Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

The following correspondence is forwarded with Eoin O' Dell's consent, for which I am grateful.

-----Original Message-----
From: Gordon Goldberg
To: Eoin O' Dell
Date: 04 October 2000 18:34
Subject: Re: Hambly v. Trott / Advance Warning

I am happy to agree to differ. Thanks for the trouble you have taken to cope with my difficulties and again for your courtesy. Needless to say your wishes are reciprocated.

-----Original Message-----
From: Eoin O' Dell
To: Gordon Goldberg
Date: 04 October 2000 18:07
Subject: Re: Hambly v. Trott / Advance Warning

Dear Gordon,

You write: "As I have endeavoured to explain elsewhere, [2000] R.L.R. 189 at 199, I do not accept 'the decline of the implied contract theory, and its replacement by the principle against unjust enrichment' to be warranted. I do not expect you to agree with me on that." Yes; I had forgotten your RLR piece when I drafted my last comment. And you are right that I don't agree with you on that. My "Bricks and Stones and the Structure of the Law of Restitution" (1998) 20 DULJ (ns) 101 is an extended statement of why I buy the orthodoxy.

You write also: "On the other hand, I had not realized that the decline and replacement are seen, by those who believe in them, as extending to the theory of waiver of tort." Well, actually, yes. For example, where I waive a tort and sue in assumpsit, the assumpsit claim would be explained as an implied contract claim, and would now be understood by unjust enrichment enthusiasts as an unjust enrichment claim. Hence, my point vis a vis Hambly v. Trott is that the claim for use and hire of the horse is not a claim in tort but an assumpsit claim based on implied contract and thus on unjust enrichment. Of course, you would stop after implied contract.

Finally you clarified that your "dissent was confined to the implication that Lord Mansfield considered his example to be based on unjust enrichment. If, objectively, that implication was clearly absent from your assertion, I beg your pardon." I should have been clearer. Lord Mansfield considered his example to be based in assumpsit, and I have translated that into unjust enrichment, as explained above. It is over the translation that we differ, I'm afraid. And now, I'm going to send my message to the list, and go home.

Best from Dublin,

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.)

-----Original Message-----
From: Gordon Goldberg
To: Eoin O' Dell
Date: 04 October 2000 15:45
Subject: Re: Hambly v. Trott / Advance Warning

Many thanks for the courtesy of your warning. My dissent was confined to the implication that Lord Mansfield considered his example to be based on unjust enrichment. If, objectively, that implication was clearly absent from your assertion, I beg your pardon.

As I have endeavoured to explain elsewhere, [2000] R.L.R. 189 at 199, I do not accept "the decline of the implied contract theory, and its replacement by the principle against unjust enrichment" to be warranted. I do not expect you to agree with me on that. On the other hand, I had not realized that the decline and replacement are seen, by those who believe in them, as extending to the theory of waiver of tort.

-----Original Message-----
From: Eoin O' Dell
To: Gordon Goldberg
Date: 04 October 2000 15:13
Subject: Hambly v. Trott / Advance Warning

Dear Gordon

Thanks for your provocative email on my glib assertion about the above case. I am going to send the following message to the RDG in reply.

Best

Eoin.
___________________________________
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:

* 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."

* 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."

* 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.

* 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.

* 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],

* 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.

* 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.)