I agree with Matthew that it is very interesting to notice how Roman law
originally implemented these concerns through defences rather than claims.
As Eylem noted, the later recognition of improvements as a source of
obligations is reflected in modern civilian systems, sometimes in the
civil code and sometimes extracodally.
Universally, I believe, the principles distinguish between a possessor in
good faith and one in bad faith, which in this particular context means
one who believes himself to be the owner, or not; and, between three
categories of expenses. In Quebec, for example, similarly to what Eylem
described, the categories are necessary expenses (e.g. a repairs to a
leaking roof); useful expenses (e.g. replacing a heating system that was
not working well); and expenses ‘for amenities’ (e.g. landscaping around
the house). This creates six possible outcomes which differ as to rights
to recover, how valuation is to be done, and also what claim the owner may
have in relation to the use value enjoyed by the possessor, or for fruits
or revenues extracted by the possessor. The English version of the Quebec
provisions (arts. 957ff) are available at
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?ty
pe=2&file=/CCQ_1991/CCQ1991_A.html
These provisions are for immovables; the provisions on movables (971ff)
are (somewhat inexplicably in my view) much less detailed.
There is an excellent account in English of the German law in Gerhard
Dannemann’s book, The German Law of Unjustified Enrichment and Restitution.
Interestingly, where the provisions are codified they are not treated (in
terms of codal organization) as part of the law of unjust enrichment; this
is true even in Germany and systems that have followed it, which has the
most all-encompassing general enrichment action.
Many authors would say, however, that these principles aim to prevent
unjust enrichment in a wide sense. In this view, there is more to unjust
enrichment than undoing transactions or performances.
There is another complication which is the case in which the possessor, A,
does not improve the thing himself, but rather contracts with another, B,
to do so. What if the contract is frustrated by the discovery that the
thing is owned by another, after the work is done but before it has been
paid for? I once wrote an exam question like this, which personally I
still find baffling (so perhaps I should apologize to my students).
A distinction between performance/transaction claims, and owner/possessor
claims, allows that case to be solved. If that distinction is not drawn,
it is very difficult because you don’t know where to break the circle
(unless perhaps you simply have a rule of non-recovery in the absence of
performance/transaction). Do you give B a direct claim against the owner,
whose thing B improved? But usually, B will have a claim against A (on
transaction/performance reasoning; Frustrated Contract Act in most common
law jurisdictions). If there is a non-transaction category, then A may
have a claim against the owner as an improver via a third hand
(presumably, whether or not A is sued by B). If there is only one big
category, do we say that B has a choice? Does A’s claim only arise if B
sues A? Or is it lost if B sues the owner?
Lionel




On 02-08-14, 03:25 , "Matthew Dyson" <mnd21@cam.ac.uk> wrote:

>We might take some consolation from the fact that lawyers have argued
>the same kinds of issues ever since Roman times, though the exceptiones
>to the vindicatio were a little simpler. It was particularly important
>in specificatio, such as by taking your wood and my fabric to make a
>chair: there was a vital difference throughout classical law whether you
>D or C had possession. Resort to good faith, through the exceptio doli,
>was the classic mechanism, but again, this was only in the form of an
>exceptio (defence to a claim) until much later when an actio doli was
>countenanced, but only as a reserve claim if no other recourse was
>possible. I assume, but don't have the books with me to check, that
>improvements less than changing the thing entirely, had analogical
>treatment.
>
>
>On 02/08/2014 01:31, Robert Stevens wrote:
>> Inevitably I agree with Andrew, save that I would deprecate his
>>reference to a 'negative claim'. It is not a claim, but a condition to
>>which the right to recover the vehicle is subject.
>>
>> Munro v Wilmott seems to me to be a very much on point. Once we have
>>rejected agency of necessity (rightly as the repairs were unnecessary)
>>there is no case whatsoever for the improver having a freestanding claim
>>to the value of the repairs. I'd be surprised if even the most
>>expansive unjust enrichment theorist would support such a claim by the
>>improver on those facts.
>>
>> That does not mean that any claim by the owner for damages should not
>>be reduced to take into account the repairs done, or where not sold that
>>any right to recover back the vehicle in specie should not be
>>conditional upon the repair costs being paid.
