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Sender:
Allan Axelrod
Date:
Thu, 6 Aug 1998 11:11:18 -0400
Re:
Bank overcharging customers

 

axelrod:

if the deposit was contractually set-up in specie, and the bank withheld return of the appropriate specific amount, it would seem that tort would also be involved??

hedley:

If you mean defamation, then yes in theory. In practice, an action in defamation seems rather unlikely, but it is certainly possible.

i did not mean defamation--- my illustration, poorly worded, referred to a case in which the contract was one of bailment, so that its breach by non-return would give rise both to an action in contract and also an action to recover the specific property--- which in american jurisprudence would be called a tort action-- whether called detinue, or conversion, or an action for claim-and-delivery

if by the way the bailee had wrongfully sold the bailed item, and the proceeds of sale were traceably in hand, the bailor would in american law have a specific action to recover those proceeds for purposes of this general discussion about unjust enrichment it is interesting to note that the action of bailor for proceeds or for their amount would not in american law be classed as a mere tort and/or contract action, but rather as the enforcement of a constructive trust imposed by law to prevent unjust enrichment--- a consequence of that characteriation is that the bailor would not be a mere general creditor if the bailee had becomne insolvent

in english law does a wronged bailor have an action against the bailee for the proceeds of the wrong-fully transferred chattel: does it get a special status in insolvency proceedings, what is it called, and to which large ground of recovery [tort contract quasi-contract, unjust unrichment] is it assigned?

how generous we all are in educating one another--- should even brighten mr o'dell's dull dublin day


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