Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Wed, 21 Mar 2001 09:36:45 |
| Re: |
Answers on a postcard |
At 14:42
20/03/01 -0500, Lionel wrote:
Here is a question which is based on a real case. It
did not go to court but to a form of arbitration. I will provide details
later... North American members may be familiar. A comedian gives a live performance. The comedian is
unutterably wealthy and well able to afford spontaneous acts of generosity.
Near the end of the show he announces that he has not been very funny
and he is going to refund the price of tickets. The modality of refund
is, for the vast majority who paid for their tickets by credit card,
a refund on the credit card account. The plaintiff bought his ticket
at face value from the defendant, who bought it by credit card. The
refund goes to the defendant. Can the plaintiff recover from the defendant?
Lionel Assuming the comedian isn't actually in breach of contract
by being unfunny, and that this is a case of pure gift, surely the answer
must be No. The reason, I suggest, is that contract (in this case the
contract between the original purchaser and the spectator) ousts restitution.
The spectator has bought a thing of value (the right to watch the performance),
which he was prepared to pay face value for. The contract remains on foot
and binding. I can't see any court implying a term in it that any refunds
are to be passed on.
To take the case out of this rather fantastic scenario,
take a slightly more orthodox possibility. I buy a new car, at the same
time entering a prize draw with the garage in which the first prize is
a full refund of the price of a car bought within a given period. I sell
the car on. Then I win the prize. No court in the kingdom would say that
I had to account for the prize to the purchaser. He got what he paid for:
there's no reason to give him any more.
Andrew Tettenborn MA LLB Tel: 01392-263189 / +44-392-263189 (international) Snailmail: [ Homepage: http://www.ex.ac.uk/law/
].
Andrew
Bracton Professor of Law
Fax: 01392-263196 / +44-392-263196 (international)
Personal Fax: 0870-0889339 / +44-870-0889339 (international)
School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
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