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If you had a personal right against the seller to the goods, maybe you would have a personal right against the seller to the traceable proceeds of the goods remaining in the seller's patrimony? That is, the seller's claim in conversion against the thief.

This might seem a bit odd but it does not seem possible that the seller can keep the price of the goods and the unimpaired right to sue the thief for their full value.

It is true that you bought "risky goods" but it does not follow that if the goods are stolen you cannot at least have the residue of what they leave behind (ie a claim against the thief). It is just like being a third party indemnity insurer: you indemnify against eg theft, but you are entitled to any claims resulting from the insured risk.

On this solution (ie your right to take over the seller's action is a personal right against the seller) you take the risk of the seller's insolvency, which seems correct; cf Zimmermann and du Plessis, [1994] RLR 14 at 34 (Kondiktion der Kondiktion; our case is Kondiktion der Conversion). I think this insolvency risk is overridden somehow for indemnity insurers but I am away from my books and don't know whether the principles would cover buyers. Charles Mitchell?

Lionel

Lionel Smith
During 1-12 February 1999:
Faculty of Law, McGill University
3644 Peel St., Montreal, Quebec, Canada H3A 1W9
Tel. + 1 514 398 6694, Fax + 1 514 398 4659