A Comparative Common Law Study on Restitution from the State
Abstract
When should restitution from the State be available? The jurisdictions examined in this paper—England, Canada, Australia—once gave a common answer to this question, but they no longer do, for reasons concerning both these jurisdictions’ constitutional and unjust enrichment laws. The aim of this article is to provide an account of these fascinating reasons, consider their application to another jurisdiction with a common law heritage, Singapore, and to consider what might lie ahead in the future. The findings of this article, a work of comparative common law, are of interest not just to those in these four jurisdictions, but potentially to many others, including the United States, where questions have arisen about whether tariffs imposed by the Trump administration but overturned by the Supreme Court of the United States must be repaid.
Abstract
Two recent cases–Serta and Del Monte–asked courts to decide whether pro rata sharing provisions applied to non-cash exchanges. Both courts applied New York’s plain meaning rule to virtually the same language, but one concluded that the provision covered cashless exchanges and the other that it did not. We hypothesize in this paper that the conflict between these courts arises from an inadequate evidentiary record. Both courts applied the plain meaning rule to arguably ambiguous terms and without considering how the terms are typically drafted in the syndicated lending industry. We present a database of over 200 credit agreements, identify systematic patterns in their drafting, and argue that the plain meaning rule would have reached identical conclusions in both cases had the courts considered our evidence.
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