NationStates Jolt Archive

Alright...there is various contradictory case law in the common law jurisdictions related to the following issue, so its not something that has been definitively answered in the law. Therefore, I'm asking you, the armchair lawyers, along with the actual lawyers, to give your opinions on the matter, using the law as it stands, as it was, as it should be, or whatever. Frick, throw pies and call it 'habeaus corpus' if you want, I mean...I wouldn't want to alter the way legal topics are 'discussed' on NSG after all :D

My question is, in the following scenario, what should the remedy be? Assume we are not interested at all in the criminal issue, only the civil remedy.

Imagine that I have a horse. It wouldn't fit in my house, but let's just play pretend. No, we're not playing doctor, get your hand out of my pants.

Alright. I have a horse. I paid 10,000 strong, Canadian dollars for it. It costs me about $4000 a year to feed and stable it. I don't do anything with it, I just look at it and maybe paint overly sensual portraits of it.

I go on vacation for a year. Jill comes, somehow get the horse out of my house, and move it into hers. She feeds it. She stables it. She doesn't do anything with it, she just stares at it lovingly and writes terrible prose about it.

I get home, the horse is returned in almost better condition than when I left.

You're the judge...what do you do?

Assume that I'm not an idiot, and that I had made arrangments for the care of my horse while I was gone, and that you did not have my permission to take the horse. Also, assume I knew nothing of this until my return.

Umm what the problem again? If I was the original owner, I would just pay the $4,000 it took to care for the horse if I was the original owner.

I don't understand.

Are you asking what I would do as the person who took Bessie while you were away, after having given it back to you? What is there to do?

Umm what the problem again? If I was the original owner, I would just pay the $4,000 it took to care for the horse if I was the original owner.

Jill has taken my horse without my permission, or in fact my knowledge. She returns it and present me with a bill for $4000 for its upkeep. Is that just? You need to assume that I wouldn't have left my horse to starve to death and that I had already made arrangements for it's care and feeding.

Alright...there is various contradictory case law in the common law jurisdictions related to the following issue, so its not something that has been definitively answered in the law. Therefore, I'm asking you, the armchair lawyers, along with the actual lawyers, to give your opinions on the matter, using the law as it stands, as it was, as it should be, or whatever. Frick, throw pies and call it 'habeaus corpus' if you want, I mean...I wouldn't want to alter the way legal topics are 'discussed' on NSG after all :D

My question is, in the following scenario, what should the remedy be? Assume we are not interested at all in the criminal issue, only the civil remedy.

Imagine that I have a horse. It wouldn't fit in my house, but let's just play pretend. No, we're not playing doctor, get your hand out of my pants.

Alright. I have a horse. I paid 10,000 strong, Canadian dollars for it. It costs me about $4000 a year to feed and stable it. I don't do anything with it, I just look at it and maybe paint overly sensual portraits of it.

I go on vacation for a year. You come, somehow get the horse out of my house, and move it into yours. You feed it. You stable it. You don't do anything with it, you just stare at it lovingly and write terrible prose about it.

I get home, the horse is returned in almost better condition than when I left.

You're the judge...what do you do?

Hmm, I would get the phone number of who took good care of your horse to see if they would mind taking care of mine. ;) j/k

I don't really understand where a judge comes into play on this. :confused:

Edit: There is no verbal or written contract, I dont' see how I could award the $4000 to someone for doing a good deed. (Probably why I am not a judge.)

Charge you the owner with wilful negligence and animal abuse, failing to provide the animal with shelter and food. The person who took it would not be reprimanded as they took care of the animal and returned it to you in better condition.

I don't understand.

Are you asking what I would do as the person who took Bessie while you were away, after having given it back to you? What is there to do?

Sorry, changed it...I shouldn't have asked you to be the defendent AND the judge :P

Any clearer?

Charge you the owner with wilful negligence and animal abuse, failing to provide the animal with shelter and food. The person who took it would not be reprimanded as they took care of the animal and returned it to you in better condition.

Should there be no, even slight, reprimand for a person taking something that wasn't theirs?

Charge you the owner with wilful negligence and animal abuse, failing to provide the animal with shelter and food. The person who took it would not be reprimanded as they took care of the animal and returned it to you in better condition.

*Points to the modified OP*

Sorry, I assumed that you guys would assume there was not some element of insanity involved in the scenario.

Should there be no, even slight, reprimand for a person taking something that wasn't theirs?

Well, under English law that person is guilty of theft, but Neesika already said she was only interested in the civil side of things.

Jill has taken my horse without my permission, or in fact my knowledge. She returns it and present me with a bill for $4000 for its upkeep. Is that just? You need to assume that I wouldn't have left my horse to starve to death and that I had already made arrangements for it's care and feeding.

Oh, well in that case, I'd sue Jill for theft.

Easy, taking someone else's property away from them is theft even if you later give the stolen item back.

Jill has taken my horse without my permission, or in fact my knowledge. She returns it and present me with a bill for $4000 for its upkeep. Is that just? You need to assume that I wouldn't have left my horse to starve to death and that I had already made arrangements for it's care and feeding.

We're missing details here.

Did you leave the animal without proper care?

