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I am told by my colleague Stephen Scott that the facts of my case actually occurred. The comedian was Jerry Seinfeld. The proceedings between ticket buyer and refund recipient took place before Judge Judy. My understanding is that Judge Judy presides over something which is functionally equivalent to the People's Court of Judge Wapner, which North American members of a certain age may recall. That is, it is a TV show. Those sufficiently intrigued or appalled to wish for further details may consult <http://www.judgejudy.com/>.

I honestly do not know what the noble & learned Judge Judy decided in this case. I have been promised a video of the proceedings and I will report as soon as can be. We may assume that the full weight of doctrine & authority was not cited to Judge Judy. But it did seem to me to be a difficult case.

While Andrew Tettenborn's point about the contract between plaintiff and defendant seems unassailable, I also find James Penner's reasoning persuasive. It is kind of like a secret trust: you can prevent unjust enrichment of the first transferee by ordering restitution to the comedian; it is harder to justify the claim by the plaintiff against the defendant without relying on express trust reasoning.

One way of tackling it would be to ask whether, in making the refund, the comedian intended to benefit those who were physically present before him. If so, then you might say that in this case, the refund should be held on trust for the plaintiff. This gets around the contract issue I think. But it is a bit of a stretch. Moreover what of the case in which the defendant made a gift of the tickets to the plaintiff ... or, where the sale price between plaintiff and defendant was otherwise unequal to the price the defendant had paid. (Andrew Little has pointed out that in Canada, a sale above the face value would be an offence rendering the contract void.)

Stand by for further details. I should also clarify my note about Scottish Equitable -- the transcript is not yet available, just a summary.

LDS

At 11:44 AM 3/21/01 +0000, you wrote:

I write with some trepidation since I am very much a watcher of restitution, not an intellectual contributor, but it seems to me that Mr. Tettenborn's reply is somewhat hasty. Assuming this is a case of pure gift as he says, and by that I understand him to mean that the comedian is under no obligation to give the refund, contractual or otherwise (depending how lousy the jokes were, an action in tort might be an interesting thought experiment), I don't see how the terms of the contract between credit card purchaser and cash buyer are obviously relevant, and so I don't see the analogy with the car prize draw case. I know things such as prize draw gifts of this kind, along with other 'gratuitous' presents which are often provided as incentives to buy this or that have been construed by the courts as 'gifts' in certain circumstances, so that a purchaser who buys a box of breakfast cereal and the 'free' pokemon cards are missing cannot sue for them, but it seems clear that any right to these 'free gifts' would depend upon the contractual nexus between purchaser and seller, and hence the car prize draw winner can only be the person who actually purchased the car from the dealer. And unless the purchaser who sold the car on explicitly made it a term of the contract with his buyer that any prize draw he might receive was to be passed on, that second-hand buyer is out of luck. It seems to me the comedian case is different. I think that this really is a pure gift, one directed at those members of the audience who gave good consideration for their tickets. For convenience, the comedian chooses a particular means of effecting this gift, i.e. a credit card refund, assuming those who paid by credit card turned up. And it would seem to me that the comedian could have an action against the credit card holder in the instant case for restitution of the refund value on the basis that the gift was made on a failed basis, i.e. on the basis that the credit card holder, who didn't attend, was not the intended recipient of the gift, since he suffered no loss because of the rotten jokes. Now here's where I get stuck. I would hope that if the credit card holder did pass on the refund to his purchaser who actually attended, this would satisfy the intended basis of the comedian's transfer, and no action would lie against him in unjust enrichment. The credit card purchaser would, in effect, have perfected the intended gift. But I am not sure that the cash purchaser who attended would have an action against the credit card holder, because I am not sure that the credit card holder would have any obligation to make the comedian's gift operate as intended, but rather has merely the obligation to restore the value to the comedian, and let him do it himself properly, by giving the money himself to the cash purchaser who attended on proof that he paid the credit card holder and did attend. It is one thing to deny the credit card holder an unjust enrichment, and quite another to make him perfect the gift of the comedian.

Does this make any sense?

By the way, I think an even more difficult scenario is the case where X buys tickets to the show on his credit card which he then gives Y as a present. Does the fact that this can be construed as a contract for the benefit of a third party mean that Y is entitled to the refund? The problem here is that my suspicion would be that the comedian would intend the refund to go to X, because his present has turned out to be worthless, but in law I would imagine that Y would have a stronger case against X than the cash purchaser from the credit card buyer would have, and this seems anomalous.

Does this make any sense?