Date: Thu, 2 Feb 2006 18:37:50 +0200

From: Daniel Friedmann

Subject: Two Questions

If you are only interested in the situation in which the employee did not act in the course of his employment, then what is the difference between this situation and the case in which the act leading to the enrichment, was done by a third party who is not an employee? Suppose X and Y are business competitors. A third party (Z) murders Y. X is now able to make large profits because his competitor is out of the way (alternatively assume that X now becomes the sole heir of W). Assuming X has nothing to do with the murder, he is in my view not liable in restitution. Now suppose that Z has been employed by X, but the murder had nothing to do with Z's employment and of course was not in the course of it. This situation seems to me indistinguishable from that in which Z was never employed by X. There are of course situations in which the act of a third party will create a cause of action (eg Z steals money from Y and gives it to X who is not a bona fide purchaser for value). But again I see no difference between the case in which Z was X's employee acting outside the course of employment and that in which Z is another third party).

Daniel Friedmann

----- Original Message -----
From: "Robert Stevens"
To: "Daniel Friedmann"
Sent: Thursday, February 02, 2006 4:58 PM
Subject: Re: Re: 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.

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