Neglecting an animal would certainly be a criminal act, but on the civil front, I'd say that the person who took care of it could actually sue you for the cost of the care, since they took on a responsibility that was supposed to be yours. And that you should count yourself lucky in getting the animal back, as I would say that there is no reason they should be legally required to return a neglected animal to your care.


If you did leave the animal in proper care, I'm not sure how a civil case would come into it. You wouldn't have lost any money or property. At most, you could perhaps get a cut of any money they made off of their "terrible prose" for which they apparently needed your horse and used it without your permission? Or, if you knew the horse was missing, maybe some sort of compensation for the pain and suffering caused by believing you had lost your beloved pet?


Edit: Ah, answered. If you left proper care for the animal and Jill still came and stole it and took care of it, you should not be held in any way financially responsible for her actions.

I'd smack Jill and call her a wench.

But I'd probably do that anyway.


Hmm...well, assuming I had planned to have the animal taken care of somehow, that person I had hired would not be paid (they didn't do anything after all). That money would likely go to Jill. If she was charging more than that, I would not give it. We had no agreement, nor did she have my consent to do anything. As such, all of her actions were voluntary and should be treated as such. Had the person I originally hired chosen to bathe the animal daily, where I said once a month, then that was their choice, and they would be responsible for the additional cost.

Should there be no, even slight, reprimand for a person taking something that wasn't theirs?

Given the conditions before the addendum was appended to the hypothetical scenario, it provides grounds for which the person engaging in the unlawful acquisition of another's property could be excused on humanitarian grounds.

*Points to the modified OP*

Sorry, I assumed that you guys would assume there was not some element of insanity involved in the scenario.

As I replied before the modification, my old statement stands.

However...

I'll humour you and answer the edited question.

In this case, if you as a reasonable individual had made the necessary arrangements, then this person's actions should be judged based on mitigating and aggravating factors. For one, he/she provided the animal with the necessities of life yet on the other this person stole your property.

Of course, we don't know the following... did anything happen to the person or facilities in which you housed the animal that would have prompted this action?

Oh, well in that case, I'd sue Jill for theft.

theft isn't a civil case, iirc.

you didn't suffer any loss of the horse, you couldn't 'use' it while you were away, and another person got some pleasure of it, I assume the horse wasn't damaged. If I were a judge I would say my court has better things to do and dismiss your case. And possibly sue you for neglecting your horse by putting it in your house instead of on a field or somewhere where horses belong.

I don't really understand where a judge comes into play on this. :confused:

Edit: There is no verbal or written contract, I dont' see how I could award the $4000 to someone for doing a good deed. (Probably why I am not a judge.)

Well, even if there isn't a contract, one could make a claim under unjust enrichment. An unjust enrichment consists of three elements. A enrichment of the defendent, a corresponding (related) deprivation of the plaintiff, and a lack of juristic reason for the transfer between us. There can also be an unjust enrichment caused by a wrong (ie, a theft, fraud, etc), though this is another kind of unjust enrichment often mixed up with the first.

Generally with unjust enrichment, there are two remedies available. In the first kind of unjust enrichment, let's call it true unjust enrichment, the ONLY option is restitution. We reverse the transfer. The plaintiff should not get a windfall from the defendent, and the defendent should not be harmed by the reversal. Things should be as they were before the transfer took place.

In the other kind of 'wrongful' unjust enrichment, we have two remedies available. Compensation for the loss, which puts the plaintiff back in the position he or she was in before the transfer, or disgorgement, which is the stripping of wrongful gains from the defendent. For example, say the defendent took the horse, raced it, and won money because of it. You'd take those winnings and give them to the plaintiff.

The problem is...has there been a loss to the plaintiff? Has there been a gain to the defendent? If so, then what? What remedy would you apply, and why?

Well, under English law that person is guilty of theft, but Neesika already said she was only interested in the civil side of things.

You still have the civil tort of trespass to chattel, but when it came time to decide on a remedy...what would you get? Nominal damages as a symbolic gesture of the wrong done? I mean...we can't very well let people go around taking each other's property and getting away with it as long as they didn't profit and the owners didn't suffer....can we?

If you did leave the animal in proper care, I'm not sure how a civil case would come into it. You wouldn't have lost any money or property. At most, you could perhaps get a cut of any money they made off of their "terrible prose" for which they apparently needed your horse and used it without your permission? Or, if you knew the horse was missing, maybe some sort of compensation for the pain and suffering caused by believing you had lost your beloved pet? Oooh, that is interesting...disgorgement for any profit gained by the inspiration my horse provided. Now that would be a tough one, but if indeed that terrible prose sold, it would be a clearer case justifying disgorgement (the stripping of gains as you've described).

However, I have to stick with the scenario, and not throw in too many 'ifs'. The defendant has not profited from the possession of my horse, nor have I suffered any financial deprivation, and I never knew it was gone.

You still have the civil tort of trespass to chattel, but when it came time to decide on a remedy...what would you get? Nominal damages as a symbolic gesture of the wrong done? I mean...we can't very well let people go around taking each other's property and getting away with it as long as they didn't profit and the owners didn't suffer....can we?

Whyever not?

Easy, taking someone else's property away from them is theft even if you later give the stolen item back.

