In the University of Buckingham, England MK18 1EG,
on All Souls' Morrow, 49 Eliz. 2 (3. xi. 00). 

Ladies and Gentlemen,
Constructive Trust (Ellingsen v. Hallmark)
¶ This is my answer to Lionel Smith's e-missive dated 06 October 2000 14:37.
¶ The common law's occasionally allowing a wrongdoer, who pursuant to a sincere claim of right mistakenly asserts ownership of property, to fare better than one, who makes no such claim, does not invariably result from the irrelevance of a maxim and the consequent exclusion of a deemed contract. In criminal law the absence of such a claim was essential to the definition of larceny – R. v. Hall (1828) 3 C. & P. 409. 
¶ So that Lionel's expression of his "understanding of [my] original comment" may take account of my message dated 04 October 2000 18:20, it needs expansion thus: "[Y]ou could recover [either in tort, or in contract by waiver of the tort] the profits of a wrong against a wrongdoer [in adverse possession] who knew he was acting wrongfully, but not [in contract] against one who claimed to be entitled to take whatever it was that he took [for against him you could recover only in tort]." Following Lionel's agreement that such recovery in tort, when in the form of mesne profits, "is not restitution based on a general theory of unjust enrichment", I need to ask: are not mesne profits measured according to the defendant's potential (rather than actual) gain? If yes, surely "disgorgement" is not an appropriate term? If no, please may I have another explanation of Inverugie Investments v. Hackett [1995] 1 W.L.R. 713?
¶ I believe it to be his desire to have the old learning "stripped away", which divides Lionel from me. What he sees as "an unnecessarily mysterious way of rationalizing", I respect as "the artificial reason and judgment of law", to which Lord Coke referred in Prohibitions del Roy (1607) 12 Rep. 63 at 65. The artificiality is the product of the art displayed and employed by our predecessors in professing, practising and promoting the common law (which, for my present purposes, includes equity) and is largely responsible for its particularity and hence its certainty. Stripping legal principles to the bare bones of broad doctrines, as do the civil codes, induces the generalization and simplism against which I protested in the attachment to my message, sent last Christmas Eve to Jason Neyers as addressee and to the R.D.G. via "Cc". The price paid by the Civilians is “the volume of litigation, the polemics and the wordy commentaries, which strive to give body to their [Codes’] exiguous provisions” – Millner, “Negligence in Modern Law" (London, 1967), p. 12. In my submission, this cost is being forced now on us by judicial and academic adherence to “the law of unjust enrichment”.
¶ I value maxims for their contribution to precision in the law. Their interaction with each other and with other principles determines how extensively or restrictively the others are to be applied. Thus a trespasser is basically liable only in tort and only to compensate the person, whom he has wronged, for damage done to the latter's pocket, dignity, or proper pride – Rookes v. Barnard [1964] A.C. 1129 at 1221. However, a trespasser, who makes no sincere claim of right, has wrongfully disregarded the injured party's proprietary interests. Of this wrong he can take no advantage. Therefore, he cannot deny the presumed contract with his victim, which (as appears by analogy with Lord Tenterden, C.J.'s words in Stone v. Marsh (1827) 6 B. & C. 551, at 565) arises from the latter's ratification solely of the trespasser's possession, not of his taking possession. Pace Lionel in his message of 04 October 2000 17:50, the judges' use of "ratification" to "explain liabilities which do not depend on authority or agreement", does not give it a meaning to which (in the words of Best, C.J., in Duffield v. Duffield (1829) 3 Bl. (N.S.) 260, at 331) "the learned in our language not of the profession of the law, would perhaps not agree". The first meaning of "ratify" in the O.E.D. (1st edn) is, "To confirm or make valid (an act, compact, promise, etc.) by giving consent, approval or formal sanction (esp. to what has been done or arranged for by another)." Thus the injured party makes valid the trespasser's possession by giving formal sanction thereto in the form of the proceedings, wherein he waives the tort and claims in debt against the trespasser for use and occupation of the subject land or for use and hire of the subject chattel. Moreover, if the trespasser be sued in tort and characterized as a plunderer, he cannot deny that the injury to his victim's pocket extends to the utmost gain, which he might have made from the latter's property.
