in unjustified enrichment would be available in this situation. The same suggestion is made in Pavage Rolland Fortier Inc. v. Caisse Populaire Desjardins de la Plaine [1998] R.J.Q. 1221, 1227 (S.C.), although citing French doctrine.
58 Harris v. Nugent (1996) 193 A.R. 113, 141 D.L.R. (4th) 410 (C.A.); J.E. Weaver Enterprises Ltd. v. Hardy (1998) 171 N.S.R. (2d) 30, 519 A.P.R. 30 (S.C.). See also Nicholson v. St. Denis (1975) 8 O.R. (2d) 315, 57 D.L.R. (3d) 699 (Ont. C.A.), leave to appeal to S.C.C. refused loc. cit. This case refused recovery on the unhelpful ground that there was no "special relationship" between plaintiff and defendant; but it is still often cited, and the facts are functionally those of Boudier. Other cases denying recovery, but with a slight factual twist on this basic pattern, will be mentioned below in the section on "Combinations": Section III.1.b.iii, at note .
59 Pan Ocean Shipping Co. v. Creditcorp Ltd. [1994] 1 W.L.R. 161, 166EF (H.L.).
60 J.P. Dawson, 'Indirect Enrichment', in: E. von Caemmerer, S. Mentschikoff and K. Zweigert (eds.), Ius Privatum Gentium (1969) 789 ff, 805, with citations to U.S. authority; see also J.P. Dawson, 'The Self-Serving Intermeddler', (1974) 87 Harvard Law Review 1409 ff, 1444-1450.
61 Dawson (n. 60), 805. The special treatment of lawyers was the jumping-off point of Dawson's important article 'The Self-Serving Intermeddler', (1974) 87 Harvard Law Review 1409 ff; and Dawson returned to the theme in 'Lawyers and Involuntary Clients: Attorney Fees from Funds', (1974) 87 Harvard Law Review 1597 ff and 'Lawyers and Involuntary Clients in Public Interest Litigation', (1975) 88 Harvard Law Review 849 ff.
62 (1993) 15 O.R. (3d) 387 (Gen. Div.).
63 Taylor (S.A.) Building Ltd. v. Von Meunchhausen (1995) 165 N.B.R. (2d) 219, 424 A.P.R. 219 (C.A.).
64 This is supported by the contributions to this volume of Danie Visser and Niall Whitty, both of whom note that the "at the expense of" requirement permits the imposition of additional policy-driven constraints upon the claim.
65 Zimmermann and du Plessis, [1994] Restitution Law Review 25; Markesinis et al. (n. 24), 720. The translation "performance" is that of Markesinis et al.; Zimmermann and du Plessis translate Leistung as "transfer."
66 Markesinis et al. (n. 24), 719.
67 Zimmermann and du Plessis, [1994] Restitution Law Review 37, discussing possible exceptions at 37-38; Markesinis et al. (n. 24), 723.
68 The German rule operates to exclude the claim even if the plaintiff's contract with the third party was void, because the concept of performance does not depend on the existence of an underlying contract.
69 This point is taken in Dawson (n. 60), 1446-1447.
70 See however Turf Masters Landscaping Ltd. v. TAG Developments Ltd. (1995) 143 N.S.R. (2d) 275, 411 A.P.R. 275 (C.A.), leave to appeal refused (1996) 151 N.S.R. (2d) 240, 440 A.P.R. 240 (S.C.C.). This was actually a "combination" case as discussed in the next section, in which the plaintiff and the defendant both had contracts with the same third party (but not with each other); but the court's denial of the claim was based on the non-enrichment of the defendant.
71 Above, note and text.
72 It seems just possible that a plaintiff might, by mistake, perform the prestation owing to the defendant under the defendant's contract with the third party. Assume that the third party was contractually bound to shovel the snow from the defendant's driveway, and the plaintiff, meaning to shovel his own driveway, cleared the defendant's. If the defendant is still liable to pay the third party, then presumably there can be no claim against the defendant, but rather the plaintiff could succeed against the third party whose contract the plaintiff performed. Alternatively the plaintiff's actions might have frustrated the contract between the defendant and the third party, leaving the way clear (so to speak) for an action against the defendant. Cf. Markesinis et al. (n. 24), 731-732.