Okay, so the defendant would be found guilty of the tort of trespass to chattel...but should I, as the owner of the horse, be entitled to anything more than the simple return of my property? Jill had MY horse for a whole year! Is that worth anything? And if so...how much and why?

Jill has taken my horse without my permission, or in fact my knowledge. She returns it and present me with a bill for $4000 for its upkeep. Is that just? You need to assume that I wouldn't have left my horse to starve to death and that I had already made arrangements for it's care and feeding.

She would have to pay whatever fee the entity you'd contracted to care for the horse charged. I'm assuming, at the very least, they'd charge a "cancellation" fee since you probably have to book horse care in advance. The bill is obviously nonsense, you agreed to no such contract. Whose the one filing suit in this case? If she's suing you for the money, I'd likely just say she has to pay legal fees and tell you both to get out of my courtroom. It would be up to you to file your own suit, or a counter-suit, for cancellation fee.

On the upside, as long as you randomly shout out, "Move to strike! Objection! Leading the witness!" for no apparent reason during her time to speak, you'd autowin the case. *nod*

My question is, in the following scenario, what should the remedy be? Assume we are not interested at all in the criminal issue, only the civil remedy.

Imagine that I have a horse. It wouldn't fit in my house, but let's just play pretend. No, we're not playing doctor, get your hand out of my pants. Ok, but that's really not my hand. :p

Alright. I have a horse. I paid 10,000 strong, Canadian dollars for it. It costs me about $4000 a year to feed and stable it. I don't do anything with it, I just look at it and maybe paint overly sensual portraits of it.

I go on vacation for a year. Jill comes, somehow get the horse out of my house, and move it into hers. She feeds it. She stables it. She doesn't do anything with it, she just stares at it lovingly and writes terrible prose about it.

I get home, the horse is returned in almost better condition than when I left.

You're the judge...what do you do?

Assume that I'm not an idiot, and that I had made arrangments for the care of my horse while I was gone, and that you did not have my permission to take the horse. Also, assume I knew nothing of this until my return....

what's the case before me?
you suing Jill for taking your horse without permission? Guilty, but punishment would be minimal (not even a slap on the wrist)

Jill suing you for animal abuse/neglect? not guilty, not shown in your scenario (aka no proof) just because she took better care of the horse is not proof of neglect.

Okay, so the defendant would be found guilty of the tort of trespass to chattel...but should I, as the owner of the horse, be entitled to anything more than the simple return of my property? Jill had MY horse for a whole year! Is that worth anything? And if so...how much and why?

You suffered no loss, so I wouldn't imagine you would have much of a claim.

Were I to preside over this case, I would have to begin by asking who is suing who for what.


Jill might be seeking the four grand for feed and upkeep, in which case I'd toss the case from court since care had already been arranged for and Jill took it upon herself to spend her own money on the horse. My simplified rationale runs similar to this: were a friend of mine to visit and bring a can of expensive cat food as a special treat to my kitten, I would feel no obligation to reimburse them for their costs unless I had made some prior arrangement with them to do so. No such arrangement was made with Jill, so there should be no obligation to reimburse her.

Were the horse's owner to be suing for horsenapping, I'm not sure exactly what I might award them, but the simple fact is that something of theirs was taken without their permission. Were I to make arrangements with someone to check in on my teenaged kids while I was away on vacation, and returned to find that they had been kidnapped in the interim, the fact that their kidnappers returned them well fed, well groomed, and with better manners than I left them in would not alleviate how royally livid I would be with the fact that they kidnapped my children.

However...

I'll humour you and answer the edited question.

In this case, if you as a reasonable individual had made the necessary arrangements, then this person's actions should be judged based on mitigating and aggravating factors. For one, he/she provided the animal with the necessities of life yet on the other this person stole your property.
Jill may have provided the necessaries of life, but she did so without my permission, and those necessaries would have been provided without her intervention. We generally do not allow the 'officious bystander' to force their goods or services on us. It's why the courts won't force you to pay the squeegie kids...if you haven't requested their services, or accepted those services, why should you have to pay? Assume the same principle applies here. Her intervention was unecessary and unrequested. It's clear she stole my property. Am I entitled to anything because of that? Why or why not?

Of course, we don't know the following... did anything happen to the person or facilities in which you housed the animal that would have prompted this action?Irrelevant to the scenario. Assume everything and everyone is normal, and sane and that only these facts apply.

you didn't suffer any loss of the horse, you couldn't 'use' it while you were away, and another person got some pleasure of it, I assume the horse wasn't damaged. If I were a judge I would say my court has better things to do and dismiss your case.

Imagine you were a judge greatly interested in this problem wanting to set precedent in such matters. Simply dismissing the case would tell people that it's okay to take other people's property as long as you don't use it, don't damage it, and you give it back at some point.

Okay, so the defendant would be found guilty of the tort of trespass to chattel...but should I, as the owner of the horse, be entitled to anything more than the simple return of my property? Jill had MY horse for a whole year! Is that worth anything? And if so...how much and why?

I don't have any real legal knowledge (i.e. none at all) but I'm fairly sure that if I gained access to someone's house and took their t.v and used it while they weren't there but put it back when they returned, I'd still be doing something illegal. Assuming that there was you weren't neglecting the horse, I don't see how thats any different in the case of the horse. I also don't understand where Jill would have grounds to demand payment when she decided to look after your horse without your prior consent.

