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I respectfully dissent from the implication that "Lord Mansfield [C.J.K.B.]'s famous horse example in Hambly v. Trott [(1776) 1 Cowp. 371 at 375]" illustrates an obligation in unjust enrichment. His Lordship was making the point that an action of trover, but not one of assumpsit, was caught by the maxim, "actio personalis moritur cum personâ", which is, being interpreted, "a personal action dies with the person". His reported words were: "So if a man take a horse from another and bring him back again; an action of trespass will not lie against his executor, though it would against him; but an action for the use and hire of the horse will lie against the executor."

In Phillips v. Homfray (1883) 24 Ch.D. 439 at 457-60 Bowen, L.J., speaking as well for Cotton L.J. as himself, explained the example as a waiver of tort and consequent reliance on an implied contract. This is obviously correct; for Lord Mansfield identified the appropriate action as one based on a contract of hire.

Such waiver is possible, not because it avoids unjust enrichment, but because the defendant could deny the contract only by infringing the maxim, quoted in Co.Litt. at 148b, "Nullus commodum capere potest de injuriâ suâ propriâ", which is, being interpreted, "No one can take advantage of the wrong of himself [or of another whom he represents]." This explains why, as Bowen, L.J. said op. cit. at 461-2, waiver of tort (which would enable the bringing of an action for use and occupation) is not possible against a trespasser, who sets up an adverse title to the land; for such a trespasser is denying any wrong and alleging his right.

-----Original Message-----
From: Eoin O' Dell
Date: 2 October 2000 17:06
Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark)

Lionel answered Andrew Tettenborn that the obligation secured in Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd was an obligation to pay for the truck, or at least for the depreciation incurred, arising from the law of unjust enrichment even if no contract was effected. It is a benefit transferred in anticipation of a contract which never arose. Ownership was retained to secure that obligation. Well, probably. I suspect that it is merely the case that the parties and the judges did not think very clearly amount the matter and merely felt that there was or must have been *some* obligation, without being at all sure what it was. [Of course, I could be committing all sorts of calumny here, as, like Andrew Tettenborn, I have had the benefit only of Lionel's summary]. But if this is so, then, as usual, it is left to subsequent readers to try to fill in the gaps. As to the obligation which must be found to fill in the gaps, certainly, there is an obligation in unjust enrichment to pay for the usage of the truck if and when it is returned (this is merely an updated example of Lord Mansfield's famous horse example in Hambly v Trott), and I presume that the hire-fee amount payable for the use of the truck would take depreciation, wear and tear and so on, into account.

Eoin.

EOIN O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin University Law Journal.
Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland.
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m)
(All opinions are personal. No legal responsibility whatsoever is accepted.)