Restitution Discussion Group Archives
| Sender: |
Gordon Goldberg |
| Date: |
Wed, 4 Oct 2000 17:08:43 |
| Re: |
Constructive trust (Ellingsen v Hallmark) |
When he
claims that Lord Ellenborough, C.J., specifically rejected a ratification
theory in his judgment in Taylor v. Plumer, is Lionel referring to the last
sentence of his Lordship's judgment? If so, I endeavoured in [2000] R.L.R.
at 213 (in n.157 and its accompanying text) to explain that sentence's relationship
to his Lordship's acceptance arguendo of ratification as the basis of waiver
of tort, which I had quoted ibid. at 210.
-----Original Message----- At 12:43 PM 10/4/00 +0100, Gordon Goldberg
wrote:
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. 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
From: Lionel Smith
Date: 04 October 2000 16:41
Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark)
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