Whyever not?

Well I actually agree with your implied answer here. It fits in well with aboriginal notions of property. HOWEVER...knowing how highly valued property rights are in our societies, I think it's a given that it would be contrary to public policy to say that there is nothing wrong with taking other people's property without permission, even if you don't harm it. The fact is, you WILL be charged (even assuming no criminal sanction)...the question is only what remedy would be available to the plaintiff in this situation. As it stands, it seems that there would be no remedy, in which case...what good would the charge actually do? It wouldn't result in a criminal record, so what sort of deterrent is it?

She would have to pay whatever fee the entity you'd contracted to care for the horse charged. I'm assuming, at the very least, they'd charge a "cancellation" fee since you probably have to book horse care in advance. The bill is obviously nonsense, you agreed to no such contract. Whose the one filing suit in this case? If she's suing you for the money, I'd likely just say she has to pay legal fees and tell you both to get out of my courtroom. It would be up to you to file your own suit, or a counter-suit, for cancellation fee.

On the upside, as long as you randomly shout out, "Move to strike! Objection! Leading the witness!" for no apparent reason during her time to speak, you'd autowin the case. *nod*

I'm the plaintiff, I've brought the case. Perhaps she is counter-claiming the money she spent for upkeep, but I could most likely defeat that because we never had a contract, it was not an incontrovertible benefit to me (since I already had services arranged) and I did not request, or accept her services.

So, let's say you are correct, and I had to pay a cancellation fee for the services I had arranged, and it amounted to $20. I get my horse back and the $20? That's it?

Imagine you were a judge greatly interested in this problem wanting to set precedent in such matters. Simply dismissing the case would tell people that it's okay to take other people's property as long as you don't use it, don't damage it, and you give it back at some point.

Wouldn't that be covered by the, you know, criminal component of this case? You said this is strictly a civil case in the scenario. I'm assuming you still filed criminal charges against Jill for trespassing, breaking and entering and theft of livestock (or whatever the real charge is). That seems to imply that it very much so is not okay to take other people's property, regardless of use, damage or time of return.

Well, even if there isn't a contract, one could make a claim under unjust enrichment. An unjust enrichment consists of three elements. A enrichment of the defendent, a corresponding (related) deprivation of the plaintiff, and a lack of juristic reason for the transfer between us. There can also be an unjust enrichment caused by a wrong (ie, a theft, fraud, etc), though this is another kind of unjust enrichment often mixed up with the first.

Generally with unjust enrichment, there are two remedies available. In the first kind of unjust enrichment, let's call it true unjust enrichment, the ONLY option is restitution. We reverse the transfer. The plaintiff should not get a windfall from the defendent, and the defendent should not be harmed by the reversal. Things should be as they were before the transfer took place.

In the other kind of 'wrongful' unjust enrichment, we have two remedies available. Compensation for the loss, which puts the plaintiff back in the position he or she was in before the transfer, or disgorgement, which is the stripping of wrongful gains from the defendent. For example, say the defendent took the horse, raced it, and won money because of it. You'd take those winnings and give them to the plaintiff.

The problem is...has there been a loss to the plaintiff? Has there been a gain to the defendent? If so, then what? What remedy would you apply, and why? however, what most forget is that Jill took care of the horse, meaning she paid for the horses care and did not present you with the bill. so monetary, Jill loss or at least gave compensation for inspiration for her prose.

now the person you should be looking at is the one you had a contract with. why didn't (s)he report the horse stolen? unless that person never visited the horse while you were gone.

You still have the civil tort of trespass to chattel, but when it came time to decide on a remedy...what would you get? Nominal damages as a symbolic gesture of the wrong done? I mean...we can't very well let people go around taking each other's property and getting away with it as long as they didn't profit and the owners didn't suffer....can we? yet Jill paid for the horse's care, not you.

Oooh, that is interesting...disgorgement for any profit gained by the inspiration my horse provided. Now that would be a tough one, but if indeed that terrible prose sold, it would be a clearer case justifying disgorgement (the stripping of gains as you've described).

However, I have to stick with the scenario, and not throw in too many 'ifs'. The defendant has not profited from the possession of my horse, nor have I suffered any financial deprivation, and I never knew it was gone.
I think Jill can prove that she didn't gain financially, but as the judge, I would ask where was the person you contracted to care for the animal.

Jill may have provided the necessaries of life, but she did so without my permission, and those necessaries would have been provided without her intervention. We generally do not allow the 'officious bystander' to force their goods or services on us. It's why the courts won't force you to pay the squeegie kids...if you haven't requested their services, or accepted those services, why should you have to pay? Assume the same principle applies here. Her intervention was unecessary and unrequested. It's clear she stole my property. Am I entitled to anything because of that? Why or why not?

It seems to me that the concept of "stolen" becomes murky given that she did return the horse, and it wasn't added that Jill had requested any monetary compensation for her services. So that does complicate things a little in the fact that when we acknowledge it, this isn't black and white.

Now, given that she removed it from your house and that you have someone to care for it, why is there no mention of this person's attempt to notify the correct authorities of this? Wouldn't they be considered responsible since their services were requested in the care of the animal?

