Well, surely it’s both a contract to get rid of a pig as well as a contract for the return of the pig under specified circumstances, which circumstances came to pass.  If it was a contract only for the getting rid of a pig, could we even be talking about this as a contractual breach upon which the SPCA could sue?  Alive or dead, the pig is gone.

 

This seems to be the fundamental question – was the SPCA’s right in the nature of a residual property interest in the pig, such that the adopter committed a conversion by butchering it, or was it a contractual right of performance?  My own view would be that, if the contract didn’t specify a retained property interest in the animal, which it doesn’t seem to have, it’s the latter.

 

 

Greg Bowley

 

SJD Candidate

University of Toronto

Faculty of Law

 

From: Harrington Matthew P.
Sent: February 28, 2018 11:39 AM
To: Greg Bowley; davidrwingfield@gmail.com; 'Heather McLeod-Kilmurray'; 'Andrew Tettenborn'; 'Andrew Newcombe'; obligations@uwo.ca

Subject: RE: Damages for killing a pig adopted from the SPCA

 

Except that it wasn’t a contract to get a pig.  It was a contract to get rid of a pig.  So the loss in value is the value of getting the pig off its hands.  Arguably, the only loss here is the loss of knowing that the pig had a good home.  What’s that worth?



-----------------------------------------
Matthew P Harrington
Professeur
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6105
www.commonlaw.umontreal.ca
----------------------------------------

From: Greg Bowley<mailto:greg.bowley@mail.utoronto.ca>
Sent: February 28, 2018 11:36 AM
To: Harrington Matthew P.<mailto:matthew.p.harrington@umontreal.ca>; davidrwingfield@gmail.com<mailto:davidrwingfield@gmail.com>; 'Heather McLeod-Kilmurray'<mailto:Heather.Mcleod-Kilmurray@uottawa.ca>; 'Andrew Tettenborn'<mailto:a.m.tettenborn@swansea.ac.uk>; 'Andrew Newcombe'<mailto:newcombe@uvic.ca>; obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: RE: Damages for killing a pig adopted from the SPCA


If the question is only how damages ought properly be calculated in this context, why would we think something other than the standard rule of contractual damages would apply?  This looks like a fairly ordinary case in which the “adopter” has contracted, upon the occurrence of specific conditions, to return the animal to its original owner, those conditions being the adopter’s “inability to keep or otherwise provide for the animal”.  Once those conditions have come to pass, wouldn’t the SPCA be entitled to the adopter’s performance, failing which it would be entitled to damages equal to the value of that performance – in this case, the replacement value of the (living) animal?



I certainly don’t see where emotional, punitive, or aggravated damages could arise here, but there is real value – about a pig’s worth – associated with the performance the SPCA has been deprived of.  Nominal damages wouldn’t put it in the position it contracted to be in under the specific contemplated circumstances.



Best,



Greg Bowley



SJD Candidate

University of Toronto

Faculty of Law







From: Harrington Matthew P.<mailto:matthew.p.harrington@umontreal.ca>
Sent: February 28, 2018 11:07 AM
To: davidrwingfield@gmail.com<mailto:davidrwingfield@gmail.com>; 'Heather McLeod-Kilmurray'<mailto:Heather.Mcleod-Kilmurray@uottawa.ca>; 'Andrew Tettenborn'<mailto:a.m.tettenborn@swansea.ac.uk>; 'Andrew Newcombe'<mailto:newcombe@uvic.ca>; obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: RE: Damages for killing a pig adopted from the SPCA



I agree to some extent.  However, the question centred on the contract provision.  The assumption in the problem was that there was a contract to adopt.  In exchange for letting X take the pig, X agreed to do certain things, one of which was promise not to destroy it.  I assume (without exploring further the facts) that there is good and sufficient consideration for the promise.  Whilst it is certain that the property interest is in the “adopter” and that the RSPCA probably has no continuing property interest, there would arguably still be a valid agreement limiting the adopter’s rights, wouldn’t there?  That is to say, the property was transferred subject to certain agreements.  Arguably the promise not to destroy was a significant part of the consideration.



So, the question posed was whether the RSPCA would be able to recover damages for the breach of that particular covenant.



My view (and I think that of others) was probably not.  There seems to be no claim for emotional injury on the part of a corporation.  No claim for punitives for pure breach of contract.  The only claim, it seems, would be one for simple breach of the promise to return.  My guess is, therefore, that the only question is, “What injury has the RSPCA suffered as a result of the breach of the covenant?”  I suggest they can prove no real injury.  So, the answer would be nominal damages.



-----------------------------------------
Matthew P Harrington
Professeur
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6105
www.commonlaw.umontreal.ca<http://www.commonlaw.umontreal.ca>
----------------------------------------



From: davidrwingfield@gmail.com<mailto:davidrwingfield@gmail.com>
Sent: February 28, 2018 6:21 AM
To: Harrington Matthew P.<mailto:matthew.p.harrington@umontreal.ca>; 'Heather McLeod-Kilmurray'<mailto:Heather.Mcleod-Kilmurray@uottawa.ca>; 'Andrew Tettenborn'<mailto:a.m.tettenborn@swansea.ac.uk>; 'Andrew Newcombe'<mailto:newcombe@uvic.ca>; obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: RE: Damages for killing a pig adopted from the SPCA



I don’t think that this is a hard case.