>>
>> A nice illustration of why it is dangerous to assume that a deduction
>>or condition also implies a freestanding claim.
>> R
>>
>> On 01-Aug-2014 1:57 pm, Andrew Tettenborn
>><a.m.tettenborn@swansea.ac.uk> wrote:
>>> Ger -
>>>
>>> I don't think you can regard G v B as a positive claim in that way:
>>>the only reason for the order of a payment of money was that the court
>>>below had wrongly declined to recognise a negative claim.
>>>
>>> Take a parallel. Suppose I have a lien for £1000 over X's car in my
>>>possession, but no claim against X at all (quite a common situation: X
>>>may have leased the car long-term to Y and put on Y the duty of keeping
>>>it in repair). A court wrongly holds I have no lien and tells me to
>>>give the car to X: I do so. The Court of Appeal allows an appeal and
>>>says I had a lien after all. The only way to work out the appeal is to
>>>make X pay me £1,000, but this doesn't mean we're giving me a positive
>>>claim against X.
>>>
>>> Andrew
>>>
>>>
>>> On 01/08/14 13:42, Gerard Sadlier wrote:
>>>> Robert,
>>>>
>>>>
>>>>
>>>> G v B went to the Court of Appeal because the County Court judge
>>>>
>>>> ordered specific restitution of the car to its original owner. He
>>>>
>>>> (wrongly, as the CA later indicated) imposed no condition on the
>>>>
>>>> original owner to pay compensation for improvements made and the
>>>>
>>>> original owner later sold the car. The claim in G v B was therefore by
>>>>
>>>> the innocent improver for compensation (in the amount which his
>>>>
>>>> improvements had cost) out of the sale proceeds. Thus, it was
>>>>
>>>> essential that restitution be considered in that case, since the
>>>>
>>>> innocent improver was making a positive claim for restitution.
>>>>
>>>>
>>>>
>>>> Of course, if the facts in G v B had been slightly different so that
>>>>
>>>> the first innocent purchaser retained the property, the original owner
>>>>
>>>> would have been able to bring his claim for conversion or detinue,
>>>>
>>>> seeking damages as of either the date his property came into the hands
>>>>
>>>> of the innocent improver (in conversion) or as of the date of the
>>>>
>>>> judgment (in conversion or detinue). As I understand it, this is
>>>>
>>>> because the loss (I prefer to avoid the word consequential) which the
>>>>
>>>> original owner has suffered and which those civil wrongs seek to
>>>>
>>>> compensate is deprivation of the original owner's property.
>>>>
>>>> Deprivation continues until the date of judgment or the return of the
>>>>
>>>> property. It does not follow that improvements made to property by an
>>>>
>>>> innocent party in the meantime (even while that party is unknowingly
>>>>
>>>> committing the civil wrong of conversion) must be taken into account
>>>>
>>>> in awarding such damages. My contention is that they should not be and
>>>>
>>>> that they are not currently.
>>>>
>>>>
>>>>
>>>> In Munro v Willmott [1949] 1 KB 295, the Kings Bench decided a claim
>>>>
>>>> for conversion and detinue in circumstances similar but not identical
>>>>
>>>> to those under discussion.
>>>>
>>>>
>>>>
>>>> With the Defendant's permission, the Plaintiff left her car in his
>>>>
>>>> hotel yard for safe keeping. Instead of leaving it there for a brief
>>>>
>>>> period, as planned, she left it there for several years. The car
>>>>
>>>> became a nuisance as the property had been turned into a garage. After
>>>>
>>>> unsuccessful efforts to communicate with the Plaintiff, the Defendant
>>>>
>>>> made extensive repairs to the car (which it by then required) and sold
>>>>
>>>> it. (Note the car would have had a residual scrap value without
>>>>
>>>> repairs and agency of necessity was considered and rejected by the
>>>>
>>>> Court.)
>>>>
>>>>
>>>>
>>>> The Court awarded damages for conversion or detinue but reduced the
>>>>
>>>> damages by the amount which the repairs had cost.
