Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Wed, 4 Oct 2000 12:41:25 -0400 |
| Re: |
Constructive trust (Ellingsen v Hallmark) |
When he claims that Lord Ellenborough, C.J.,
specifically rejected a ratification theory in his judgment in Taylor
v. Plumer, is Lionel referring to the last sentence of his Lordship's
judgment? If so, I endeavoured in [2000] R.L.R. at 213 (in n.157 and its
accompanying text) to explain that sentence's relationship to his Lordship's
acceptance arguendo of ratification as the basis of waiver of tort, which
I had quoted ibid. at 210. He is referring to the bit which says, "If this case
had rested ... on any supposed adoption and ratification on [the defendant's]
part ... we think, it could not have been well supported on that ground."
That does not seem to me to require any explanation.
If someone does an act on my behalf but without authority,
we can sensibly talk of my ratifying it, and then worry about whether
and when we will allow this. But it seems to me that to try to explain
liabilities which do not depend on authority or agreement as somehow dependent
on ratification, authority, or assumpsit is to speak in riddles.
Lionel
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