Although this has a certain Jesuitical logic deriving from the forms of action, the difficulty I have is that it does not make sense as a legal rule. I understand Gordon to be saying that if I wrongfully take your horse or occupy your land, acknowledging it to be yours, I am liable for the use value, but if I take it while asserting that it is mine, I am not liable.

The concept denoted by the word "assumpsit" was never more than a tool for getting from things that happened in the world to defensible outcomes when disputes needed to be resolved. Since it initially evolved to resolve situations involving the making of an undertaking, it was a rather clumsy tool for resolving situations with no such undertaking. Although the old common lawyers did their best, one is always hampered by bad tools. When better ones are available the old ones should be retired from active service, even if it is pleasant sometimes to take them off the shelf and think about how difficult things used to be.

I note that in Taylor v. Plumer it was argued unsuccessfully that you could have a proprietary claim to a traceable product of your asset only if the person who made the substitution was authorized to do so; if he acted outside his authority you were restricted to a personal claim. This argument, similar in pattern, structure, and logic to Gordon's, was rejected. Even if the claim is understood as some kind of ratification based on not allowing people to set up their own wrongdoing (as Gordon argues [2000] RLR 212), why should a trespasser who "denies any wrong and alleges his right" be allowed to set up his wrongful trespass any more than any other kind of trespasser? And so ratification is otiose in this context; we can move directly from wrongs to legal outcomes, such as accountability for profit. (In fact it is well established that ratification, properly so called, is only possible in respect of an act which purports to be done in the capacity of agent; and Lord Ellenborough CJ specifically rejected a ratification theory in his judgment in Taylor v. Plumer.)

Lionel