Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Backwards tracing is a jolly good thing so far as I am concerned.

On Williams, if the gift was truly void, I think the judge's holding was pretty uncontroversial, and while it is arguable that c of p should be available, I think it would have to be a long argument. That is, the property in the thing not having passed, there is probably a conversion, and (in Canada anyway) a claim in detinue if the thing is still held by the defendant. No one has ever accepted change of position to either of those, to my knowledge, although for some defendants at least, detinue builds it in, because it is a defence that you no longer have the thing, so long as your no longer having it is excusable in some way.

Now if the gift was of a chose in action, eg money by bank transfer, well that is more difficult. Although even here I don't think the only ground for a claim would be one based on a defective transfer. One of the many faces of the action for money had and received appears to be a detinue-like assertion that the defendant continues to hold the proceeds of money received from the plaintiff, and, like detinue, the basis of the claim tends to build in a kind of change of position (although there is a difference as to burden of proof).

Lionel