Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Tue, 10 Feb 2004 20:04:37 |
| Re: |
Slave labour &c |
Two thoughts
Andrew
>===== Original Message From Dennis
Klimchuk =====
I have a couple linked questions that
I hope are not too rudimentary, on which I'd appreciate the thoughts
of list members.
First: Would a claim for the value
of forced labour be a claim in unjust enrichment narrowly construed
-- i.e., as an autonomous cause of action -- or enrichment by wrong?
Is P's claim, in other words, that she deserves the value of her labour
because she did not intend to confer it as a gift, or that D ought to
be stripped of the gains she realized through the commission of wrongs
to P (e.g., the torts of assault and false imprisonment)?
The former, I'd think, though it seems
odd to say so. If so, is it possible that P has a second claim against
D, one better reckoned as a claim in enrichment by wrong, to disgorge
profits D realized through selling goods P was compelled to make? What
about a claim against a third party, say a gov't for some amount of
sales tax on goods made by slave labour?
***** It could arguably be both: an enrichment may be both
autonomous UE and arise from a wrong (e.g. you defraud me of $1,000).
Isn't this the case with forced labour? The third party case is instructive,
and you don't need to go to anything as esoteric as sales tax. Suppose
X forces P to work in D's factory for free, thus relieving D of the necessity
of paying proper labour. One would have thought P should recover from
D as a matter of course.
******
Second: Setting aside cases in which
P retains legal title to an asset now in D's possession -- and so setting
aside too the question whether such cases belong in the law of unjust
enrichment -- are there examples of cases of subtractive enrichment
by wrong, so to speak, i.e., cases in which (a) P's claim rests upon
proof that D committed a civil wrong against her (P), and (b) P asks
that D give something, or its value, back to her (P)?
**** Arguably McDonald
v Coys, recently discussed on the group, could be such a case (car
registration number obtained through a breach of contract: held returnable:
in fact it seems a plain mistake case, but there's no reason the plaintiff
shouldn't alternatively focus on the wrong). Another possibility: cybersquatting,
where the deft is held guilty of passing-off & has to surrender the domain
name.
Andrew Tettenborn Tel: 01392-263189 (int +44-1392-263189) Snailmail:
School of Law
Bracton Professor of Law, University of Exeter, England
Fax: 01392-263196 (int +44-1392-263196)
Cellphone: 07729-266200 (int +44-7729-266200)
University of Exeter
Amory Building
Rennes Drive
Exeter EX4 4RJ
England
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