>>>>
>>>>
>>>>
>>>> Munroe's case expressly concerned the assessment of damages, though I
>>>>
>>>> suspect it is open to being reinterpretted as a decision concerning
>>>>
>>>> unjust enrichment (or already has been reinterpretted as such).
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> If anything, this was a stronger case than that of the innocent
>>>>
>>>> repairer, since the Defendant knew that the property did not belong to
>>>>
>>>> him when he did the work. To that extent, it seems more akin to the
>>>>
>>>> rules in certain civil codes which have been mentioned.
>>>>
>>>>
>>>>
>>>> Kind regards
>>>>
>>>>
>>>>
>>>> Ger
>>>>
>>>>
>>>>
>>>> On 8/1/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
>>>>
>>>>> If it were true that the owner is only entitled to the consequential
>>>>>loss
>>>>>
>>>>> flowing from the wrong done to his goods, then you'd be right.
>>>>>
>>>>>
>>>>>
>>>>> On that view, why GvB ever went to the Court of Appeal or why the
>>>>>court
>>>>>
>>>>> spend their time talking about restitution is a complete mystery.
>>>>>The only
>>>>>
>>>>> loss suffered was the original value of the car in its unimproved
>>>>>state.
>>>>>
>>>>>
>>>>>
>>>>> It is not the law that damages are confined to consequential losses.
>>>>>
>>>>>
>>>>>
>>>>> If you convert my watch I am entitled to its value at the time of
>>>>>
>>>>> conversion. What my consequential loss is is irrelevant. So, if by
>>>>>the time
>>>>>
>>>>> of trial the value of watches has fallen to zero, and I would not
>>>>>have
>>>>>
>>>>> disposed of it in the meantime, does that reduce the damages
>>>>>payable. No.
>>>>>
>>>>>
>>>>>
>>>>> Therefore in GvB or equivalent cases, where the car is converted the
>>>>>
>>>>> claimant is prima facie entitled to its value at time of conversion.
>>>>>If the
>>>>>
>>>>> improvements had been made by the thief no deduction should be made
>>>>>against
>>>>>
>>>>> him, even though the claimant's consequential loss is not as great
>>>>>as the
>>>>>
>>>>> value of the car in its improved state.
>>>>>
>>>>>
>>>>>
>>>>> Where the improvements are made by an innocent improver, we need some
>>>>>
>>>>> explanation as to why a deduction is made (appeals to the
>>>>>compensation
>>>>>
>>>>> principle being inadequate: see above).
>>>>>
>>>>>
>>>>>
>>>>> The issue is then whether allowing the deduction, as in GvB enables
>>>>>us to
>>>>>
>>>>> deduce that a positive claim to the value of the work would be
>>>>>allowed. I
>>>>>
>>>>> don't think so.
>>>>>
>>>>>
>>>>>
>>>>> To take a standard example, say there are two rare Bugatti cars in
>>>>>the
>>>>>
>>>>> world. I own one you the other. By mistake, I destroy mine, causing
>>>>>yours to
>>>>>
>>>>> double in value. Delighted you promptly sell your car.
>>>>>
>>>>>
>>>>>
>>>>> Does the fact that I have mistakenly caused you to be much better
>>>>>off, and
>>>>>
>>>>> that I am worse off as a result, enable me to bring a claim against
>>>>>you to
>>>>>
>>>>> the extent of your enrichment.
>>>>>
>>>>>
>>>>>
>>>>> I claim that the answer is no because there is no transaction
>>>>>between us
>>>>>
>>>>> that requires reversal.
>>>>>
>>>>>
>>>>>
>>>>> If so, there is no transaction in the relevant sense when someone
>>>>>
>>>>> unbeknownst to me improves my car.
>>>>>
>>>>>
>>>>>
>>>>> Rob
>>>>>
>>>>>
>>>>>
>>>>> On 01-Aug-2014 11:44 am, Gerard Sadlier <gerard.sadlier@gmail.com>
>>>>>wrote:
>>>>>
>>>>>>
>>>>>> Robert,
>>>>>>
>>>>>>
>>>>>>
>>>>>> The original owner is generally entitled only to damages as against
>>>>>>
>>>>>> the innocent improver, whether the innocent improver has sold or
>>>>>>
>>>>>> retained the property. (See below re: specific relief.) Assuming
>>>>>>that
>>>>>>
>>>>>> damages are the only available remedy, why do you say that quantum
>>>>>>
>>>>>> should be different depending on whether the goods have been sold on
>>>>>>
>>>>>> by the innocent improver? (Or have I misunderstood?)
