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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 ===== 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 Tel: 01392-263189 (int +44-1392-263189) Snailmail: <== Previous message Back to index Next message ==> |
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