73 As noted in Simon Whittaker's contribution, however, in the French legal tradition obligations are viewed as personal to the parties; while the plaintiff can perform the prestation owing under another's obligation, it is not clear that the plaintiff can perform another's obligation as such. Nonetheless, we may note that in discussing the position under the Civil Code of Lower Canada (and in French law), Challies (n. 34), 104-112, was of the view that no claim could be made in such a case.
74 Friesen (P.H.) Ltd. v. Cypress Colony Farms Ltd. (1993) 87 Man. R. (2d) 250 (Q.B.) suggests that the defendant's contract with a third party is not a bar.
75 Dawson (n. 2), 125. See also Dawson (n. 60), 802-803; Dawson (n. 60), 1450-1457.
76 In order to deny a claim in unjustified enrichment where the statutory protection was unavailable, it would also have to be a strong subsidiarity principle.
77 Pan Ocean Shipping Co. v. Creditcorp Ltd. [1994] 1 W.L.R. 161 (H.L.); Turf Masters Landscaping Ltd. v. TAG Developments Ltd. (1995) 143 N.S.R. (2d) 275, 411 A.P.R. 275 (C.A.), leave to appeal refused (1996) 151 N.S.R. (2d) 240, 440 A.P.R. 240 (S.C.C.); Hussey Seating Co. (Canada) Ltd. v. Ottawa (City) (1997) 145 D.L.R. (4th) 493 (Gen. Div.) aff'd (1998) 41 OR (3d) 254 (C.A.); Toronto-Dominion Bank v. Carotenuto (1997) 154 D.L.R. (4th) 627 (B.C.C.A); Elmford Construction Co. v. South Winston Properties Inc. (1999) 45 O.R. (3d) 588 (S.C.J.). Writing particularly of the three-party building contract cases in U.S. law, Dawson (n. 60), 1447 said that "The decisions, old and new, are lined up in an unbroken phalanx against restitution recovery."
78 In Pan Ocean Shipping Co. v. Creditcorp Ltd. [1994] 1 W.L.R. 161 (H.L.), Lord Goff was of the view that it was the fact that the plaintiff had conferred the benefit under a contractual obligation to do so; interestingly, in his comment on the case, Professor Burrows seems to prefer the view that it was the defendant's contract which was decisive: [1994] Restitution Law Review 52 ff, 55.
79 Cie Immobilière Viger Ltée v. Laureat Giguère Inc. [1977] 2 S.C.R. 67, 84. The words of art. 1494, Civil Code of Quebec which enshrine the weak subsidiarity principle seem designed to codify this ruling: enrichment or impoverishment is justified where it results "from the failure of the person impoverished to exercise a right of which he may avail himself or could have availed himself against the person enriched" [emphasis added]. This interpretation finds favour in J.-L. Baudouin, Les Obligations (5th ed., 1998), 442.
80 Note however that it was held in Willmor Discount Corp. v. Vaudreuil (City) [1994] 2 S.C.R. 210 that a claim for reception of a thing not due is not subsidiary to a claim based on fault, and there is no reason to think this is not still true under the Civil Code of Quebec, where reception of a thing not due is codified separately from the general unjustified enrichment claim, and without any language giving rise to subsidiarity.
81 R.B. Grantham and C.E.F. Rickett, 'Restitution, Property and Ignorance C A Reply to Mr. Swadling,' [1996] Lloyds Maritime and Commercial Law Quarterly 463 ff, 465; see also J.H. Baker, 'The History of Quasi-Contract in English Law', in: W.R. Cornish et al. (eds.), Restitution [:] Past, Present and Future (1998), 37 ff, 52.
82 See Pineau et al. (n. 48), 404 (my translation): "... the action de in rem verso is not available where the plaintiff has an action arising from a contract, from extracontractual fault, from management of the business of another, or from payment of a thing not due."