>>>>>>
>>>>>>
>>>>>>
>>>>>> Whether the property has been sold on or not, the assessment of
>>>>>>
>>>>>> damages must be designed to compensate the original owner for what
>>>>>>
>>>>>> they have lost. That is why the original owner is entitled only to
>>>>>>the
>>>>>>
>>>>>> value of the goods in their original unimproved state and not to the
>>>>>>
>>>>>> value of any improvement, in my view. (I think this flows from the
>>>>>>
>>>>>> ordinary principles on the assessment of damages and has little to
>>>>>>do
>>>>>>
>>>>>> with unjust enrichment in any strict sense.)
>>>>>>
>>>>>>
>>>>>>
>>>>>> If specific relief is sought, then the case for an allowance to be
>>>>>>
>>>>>> made to the innocent improver is stronger, not weaker. Specific
>>>>>>relief
>>>>>>
>>>>>> is an equitable remedy, available only where the goods are of
>>>>>>special
>>>>>>
>>>>>> value to the original owner. The courts have often imposed
>>>>>>conditions
>>>>>>
>>>>>> on the grant of specific relief, even where the rights of the
>>>>>>
>>>>>> plaintiff were clear and unconditional at law. (This is on the basis
>>>>>>
>>>>>> that he who seeks equity must do equity.)
>>>>>>
>>>>>>
>>>>>>
>>>>>> The only circumstances in which the innocent improver would have to
>>>>>>
>>>>>> make a positive claim for restitution of benefits as I understand it
>>>>>>
>>>>>> is where either:
>>>>>>
>>>>>>
>>>>>>
>>>>>> (i) the innocent improver gave the property back and then later
>>>>>>sought
>>>>>>
>>>>>> to assert their rights - as might happen where for example their was
>>>>>>
>>>>>> some suspician as to the improver's innocence, later allayed; or
>>>>>>
>>>>>> (ii) the original owner repossessed the property and had good title
>>>>>>as
>>>>>>
>>>>>> against the innocent improver.
>>>>>>
>>>>>>
>>>>>>
>>>>>> The best judicial analysis of this is still that of Lord Mcnaghton
>>>>>>in
>>>>>>
>>>>>> Peruvian Guano Co v Dreyfus Brothers & Co [1892] AC 166
>>>>>>
>>>>>>
>>>>>>
>>>>>> Kind regards
>>>>>>
>>>>>>
>>>>>>
>>>>>> Ger
>>>>>>
>>>>>>
>>>>>>
>>>>>> On 8/1/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
>>>>>>
>>>>>>> I don't understand what a 'passive claim' is.
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> If the improver is forced to pay the full value of the asset to the
>>>>>>>
>>>>>>> owner
>>>>>>>
>>>>>>> that would be an unjust enrichment in the relevant sense. The law
>>>>>>>
>>>>>>> anticipates this result by deducting this from the damages
>>>>>>>payable. It
>>>>>>>
>>>>>>> prevents an unjust enrichment there would otherwise be. There is no
>>>>>>>
>>>>>>> 'claim'
>>>>>>>
>>>>>>> by the improver, nor does any actual unjust enrichment occur.
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Whether there should be a claim by the improver involves a very
>>>>>>>
>>>>>>> difficult
>>>>>>>
>>>>>>> question of what the ethical principle underlying unjust
>>>>>>>enrichment (or
>>>>>>>
>>>>>>> at
>>>>>>>
>>>>>>> least this part of it) is. For myself I don't think that my being
>>>>>>>down
>>>>>>>
>>>>>>> $x in
>>>>>>>
>>>>>>> a way that causes you to be up $x can possibly suffice. Why not,
>>>>>>>and
>>>>>>>
>>>>>>> what
>>>>>>>
>>>>>>> does suffice, is hard.
