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Remedies
McGill Faculty of Law
Smith, Lionel David

1.                                            Paradigm Case of UE
There are two organising bases of civil liability in these cases: Tort and UE.
Unjust enrichment
·          What’s unjust is the non-consensual transfer of wealth.
·          Traditional legal doctrines are organised around remedies, which doesn’t make much sense.
·          Makes more sense to organise doctrines around sources. K, UE or T.
·          Don’t talk about remedies at all at civil law but rather flows out of what gives rise to the claim.
1.1.                                       Basic Measures of Recovery
1.1.1.                                   Basic Rule: Capital Value
Coversion
·          Given a tort of conversion the P is entitled to get the capital value at the date of conversion of the chattel back and any consequential damages.
·          The P has no right to get the chattel itself back, and this may be retained and returned as the D wishes.
·          The lack of right to get the chattel back means that the remedy is based traditionally in personalty.
·          Historically used “writ of trover on the case” where the wrong was the conversion.
·          A bona fide purchaser or value can commit tort of conversion (e.g. auctioneer) even though the conversion was innocent.
Detinue
·          Every case of conversion is also a case of detinue.
·          Traditionally this was a precipae writ, either sur Bailment (promise to return) or sur Trover (where not having the thing in question is a defence).
·          Basically tell D to give the chattel back, if he doesn’t then conversion.
Replevin
·          Remedy to obtain immediate possession basically to safeguard the chattels pending action.
·          “Writ of replevin”, interim recourse.
1.1.1.1.                              Steiman v. Steiman
Facts
D takes jewellery which belongs to P (Husband and Wife).
Issues
How are the damages in conversion measured versus those of detinue?
Holding
See below.
Ratio
Hall, JA. “A person who finds his goods taken may continue to regard the goods as his own and sue in detinue for their return but if he elects to claim damages for conversion his damages must be based on the supposition that he has replaced the missing goods at market prices.”
“…where there is a wrongful taking the victim may have the alternative of claiming in detinue, where the unsuccessful defendant must replace the goods or pay the value at the time of trial.”
“…in simple cases of conversion there is no right to be awarded as consequential damages the difference between the market value at the time when it would have been reasonable to replace the converted goods and either their value at the time of trial or their highest value at some intermediate point.”
He goes on to quote Lord Goddard in Sachs v. Miklos who found “…damages should be calculated with reference to the price of the shares when he was notified of the conversion. There is no doubt that he could at the time have purchased other shares in their place and have claimed from the appellant the cost of such replacement purchase.”
Stevens, Prof. Every case of detinue is also a case of conversion. The value of the jewellery changed over time. P can sue for the tort of conversion at the date of trial or theft.
In a rising market, sue in detinue, in a falling market sue in conversion. The Court says basically P is entitled to value at conversion (and a reasonable time) plus interest. However, this case involves an heirloom and in this case there is a good argument for specific return.
Recourse in Detinue or Conversion
·          A P may continue to regard the goods as his own and sue in detinue for their return, or
·          he may elect to claim damages for conversion but his damages must be based on the supposition that he has replaced the missing goods at market prices.
1.1.1.2.                              Dominion Securities
Facts
P, a stockbroker, sues D for payment due on a block of shares he purchased for the D.3 days before settlement P sells the shares (at their market value which was below the cost price), which he was not authorised to do, and transfers the proceeds to the D.P then sues for the outstanding balance.D counter claims on the basis of conversion.
Issues
What is the correct conversion date?
Holding
See below.
Ratio
O’Sullivan, JA. “…the date upon which to assess damages in conversion was that date, subsequent to the conversion, when its victim became aware of his loss, and might reasonably be expected to procure replacements. It [is] not appropriate to select some subsequent date, prior to trial, when the value of comparable items contained its highest level.”
Date of Conversion
·          Date su

trespass)? Bowen, LJ says you cannot recover for saved expense. The doctrine says that something of value has to be pointed to in the estate before the action in trespass will be allowed (and P can have the property in question, e.g. D takes timber from P and timber is still available, P can demand it returned). There is no legal or equitable property, therefore the action has to be based in K or Q-K.
When can the tort be waived and the D sued in assumpsit? Bowen, LJ says:
·          When it is capable of being independent from the tort (in this case not so as D was a thief).
·          Can’t imply a K in law if one cannot be implied in fact. As D was a thief, this is the case.
Morris v. Tarrant
·          Lane, J. says he cannot sue in QK as D was a thief (remember, the implied K must also be capable of being a K in fact to be one in law) but he can be sued in tort for the mesne profits.
Recovery for Use Value: Conclusion
Somebody steals a rental bicycle for 2 hours, must he pay?
·          Is there a loss? Yes (Denning says no), the rental value.
·          Is there an enrichment in the Ds patrimony (can the saved expense be identified)?
·          Can always sue in tort for the use value.
·          Should rental value be reduced by that probability that it could be rented? (Strand Electric says no).
Bankruptcy Test
·          The way to test this is to ask if the P would have priority in a bankruptcy (see Phillips v. Homfray, p482). Basically what you do is pretend the D has gone bankrupt and then ask if the P would still have a right to something from the trustee. Stevens calls the bankruptcy test a “critical litmus test” to determine where a certain fact pattern falls.
Summary
·          The Tort argument is based on fault causing loss and
·          the UE argument on that’s mine, give it back.
·          UE=non-consenual receipt and detention.