83 Markesinis et al. (n. 24), 768.
84 The words of art. 1494 of the Civil Code of Quebec seem clear on this point; the claim in unjustified enrichment is denied if the situation arises from the failure of the plaintiff to exercise a right "of which he may avail himself or could have availed himself"; this is in line with what the law was understood to be under the Civil Code of Lower Canada;Cie Immobilière Viger Ltée v. Laureat Giguère Inc. [1977] 2 S.C.R. 67; Loungnarath v. Centre Hospitalier des Laurentides [1996] R.J.Q. 2498, per Chamberland J. Common law authority on the point goes the same way: Luscar Ltd. v. Pembina Resources Ltd. (1994) 24 Alta. L.R. (3d) 305, [1995] 2 W.W.R. 153 (C.A.), at paras. 117, 120, leave to appeal refused [1995] 3 S.C.R. vii. See also E. Schrage, "Restitution in the New Dutch Civil Code" [1994] R.L.R. 208 at 220-221.
85 Art. 1494, cited in the previous note, arguably does exactly this.
86 Nicholas (n. 42), 2039-40.
87 Rights are affected in some sense when a claim in unjustified enrichment is barred even if another claim is available. Moreover, even weak subsdiarity can prevent a claim in unjustified enrichment when the other claim is prescribed (above, text at n. 84), which obviously has a substantial effect on the plaintiff's legal position.
88 Nicholas (n. 42), 2041-43.
89 Moses v. Macferlan (1760) 2 Burr. 1005, 97 E.R. 676 (K.B.). See also Baker (n. 81), 48-49; M. Macnair, 'The Conceptual Basis of Trusts in the Later 17th and Early 18th Centuries', in: R. Helmholz and R. Zimmermann (eds.), Itinera Fiduciae (1998) 207 ff, 218.
90 J.E.C. Brierley and R.A. Macdonald (eds.), Quebec Civil Law (1993), 464, suggest that this was the most important extra-codal development under the Civil Code of Lower Canada. See also Baudouin (n. 79), 441 (my translation): "The action de in rem verso exists to remedy unforeseen situations and not to replace existing dispositions or agreements."
91 B. Dickson, 'The Law of Restitution in the Federal Republic of Germany', (1987) 36 International and Comparative Law Quarterly 751 ff, 770-771. See also Zweigert and Kötz (n. 27), 561-562.
92 See Zimmermann and du Plessis, [1994] Restitution Law Review 24; Dawson (n. 60), 796-797.
93 Upon the institution of the Judicature Act system, consolidating the two legal regimes into a single court, it was enacted that in the case of any conflict between law and Equity, Equity should prevail; and this disposition remains operative in every jurisdiction which possesses the Judicature Act system. To the modern lawyer this might seem to indicate that Equity belongs to a higher legal order. Viewing the matter in a historical light, as captured by the maxim about supplementing without contradicting, Maitland took the view that this provision is "practically without effect"; apparent conflicts resolve themselves into cases of supplementation. See F.H. Maitland, Equity[:] A Course of Lectures, rev. J. Brunyate (1936), 16-19. By contrast, if one takes the other perspective, that any alteration of the final result amounts to contradiction, then Equity is constantly contradicting the law: see W.N. Hohfeld, 'The Relations Between Equity and Law', (1913) 11 Michigan Law Review 537 ff, 543-544.
94 Maitland famously gave up on any positive definition: Maitland (n. 93), 1: "... we are driven to say that Equity now is that body of rules administered by our English courts of justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as Courts of Equity. This, you may well say, is but a poor thing to call a definition."
95 Zweigert and Kötz (n. 27), 538: "The layman can make nothing of the expressions ['unjustified enrichment,' "enrichissement injustifié,' 'ungerechtfertigte Bereicherung'], and can hardly be blamed for it."
