Necessity and restitution

Legal Theory

Volumn 7, Issue 1, 2001, Pages 59-81

  Klimchuk, Dennis ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

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EID: 85011500105     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201071038     Document Type: Article

References (43)

1. Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. Sup. Ct. 1910).
2. Francis Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interest of Property and Personality, 39 HARV. L. REV. 307 (1926). The language of incomplete privilege was picked up by both the Restatement of Restitution (§ 122) and the Restatement of Torts (comment to subsection (2) of § 197). § 197 of the Restatement of Torts states both sides of the incomplete privilege. § 122 of the Restatement of Restitution concerns the duty of the trespasser to compensate the property owner for damage to her property.
3. The noteworthy exception is Phillip Montague. Montague argues that it follows from the fact that the imperilled trespasser does no wrong that no compensation is owed the property owner. See Phillip Montague, Rights and Duties of Compensation, 13 PHIL. & PUB. AFF. 374 (1984), and Davis and Western on Rights and Compensation, 14 PHIL. & PUB. AFF. 390 (1985).
4. Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973).
5. Robert E. Keeton, Conditional Fault in the Law of Torts, 72 HARV. L. REV. 401 (1959).
6. George Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
7. Jules Coleman, RISKS AND WRONGS 371-72 (1992).
8. Robert Keeton, RISKS AND WRONGS note 6; Daniel Friedmann, Restitution of Benefits Obtained through the Appropriation of Property or the Commission of aWrong, 80 COLUM. L.REV. 514 (1970); John P. Finan & John Ritson, Tortious Necessity: The Privileged Defence, 26 AKRON L. REV. 1 (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW 196-203 (1995). While he casts his account in different terms, Arthur Ripstein suggests that it is equivalent to the restitutionary analysis. Arthur Ripstein, EQUALITY, RESPONSIBILITY, AND THE LAW 122 (1999). Writing about the English law of tort, W.V.H. Rogers suggests that while liability in necessity cases cannot be founded on tort, it is an open question whether a claim could be made out in restitution. WINFIELD AND JOLOWICZ ON TORT 880 (15th ed. 1998).
9. Bohlen traces the doctrinal roots of the incomplete privilege to early nineteenth century recapture of chattels cases. Bohlen, Restitution of Benefits Obtained through the Appropriation of Property or the Commission of aWrong note 2, at 309-13.
10. Ploof v. Putnam, 71 A. 188 (Vt. Sup. Ct. 1908)
11. It is often held that the right extends only to circumstances in which the value of the property saved exceeds that of the damage inflicted. (See, the Restatement of Torts § 197, comment (c); Weinrib, Ploof v. Putnam note 10, at 196, 201-02.) Its not clear what this adds, practically speaking, if the quantum of damages in either case is measured by the damage inflicted. But there is an important conceptual point here: In the case in which the value of the property saved is less than the damage caused, perhaps damages are compensation for tortious wrongdoing, that is, for trespass and possibly conversion. I will set this aside here, however. My concern is with whether the restitutionary account can explain Vincent and similar cases, in which this proportionality condition is easily satisfied, and so the claim to the right of necessity is uncontroversially made out.
12. Peter Birks, AN INTRODUCTION TO THE LAW OF RESTITUTION 23-4 (1985).
13. Birks calls the cause of action in cases like A v. B “unjust enrichment by subtraction,” and the cause of action in cases like C v. D “unjust enrichment by a wrong.” Id. at 25-6.
14. Lionel D. Smith, The Province of the Law of Restitution, 71 CAN. B. REV. 672 (1992).
15. It is this feature that separates restitution most clearly from other areas of private law. (It is also the feature that newcomers to the law of restitution find the hardest to accept. My students invariably think that A's money should stay with B, as a kind of private incompetence tax.) The distinctive and autonomous nature of restitution is well illustrated by the fact that in limited circumstances restitution is available to parties in default on a contract. See George E. Palmer, THE LAW OF RESTITUTION vol. 1, ch. 5 (1978).
16. Aristotle, It is this feature that separates restitution most clearly from other areas of private law. note 17, III.1 (on the distinction between voluntary and involuntary action), V.4 (on the role of this distinction in corrective justice).
17. Comment (c) to § 1.
18. Finan & Ritson, Comment note 10, at 7.
19. Vincent, 124 N.W. at 221.
20. Joel Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFF. 93, 102 (1978).
21. On which, see Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Jules Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 YALE L. J. 1335 (1986).
22. Coleman & Kraus, Liability Rules and Inalienability: One View of the Cathedral note 33.
23. The idea that under circumstances of necessity, the dockowner's property is protected by liability rules rather than property rules is the flip side of the idea that the imperilled trespasser is subject to what Keeton, Coleman & Kraus note 6, called “conditional fault.” On the idea of conditional fault see Judith Thomson, Rights and Compensation, 14 NOÛS 3 (1980); Howard Klepper, Torts of Necessity: A Moral Theory of Compensation, 9 LAW & PHIL. 223 (1990).
