This is all a rather silly sop to the animal rights fanciers. What BGB 90a says is that animals aren't things, but the law of things applies to them -- save in the rare case where some exception obtains.

("1. Tiere sind keine Sachen. 2. Sie werden durch besondere Gesetze geschützt. 3. Auf sie sind die für Sachen geltenden Vorschriften entsprechend anzuwenden, soweit nicht etwas anderes bestimmt ist.").

Andrew

The German Civil Code was amended many years ago to state that animals are not things.  It did not say what they are.  But it was to give effect to a perception that in many situations in law the appropriate answer cannot be reached by treating them as simply items of property.  They have feelings and they move under their own steam. I discovered this development in German law long  ago when I wrote an piece on how the law of liabiility for animals under the Animals Liability (Scotland) Act  might deal with a situation where dog A provoked dog B to attack and the owner of dog A sued the keeeper of dog B for the consequent damage to dog A.  The thought to address this was inspired by a celebrated case decided applying South African (Roman Dutch) law.

John Blackie


________________________________
From: davidrwingfield@gmail.com [davidrwingfield@gmail.com]
Sent: 27 February 2018 12:14
To: Katy Eloise Barnett
Cc: HOGG Martin; Tamblyn, Nathan; Andrew Newcombe; obligations@uwo.ca
Subject: Re: Damages for killing a pig adopted from the SPCA

I find it interesting that although animals are property and there is no suggestion that a criminal offence (cruelty) was committed here, there is an implicit view that the legal issues might be (or all) different where animals are concerned.

David Wingfield

Sent from my iPhone

On Feb 27, 2018, at 11:09 AM, Katy Eloise Barnett <k.barnett@unimelb.edu.au<mailto:k.barnett@unimelb.edu.au>> wrote:


My view is that damages for distress would be unlikely to be available for a corporation in Australia because a corporation has no feelings to be hurt: see comments in Khodaparast v Shad [2000] 1 All ER 545, 556 (because this is a UK case I'm guessing this is the UK position too).


However, in Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131, Cole JA said at 156 (in a case involving damages for contravention of the then Trade Practices Act 1975 (Cth)) that it was not necessarily the case that a corporation could not receive aggravated damages, but he did not need to finally decide the matter. So there's a narrow possibility that if you got a sympathetic judge the situation may be otherwise.


Interested to hear if anyone has any other authority on the matter.


Kind regards,


Katy


Associate Professor Katy Barnett

Melbourne Law School

185 Pelham Street

University of Melbourne

Carlton 3053 VIC AUSTRALIA

 Ph: + 61 3 9035 4699





________________________________
From: HOGG Martin <Martin.Hogg@ed.ac.uk<mailto:Martin.Hogg@ed.ac.uk>>
Sent: Tuesday, 27 February 2018 8:41 PM
To: Tamblyn, Nathan
Cc: Andrew Newcombe; obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: Re: Damages for killing a pig adopted from the SPCA

In the light of ParkingEye v Beavis, I should have thought that the RSPCA wouldn’t need to demonstrate that liquidated damages were a genuine pre-estimate of loss. So long as they had a “legitimate interest” in claiming the specified damages (which I think they would, given their mission to safeguard animal welfare), and the amount claimed was not "out of all proportion” to that interest, then it would seem to meet the test in that case. Such a claim would not need to rely upon any mental distress on the part of the RSPCA, and would not need the claimant to be a natural person (ParkingEye was not).

Martin Hogg

On 27 Feb 2018, at 09:18, Tamblyn, Nathan <N.Tamblyn@exeter.ac.uk<mailto:N.Tamblyn@exeter.ac.uk>> wrote:


Very interesting. I would have thought that liquidated damages would be a sensible way to go; the case law does talk about their appropriateness in cases where quantifying damages would otherwise be very difficult. Of course, the figure has to be a genuine attempt at estimating damages. Perhaps it might include a small sum to reflect staff distress. Better yet, perhaps also the wasted costs of the SPCA preparing the animal for adoption (bringing it back to health, vaccination, admin costs etc).

N




Nathan Tamblyn


MA (Oxford) LLM PhD (Cambridge) Barrister FHEA

Associate Professor of the Common Law

University of Exeter Law School


For office hours and to book an appointment, please visit: https://calendly.com/n-tamblyn




<Outlook-1506154034.png>

________________________________
From: Andrew Newcombe <newcombe@uvic.ca<mailto:newcombe@uvic.ca>>
Sent: 26 February 2018 22:31:52
To: obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: Damages for killing a pig adopted from the SPCA

Dear colleagues

Some of you may have seen this story:   https://globalnews.ca/news/4042125/pig-adopted-bc-spca-killed-eaten-owners/

One of my students adopted a guinea pig from the SPCA over Christmas (which he and his girlfriend have named Estoppel) and his SPCA adoption contract provides as follows: ""If during the first year of ownership I am unable to keep or otherwise provide for this animal I will return it to the BC SPCA and will neither give it away nor have it destroyed except on the advice of a veterinarian.”

Assuming the same provision applies and was breached, what damages, if any, could the SPCA claim for breach of the provision to return the pig.  While there could be a restitutionary claim for the value of the pig (or disengorgement of the benefit of the BBQ …), I am more interested in a claim for other types of damages.  Courts have granted mental distress damages for breaches of pet adoption agreements (in Weinberg v. Connors, a court found a breach of a cat adoption contract, where the person adopting the cat failed to advise the plaintiff of the location of the cat (https://www.canlii.org/en/on/onsc/doc/1994/1994canlii7337/1994canlii7337.html?autocompleteStr=WEINBERG%20V%20CONNORS%20%20%20&autocompletePos=1).  The problem is that the “pet” cases where mental distress damages have been granted have involved natural persons.  Is there any authority for the proposition that an organization like the SPCA could maintain a claim for mental distress damages?  Do you think in this situation, the SPCA could claim under another head of damages, perhaps for loss of reputation?

If the SPCA were to contract on its own behalf, as well as its staff, do you think it could claim damages for the mental distress suffered by its staff?

What about having a liquidated damages clause of say $2500 for breach of the return obligation to compensate for loss of reputation and emotional distress to SPCA staff and members?  Would this ever stand up to court scrutiny?

I would be most interested in your views.

Best regards



Andrew

------------------------------------
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