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Louis Proksch
Thu, 4 Dec 1997 23:14:16 +0800
Taylor v. Dickens


At 09:35 PM 1/12/97 +0000, Colin wrote:

Given the popularity of one particular set of hypothetical facts put to young Restitution students, it is perhaps surprising that the recent decision in Taylor v. Dickens (The Times, November 24, 1997) has not attracted comment on this mailing list.

The facts will bring feelings of deja vu to all who have studied the subject. P had worked for T for many years without reward expecting, as T had promised, that T would leave him something in her will. T changed her will without telling P and then died. P sought to maintain a claim against the estate in both contract and by way of estoppel. Both claims failed.

A claim for quantum meruit was, I believe, neither pleaded nor argued,and thus the case provides no insight (and nor will the likely appeal)into the application of restitutionary principles in the circumstances. It is though, perhaps illustrative of the fact that the grip which the subject enjoys over academia has yet to extend to practice.

However, those who would advocate the wholesale expansion of the recovery of unjust enrichment into entirely unprecedented areas transforming the scope of the law of obligations might do well to heed the words of the learned judge at first instance. To the suggestion that there was a general right of equitable intervention in response to any unconscionability he asserted: "[i]f there were such a jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree."

Words to remember indeed.

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I look forward to reading the decision in Taylor v Dickens. The profession in Australia has of course long appreciated the significance of restitutionary principles (which do not necessarily have anything to do with "a general right of equitable intervention in response to any unconscionability") - perhaps somewhat in advance of "academia". My own sense of deja vu was heightened by my recollection of Stinchcombe v Thomas [1957] VR 509, in which Monahan J found that no contract arose from an arrangement under which the plaintiff was to act as housekeeper for the deceased, for which he would "well reward her". She so acted for over twelve years (her actual claim being limited to five and a half years because of the Statute of Limitations) and during that time received £1 per week. The going rate for a living-in housekeeper in the district in the relevant five and a half years "averaged £5 per week on the basis of eight hours per day, with one day off per week and with an annual holiday of two weeks on full pay" (513). Those with little antipodean experience may be interested in the plaintiff's duties.

"She began by spring-cleaning the house; she regularly did the cooking, washing and sewing; she mowed the lawns throughout the relevant period; she gathered firewood and kindling wood; she weeded and watered the garden and during the later years she also did the digging that was necessary in the garden; she drew water from the well - at times up to 200 buckets per day; she bottled and preserved the fruit crops; she gathered and carted manure; she assisted at the slaughtering of sheep and treated the offal therefrom and did the necessary cleaning up after those operations; she cleaned the kitchen chimney as required; she cleaned out the water tank as required; she assisted to maintain the poultry pens as required; she made the deceased's underclothing; she made the soap requirements of the household in later years; she cut the deceased's hair; she nursed and tended the deceased when he was ill and dressed his wounds following upon an operation on his bladder [he died aged eighty-two - LLP]; in addition she provided many of the household requirements from her own moneys; she had few holidays; she received throughout the period 1942-1954 no more than approximately £80 worth of gifts and presents of money from the deceased". [See also Proverbs XXXI, 10-31.]

Absent contract, the alternative claim "as on a quantum meruit basis for work and labour done and services rendered by her for the deceased at his request" (509) succeeded. Roll on restitution.

[Apologies, Colin: third time lucky - LLP]

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