In the U.S., caselaw continues to hold that pets are chattel subject to typical conversion damages unless plaintiff proves emotional damages caused by a negligence tort. For contracts claims, most cases involve contracts with disclaimers. American law still generally does not permit mental and emotional distress damages in pure contract cases, though there is an exception for contracts grounded in sentiment. Historical examples, however, tend to be rare cases like accidental cremation when the contract called for burial; moreover, statutes now often make such contract breaches also constitute a tort.
On the valuation of pets, I noted in the update to the Dobbs Remedies treatise that the trending appears to show an openness to viewing pets as more than typical chattel. This trending tracks the Code developments described below: viewing pets as more sentient. However, the damages would likely elevate only to measurements for value of sentimental objects like family heirlooms: personal value to the owner rather than mere replacement costs.
Although Germany was the first, many civil codes have added similar provisions in recent years, including I believe Switzerland, France and, quite recently (2015) Quebec:
898.1. Animals
are not things. They are sentient beings and have biological needs.
In addition to the provisions of special Acts which protect animals, the provisions of this Code and
of any other Act concerning property nonetheless apply to animals.
I spoke on this once and expressed the opinion that it is largely symbolic. As to the first paragraph, it is, to say the least, odd for a text of law to include statements of fact (the second sentence) rather than norms or power-conferring rules. It also uses
a biological word, ‘animals’, which covers not only pigs and guinea pigs but lice, tapeworms and mosquitoes. As to the second, it largely retains the status quo anyway. Certain people thought that this provision made it unlawful to kill an animal, at least
in a cruel way, but since a civil code does not contain punishments for antisocial behaviour, which belong to criminal and other penal laws, I am not sure this is right. In my view, the law rightly regulates the treatment of animals but does so via public
law, including licensing and inspection regimes.
As Bertrand Russell once said, “the next thing you know it will be ‘votes for oysters’”.
Lionel
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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Associate Professor
Faculty of Law, University of Victoria
PO Box 1700, STN CSC
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