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> As a matter of the positive law, we cannot legitimately
>>>>>>>extrapolate from
>>>>>>>
>>>>>>> the
>>>>>>>
>>>>>>> law on the deductions made in assessing damages to deduce what
>>>>>>>claims
>>>>>>>
>>>>>>> there
>>>>>>>
>>>>>>> are. The former are not a form of claim at all.
>>>>>>>
>>>>>>> R
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> On 01-Aug-2014 10:19 am, Andrew Burrows
>>>>>>><andrew.burrows@law.ox.ac.uk>
>>>>>>>
>>>>>>> wrote:
>>>>>>>
>>>>>>> I agree with Ger that, in respect of the mistaken improvement of
>>>>>>>
>>>>>>> another's
>>>>>>>
>>>>>>> property, there probably is and ought to be a claim in unjust
>>>>>>>enrichment
>>>>>>>
>>>>>>> by
>>>>>>>
>>>>>>> the mistaken improver against the owner of the goods provided, of
>>>>>>>
>>>>>>> course,
>>>>>>>
>>>>>>> that one is clear that the owner has been enriched (applying the
>>>>>>>normal
>>>>>>>
>>>>>>> tests of enrichment eg if the goods had been sold by the owner
>>>>>>>thereby
>>>>>>>
>>>>>>> realising the financial benefit). That is to apply Lord Denning in
>>>>>>>
>>>>>>> Greenwood
>>>>>>>
>>>>>>> v Bennett. It is true that the majority in that case only went so
>>>>>>>far as
>>>>>>>
>>>>>>> to
>>>>>>>
>>>>>>> recognise a passive claim and in this jurisdiction that is all
>>>>>>>that is
>>>>>>>
>>>>>>> statutorily embodied in s 6(1) of the Torts (Interference with
>>>>>>>Goods)
>>>>>>>
>>>>>>> Act
>>>>>>>
>>>>>>> 1977. But like Ger I regard a distinction based on recognising a
>>>>>>>
>>>>>>> passive
>>>>>>>
>>>>>>> claim for unjust enrichment, but denying a free-standing active
>>>>>>>claim,
>>>>>>>
>>>>>>> very
>>>>>>>
>>>>>>> hard to justify.
>>>>>>>
>>>>>>> Rob's initial assertion that one needs some sort of transaction
>>>>>>>between
>>>>>>>
>>>>>>> the
>>>>>>>
>>>>>>> parties for there to be an unjust enrichment claim seems to me to
>>>>>>>be
>>>>>>>
>>>>>>> contradicted by lots of authority (eg on compulsory discharge of
>>>>>>>
>>>>>>> another's
>>>>>>>
>>>>>>> debt) and in any event leaves unclear what one means by
>>>>>>>'transaction'.
>>>>>>>
>>>>>>> I
>>>>>>>
>>>>>>> prefer to talk conventionally of whether the enrichment was 'at the
>>>>>>>
>>>>>>> expense
>>>>>>>
>>>>>>> of' the claimant and that is so on these facts because the
>>>>>>>improvement
>>>>>>>
>>>>>>> (which we are positing is the defendant's enrichment) was carried
>>>>>>>out by
>>>>>>>
>>>>>>> the
>>>>>>>
>>>>>>> claimant.
