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Thank you all for the replies to the problem that I have raised.

The context which I am considering The Aliakmon is this. Prof. Birks has taught us that all obligations whether in personam or in rem are creatures of events. In other words, rights in personam or rights in rem are merely responses to events. The events/causative factors that give rise to such responses are consent, wrong, unjust enrichment and others. This has been stated as necessarily exhaustive and a categorical truth in many of Prof. Birks' articles. Prof Birks in an article in New Zealand Law Journal has argued that title is inert and that it needs teeth. The teeth is provided by the law of obligation. Thus, it is erroneous to state that the continuing retention of title can trigger restitution because to do so would be to conflate events/causative factors with responses.

Prof Birks goes on to dismiss the argument that the defendant is not and cannot be enriched at the plaintiff's expense when the plaintiffs retain title because in the eyes of the law the plaintiffs are still the owner of the property. Prof Birks argue that the logic of this argument is the logic of technicality because while the defendant may not be technically enriched, he is factually enriched by the possession of the property and the fact that the defendant has the immediate spending power and disposal.

It is in this context that we Return to the situation of the putative thieves on the Aliakmon (as Prof Tettenborn calls it). From Prof Tettenborn's analysis (which I tend to agree), demonstrate, I the buyer cannot sue the rogue that has taken my property because the enrichment was not at my expense but at the expense of the seller.

Why is this so? I would argue that this is because the enrichment while factually may be argued to be at my expense is not so legally due to the fact that I do not have title to the goods. Thus, I would reach the (tentative) conclusion that from the putative thieves on the Aliakmon example that:

(1) a factual enrichment does not suffice to establish a claim for unjust enrichment; and

(2) more importantly, title is not inert and merely a response to events. As argued above title may be important even at the events/causative stage. At the very least it is important in determining at whose expense the enrichment was.

I would appreciate some critique on the weakness/fallacies of the argument above.

Regards

Tang Hang Wu
Hughes Hall
Cambridge

On Tue, 9 Feb 1999 A.M.Tettenborn wrote:

Re putative thieves of the steel aboard the Aliakmon: can you, the frustrated buyer, sue them in restitution?

To take the three questions in turn:

(1) No.

(2) Oddly enough, isn't the answer here that the thief has been enriched, but at the seller's expense and not mine? That is, that the seller can sue, but I can't: and if the seller doesn't choose to, then that's fine for the thief and none of my business.

To expand. If someone steals my goods and sells them I can sue him for restitution. And he would not (I suspect) be allowed to wriggle off the hook by saying "Oh well, I admit they were your goods and I shouldn't have swiped them, but in fact it's no skin off your nose since you had agreed that someone else would have to pay you for them in any event." The case has some parallels with the conception of a defence of "passing on", rightly rejected in English law: a potential restitution plaintiff who has got reimbursement, or compensation, or some other right from a third party should be allowed to reap the benefit of it himself rather than allowing it to exonerate the defendant.

(3) I don't think this arises.

Andrew Tettenborn

School of Law

University of Exeter.

Andrew Tettenborn
Bracton Professor of Law
University of Exeter
Tel: 01392-263189