Papers by Peter A H Jaffey
Hart Publishing eBooks, 2023
Modern Law Review, Nov 1, 2014
On the face of it, Benedetti v Sawiris 1 is a case on a narrow and technical point on the measure... more On the face of it, Benedetti v Sawiris 1 is a case on a narrow and technical point on the measure of the quantum meruit in the law of unjust enrichment, but it is significant beyond this in what it says, or implies, about the law of unjust enrichment generally and its relationship with the law of contract. The facts of the case are complicated, but so far as they are relevant for present purposes they can be summarised quite simply. Benedetti approached Sawiris to see if he would be interested in collaborating in the acquisition of a company called Wind. The original idea was that Sawiris would become a shareholder along with Benedetti in a new company established to take over Wind, but most of the funding for the acquisition would come from other investors that Benedetti would find. This was set out in the Acquisition Agreement. It seems to have been envisaged that Benedetti would profit from the venture as an investor or director in the new company when the Acquisition Agreement was implemented. In the end, however, no other investors were found and so the Acquisition Agreement was abandoned. Sawiris decided to continue with the takeover by providing the funding himself, and Benedetti continued to work on his behalf towards the acquisition on this new basis, though there was no longer any written contract governing the relationship between them, and there was no explicit agreement for Benedetti's remuneration. The acquisition of Wind by Sawiris was eventually successful. Although Sawiris accepted that Benedetti was entitled to be paid for what he had done, the two parties could not agree on the amount, and Benedetti sued Sawiris on various bases including contract and unjust enrichment. By the time the matter reached the Supreme Court, the only issue was the measure of recovery in unjust enrichment, Sawiris having accepted that he was liable in unjust enrichment, and the other bases, including contract, having been rejected by the lower courts.
Research Handbook on Remedies in Private Law, 2019
University of Toronto Law Journal, 2022
This article is concerned with the concept of ‘remedial consistency,’ the consistency of remedial... more This article is concerned with the concept of ‘remedial consistency,’ the consistency of remedial rights with primary rights in the sense I explain. I argue that the requirement of remedial consistency has important implications across private law. It suggests that the ‘continuity thesis’ does not provide a justification for the right to compensation for a wrong, and I argue that rights to compensation are not generally based on wrongdoing. I also consider whether the absence of a right to specific performance is consistent with the existence of a duty of performance, and I discuss the need for alternative remedies to be mutually consistent. I also discuss the implications of remedial consistency for the concept of unjust enrichment, and I argue on the basis of remedial consistency for the general availability of proprietary claims for invalid transfers.
Research Handbook on Remedies in Private Law, 2019
This article gives an account of the law of knowing receipt. It explains knowing receipt in terms... more This article gives an account of the law of knowing receipt. It explains knowing receipt in terms of a failure by a the recipient to look after property received when he or she knows or ought to know it is trust property and rejects the "restitutionary" account and the implication of this account that a strict liability claim should be preferred.
Modern Law Review, 1998
The Law Commission has published its final report on aggravated, exemplary and restitutionary dam... more The Law Commission has published its final report on aggravated, exemplary and restitutionary damages, the most important recommendation of which is an expansion of the availability of exemplary damages. 1 The Report was preceded by two consultation papers, and this is no doubt indicative of the range of views held on the subject and the problems of reconciling them. Aggravated and exemplary damages have been a perennial source of controversy, since before the famous case of Rookes v Barnard. 2 They raise not only problems of terminology, but also more fundamental problems concerning the relation between civil and criminal procedure, and the rationale for punishment and civil remedies. One source of difficulty may be that the issues tend to span different areas of practical expertise and research. Another may be that theoretical issues are lost in what appear to be matters of practice and procedure. Restitutionary damages are no less controversial. Under this name they are not a traditional remedy; the expression has emerged from the academic development of the law of restitution. Despite the academic attention they have received, it remains 1
Legal Studies, 1996
In company law usually the difficulties in determining whether a putative contractual obligation ... more In company law usually the difficulties in determining whether a putative contractual obligation is binding on the company are matters of agency. The issue is whether the person who purported to commit the company to the contract had the requisite authority under the common law rules of agency as modified for companies by statute. At one time it was necessary also to consider whether the contract was beyond the capacity of the company under the ultra vires doctrine, which limited the capacity of the company to the range of business activities defined in the objects clause of its memorandum. Now, following the Companies Act 1989, the capacity of the company is no longer limited in this way to a certain range of activities.