This is a property issue; not a contract issue.  If I buy a rare book from a
bookseller and promise to return the book for a refund if I can't maintain
it properly, but instead I burn the book because it was going to make a
pleasing fire, can the bookseller sue me?  If the bookseller retained a
property interest in the book, the answer is yes because I'm not allowed to
destroy his property.  My promise, however, is not enforceable without
evidence of consideration or proof of certain formalities, which are absent
in the case of the eaten pig or the example of the hypothetical guinea pig.

The problem here is that we want to treat the pig's life as having some
independent legal status that affects the analysis.  On the current state of
the law it does not.  The pig is property.  Subject to criminal or
regulatory laws dealing with animals, the pig can be killed and eaten by its
owner the same way a chicken could be, or a fish.  The fact that the pig was
killed might make  people at the SPCA sad (and other people hungry), but the
fact is that their sadness is not legally relevant either.

David Wingfield

-----Original Message-----
From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
Sent: February 27, 2018 2:08 PM
To: Heather McLeod-Kilmurray <Heather.Mcleod-Kilmurray@uottawa.ca>; Andrew
Tettenborn <a.m.tettenborn@swansea.ac.uk>; Andrew Newcombe
<newcombe@uvic.ca>; obligations@uwo.ca
Subject: RE: Damages for killing a pig adopted from the SPCA

Punitives in a pure breach of contract might be problematic.

As for the criminal case that wouldn't benefit the RSPCA financially would
it? Don't know about how fines are allocated. Where there is no cruelty then
hard to see what the crime would be.
-------------------------------------------
Matthew P Harrington
Professeur titulaire
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6106
matthew.p.harrington@umontreal.ca
-------------------------------------------

From: Heather McLeod-Kilmurray<mailto:Heather.Mcleod-Kilmurray@uottawa.ca>
Sent: February 27, 2018 1:15 PM
To: Harrington Matthew P.<mailto:matthew.p.harrington@umontreal.ca>; Andrew
Tettenborn<mailto:a.m.tettenborn@swansea.ac.uk>; Andrew
Newcombe<mailto:newcombe@uvic.ca>;
obligations@uwo.ca<mailto:obligations@uwo.ca>
Subject: RE: Damages for killing a pig adopted from the SPCA

What about punitive damages to assist with deterrence?  It would seem a
criminal action would be appropriate too

From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
Sent: February-27-18 12:56 PM
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Andrew Newcombe
<newcombe@uvic.ca>; obligations@uwo.ca
Subject: RE: Damages for killing a pig adopted from the SPCA

I’m afraid I agree.  I`m not sure a corporation can get damages for
emotional distress.  As for adding the employees as parties, the agency
questions would be rather more complicated wouldn’t they?  On the one hand,
making them parties to the contract would possibly open the door to allowing
them to recover damages for emotional distress, but again quantum would be
important.  On the other hand, they would conceivably be liable for the
RSPCA’s faults as well.  Can’t have it both ways.  If they want the benefits
that come with a breach by the client, would they not also be liable for
breaches by their own employer?  In my own case, I suppose it might be fun
to be able to share in damage awards that run in favour of the university
but I don’t think I`d like to be on the hook for liabilities caused to third
parties by my colleagues.

(Not that my colleagues they aren’t all wonderful people, of course.)

Matt Harrington


De : Andrew Tettenborn [mailto:a.m.tettenborn@swansea.ac.uk]
Envoyé : 27 février 2018 04:40
À : Andrew Newcombe <newcombe@uvic.ca<mailto:newcombe@uvic.ca>>;
obligations@uwo.ca<mailto:obligations@uwo.ca>
Objet : Re: Damages for killing a pig adopted from the SPCA


I certainly can't see any reason whatever for giving corporations damages
for distress they can't suffer. Modest sums by way of liquidated damages
seem the best way forward. $2500 seems well OTT; in England, even after
Makdessi, I'm not sure I can see a court allowing a liq dams agreement for
50 times the value of the beast. Get real: this is only a guinea-pig.

Andrew

On 26/02/2018 22:31, Andrew Newcombe wrote:
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.ht
ml?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

------------------------------------
Andrew Newcombe
Associate Professor
Faculty of Law, University of Victoria
PO Box 1700, STN CSC
Victoria, BC
Canada  V8W 2Y2

email: newcombe@uvic.ca<mailto:newcombe@uvic.ca>
tel:    250-721-8161
fax:   250-721-8146

Investment treaty arbitration resource website:
http://ita<http://ita.law.uvic.ca/>law.com<http://law.com/>

Faculty home page:
http://law.uvic.ca/faculty_staff/faculty_directory/newcombe.php



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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law School of Law, University
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