Date: Tue, 11 Mar 2008 05:40

From: Robert Stevens

Subject: Remedies for Conversion and Trespass to Goods

It makes a real difference whether we explain the claim as based upon unjust enrichment or a tort.

First, the quantum of recovery will not be the same. If the claim is for a tort it would be expected that the plaintiff could claim all of the loss he has suffered as a result of the defendant's wrong. This is not so. All that is recoverable is the expenditure which avoids the tort. So, in my example, the expenditure to make the house safe can be recovered but not any further expenditure to cure its defects or other loss.

Second, misclassifying the claim as based upon a tort could be thought to allow recovery for 'pure' economic loss (i.e. loss not suffered as a result of the violation of a right of the plaintiff). This could then be used as a bridgehead from which to argue for other such claims. This has caused serious problems in the Commonwealth (not in the US of course - lucky you.)

So, it isn't simply a question of the label on the bottle. Claims which are not based upon a tort don't belong in torts codes.

Of course in the example we started with no claim will be allowed on this basis as this was not expenditure anticipating this wrong.

R

-----Original Message-----
From: "Wright, Richard"
Sent: 10/03/08 23:21
Subject: RE: Remedies For Conversion & Trespass to Goods

Aren't different issues being confused? It is hornbook law that one is allowed to recover expenses incurred to mitigate damages that otherwise would flow from an actual wrong. It also seems to me that one should be able (and is) allowed to recover the costs expended to avoid an imminent specific wrong, whether the theory is tort or restitution. I think those two situations are all that is intended by the provisions that Marten quotes.

But one cannot and should not be able to recover costs expended to guard against nonspecific, non-imminent wrongs, such as general security precautions to guard against repetitions of wrongs such as were caused in the past.

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