Legal Studies, 2002
In a recent article in this journal, David Campbell and Donald Harris criticise the House of Lord... more In a recent article in this journal, David Campbell and Donald Harris criticise the House of Lords decision in A-G v Blake, which held that in some circumstances there can be a liability to surrender the profits of a breach of contract to the other contracting party, ie a liability for disgorgement, as it will be referred to here. The criticism invokes what is sometimes referred to as the economic theory of efficient breach, which can be expressed briefly as follows. The performance of contracts generally increases aggregate wealth – ie is efficient – because parties will contract only on terms that provide them with a benefit that exceeds their costs of performance. But sometimes the circumstances will change after contracting, such that overall wealth will be maximised if the contract is not performed as agreed. For example, the defendant contracting party may discover an opportunity that he or she can take up only by abandoning the contract, and this opportunity may generate enou...
International Journal of Law in Context, 2007
Current Legal Problems, 2002
for their comments. 1 The concept of invalidity is considered below. 2 e.g. bona fide purchase or... more for their comments. 1 The concept of invalidity is considered below. 2 e.g. bona fide purchase or the equity"s darling defence; as to change of position, see the section below on tracing. 3 Lord Diplock made a much-cited reference to the distinction between the primary right to performance in contract and the remedial right or claim to compensation for breach of contract in Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827. The terminology appears to come from European civil law: see B Dickson, "The Contribution of Lord Diplock to the General Law of Contract" (1989) 9 Oxford Journal of Legal Studies 441. 4 Subject to the "apparent wealth" argument considered below, text following n.56. the property. This is generally the position taken by the common law. 5 The latter regime is open to the objection that it gives some effect to the invalid transfer: the implication is that, although invalid as against the direct recipient, the transfer is effective so far as third parties are concerned. In principle it seems right that if the transfer is invalid as against the direct recipient it should also be invalid as against third parties, so that ownership is retained and the claim is in rem. "Property", the subject matter of ownership, is generally taken to be a tangible thing, or at least a "specific asset" in the sense discussed below. The main part of this article is concerned with the right to wealth, i.e. transferable or exchangeable value. Wealth may take the form of a tangible thing, but insofar as it is treated as wealth, its value is its exchange value, not any special value that it may have for the owner as a tangible thing. Most importantly, wealth takes the form of value held for exchange or investment by way of money as notes or coins, 6 or in the form of "pure value", held by way of a debt-righti.e. in a bank account or in the form of some other investment. ("Debt-right" is used to signify the right of the creditor as opposed to the liability of the debtor in relation to the debt.) It is often assumed that there cannot be ownership of, or an in rem right to, wealth, except where it consists of tangible things, and that a right to pure value must be in personam, for example a claim in debt. But, to the contrary, as is argued below, and as seems generally to be assumed in non-technical or informal contexts, wealth including pure value can be the subject matter of ownership in more or less the same way as tangible things, or, as one might express it, "property" can encompass wealth as pure value as well as tangible things; and, furthermore, not only is there a primary in rem right to wealth, but also the claim arising from an invalid transfer of wealth can be and generally ought to be in rem. To avoid confusion it may be helpful at this point to mention an issue that will be dealt with more fully later. This article is concerned with "invalid transfers" of property or wealth. An invalid transfer is a transfer that is not effected by a valid exercise by the owner of his power of disposition. 7 This will be the case because of some factor affecting the exercise of the power like mistake, duress, undue influence 5 Although not always, especially with respect to goods. 6 Here the tangible thing is valuable as a token of the wealth that it represents. 7 The "transfer" is a transfer of possession or control. With respect to pure value, control refers to the right as creditor to deal in respect of a contractual debt. In equity, the legal title will pass with possession or control. See below, text following n.83.
This is a stimulating and wide-ranging set of essays on contract, tort and restitution. In a numb... more This is a stimulating and wide-ranging set of essays on contract, tort and restitution. In a number of the essays, Professor Burrows emphasises the importance of classification based on the underlying basis or rationale for claims. He is surely right that this is crucial to the clarification and development of the law. However, in my view there are problems with the analysis that Burrows offers, particularly with respect to contract and restitution. With respect to contract, it sees to me to be a shortcoming of his approach that it fails to recognise the role of contract law in protecting reliance. Reliance and its relation to contract have attracted considerable debate at various times, but receive surprisingly little attention here. According to Burrows, the difficulties that have afflicted the law of restitution in recent years been largely overcome by the recognition of the theory of unjust enrichment. For him, the development of the theory of unjust enrichment as the underlying...