>>>>>>>
>>>>>>> Best wishes,
>>>>>>>
>>>>>>> Andy
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Professor Andrew Burrows QC, FBA, DCL,
>>>>>>>
>>>>>>> Professor of the Law of England,
>>>>>>>
>>>>>>> All Souls College
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> -----Original Message-----
>>>>>>>
>>>>>>> From: Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
>>>>>>>
>>>>>>> Sent: 31 July 2014 22:37
>>>>>>>
>>>>>>> To: Andrew Tettenborn
>>>>>>>
>>>>>>> Cc: Robert Stevens; Benny Porat; Hector MacQueen;
>>>>>>>obligations@uwo.ca
>>>>>>>
>>>>>>> Subject: Re: Improving, then returning, stolen goods
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Andrew
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> If the law were that:
>>>>>>>
>>>>>>> (i) a Court would allow an Innocent Improver to claim compensation
>>>>>>>for
>>>>>>>
>>>>>>> improvements made to goods when sued for their recovery by their
>>>>>>>
>>>>>>> original
>>>>>>>
>>>>>>> owner; but
>>>>>>>
>>>>>>> (ii) would not allow an innocent improver to sue to recover
>>>>>>>
>>>>>>> compensation
>>>>>>>
>>>>>>> from their original owner if the goods had been returned; The
>>>>>>>result
>>>>>>>
>>>>>>> would
>>>>>>>
>>>>>>> be that the well advised innocent improver would retain the
>>>>>>>property
>>>>>>>
>>>>>>> unless
>>>>>>>
>>>>>>> compensation for improvements were paid for (writing formally to
>>>>>>>notify
>>>>>>>
>>>>>>> the
>>>>>>>
>>>>>>> original owner that the property would be made available if
>>>>>>>appropriate
>>>>>>>
>>>>>>> compensation were paid) and if compensation were not forthcoming
>>>>>>>or were
>>>>>>>
>>>>>>> not
>>>>>>>
>>>>>>> agreed would await the issue of proceedings by the original owner,
>>>>>>>in
>>>>>>>
>>>>>>> which
>>>>>>>
>>>>>>> of course their claim for compensation could be taken into account.
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> That surely would be a bad result in policy terms. It would waste
>>>>>>>time
>>>>>>>
>>>>>>> and
>>>>>>>
>>>>>>> resources on fruitless litigation. Not all improvements are either
>>>>>>>
>>>>>>> inexpensive or made to inexpensive items.said tha
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> I do not understand why claims for the return of goods, brought
>>>>>>>under
>>>>>>>
>>>>>>> the
>>>>>>>
>>>>>>> same cause of action, should have different outcomes depending on
>>>>>>>
>>>>>>> whether
>>>>>>>
>>>>>>> the innocent improver has sold the goods. I find it even harder to
>>>>>>>
>>>>>>> understand why those claims should have different outcomes,
>>>>>>>depending
>>>>>>>
>>>>>>> on
>>>>>>>
>>>>>>> which party has instituted the proceedings. But then, perhaps I
>>>>>>>have
>>>>>>>
>>>>>>> misunderstood the distinction which you said was arguably
>>>>>>>justifiable
>>>>>>>
>>>>>>> and
>>>>>>>
>>>>>>> there is a nuance in the distinction you were drawing which I had
>>>>>>>
>>>>>>> missed?
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Kind regards
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Ger
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> On 7/31/14, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
>>>>>>>
>>>>>>>> Arguably a justifiable distinction. The late Tony Weir always
>>>>>>>>used to
>>>>>>>>
>>>>>>>> say that it was more permissible for the courts to condone unjust
>>>>>>>>
>>>>>>>> enrichment than actually to create it: hence denying the
>>>>>>>>possessor in
>>>>>>>>
>>>>>>>> Greenwood v Bennett a positive action was OK, while it was
>>>>>>>>imperative
>>>>>>>>
>>>>>>>> to prevent the owner using the court to get back something better
>>>>>>>>than
>>>>>>>>
>>>>>>>> he
>>>>>>>>
>>>>>>>> had lost.
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> Andrew
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> Sent from my iPad
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> On 31 Jul 2014, at 19:40, Gerard Sadlier
>>>>>>>><gerard.sadlier@gmail.com>
>>>>>>>>
>>>>>>>> wrote:
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>> So the innocent improver who tenders the improved goods to their
>>>>>>>>>
>>>>>>>>> original owner when he finds that they were sold to him by a
>>>>>>>>>rogue is
>>>>>>>>>
>>>>>>>>> disadvantaged, as against the innocent improver who retains the
>>>>>>>>>goods
>>>>>>>>>
>>>>>>>>> after their provinance comes to his knowledge and is then sued
>>>>>>>>>for
>>>>>>>>>
>>>>>>>>> (or
>>>>>>>>>
>>>>>>>>> tenders) their value before improvement to the original owner?
>>>>>>>>>That
>>>>>>>>>
>>>>>>>>> would seem an anomolous result.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Can the rights of the innocent improver really be made to depend
>>>>>>>>>on
>>>>>>>>>
>>>>>>>>> who institutes proceedings in this way?