96 Zimmermann and du Plessis, [1994] Restitution Law Review 24, on the years after the adoption of the BGB: "But it was no easy task to interpret these expressions in a way which did not bring about an uncontrollable extension of liability." Dawson (n. 2), 104, on French law: "In the constant struggle to contain the actio de in rem verso, various techniques have been employed." At 106, on subsidiarity: "In terms this limitation is an adequacy test, reserving the action for cases where no adequate alternative remedy is authorized by the Code. In certain applications this is precisely its effect. Though this limitation has been rejected by some of the writers and is not systematically applied, it has proved quite useful in keeping the modern remedy within manageable limits." The reference to subsidiarity as an adequacy test provides another parallel to Equity. Of course, every legal liability needs its boundaries, but anyone who has studied unjustified enrichment will I think agree that containment is a constant concern, more so than in other fields. Baudouin (n. 79), 441, on subsidiarity (my translation): "If the law provides another recourse, the impoverished party must pursue it, for otherwise the action de in rem verso would take on a kind of universality which it must not have." See also K. Barker, 'Unjust Enrichment: Controlling the Beast', (1995) 11 Oxford Journal of Legal Studies 457 ff.
97 See P.W. Hogg, Constitutional Law of Canada (3rd ed., 1992), 423-429.
98 The provincial legislation is still valid, because by assumption it was competent to the provincial legislature; but its effects are suspended.
99 Based on Bank of Montreal v. Hall [1990] 1 S.C.R. 121, 65 D.L.R. (4th) 361.
100 In the framework developed by P.B.H. Birks, An Introduction to the Law of Restitution (rev. ed., 1989), reasons why enrichments are unjustified fall into three categories. In most cases it is because the plaintiff's consent to the transfer was impaired in some way. In some cases it is because the defendant's receipt was unconscientious, and in some others it is because of a reason of policy which does not depend on the position of either party to the transfer. In the other systems there is no doctrinal framework of "unjust factors," but it is true (although it may be a matter of defence) that there can be no recovery if the plaintiff had an unimpaired desire to make the transfer: BGB ' 814; Civil Code of Quebec, art. 1494, closing words.
101 In Pan Ocean Shipping Co. v. Creditcorp Ltd. [1994] 1 W.L.R. 161, 164F (H.L.), Lord Goff used language which strongly suggested that the law of unjustified enrichment and the parties' contract are on different legal orders (emphasis added): "as between shipowner and charterer, there is a contractual regime whichlegislates for the recovery of overpaid hire."
102 (1992) 89 D.L.R. (4th) 600 (C.A.).
103 (1997) 118 Man. R. (2d) 11, [1997] 7 W.W.R. 534 (C.A.).
104 See Peel (Regional Municipality) v. Canada [1992] 3 S.C.R. 762, 98 D.L.R. (4th) 140, 160 where McLachlin J. (as she then was) seemed attracted by the German rule.
105 Dawson (n. 2), 104-105.
106 See Markesinis et al. (n. 24), 732-733.
107 See for example Rover International Ltd. v. Cannon Film Sales Ltd. (No. 3) [1989] 1 W.L.R. 912 (C.A.).
108 The arrêt Boudier, Req. 15.vi.1892, S. 1893.1.281 note Labbé, D. 1892.1.596.
109 This was opposed to a legal obstacle, such as prescription or inability to make out the elements of the other claim. See P. Drakidis, 'La 'subsidiarité', caractère spécifique et international de l'action d'enrichissement sans cause', (1961) 59 Revue trimestrielle de droit civil 577 ff, 586-7, 613. For recovery in Quebec in the same situation, see Challies (n. 34), 139. Italian law followed the French law in this regard: Zweigert and Kötz (n. 27), 550; Nicholas (n. 42), at 2038-39. Nicholas notes that Italian writers distinguish between an "abstract" and a "concrete" understanding of subsidiarity; the "concrete" understanding allows the claim in unjustified enrichment where the other claim is useless due to insolvency or prescription.
110 Some commentators and judges, however, appear to take the view that the distinction between factual and legal obstacles remains relevant: Pineau et al. (n. 48), 406-407; Pavage Rolland Fortier Inc. v. Caisse Populaire Desjardins de la Plaine [1998] R.J.Q. 1221, 1227 (S.C.), citing French doctrine.
