Date: Thu, 2 Feb 2006 14:58:25

From: Robert Stevens

Subject: Two Questions

In the trespass example, regardless of whether we see the case as one concerned with unjust enrichment or restitution for wrongs, in order to establish the liability of the employer the act of the employee in driving across the land must be attributed to the employer. If the employee had not been acting in the course of his employment, the use of the land would not have been attributed to his employer.

An English example of the sort you mention would be Rickless v United Artists [1988] QB 40, which is worth reading if only for the facts. I suppose that all cases of misfeasance by corporations where the corporation is liable to give up a gain are of this kind. Companies, as legal constructs, cannot do anything in the real world, except through the attribution of the actions of real people.

Robert Stevens

In Lipkin Gorman the money was not paid by the plaintiffs. Rather it was taken by the solicitor and transferred to the defendant. Indeed ordinarily the main difference between the so-called autonomous unjust enrichment and enrichment by wrong (which in fact is no difference at all) is that in autonomous unjust enrichment the plaintiff transfers money or property (sometimes services) to the defendant while in enrichment by wrong the defendant simply takes it. Your example of an employee who deliberately trespasses on the claimant's land in a way which results in an enormous (financial) consequential gain for his employer (but not for him) differs from Lipkin Gorman with regards to the type of entitlement which was taken from the claimant. In Lipkin Gorman it was money in the bank (actually chose in action). In your example it is merely the temporary use of the land. This need not make a difference in the applicable principles (though it may create a difference with regard to tracing). Thus, suppose that E is employed by D. D asks E to carry goods in a truck to a market that is being held in another town. E makes a shortcut by trespassing on the claimant’s land and thus arrives early. D will no doubt be liable for the unauthorized use of the claimant’s land (as for restitution let us disregard the difficulties arising from Phillips v. Homfray). This liability for “taking” the use of the plaintiff’s land does not differ in principle from that imposed for the taking of the claimant’s money (or property) and transferring it to D (except that the technique of tracing may not be available in the case of "taking" merely the use of property). Your question may relate to the measure of recovery: is it merely the value of the use (market price) or can the claimant sue for the recovery of profits made by D on the market (or at least those extra profits he made by arriving early)?

It is not clear if such liability would have been imposed had the trespass been committed by D himself. Rules on the measure of recovery are very flexible and there may be even a question of remoteness. But I suspect that if D himself would have been liable for profits had he acted personally, he would also be similarly liable where the act was done by his employee. As for cases I believe that it is not difficult to find American decisions and maybe also English cases in which liability for appropriation of another's interest (usually liability for wrongs) has been imposed on corporations. In practically all of them the act was done by either an employee or an official of the corporation. See eg Sheldon v. Metro-Goldwyn Pictures Corp. and Frank Music Corp. v. Metro-Goldwyn-Mayer discussed in 79 Texas L. Rev. at 1889-1890 (recovery of part of the profits for appropriation of copyright).

<<<< Previous Message  ~  Index  ~  Next Message >>>>>