Thu, 2 Feb 2006 09:57:40
answer of 'yes' is what I am seeking to prove, and I completely
agree with most of this analysis. However, the examples concern
cases where the claimant is seeking to recover back money he has
paid to the claimant. Some would say that these are examples of
claims in (autonomous - unhelpful in my view) unjust enrichment.
So, regardless of the view we take of the "parasitic theory"
these cases are readily explicable.
are there any cases where the gain of the employer does not correspond
with a (financial) loss to the claimant? So, if an employee deliberately
trespasses on the claimant's land in a way which results in an enormous
(financial) consequential gain for his employer (but not for him)
what is the law?
message <009001c627d2$619d9310$d6df4284@DaniP4Dell> "Daniel
Q 1: The answer is indeed yes. I suspect that the difficulty stems
from the "waiver of tort" approach under which liability
in restitution is dependent on the existence of liability in torts
(the so called parasitic theory). This leads to an attempt to translate
tort concepts into the law of restitution (is the employer vicariously
liable, can a claim in restitution be made where the liability in
tort is vicarious etc.). It also leads to the question whether the
tort committed is one that can be waived. As you know Jack Beatson
and I support a different view under which liability in restitution
is independent and therefore there is no need for such an inquiry.
The issue that you present has its historical origin in the in the
Roman action of de in rem verso, under which the head of the family
though he was not responsible for the act of his family member,
was nevertheless liable to the extent of his enrichment (hence the
very purpose of liability in restitution was to overcome the absence
of any other source of liability).
There is also no difficulty in finding cases supporting liability
in restitution once one is free from the parasitic theory and
does not look for a corresponding liability in tort. A typical
example is that in which an employee of a public authority uses
pressure to collect payment that is not due (colore officii) and
the money collected goes to his employer (the public authority),
it is obvious that the public authority is liable in restitution.
The same applies to instances of liability to refund tax that
was collected pursuance to a demand that was made ultra vires
The fact that there is no liability in torts is of no moment for
the purpose of restitution. There is also an Israeli case in which
the Supreme Court held that where a public official exacted money
colore officii he incurs a personal liability in addition to that
of the public authority to which the money has been transferred
(I discussed this case in Adjustment Among Multiple Debtors
– International Encyclopedia of Comparative Law vol.
X ch. 11 p. 68 note 400 (with Nili Cohen). As we explained there
the employee, if he personally made restitution is entitled by
virtue of the benefit principle to indemnity from the public authority
that received the money.
You may use another analogy: In Lipkin Gorman a solicitor
wrongfully withdrew money from the plaintiff's account and gamble
it away at the defendant club. The defendant was held liable (subject
to the defence of change of position). It goes without saying
that had the rogue been employed by the defendant, liability would
a fortiori been imposed.
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