¶ As I said in [2000] R.L.R. at 213-4, the ratification involved in waiver of tort is simply a matter of pleading between the tortfeasor (or those claiming through him) and his victim. It is, therefore, distinct from the more usual ratification, which brings the ratifier into contractual relations with a third party (q.v. Keighley, Maxsted & Co. v. Durant [1901] A.C. 240). Though both sorts of ratification are basically covered by the first meaning of "ratify" given in the O.E.D. (1st edn) yet, in the latter, the law is more stringent than the dictionary. For the law will not allow the third party to sue or be sued unless, at all material times, he knew that the person, to whose act the ratifier gives his subsequent consent, was purporting to act as the ratifier's agent. This requirement is obviously irrelevant to relations between the ratifier and him, whose act is ratified. It is partly a failure to take account of this irrelevance which accounts for Lord Atkin's disdain for the presumed role of ratification in waiver of tort, expressed in United Australia Ltd v. Barclays Bank Ltd [1941] A.C. 1 at 28-9. The other contributing factor is his Lordship's failure to appreciate the point, made by Lord Tenterden, C.J., in Stone v. Marsh, that it is not the wrong, but the possession consequent on the wrong, which is ratified. As I reminded the list last Xmas Eve: in Donoghue v. Stevenson [1932] A.C. 562, at 580, Lord Atkin not only warns against the dangers of generalization and simplism, but is apparently guilty of them himself. I respectfully submit his characterization of the rationes of his ancient predecessors, with which he was faced in United Australia Ltd v. Barclays Bank, as "ghosts of the past, stand[ing] in the path of justice [and] clanking their medieval chains, [through which] the [modern] judge is to pass … undeterred", to be another example of that guilt. In any event, Lord Atkin's disdain is, I submit, to be contrasted with Viscount Simon, L.C.'s justification, at 21, of the House's unanimous decision. It was on the ground that "the alternative view … is based on a misreading of technical rules, now happily swept away" but which, obviously in the Chancellor's judgment, were neither to be ignored, nor despised. How can Lord Atkin's disdain be compatible with a system of law based on precedent and of which the substance is to be found in the interstices of procedure? Without the waiver, where would be the plaintiff's acceptance of the defendant's deemed offer, arising from his incapacity to plead his tort and thus to take advantage of his own wrong? (Q.v. Co. Litt. 148b.) Without the acceptance, where would be the deemed contract?
¶ Pace Lionel in his book, "The Law of Tracing" (Oxford, 1997) pp. 78 & 202, I respectfully submit that the principle, which he there expounds and which I identify as the maxim, in odium spoliatoris omnia praesumuntur (Childrens v. Saxby (1683) 1 Vern. 207), is not confined to cases of destruction or lack of evidence, rendering proof either difficult or impossible. Wardour v. Berisford (1687) 1 Vern. 452 concerned the division between the plaintiff and defendant of the estate of their wives' deceased father. In it Lord Chancellor Jeffreys disallowed the whole of the defendant's demand against the plaintiff for reimbursement to the estate of what was due from the plaintiff to the deceased "for diet &c., £2300". The demand depended on a sealed bundle of papers, which the deceased had entrusted to the defendant. The demand failed, because the defendant had "altered" and "displaced" the papers, so that "it could not be known what papers might have been taken out". His Lordship so decided, despite his having "declared himself satisfied that all the papers were produced". Not only was there no difficulty or impossibility of proof, but (in my like submission) the last sentence demonstrates also the exaggeration inherent in Lionel's proposition (ibid.), "The principle … does not allow findings contrary to the evidence".
¶ Recognition that the maxim does allow findings, which are contrary to the evidence, involves no admission that its application is boundless. To extend its operation to allow findings, which are logically impossible, would be to reduce it to absurdity; but nothing requires that extension. The virtue of excepting from its operation only logical impossibilities, rather than all findings contrary to the evidence, is that the maxim then encompasses (instead of casting doubt on) Wardour v. Berisford. In addition, so moderating the exception still leaves unaffected the rule, "tracing through a bank account is subject to the lowest intermediate balance", for which Lionel, op. cit. p.265, cites Frith v. Cartland (1865) 2 H. & M. 417. Nor does this moderation affect Staughton, J.'s approving (in Indian Oil Corp. v. Greenstone Shipping S.A. (Panama) [1988] Q.B. 345, at 369, as cited by Lionel, op. cit. pp. 80-1) that in Armory v. Delamirie (1722) 1 Str. 505, "the jury were directed 'to award the plaintiff the value of the finest jewel which the socket would hold, not the finest jewel that had ever been known'". Therefore, in my respectful submission, this version of the limitation on the maxim's operation is more likely to reflect the law than is Lionel's.