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Ger
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> On 7/31/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
>>>>>>>>>
>>>>>>>>>> It is very different where the claim is by the owner of the
>>>>>>>>>>goods
>>>>>>>>>>
>>>>>>>>>> against the improver for a tort for the full value of the goods
>>>>>>>>>>in
>>>>>>>>>>
>>>>>>>>>> their improved state, I'd accept. Then an allowance has to be
>>>>>>>>>>made.
>>>>>>>>>>
>>>>>>>>>> Rather a different thing to say the improver gets his own free
>>>>>>>>>>
>>>>>>>>>> standing claim.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> On 31 Jul 2014 16:08, Benny Porat <benny.porat@mail.huji.ac.il>
>>>>>>>>>>
>>>>>>>>>> wrote:
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Greenwood v Bennett [1972] 3 ALL ER 586:
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> We all remember the saying of Pollock CB: 'One cleans another's
>>>>>>>>>>
>>>>>>>>>> shoes.
>>>>>>>>>>
>>>>>>>>>> What
>>>>>>>>>>
>>>>>>>>>> can the other do but put them on?' (Taylor v Laird (1865) 25 LJ
>>>>>>>>>>Ex
>>>>>>>>>>
>>>>>>>>>> 329 at 332). That is undoubtedly the law when the person who
>>>>>>>>>>does
>>>>>>>>>>
>>>>>>>>>> the work knows, or ought to know, that the property does not
>>>>>>>>>>belong
>>>>>>>>>>
>>>>>>>>>> to him. He takes the risk of not being paid for his work on it.
>>>>>>>>>>But
>>>>>>>>>>
>>>>>>>>>> it is very different when he honestly believes himself to be the
>>>>>>>>>>
>>>>>>>>>> owner of the property and does the work in that belief...
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Benny Porat
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ‫ב-31 ביול 2014, בשעה 17:45, ‏Gerard Sadlier
>>>>>>>>>>
>>>>>>>>>> <gerard.sadlier@gmail.com<mailto:gerard.sadlier@gmail.com>>
>>>>>>>>>>כתב/ה:‬
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Does it matter here that the person who did the work was the
>>>>>>>>>>
>>>>>>>>>> innocent purchaser (from the story, it's clear the owner
>>>>>>>>>>accepts he
>>>>>>>>>>
>>>>>>>>>> was
>>>>>>>>>>
>>>>>>>>>> innocent) who in good faith believed he owned the property he
>>>>>>>>>>was
>>>>>>>>>>
>>>>>>>>>> improving while he worked?
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Surely, his state of mind when he did the work is relevant or
>>>>>>>>>>should
>>>>>>>>>>
>>>>>>>>>> be?
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> G
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> On 7/31/14, Robert Stevens
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>><robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>
>>>>>>>>>>
>>>>>>>>>> wrote:
>>>>>>>>>>
>>>>>>>>>> If another cleans my shoes, what else can I do but put them on?
>>>>>>>>>>
>>>>>>>>>> It should not matter if the bicycle is sold for more than it was
>>>>>>>>>>
>>>>>>>>>> originally worth either.
>>>>>>>>>>
>>>>>>>>>> There is no transaction between owner and repairer that requires
>>>>>>>>>>
>>>>>>>>>> reversal.
>>>>>>>>>>
>>>>>>>>>> R
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> On 31-Jul-2014 2:30 pm, Hector MacQueen
>>>>>>>>>>
>>>>>>>>>> <hector.macqueen@ed.ac.uk<mailto:hector.macqueen@ed.ac.uk>>
>>>>>>>>>>wrote:
>>>>>>>>>>
>>>>>>>>>> From today's e-newsletter, Scottish Legal News:
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> "A man whose bike was stolen has had it returned in better
>>>>>>>>>>
>>>>>>>>>> condition.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Douglas Illingworth, 37, from Arbroath had his bike ? a
>>>>>>>>>>custom-built
>>>>>>>>>>
>>>>>>>>>> chopper ? stolen in May before another of his bikes, a red beach
>>>>>>>>>>
>>>>>>>>>> cruiser, was stolen from the same spot.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Mr Illingworth, a stonemason, said he would regularly leave his
>>>>>>>>>>bike
>>>>>>>>>>
>>>>>>>>>> in an enclosed courtyard at a fish and chip bar in Arbroath.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> He said the shop owner had said it was safe to do so and added:
>>>>>>>>>>?As
>>>>>>>>>>
>>>>>>>>>> soon as I noticed my bike was missing on Saturday, I posted it
>>>>>>>>>>all
>>>>>>>>>>
>>>>>>>>>> over Facebook to make people aware.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?The following day, I received a phone call from a woman saying
>>>>>>>>>>she
>>>>>>>>>>
>>>>>>>>>> thought her dad had purchased my bike from someone and wanted to
>>>>>>>>>>
>>>>>>>>>> come and return it.?