As the judge, I would definitely find that while she stole the animal, she did wilfully return it since at this point there was no notification to authorities and she wasn't forced to return it. Also, the person you appointed for the care of the animal laxed in their actions by failing to notify authorities about the stolen/missing animal.

Of course, it raises the question, was there any sign of forced entry into the property to acquire the animal? As the signs of a forced entry would be obvious to the person minding the animal, shouldn't they have alerted authorities? Or perhaps the animal may have strayed, making it appear as though it were taken but indeed it wandered onto the other property? (And Jill took care of it while she tried to figure out who it belonged to...)

Did anyone witness the theft of the animal?

I'm the plaintiff, I've brought the case. Perhaps she is counter-claiming the money she spent for upkeep, but I could most likely defeat that because we never had a contract, it was not an incontrovertible benefit to me (since I already had services arranged) and I did not request, or accept her services.

So, let's say you are correct, and I had to pay a cancellation fee for the services I had arranged, and it amounted to $20. I get my horse back and the $20? That's it?

Then, yes, you get your hose back and the $20. You suffered no monetary loss and it's assumed Jill will be properly prosecuted for her criminal actions.

You suffered no loss, so I wouldn't imagine you would have much of a claim.

Aha! Have I not suffered a loss? At all?

I mean, it's clear I have suffered no financial detriment. This cost me nothing, or next to nothing. But what about the loss of control over my property? I was unaware of this loss of control...but knowledge is not necessarily a requirement. Once I was aware of the situation, I realised that I had lost completely control over my property for a year. There HAS to be some sort of relief in this situation. If we do not grant some sort of remedy, that will have a profound effect...we have essentially said that it is not legal to take someone else's property, but you will not be punished for it. In essence we need a remedy, we just have to figure out what it is and what it's based on.

Wouldn't that be covered by the, you know, criminal component of this case? You said this is strictly a civil case in the scenario. I'm assuming you still filed criminal charges against Jill for trespassing, breaking and entering and theft of livestock (or whatever the real charge is). That seems to imply that it very much so is not okay to take other people's property, regardless of use, damage or time of return.

Ignore the criminal element. This scenario would attract criminal sanction it's true, but that doesn't help us with the civil law component. Pretend that the criminal case would not be successful for some bizarre and unimportant reason.

Aha! Have I not suffered a loss? At all?

I mean, it's clear I have suffered no financial detriment. This cost me nothing, or next to nothing. But what about the loss of control over my property? I was unaware of this loss of control...but knowledge is not necessarily a requirement. Once I was aware of the situation, I realised that I had lost completely control over my property for a year. There HAS to be some sort of relief in this situation. If we do not grant some sort of remedy, that will have a profound effect...we have essentially said that it is not legal to take someone else's property, but you will not be punished for it. In essence we need a remedy, we just have to figure out what it is and what it's based on.

Does a criminal charge not count as punishment? Or is there no criminal charge to bring here?

I'm fairly certain, for instance, that a criminal charge can be brought against someone who steals my car and goes joyriding, even if they return it undamaged and with a full tank of gas. I believe this would be a similar crime, except with more possible criminal charges.

It seems to me that there are plenty of crimes that are generally settled in criminal court without a civil case.

I'm not sure why "there really isn't a civil case" equates to "no punishment."

Edit: I suppose there's still the possibility of suing for punitive damages. But convincing a jury to give you any substantial amount of money when your pet was unharmed and you didn't even know it was missing would probably be difficult. It would likely be easier if, as you added in your last post, no criminal punishments were brought (assuming that information could be brought before them).

Let's imagine the horse was instead a child who you had arranged to live away at a boarding school for a year. The day the child is supposed to be picked up to go to the school, she is instead collected by your neighbor Jill, who moves the child into her house, feeds and clothes and otherwise takes proper care of her, and (we will pretend) causes no psychological distress to the child during this time. We'll also pretend she attends a local school which provides education of comparable quality to the boarding school. At the end of the year you return home to find your child safe and sound, and learn later from her what happened.

In this instance, I'd imagine the legal case would be kidnapping and false imprisonment. The latter, of course, is not applicable to animals, but I'd think the former would be. One could possibly file a civil suit for emotional damages associated with the worry and trauma of learning of the deception after the fact.

however, what most forget is that Jill took care of the horse, meaning she paid for the horses care and did not present you with the bill. so monetary, Jill loss or at least gave compensation for inspiration for her prose. Her loss is her problem, unless you can show that it somehow resulted in my gain. We allow people to spend their money in silly ways all the time without the courts intervention. Hahahaha, but maybe you could say that the horse's gain flowed from Jill's loss and he should compensate her for it...but you might get locked up for arguing such in court :D

now the person you should be looking at is the one you had a contract with. why didn't (s)he report the horse stolen? unless that person never visited the horse while you were gone. Irrelevant. Assume I was in a Buddhist monastery without the possibility of contact with the outside world :P

yet Jill paid for the horse's care, not you. True true. In this scenario I didn't have to pay the $3980 I would have otherwise had to pay (minus the $20 cancellation fee I'd returned). If that were the case, then it could be argued that I had gained by not having had to pay. But as I said, I could still likely defeat that claim because I had it all set up to pay, I never contracted with Jill for her to pay, I never accepted or requested her stepping in to pay. She would argue incontrovertible benefit, but her actions only usurped the care the horse would have received even if she had not stepped in. She would most likely fail in her attempts to recover from me.