111 [1998] 4 All E.R. 513, [1998] 3 W.L.R. 1095 (H.L.).
112 The argument was built on points made in P.B.H. Birks, 'No Consideration: Restitution After Void Contracts', (1993) 23 University of Western Australia Law Review 195 ff, 230 n. 137.
113 Guinness Mahon & Co Ltd. v. Kensington and Chelsea Royal L.B.C. [1998] Q.B. 215 (C.A.).
114 See Lord Goff at [1998] 3 W.L.R. 1126-27; Lord Hope at 1153H. Birks himself has now made this point: P.B.H. Birks, 'Restitution at the End of an Epoch', (1999) 28 University of Western Australia Law Review 13 ff, 37-39; see also L.D. Smith, 'Restitution for Mistake of Law' [1999] Restitution Law Review 148 ff, 157.
115 See n. 112.
116 Grantham and Rickett, [1996] Lloyds Maritime and Commercial Law Quarterly 465.
117 Baker (n. 81), 52.
118 Portman Building Society v. Hamlyn Taylor Neck [1998] 4 All E.R. 202 (C.A.).
119 For the common law, see Smith (n. 6); for German law, K. Zülch, 'Lipkin Gorman in German Law', in: W. Swadling (ed.), The Limits of Restitutionary Claims: A Comparative Analysis (1997) 106 ff, 116-119. In Quebec the same result must follow from the requirement (art. 1493) that a claim will not lie if either the plaintiff's impoverishment or the defendant's enrichment is justified; here the defendant's enrichment would be justified by the rule of law giving him ownership.
120 Nicholas (n. 42), 2043-4.
121 Nicholas (n. 42), 2040-1. Challies (n. 34), 125 was not enthusiastic about this argument as a justification for general subsidiarity, but it may still function as an explanation for the current law.
122 Willmor Discount Corp. v. Vaudreuil (City) [1994] 2 S.C.R. 210.
123 In French law, the actio de in rem verso developed extra-codally (and still is so), and is generally subsidiary. On the other hand, the action for reception of a thing not due was always in the Code, and it is not subsidiary: Chabas (n. 37), '653; J. Bell, S. Boyron, and S. Whittaker (n. 49), 410, 416-417. In Italy, the actio de in rem verso appeared first as an extra-codal development, and when it was codified, it kept its subsidiary character, just as in Quebec. By contrast, German law never knew unjustified enrichment as an extra-codal development; there has been a general action from the time of codification. Similarly, in the Netherlands, there was no general extra-codal enrichment claim under the old code, and the new code, in adding one, did not make it subisidiary: E. Schrage, 'Restitution in the New Dutch Civil Code', [1994] Restitution Law Review 208 ff, 216, 220. See also D.H. van Zyl, 'The General Enrichment Action is Alive and Well', [1992] Acta Juridica 115 ff, 128-130.
124 In Willmor Discount Corp. v. Vaudreuil (City) [1994] 2 S.C.R. 210, 227, Gonthier J. referred to the the action for the reception of a thing not due as "the only action for unjust enrichment" available in that case.
125 The travaux préparatoires for the new Code show an attempt to codify the law of unjustified enrichment as it was understood; they do not reveal any critical examination of the general subsidiarity of the general enrichment claim. See Québec (Ministère de la Justice), Commentaires du ministre de la Justice: le Code civil du Québec (1993), 917 (my translation): "This article [scil. art. 1493] will therefore give legislative effect to these doctrinal and jurisprudential developments in unjustified enrichment." Challies (n. 34) was of the view that the actio de in rem verso was not generally subsidiary: he states this explicitly at 143, and the section of his book which addresses the matter is entitled not "Subsidiarity" but "No Indirect Contravention of Imperative Rules of Law." The Nahum Gelber Law Library at the Faculty of Law, McGill University holds the unpublished manuscript of Challies' third edition, dated 1970; this shows that he planned to change this title to "Absence of Other Possible Action - or - No Indirect Contravention of Imperative Rules of Law." No doubt this was due to the accumulation of cases accepting subsidiarity in the intervening years.
|
|
|
|
|
|
