THE NATURE AND SCOPE OF RESTITUTION The Nature and Scope of Restitution Vitiated Transfers, Imputed Contracts and Disgorgement by PETER JAFFEY OXFORD – PORTLAND OREGON 2000 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © Peter Jaffey 2000 Peter Jaffey has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as the author of this work Hart Publishing Ltd is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing Ltd, Salter’s Boatyard, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail:
[email protected] www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1 901362–48–5 Typeset by Hope Services (Abingdon) Ltd. Printed in Great Britain on acid-free paper by Biddles Ltd, Guildford and King’s Lynn. Preface At least in terms of the volume of literature generated in recent years, the law of restitution is fully a match for longer-established areas of study like contract and tort. The enormous recent literature does not seem to have quelled the controversy surrounding the area, however, and I hope it has not quelled the appetite for further contributions. This book examines the principles underlying the law of restitution, and offers a framework for the analysis of the leading cases and for the development of the law. I hope it will be of interest not only to academic and practising specialists in restitution but to specialists in other areas, including contract, property and trusts, whose interest or suspicion has been aroused by the looming presence of the law of restitution. Although the approach is more theoretical and discursive than is customary for a textbook, I think it will also be suitable for the more inquiring student taking a course in restitution or investigating issues in contract or trusts. I am very grateful to my father, Tony Jaffey, and to James Penner, previously a colleague at Brunel University, who provided very helpful comments on the whole manuscript, and also to Steve Smith, who did the same for Chapter 2. I am also very grateful to Seeromanie for her encouragement and support. Peter Jaffey June 2000 Outline Contents Part I: Introduction 1. Vitiated transfers, imputed contracts, and disgorgement 3 Part II: Claims for payment: restitution and contract 2. Contract and exchange 3. Imputed contracts and restitutio