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Hi Lionel,

I feel that the "then" is justified in this case. The reversal of a legally defective transfer presents a wholly different situation. My argument however applies to greatly similar situations in both of which restitution is allowed while a claim for damages is available only in one of them. Thus suppose that situation (a) includes 5 elements and that in this situation both restitution and torts are available. Situation (b) includes 4 identical elements to those of situation (a) so that only one element which exists in situation (a) does not exist in situation (b). Yet in situation (b) restitution is available but there is no liability in torts. I would argue that it shows (or "then" it follows) that the liability in situation (a) is also not founded on the wrong. To make this less abstract consider the two situations:

a) D is a bailee of P's property. D sells it to T and T pays D the price.

b) D is a bailee of P's property. X stole (or destroyed) it without any fault on D's part. D received either insurance proceeds for the lost property or damages in torts for this loss.

The elements of cases (a) and (b) are identical (P is the owner; D a bailee; D receives payment from a third party representing the value of the property) except that case (a) contains the additional element (selling the property). This additional element turns D's conduct from innocent conduct to one actionable in torts. My argument is that if in situation (b) D is liable in restitution (as indeed he is: The Winkfield; Hepburn) though not in torts so that his liability in restitution in case (b) is independent, then it follows that the liability in restitution in situation (a) is similarly independent.

Dan

----- Original Message -----
From: "lionel.smith"
To: "Daniel Friedmann"
Sent: Monday, May 08, 2006 4:51 PM
Subject: Re: [RDG] Fwd: [RDG] Waiver of Tort

Hi Dan,

If the availability of restitution would have been dependant on the wrong as some may argue with regard to situation (1) (namely breach by D for which damages are available) then no restitution could be had in Situation (3) in which at least I assume that restitution should be allowed, although there is no breach (it is actually a case of frustration for which compensation are payable).

I don't think the "then" follows from the "if". It certainly does not follow if gain-based remedies for wrongful acts are justified by the wrong, while restitution (reversal of a legally defective transfer) for unjust enrichment does not depend on a wrong. The "if-then" only works if we assume that all gain-based claims are founded on the same normative basis, which is the very issue surely, or one of them.