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Hello all:

In respect of Ellingsen (Trustee in Bankruptcy) v. Hallmark Ford Sales Ltd, I observed that "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)". Well, it plainly isn't so certain, because Gordon Goldberg "respectfully dissent[ed] from the implication that ... [the example] illustrates an obligation in unjust enrichment.

My chain of reasoning in support of my observation is this:

(1) In Hambly v. Trott, Lord Mansfield said: "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."

(2) Therefore Lord Mansfield said: "So if a man take a horse from another and bring him back again ... an action for the use and hire of the horse will lie against the executor."

(3) The action can lie against the executor only because it lay against the deceased; hence the proposition becomes: So if a man take a horse from another and bring him back again, an action for the use and hire of the horse will lie against him.

(4) The nature of the action which lies against both him and his executor, as Lord Mansfield made clear, is not trespass; so the action is not predicated upon the wrong of trespass.

(5) Rather the action for use and hire is an action which, as Gordon Goldberg's citation from Phillips v. Homfray illustrates, was once based on *implied* contract [rather than one agreed by the parties]

(6) With the decline of the implied contract theory, and its replacement by the principle against unjust enrichment, the action for use and hire is now based on unjust enrichment.

(7) Hence, if a man take a horse from another and bring him back again, an action in unjust enrichment for the use and hire of the horse will lie against him.

Does this hold? (I thought it clear when I sent my original message, and think it clear now having typed it out, but will accept if it does not)

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.)