Property, 2019
This chapter discusses intangible property and non-proprietary intangibles. It begins with a disc... more This chapter discusses intangible property and non-proprietary intangibles. It begins with a discussion of the idea of the right against interference as the basic right of property and compares it with idea of the right to the benefit of property. It discusses the idea of remedial consistency - consistency as between primary and remedial rights - and what this implies about property rights. In this connection it discusses the nature of the trust. It also discusses the “investment” function of private property. It then discusses various types of intangible property in the light of the suggested approach, including confidential information and contractual rights, with particular reference to the cases of Hello! and OBG v Allan.
The Impact of Equity and Restitution in Commerce, 2019
When C makes a payment by mistake, or a payment of his money is made without authority by an agen... more When C makes a payment by mistake, or a payment of his money is made without authority by an agent or trustee, or his money is misappropriated by a stranger, should his claim to recover the money be personal or proprietary? This is important if the recipient, D, is insolvent, or if D is or may be an indirect recipient of the payment. It is of course a controversial question, and indeed it touches on a number of different contested issues in the law. The claim could arise at common law or in equity. Where the mistaken or unauthorised payment to D is a payment in breach of fiduciary duty by a trustee or fiduciary of C, C has an equitable proprietary claim to recover the money or its traceable proceeds (if D is not a bona fide purchaser). The equitable proprietary claim is an assertion of C’s beneficial ownership, persisting and binding the recipient D (direct or indirect). Here, generally, the issue is to determine the relevant tracing rules to identify the traceable proceeds of the p...
The idea of classification in law sometimes carries connotations of crudeness and artificiality. ... more The idea of classification in law sometimes carries connotations of crudeness and artificiality. 1 This may be associated with the idea that it involves constructing a table or matrix that can be used to read off a legal solution for a set of facts in the way that one might use a railway timetable to find a train. This in turn may come from the association of legal classification with the discredited understanding of the law and legal reasoning that has been described as "mechanical jurisprudence", according to which all legal questions can in principle be resolved by applying a settled rule of precise scope to the facts in question. Certainly tables or trees setting out schemes of legal classification were more common in the legal literature in the era of mechanical jurisprudence than they are nowadays. 2 But classification is not intrinsically related to mechanical jurisprudence and it plays a crucial role in a sound understanding of the law, as in other areas of rational inquiry. Legal rules or principles or claims or causes of action or other such elements of the law may be described as contractual, tortious, proprietary, restitutionary, compensatory, fiduciary, or be said to be part of the law of obligations or private law or the law of wrongs or unjust enrichment, etc.
LSN: Issues in Debtor-Creditor Relations (Topic), 2004
I argue that a debt, which is generally taken to be a standard example of a Hohfeldian right-duty... more I argue that a debt, which is generally taken to be a standard example of a Hohfeldian right-duty relation, is actually properly understood as a power-liability relation, although a separate right-duty relation can arise in respect of it. This understanding provides a solution to a problem devised by MacCormick and discussed in the jurisprudence literature concerning a right to payment from the estate of a deceased person. In the main part of the article, I argue that a restitutionary claim to recover money or property invalidly transferred is also a Hohfeldian power, not a right correlated with a duty to return the money or property. The recipient’s liability to the exercise of the power is to be distinguished from his or her duty to return or to preserve the money or property invalidly transferred. This analysis provides a solution to the controversy in the literature over the strict liability and fault-based approaches to restitutionary claims, and it explains and supports the tr...
Information Privacy Law eJournal, 2008
This article discusses the relationship between privacy and confidentiality, the different forms ... more This article discusses the relationship between privacy and confidentiality, the different forms of privacy, including informational privacy, the contrast with confidentiality as ownership of trade secrets, privacy compared with defamation, publicity rights and merchandising as the ownership of image, the function of a trade mark and merchandising through trade marks, and the ownership of intangibles.
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Papers by Peter A H Jaffey