It should be a conversion in my (probably deeply unpopular) view - by analogy with the cases mentioned by John and, on the basis that a chose in action has only one “life”.  Once it has suffered an interference which exchanges it in favour of an employment of the same value elsewhere, it disappears.  In other words, where an interferer uses such a chose as a means of exchange in his own favour, what actually happens is that the original chose in action ceases to exist.  As with all transactions of the this type, the original chose is not assigned to anyone, but extinguished in favour of the creation of a new chose in action elsewhere.  This is a process of novation rather than transfer.  So, even in circumstances in which the customer is indemnified, the practical effect of this is that it creates a chose in action of the same value:  it is not possible for it (or for anyone) to recover the original chose in action.  In terms of the chose of action which was interfered with, the original parties to it have both been excluded from it.  This should suffice for a conversion.

 

I have peddled similar heresies before (LQR sometime last year) - specifically by way of comparison with theft (which recognises with apparent ease that one can be permanently deprived of such a chose, despite tort's current refusal to accept that one can be excluded from the same!)

 

 

Sarah Green

Fellow in Law

St Hilda's College

Oxford

OX4 1DY

 

sarah.green@law.ox.ac.uk

 

01865 286661

 

http://www.law.ox.ac.uk/profile/sarah.green

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From: Andrew Tettenborn [A.M.Tettenborn@swansea.ac.uk]
Sent: 07 February 2013 08:48
To: John Randall QC
Cc: Nathan TAMBLYN (Faculty of Law); Neil Foster; obligations@uwo.ca
Subject: Re: Conversion of credit card?

John must be right where the card is converted. Where it isn't the action for deceit / fraud, i.e. taking money out of the bank by defrauding the bank with the knowledge that this will cause loss to the customer (if for some reason he can't plead "no authorisation") won't work since this tort requires reliance by the plaintiff: cf Tackey v McBain [1912] A.C. 186. But there might be an action for misuse of confidential / private information. Or possibly the economic tort of causing loss by unlawful means, the unlawful means being the fraud practised on the bank.

I have doubts whether conversion would work, even if the (indubitably correct) OBG had gone the other way and allowed the action in respect of choses in action. Further and better particulars, please, on what chose in action has allegedly been converted?


Andrew

So far as the common law’s response to this problem as between the credit card holder and the thief/fraudster is concerned, Neil’s suggested analysis (an artificial measure of damages for conversion of – or possibly only a transient trespass to? - a small rectangular piece of plastic) could derive some support from cases such as Morison v London County and Westminster Bank [1914] 3 KB 356 (CA), AL Underwood Ltd v Bank of Liverpool and Martins [1924] 1 KB 775 (CA) and Lloyds Bank v The Chartered Bank of India, Australia and China [1929] 1 KB 40 (CA) which apply an artificial measure of damages for conversion of nearly as small a rectangular piece of paper (aka a cheque) [some discussion of the same appears at pp36-38 & 184-85 of Sarah Green’s and my book on Conversion].

 

However as Nathan observes, given the HL’s decision to reject conversion of intangibles in OBG v Allan, even that legal sleight of hand falls short where there is no physical interference at all with the credit card itself. Quaere the exact legal nature and extent of a civil action for “fraud”?

 

John

 

JOHN RANDALL QC

 

St Philips Chambers

55 Temple Row

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Tel  +44 (0)121 246 7000 (DDI 246 2126)

Fax  +44 (0)121 246 7001

Email jr@st-philips.com

 

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From: Nathan TAMBLYN (Faculty of Law) [mailto:tamblyn@cuhk.edu.hk]
Sent: 07 February 2013 01:53
To: Neil Foster; obligations@uwo.ca
Subject: RE: Conversion of credit card?

 

The problem becomes more acute when it is not the physical credit card itself which is stolen, but merely its details.

 

These cases are often described as 'identity theft', which I think is a sneaky way of banks transferring the problem onto the credit card holder. But the problem should not be the credit card holder's. What happens thereafter is fraud: the thief uses the card pretending to be the authorized holder when he is not. That fraud is perpetrated on (i) the credit card company, and (ii) the shop (say) which takes the card in exchange for goods. The credit card holder is entitled to say to the credit card company, because it is true, you have deducted from my account something which I did not authorize, nor given me anything in exchange, so I will not pay that bill.

 

What about the allegation that the PIN was not secure?

 

First, how can the credit card company prove that? Just because the card was used, I do not think it follows that the PIN was not secure. Very sophisticated technology exists to obtain PIN numbers. My credit card was skimmed once and used successfully, and my PIN is written down nowhere, and known only to me. (Fortunately the bank blocked the transaction.)

 

Second, any allegation of tortious negligence on the part of the credit card holder is irrelevant; when A perpetrates a fraud on B, any negligence by C is irrelevant to that claim. 

 

Third, perhaps the proper analogy is with someone who writes a blank cheque then used by a rogue to draw down more money than the writer anticipated. That, I think, is a breach of contract by the cheque writer to the bank. So perhaps an insecure PIN is a breach of contract to the credit card company which, if they can prove it, would allow them to authorize the deduction.

 

Finally, how can the credit card holder recover from the thief? The thief stole from the credit card company. The credit card holder has to indemnify the company through its breach of contract. The credit card holder gets subrogated to the position of the credit card company and can sue the thief in fraud.

 

Nathan

 

Nathan Tamblyn

 

MA (Oxford) LLM PhD (Cambridge) Barrister

Assistant Professor, Director of the LLM in Common Law

Faculty of Law, Chinese University of Hong Kong

 

www.law.cuhk.edu.hk

 

 

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From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Thu 07/02/2013 09:07
To: obligations@uwo.ca
Subject: ODG: Conversion of credit card?

Dear Colleagues;

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.)< /DIV>

 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

 

Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA

Room MC177,

McMullin Building
ph 02 4921 7430
fax 02 4921 6931

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http://simeonnetwork.org/testimonies/119/Neil_Foster

 

 

 

 

 

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