Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Mon, 12 Jan 1998 19:40:01 |
| Re: |
Change of Position? |
Welcome to the
new members who have joined following the excellent conference in Cambridge
which paid tribute to the career and scholarship of Professor Gareth Jones.
As the law stands, at least here, I would have
thought that Mr Anz obtained a voidable title to the chips. This might
make the charge of theft seem a little odd. Yet, while to hold that there
can be theft in knowingly accepting a mistaken payment seems harsh, it
might be thought consistent enough with the controversial English cases
such as Gomez. I am not sure you can avoid a mistaken extracontractual
payment. He may have obtained a secure (non-voidable) legal title. But
in any event the Supreme Court of Canada has produced a judicial equivalent
to s. 5(4) of the UK Theft Act 1968 in a case called R.
v. Milne (1992) 70 Canadian Criminal Cases (3d) 481, noted (1992)
21 Canadian Business Law Journal 103, holding that the recipient of a
mistaken payment commits theft if he knows the payment was mistaken and
fraudulently converts it to his own use.
And anyway, if Chase Manhattan is right, he is a thief
for another reason ...
Lionel Smith
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