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RDG
online Restitution Discussion Group Archives |
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On 6 August, Allan
Axelrod asked:
in english law [a] does a wronged bailor have
an action against the bailee for the proceeds of the wrongfully transferred
chattel: [b] does it get a special status in insolvency proceedings, [c]
what is it called, and [d] to which large ground of recovery [tort contract
quasi-contract, unjust enrichment] is it assigned? I think most people would agree that the answer to [a]
is "yes"; long-standing "waiver of tort" doctrine gives the plaintiff
at least a personal claim. [B] is harder; I think that English/Commonwealth
law is the same as US law on this point and a trust of the proceeds would
arise (and it would probably be called a constructive trust, as in the
US, but maybe it is really a resulting trust: see R. Chambers, Resulting
Trusts (1997)). But others would disagree. As for [c]: (i) if the plaintiff
were just seeking a personal accounting of the proceeds, then a practitioner
using traditional language would probably say that the plaintiff was "waiving
the tort and suing for money had and received to the use of the plaintiff"
(yes, (s)he might really say that in England in 1998); an academic (depending
on his or her religion) might say that the plaintiff was seeking personal
restitution (or disgorgement) for wrongdoing; (ii) if the plaintiff were
seeking a trust of the proceeds, then a practitioner using traditional
language might say that the plaintiff was making "an equitable tracing
claim", but the relief sought would be a declaration of trust and consequent
relief (ie delivery of the trust property). [D] is not easy either. My
view would be that the personal claim is a tort claim in which the plaintiff
is seeking an alternative sanction (disgorgement of defendant's gain,
rather than compensation of plaintiff's loss). On the other hand, the
trust claim alleges ownership of a new subject matter and must provide
some explanation for the source of that ownership. I think it is based
on unjust enrichment, but (to put it mildly) the point is unsettled.
Lionel
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