Date: Mon, 10 Mar 2008 16:26

From: Robert Stevens

Subject: Remedies for Conversion and Trespass to Goods

These Euro-codes have mis-classified the basis upon which expenditure to avoid injury is recoverable.

Say a builder builds a house. I subsequently buy it. The house is negligently built so that it is in danger of collapsing on my neighbour's land. I am compelled to repair the building in order not to be liable.

Primary responsibility for the house's condition lies with the builder, not me. I have been forced to incur expenditure, thereby anticipating his liability in tort which he would have incurred had it collapsed.

However the builder hasn't committed a tort against anyone. The building has not collapsed damaging anyone else's property. Some other doctrinal basis for recovery must be postulated. No right has been violated, save that of the person who employed him to build the house. The best available basis is unjust enrichment. See M Moran, “Rethinking Winnipeg Condominium Restitution, Economic Loss and Anticipatory Repairs” (1997) 47 Univ of Toronto LJ 115.

PETL and the Euro Study Group codes just assert the answer. The intuitions of the writers are correct, but the basis for the claim is not.

Such an analysis would not assist in the case of the security costs, as it is not compelled expenditure which has prevented the defendant's liability.

Andrew Tettenborn's examples are not really the same either, as I am sure he would accept ('a little like'). Where I have wrongfully denied you the use of a thing, I must pay the market value of such use, regardless of absence of any actual loss (The Mediana). The claim is not properly to the upkeep costs of any spare (which may differ from the market). As a result, these cases don't assist in our conversion example.

If my staff are forced to spend their time sorting out a mess caused by your wrong, rather than being engaged in commercially useful activity for me, the best evidence of my loss may be the cost of employing them. This also doesn't assist in our conversion example.

No claim to the security expenditure is the right answer.

RS

Quoting "Jones, Michael":

A person who has reasonably incurred expenditure or suffered other loss in order to prevent an impending damage occurring, or in order to limit the extent or severity of a damage which occurs, has a right to compensation from the person who would have been accountable for the causation of the damage.

With respect, this seems slightly odd from a common law perspective. If I fit a lock to my front door to prevent the burglar gaining entry, and the burglar tries the door but finding it locked goes away, can I recover the cost of the lock from the failed burglar? This could be quite a lucrative undertaking, provided I could catch my failed burglar of course.

Robert Stevens
Professor of Commercial Law
University College London

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