¶ (In Cowper v. Cowper (Earl) (1734) 2 P.Wms 720, at 749, Sir Joseph Jekyll, M.R., said, "… in the case of Wardour and Beresford [sic] (not rightly reported, 1 Vern. 452) in the Register's book of Paschae 1687, page 491, there is this entry: 'the Lord Chancellor, on reading and examining witnesses viva voce, declared that the papers (there called Wynne's accounts) were, through the carelessness of the defendant, embezzled, and therefore confirmed the Master's report, which had not made the defendant any allowance for diet, &c., by reason of such embezzlement"; here the proofs of the embezzlement of the papers prove there were such papers [i.e., relevant papers suppressed or destroyed]." With great respect to his Honour, I cannot see that his quotation from the Register's book necessarily contradicts Vernon's report. The first meaning ascribed by the O.E.D. (1st edn) to "embezzle" is "to make away with (provisions, money, etc.); esp. to carry off secretly (what belongs to another person) for one's own use". The first example given of this use of the word is taken from 1469 and the last from 1750. There is, therefore, nothing in the use of "embezzle", which excludes the return of the embezzled papers. I know nothing of Vernon's reputation as a reporter; but I presume it to be his credit that his reports were originally published from his manuscripts "by Order of" the High Court of Chancery. Nor is it significant that in Cowper v. Cowper (Earl) Jekyll, M.R., did not apply or follow Wardour v. Berisford. His Honour was concerned with the proven destruction of papers by the person, through whom the plaintiff claimed. However, the papers were in the destroyer's custody as the executor of the person whose property they had been and, according to his Honour at 751-2, it was not proved that the destroyer had exceeded his authority as such executor. In Wardour v. Berisford the unauthorized nature of the defendant's dealings with the papers entrusted to him was proved, as must be a trustee's unauthorized dealing with the funds entrusted to him before the application of Vice-Chancellor Wood's "second principle" stated in Frith v. Cartland.)
¶ In the light of the meaning of "spoliator", it would be strange if the maxim's influence did not extend beyond the confines on which I understand Lionel to insist. Indeed, albeit perhaps with a degree of hyperbole, one can describe as plunderers: a trespasser to land, whose adverse possession excludes the person entitled; a bailee of sealed financial records, who deliberately breaks the seal; a trustee, who mixes trust money with his own; and a jeweller's apprentice, who keeps a customer's diamond. Nor is there any logical impossibility in deeming the loss, suffered by the person tortiously excluded from the land, to equal the utmost gain, which the trespasser might possibly have made from his occupation, regardless of whether or not the possibility was practical. (Doubtless, in calculating that gain, one must logically take into account the use to which the land was being put when the trespasser began, or any change of use made during, his occupation. Yet the basis of the calculation should be whichever of the original and later uses had the greatest potential for gain.) Nor is there any logical impossibility in deeming papers to be missing from a sealed bundle, though the evidence indicates otherwise.
¶ I submit that none of this contradicts what Nicholls, L.J., in Stoke-on-Trent Council v. W. & J. Waas Ltd [1988] 1 W.L.R. 1406, at 1416, called the "user principle", a name readily adopted by his brethren in the same case and by the Privy Council in Inverugie Investments v. Hackett. Nicholls, L.J., so named "an established principle concerning the assessment of damages that a person who has wrongfully used another's property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages". By limiting the principle to "a person who has wrongfully used another's property", his Lordship excluded from its terms the defendants in The Mediana [1900] A.C. 113, whose vessel had negligently damaged the plaintiffs' lightship. The exclusion appears ironic; for Nicholls, L.J., relied on the Earl of Halsbury, L.C.'s speech in the earlier case. In contrast, the maxim provides the solution. A defendant, who negligently so damages goods as to deprive their owner of their use, may be deemed analogous to a plunderer. In [1900] A.C., at 117, the Lord Chancellor said, "… the broad proposition seems to me to be that by a wrongful act of the defendants the plaintiffs were deprived of their vessel. When I say deprived of their vessel, I will not use the phrase 'the use of the vessel'. What right has a wrongdoer to consider what use you are going to make of your vessel?" The plaintiffs' claim was: "Loss of the use of the lightship Comet, or hire of the services of the lightship Orion … 74 days at £4 4s. – £310 6s." Comet was the damaged vessel; Orion the lightship owned and kept in reserve by the plaintiffs to meet such an emergency as that caused by the defendants. In effect, the defendants could not overcome the presumption that the plaintiffs had hired a, rather than used their own, replacement. Thus could old learning save modern judges labour resembling the reinvention of the wheel and let the consequent observance of the doctrine of stare decisis play its part in restoring certainty to the law. 
Yours sincerely,
Gordon Goldberg.

To all other the members of the Restitution Discussion Group.