Occasionally one finds that everyday transactions are unusually difficult to analyse in tort categories- or perhaps it is a defect in the law. The question that came up today is, what tort remedy is available to Y against X where X steals Y's credit card and then appropriates a large sum of money (say $5000)? I think I can see a way of arguing that there could be an action in conversion against the wrongdoer (or trespass to goods) based on the touching or taking control of the card, and then one could argue that the stolen money was damages that flowed from that initial wrong. (Let us assume for the moment that the bank concerned will not provide a refund because, for example, the PIN was not properly secured.) But this seems very artificial. Perhaps one could also say that if banknotes were taken from an ATM, then there is a conversion because the notes at the point of emerging were to be deemed to be the property of the account holder? (But even that seems a bit odd.)!

 One would like to say there is conversion of the value stolen, on analogy with the rule allowing conversion actions in relation to cheques, but are there any cases that say so? The difference from a cheque, of course, is apparent- there is no "face value"- although one could in theory perhaps regard the card as "worth" the maximum credit limit. Still, this would be odd where less than the maximum had actually been spent. Or were the minority in OBG v Allen correct to say that conversion should apply to intangible property these days since many people would not physically touch cash in most transactions?

If conversion is not applicable, it seems to me surprisingly tricky to identify another appropriate tort action (though perhaps I am missing something obvious.)

Regards

Neil