Restitution Discussion Group Archives
| Sender: |
Gordon Goldberg |
| Date: |
Wed, 4 Oct 2000 18:40:02 +0100 |
| Re: |
Constructive trust (Ellingsen v Hallmark) |
In the light
of, inter alia, the parts of the quotation which Lionel omits, I continue
to see the requirement which he does not. We must agree to differ; and I
look forward to further criticisms of my article from those kind enough
to read it.
-----Original Message----- 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. He is referring to the bit which says,
"If this case had rested ... on any supposed adoption and ratification
on [the defendant's] part ... we think, it could not have been well supported
on that ground." That does not seem to me to require any explanation.
If someone does an act on my behalf but
without authority, we can sensibly talk of my ratifying it, and then worry
about whether and when we will allow this. But it seems to me that to
try to explain liabilities which do not depend on authority or agreement
as somehow dependent on ratification, authority, or assumpsit is to speak
in riddles.
Lionel
From: Lionel Smith
Date: 04 October 2000 17:50
Subject: Re: RDG: Constructive trust (Ellingsen v Hallmark)
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