Restitution Discussion Group Archives
| Sender: |
Peter D. Junger |
| Date: |
Mon, 8 Mar 1999 16:03:29 -0500 |
| Re: |
contribution |
Andrew Tettenborn
writes:
An interesting point for contribution fanatics. My
chattel is converted by A and then subsequently by B. If I recover against
A, can A claim contribution against B once he has paid up? Rix J suggests
that the answer is Yes in the recent cheque litigation to hit the headlines,
Middle Temple v Lloyds Bank (unrep as far as I know, 21.1.99). MT's cheque made out to its insurers, Sun Alliance,
is stolen. It arrives in the hands of S in Turkey. S persuades a Constantinople
bank, to whom he is otherwise unknown, to collect it for him. The bank
gets Lloyds to collect payment in London. The cheque is credited to
S's newly opened account in Constantinople, the money disappears and
S drops out of the picture while enjoying the hospitality of the Turkish
police. Both banks are liable in conversion, neither being able to show
it wasn't at fault under the Cheques Act 1957, s.4. Having decided on
the facts that the Turkish bank promised to indemnify Lloyds so as to
give Lloyds a right to be held harmless, Rix J says that had this not
been the case he would have ordered contribution under the 1978 Act,
splitting responsibility 75-25 in Lloyds' favour. I don't think that this would make much sense in the
traditional case where it a tangible that is converted. If A converts
O's horse and then B converts the horse from A, if O recovers from B,
the result is a forced sale from O to A, so A has a conversion action
in his own right, not as a matter of contribution from B. Of course, on
the facts given both A and B "convert" the proceeds of the check
from O, B subsequent to A. I am not sure how that could happen in a traditional
common law conversion action involving chattels.
But perhaps the case where A is an auctioneer who sell O's horse for
B and B pockets the proceeds would raise somewhat similar problems. As
I understand it, both A and B would be converters, as would be C, who
brought the horse. But this still seems far removed from the case of the
conversion of a check.
Of course, being in the U.S., I know nothing about the Cheques Act.
Peter D. Junger--Case Western Reserve University Law School--Cleveland,
OH
URL: http://samsara.law.cwru.edu
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