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Mr Illingworth was amazed to find that the bike was returned
>>>>>>>>>>with a
>>>>>>>>>>
>>>>>>>>>> complete facelift.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> He said: ?It?s crazy, it was stolen with broken handle bars, it
>>>>>>>>>>was
>>>>>>>>>>
>>>>>>>>>> in need of being fixed up but I never imagined it happening this
>>>>>>>>>>
>>>>>>>>>> way.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?I was so gob smacked at the difference in my bike that I
>>>>>>>>>>forgot to
>>>>>>>>>>
>>>>>>>>>> ask the man who returned it his name.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?He?d completely fixed it up, put new handlebars on it and
>>>>>>>>>>repaired
>>>>>>>>>>
>>>>>>>>>> the brakes - he never even charged me any money.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?He said he had bought it from a foreign man for £15, so the
>>>>>>>>>>mystery
>>>>>>>>>>
>>>>>>>>>> still remains [as] to who stole it in the first place.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?Before it was stolen, I couldn?t even ride the thing and now
>>>>>>>>>>it?s
>>>>>>>>>>
>>>>>>>>>> in amazing condition.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> ?I?m so chuffed to have it back.""
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Donation or unjustified enrichment?
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> --
>>>>>>>>>>
>>>>>>>>>> Hector L MacQueen
>>>>>>>>>>
>>>>>>>>>> Professor of Private Law
>>>>>>>>>>
>>>>>>>>>> Edinburgh Law School
>>>>>>>>>>
>>>>>>>>>> University of Edinburgh
>>>>>>>>>>
>>>>>>>>>> Edinburgh EH8 9YL
>>>>>>>>>>
>>>>>>>>>> UK
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> SSRN http://ssrn.com/author=463210
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> Currently working at the Scottish Law Commission tel:
>>>>>>>>>>
>>>>>>>>>> (UK-0)131-662-5222
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>> --
>>>>>>>>>>
>>>>>>>>>> The University of Edinburgh is a charitable body, registered in
>>>>>>>>>>
>>>>>>>>>> Scotland, with registration number SC005336.
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>>>
>>>>>>>>
>>>>>>>
>>>>>
>>>>
>>>>
>>>>
>>> --
>>>
>>>
>>> Andrew Tettenborn
>>> Professor of Commercial Law, Swansea University
>>>
>>> Institute for International Shipping and Trade Law
>>> School of Law, University of Swansea
>>> Richard Price Building
>>> Singleton Park
>>> SWANSEA SA2 8PP
>>> Phone 01792-602724 / (int) +44-1792-602724
>>> Cellphone 07968-251250 / (int) +44-7968-251250
>>> Fax 01792-295855 / (int) +44-1792-295855
>>>
>>>
>>>
>>> Andrew Tettenborn
>>> Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe
>>>
>>> Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
>>> Ysgol y Gyfraith, Prifysgol Abertawe
>>> Adeilad Richard Price
>>> Parc Singleton
>>> ABERTAWE SA2 8PP
>>> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
>>> Ffôn symudol 07968-251250 / (rhyngwladol) +44-7968-251250
>>> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>>>
>>>
>>>
>>>
>>> Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> ***
>>>
>>>
>
>--
>Dr Matt Dyson
>Trinity College, Cambridge
>CB2 1TQ
>+44 (0)1223 338520
>www.trin.cam.ac.uk/law
>Twitter: @TrinityLawCam
>
>View my research on my SSRN author page:
>http://ssrn.com/author=1729519
>