I think Jill can prove that she didn't gain financially, but as the judge, I would ask where was the person you contracted to care for the animal. Not the issue really, but fair enough.

Ignore the criminal element. This scenario would attract criminal sanction it's true, but that doesn't help us with the civil law component. Pretend that the criminal case would not be successful for some bizarre and unimportant reason.

I just don't really see how that's possible. The reason there is civil law and criminal law is because they cover specific legal realms. Assuming that there is real legal reason for the criminal case not being successfully prosecuted then that's just too bad for that specific scenario but that's how the law works. I know you can't be tried for the same law twice in the U.S. but maybe there's some kind of reverse-appeal for Canadian law? Either way, punishment for the criminal component (the actual thievery and trespassing...loss of control of one's property that you mentioned) doesn't really seem like it can be addressed in a civil suit.

I mean, take the OJ Simpson trial, for example. He was found innocent in criminal courts but in civil courts he was found guilty of an action that wasn't itself a crime (failing to protect his wife or something, iirc). The family was given restitution not for him murdering his wife, but for him failing in a component of the civil contract of marriage (at least, that's my understanding of it...maybe I'm wrong).

Aha! Have I not suffered a loss? At all?

I mean, it's clear I have suffered no financial detriment. This cost me nothing, or next to nothing. But what about the loss of control over my property? I was unaware of this loss of control...but knowledge is not necessarily a requirement. Once I was aware of the situation, I realised that I had lost completely control over my property for a year. There HAS to be some sort of relief in this situation. If we do not grant some sort of remedy, that will have a profound effect...we have essentially said that it is not legal to take someone else's property, but you will not be punished for it. In essence we need a remedy, we just have to figure out what it is and what it's based on.

Well, not entirely, what we would be saying is that there is no civil punishment for this. There's the obvious criminal punishment (which we're ignoring for now), but I can't think of a remedy that would be imposed here. You have suffered no loss that the law as I know it recognises (in England and Wales, at least, and I may be mistaken), so you have no legal claim.

*snip*Stricken for irrelevance :P If there is an action against the originally contracted party, that is an action separate from this one :P

Imagine you were a judge greatly interested in this problem wanting to set precedent in such matters. Simply dismissing the case would tell people that it's okay to take other people's property as long as you don't use it, don't damage it, and you give it back at some point.

Ok I see. I would punish the person who took your horse lightly for trespassing and remind her that she should ask you first if she wants to use your horse. Now that I think of it I guess I would be kind of freaked out if someone used my bed or clothes or an other personal object without asking for permission. Ideally I think this shouldn't be treated as theft (nobody had to miss anything) but in reality I guess it would be better if it was.

Stricken for irrelevance :P If there is an action against the originally contracted party, that is an action separate from this one :P

http://www.weaselhut.net/phoenix-wright-ace-attorney-2.jpg

That doesn't answer my question about proof if the horse was truly stolen. Did Jill confess to stealing it?

Does a criminal charge not count as punishment? Or is there no criminal charge to bring here?

I'm fairly certain, for instance, that a criminal charge can be brought against someone who steals my car and goes joyriding, even if they return it undamaged and with a full tank of gas. I believe this would be a similar crime, except with more possible criminal charges.

It seems to me that there are plenty of crimes that are generally settled in criminal court without a civil case.

I'm not sure why "there really isn't a civil case" equates to "no punishment."

Edit: I suppose there's still the possibility of suing for punitive damages. But convincing a jury to give you any substantial amount of money when your pet was unharmed and you didn't even know it was missing would probably be difficult. It would likely be easier if, as you added in your last post, no criminal punishments were brought (assuming that information could be brought before them).

To address the various criminal concerns brought up:

The criminal law is between the state, and the accused. The civil law is between the individuals involved. Now, it's true that most of the scenarios I can come up with involving this question of 'what has been lost, what has been gained, what is the appropriate remedy' will also involve criminal sanctions, there may be situations where this is not so. As between the parties, I want to know what the solution to this issue is, and how we should arrive at it.

If it makes it easier, assume I never reported the crime, and it will never be reported despite the same set of facts coming to light in a civil suit. Tis a busy, fuddled legal world we live in and it's entirely possible that criminal charges would never be brought, either because the Prosecutor never hears of it, or decides not to press charges.

Now...punitive damages, which, by definitions are meant to 'punish' and to deter. I think this would be the only remedy you could possibly get, to be honest. Property rights are ephemeral, they exist because we say they do. Our property is not like out spleen...we are not so intricately attached to it and reliant upon it, so it needs special protection, something above a mere 'setting to rights'.

Let's imagine the horse was instead a child who you had arranged to live away at a boarding school for a year. The day the child is supposed to be picked up to go to the school, she is instead collected by your neighbor Jill, who moves the child into her house, feeds and clothes and otherwise takes proper care of her, and (we will pretend) causes no psychological distress to the child during this time. We'll also pretend she attends a local school which provides education of comparable quality to the boarding school. At the end of the year you return home to find your child safe and sound, and learn later from her what happened.

