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Sender:
Andrew Tettenborn
Date:
Wed, 26 Nov 2003 19:16:56
Re:
Taylor v Hamer - "restitution"?

 

Did any member of the CA say this was a case about unjust enrichment or restitution in that sense at all? As far as I can see they didn't. The word "restitution" was used in the older sense of giving the purchaser what he was entitled to, i.e. (laid) flagstones.

As for the remedy, I can't see that it's particularly unorthodox. In tort you've always been able to get not only a prohibitory injunction to stop the other fellow committing a tort before the event, but also a mandatory injunction telling him to put right its effects afterwards. For example, where he wrongfully builds a shed on your land he can be told to take it away. Isn't Taylor (and its predecessor Phillips v Lamdin in 1949) merely the parallel in contract: a mandatory order telling the deft to undo the effect of his breach?

Oddly enough, Taylor is probably most interesting as a matter of contract law. I can't see why the CA made such a meal over this, when there looks to be a simple answer even if the contract *didn't* include the flagstones. If I contract with you knowing that you're mistaken over what you've agreed, I can't enforce on my terms but you can enforce on yours: cf the golden oldies of Hartog v Colin & Shields and Roberts v Leics CC. Taylor thought the contract included the flagstones as fixtures. If it didn't, and Hamer knew this and also knew of Taylor's mistake, that should resolve the matter in Taylor's favour. But that's getting off topic & straying towards the Obs Disc Group.

 

Andrew

===== Original Message From monica chowdry =====
I have come across a case that might be of interest:

Taylor v Hamer 2002 WL 1446261, [2002] EWCA Civ 1130

The case essentially concerns the purchase of a property for £3.25m. The purchaser was particularly interested in some flagstones that lay in one of the gardens of the property and understood them to be included as part of the property. A mere 2 years after the purchase he realised that the flagstones were missing and so brought an action against the purchaser.

In the Court of Appeal, he contended that there had been a breach of contract and the court confirmed that this was in fact the case.

The interesting issue from a restitution point of view is that Taylor was claiming "restitution" in that he wanted the flagstones returned and relayed on his property (alternatively, he would have settled for damages in the form of the cost of replacing and relaying the flagstones for £75 687).

The court granted "restitution" in the case. This seems to be strange for two reasons.

First, if this was indeed a restitutionary remedy, which seems doubtful, should it have been given in the case at all? The case does not seem to warrant restitution for breach of contract in any conceivable way post AG v Blake. Taylor contended that the flagstones were irreplaceable and therefore only their return would be an adequate remedy for him. However, the judges do not seem convinced of this fact (eg. Para 12). Therefore, it appears that damages in the form of "cost of cure" in contract would have been adequate, so why resort to restitution?

Second, even if restitution could have been granted in this case, was the remedy granted actually restitution? The order cannot really be seen as restitution for the breach of contract as there was no gain of which the defendant could be stripped - she never "owned" the flagstones. Further, an order to relay the flagstones cannot really be seen as restitutionary in any way.

Alternatively, the order could be viewed as one for specific performance. However this analysis also has difficulties. Although it seems that the return of the flagstones could be viewed as such, if indeed they were irreplaceable, I don't think the relaying could as there was no obligation under the original contract to "lay" the flagstones. Even if there were such an obligation, damages could be said to be adequate in relation to the relay, therefore preventing an order for specific performance being granted.

It seems to me a totally incoherent use of restitution - anyone else have any thoughts?

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

Tel: 01392-263189 (int +44-1392-263189)
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