Date: Thu, 2 Feb 2006 09:57:40

From: Robert Stevens

Subject: Two Questions

The 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.

However 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?

Robert

In message <009001c627d2$619d9310$d6df4284@DaniP4Dell> "Daniel Friedmann" writes:

Robert,

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 (Woolwich).

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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