24. The locus classicus is A.M. Honoré, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE (A.G. Guest ed., 1961). The “bundle of rights” theory of property is often characterized as a conjunction of Honoré's analysis of the incidents of property in this paper and Wesley Hohfeld's analysis of the concept of “right” in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L. J. 16 (1913). For a recent review of the literature and issues surrounding this idea, see J.E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV. 711 (1996).
25. Richard A. Epstein, Property and Necessity, 13 HARV. J. L. & PUB. POL'Y 2 (1990).
26. But not on a third, that “remaining moored at the dock” is not an action. Omissions are noncontroversially causes here. The majority in Vincent made much of the fact that the crew replaced the lines that held the Reynolds moored, and so did something. But, as Lewis J. argued in dissent, this is inconsistent with the majority's own analysis. The majority rejected the idea that the captain of the Reynolds was at fault for failing to anticipate the severity of the storm and so for failing to seek a place of safety earlier. But then he could not have been at fault for not using stronger cables in the first place. Thus the actions of the crew in replacing the lines can not have the legal significance assigned to them in the majority opinion. Vincent, 124 N.W. at 222.
27. See Finan & Ritson, But not on a third, that “remaining moored at the dock” is not an action. note 10, at 6.
28. Weinrib, Finan & Ritson note 10, at 198.
29. Palmer argues that even though it is not explicit on this point, the Restitution would support restitution in both Vincent and Vincent II, in each case measured by the damage inflicted on the plaintiff. On his account, this is the end of the matter, as this “almost wholly obliterates the distinction between gain to the defendant and loss to the plaintiff, a distinction which is fundamental in the law of restitution.” Palmer, Finan & Ritson note 10 note 26, at 140.
30. Finan and Ritson support this idea, Palmer argues that even though it is not explicit on this point, the Restitution would support restitution in both Vincent and Vincent II, in each case measured by the damage inflicted on the plaintiff. note 10, at 7, n.20. Keeton, Palmer argues that even though it is not explicit on this point, the Restitution would support restitution in both Vincent and Vincent II, in each case measured by the damage inflicted on the plaintiff. note 6, at 411, argues that this is the only way to make sense of Vincent as a restitutionary case. The drafters of the Restatement were hesitant to accept the decreased chance of injury as an enrichment-or so much is implied by their characterization of a physician's failed attempt to save someone's life as a case in which the patient was not enriched. See comment (e) to § 1.
31. Finan & Ritson, id.
32. Aristotle, Finan & Ritson note 17, at 1132a1-2.
33. Ernest J. Weinrib, The Gains and Losses of Corrective Justice, 44 DUKE L. J. 277, 282-83 (1994).
34. Correlatively properly understood entails that the link must be either between material gains and losses or between normative gains and losses. It cannot be the former, because then the domain of private law would extend to human and natural accidents. So it must be the latter. Id. at 283-84; Weinrib, The Gains and Losses of Corrective Justice note 10, at 116-17.
35. Aristotle, Correlatively properly understood entails that the link must be either between material gains and losses or between normative gains and losses. note 17, at 1132a 3-5.
36. Weinrib, Correlatively properly understood entails that the link must be either between material gains and losses or between normative gains and losses. note 17 note 10, at 83.
37. Immanuel Kant, THE METAPHYSICS OF MORALS 24 (Mary Gregor ed., 1996).
38. Weinrib, THE METAPHYSICS OF MORALS 24 note 10, at 123.
39. See Kenneth W. Simons, Justification in Private Law, 81 CORNELL L. R. 698, 732-33 (1996); Peter Cane, Corrective Justice and Correlativity in Private Law, 16 OXFORD J. LEGAL STUD. 471, 486-87 (1996).
40. Weinrib, Justification in Private Law note 10, at 178.
41. Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW (David Owen ed., 1995).
42. There are other difficulties here. The plaintiff's right to restitutio in integrum in the context of an account that identifies the locus of liability with the wrong seems to require erasing all the effects of the wrong. But as Jules Coleman argues, this leads to a kind of remedial indeterminacy. Suppose, he suggests, on the way to the airport my taxi driver negligently gets into an accident. I miss my plane. It turns out that the plane crashes and everyone on board dies. Erasing all of the effects of the negligence seems to require my death. (Thus, Coleman suggests, “harm” must be somehow built into the definition of corrective justice.) Coleman, Moments of Carelessness and Massive Loss note 8, at 322-24; Jules Coleman, The Mixed Conception of Corrective Justice, 77 IOWA L. REV. 427, 441 (1992).
43. Weinrib, There are other difficulties here. note 10, at 198.