In this instance, I'd imagine the legal case would be kidnapping and false imprisonment. The latter, of course, is not applicable to animals, but I'd think the former would be. One could possibly file a civil suit for emotional damages associated with the worry and trauma of learning of the deception after the fact. Interesting change in the facts, especially considering people are no longer able to be property.

Now, we would give weight to the emotional distress you, as a parent would feel, at learning after the fact of Jill's actions. And yet, when it comes to property, we do not. The fact that we consider animals chattel, and therefore refuse to recognise the same sort of emotional attachment to them as we would to other human beings is certaintly a social and ideological decision on our part. (one I don't agree with, but then again, I think the concept of 'owning' an animals is repugnant).

You could bring a suit for damages in the scenario you've come up with, and work at figuring out a dollar value for the distress in having your child cared for by someone other than the person you've chosen. Now, I wonder if you could ever make such a case for a non-human, or for a non-animate piece of property. I doubt it highly, but it's certainly interesting! Imagine that instead of a horse, Jill took your box of porn-tapes made with various high ranking officials...she never watched them, so no harm, no foul....but would your after-the-fact emotional distress at knowing of her possession be enough to trigger damages?

I just don't really see how that's possible. The reason there is civil law and criminal law is because they cover specific legal realms. Assuming that there is real legal reason for the criminal case not being successfully prosecuted then that's just too bad for that specific scenario but that's how the law works. I know you can't be tried for the same law twice in the U.S. but maybe there's some kind of reverse-appeal for Canadian law? Either way, punishment for the criminal component (the actual thievery and trespassing...loss of control of one's property that you mentioned) doesn't really seem like it can be addressed in a civil suit.

I mean, take the OJ Simpson trial, for example. He was found innocent in criminal courts but in civil courts he was found guilty of an action that wasn't itself a crime (failing to protect his wife or something, iirc). The family was given restitution not for him murdering his wife, but for him failing in a component of the civil contract of marriage (at least, that's my understanding of it...maybe I'm wrong).
Don't get the criminal law and the civil law mixed up. Trespass is (generally) a criminal offence as well as being a civil wrong. You can be found guilty of both...it's not the same thing you're being tried for. There are different burdens of proof, and different procedures and underlying legal principles at play. The difference is, in the criminal sense, trespass is a crime against the state and dealt with accordingly. In the civil sense, trespass is a crime against your property, against you.

Well, not entirely, what we would be saying is that there is no civil punishment for this. There's the obvious criminal punishment (which we're ignoring for now), but I can't think of a remedy that would be imposed here. You have suffered no loss that the law as I know it recognises (in England and Wales, at least, and I may be mistaken), so you have no legal claim.

Oh you have a legal claim, you simply have no grounds for a remedy. Other than perhaps punitive damages which England and Canada are loathe to give.

Yet it seems counter to public policy to allow there to be no remedy in this situation beyond simply nominal damages. But you're right, the odd thing is, you can't show loss, you can't show gain, and you can't justify any of the other kinds of remedies normally available. It seems very odd.

What if, however, as has been suggested by a few legal scholars, the loss here is simply that loss of control over your property? We come up with all sorts of ways to put a dollar number on ephemeral things like pain and suffering, could we not do it for this? But how? I think the only way we could come up with a dollar amount is to look at the market and say...how much would it have cost Jill to have a horse in her house to right terrible prose over? We would then award that amount to me as a form of disgorgement. It would be more certain than punitive damages, and more tied to knowable factors.

Aha! Have I not suffered a loss? At all?

I mean, it's clear I have suffered no financial detriment. This cost me nothing, or next to nothing. But what about the loss of control over my property? I was unaware of this loss of control...but knowledge is not necessarily a requirement. Once I was aware of the situation, I realised that I had lost completely control over my property for a year. There HAS to be some sort of relief in this situation. If we do not grant some sort of remedy, that will have a profound effect...we have essentially said that it is not legal to take someone else's property, but you will not be punished for it. In essence we need a remedy, we just have to figure out what it is and what it's based on.

I hope I'm getting the whole thing right.
Still I'm missing the link between Jill and you, is she a stranger, a friend, a relative? That could be important in the decision.
It's obviously different if a complete stranger breaks in your house and watches your horse than when your sister enters with her own copy of your keys and watches your horse while caring for your plants.
Is it essential that it should be an animal?
Couldn't, say, a painting be better in this example? You'd get rid of the animal mistreatment problem.

I'd say that:
you are entitled the usual fee for loaning such an item/animal plus your expenses if any minus the defendant's expenses if any;
you are entitled a public apology if you wish so.
Legal fees divided equally between plaintiff and defendant.

Notice one thing though. Neither in Italy nor in Czech Republic you could ever file a case based on the emotional distress of discovering that you had no control on a property you weren't using.
Moreso Italy has a law about "usucapione" (usus-to use + capio-i get) that states that if you neglect your property (usually real estate) for more than 7 years and somebody else takes care of it as if it were theirs you loose your right to that property in favour of the occupant.

http://www.weaselhut.net/phoenix-wright-ace-attorney-2.jpg

That doesn't answer my question about proof if the horse was truly stolen. Did Jill confess to stealing it?

Ok ok! Just for you...yes! Jill confessed! She wrote an apology, she cried, she admitted every little sordid details, from how she convinced the maid to let her into my house, claiming to be a cousin, how she built a replica of the horse out of cheese complete with little cheese horse apples, called the contracted caretaker and cancelled the services I arranged, how she used words like, 'magnificent' and 'arousing' entirely too often in her prose...the Crown prosecutor, moved to tears at the total lack of literary talent in Jill, took pity on her and decided not to press charges.

Interesting change in the facts, especially considering people are no longer able to be property.

Now, we would give weight to the emotional distress you, as a parent would feel, at learning after the fact of Jill's actions. And yet, when it comes to property, we do not. The fact that we consider animals chattel, and therefore refuse to recognise the same sort of emotional attachment to them as we would to other human beings is certaintly a social and ideological decision on our part. (one I don't agree with, but then again, I think the concept of 'owning' an animals is repugnant).

I'm not all that familiar with Canada's law on this (or overly familiar with US law or the laws in various states), but I do believe there are cases in the US of emotional attachment to pets being recognized. It hasn't become standard yet, but I do think it's moving in that direction.

Oh you have a legal claim, you simply have no grounds for a remedy.

Sorry, yes, that's what I meant, I just phrased it wrongly.

I hope I'm getting the whole thing right.
Still I'm missing the link between Jill and you, is she a stranger, a friend, a relative? That could be important in the decision.
It's obviously different if a complete stranger breaks in your house and watches your horse than when your sister enters with her own copy of your keys and watches your horse while caring for your plants.
Is it essential that it should be an animal?
Couldn't, say, a painting be better in this example? You'd get rid of the animal mistreatment problem. I don't know Jill from Adam (except for the lack of an apple) and okay let's say it's a painting.

I'd say that:
you are entitled the usual fee for loaning such an item/animal plus your expenses if any minus the defendant's expenses if any;
you are entitled a public apology if you wish so.
Legal fees divided equally between plaintiff and defendant. So you'd award me the market price for renting a comparable horse for that period of time, but you'd minus her expenses for the upkeep? But I never gave her permission to undertake those expenses...why should I be forced to essentially 'pay' them by having them taken out of what I would get from the 'fee'? If the court were willing to do that, what would stop me from stealing your car while you're on vacation, putting it in a special, temperature controlled garage, washing it lovingly, waxing it, detailing it, and never ever driving it? You'd get back I'd return it in better condition than when I took it, and you'd have to pay ME the cost of my labour minus what it'd cost me to rent the car from you for that time. I shouldn't be able to force those expenses on you.

Notice one thing though. Neither in Italy nor in Czech Republic you could ever file a case based on the emotional distress of discovering that you had no control on a property you weren't using. Nor does the common law. We were only discussing the possibility of it, and what it could be based on. It seems unlikely in the extreme that anyone could make a good case for it.
Moreso Italy has a law about "usucapione" (usus-to use + capio-i get) that states that if you neglect your property (usually real estate) for more than 7 years and somebody else takes care of it as if it were theirs you loose your right to that property in favour of the occupant.
We have a commonlaw concept called adverse possession which is similar, but I do not believe either would apply in this situation since we're discussing personal property, not real property....personal property generally can not be adversely possessed. Otherwise I could just steal your things, hide them for however long the law says I need to in order to take possession of them, and voila!

We also have (as do most civil law jurisdictions) a concept of incontrovertible benefit. If someone undertakes an expense, without your permission or request, that nonetheless you would have HAD to undertake yourself, you are liable to them.

Alright...there is various contradictory case law in the common law jurisdictions related to the following issue, so its not something that has been definitively answered in the law. Therefore, I'm asking you, the armchair lawyers, along with the actual lawyers, to give your opinions on the matter, using the law as it stands, as it was, as it should be, or whatever. Frick, throw pies and call it 'habeaus corpus' if you want, I mean...I wouldn't want to alter the way legal topics are 'discussed' on NSG after all :D

My question is, in the following scenario, what should the remedy be? Assume we are not interested at all in the criminal issue, only the civil remedy.

Imagine that I have a horse. It wouldn't fit in my house, but let's just play pretend. No, we're not playing doctor, get your hand out of my pants.

Alright. I have a horse. I paid 10,000 strong, Canadian dollars for it. It costs me about $4000 a year to feed and stable it. I don't do anything with it, I just look at it and maybe paint overly sensual portraits of it.

I go on vacation for a year. Jill comes, somehow get the horse out of my house, and move it into hers. She feeds it. She stables it. She doesn't do anything with it, she just stares at it lovingly and writes terrible prose about it.

I get home, the horse is returned in almost better condition than when I left.

You're the judge...what do you do?

Assume that I'm not an idiot, and that I had made arrangments for the care of my horse while I was gone, and that you did not have my permission to take the horse. Also, assume I knew nothing of this until my return.

Not to sound obnoxious, but it would be terribly douchebaggy to press charges in such a senario. But technically, under Common law, I think you (the owner of the horse) would probably be the winner. Allowance to come and care for the horse is not the same as allowing the horse to be removed from the property and relocated somewhere else, except in extreme conditions (which weren't present).

Sorry, yes, that's what I meant, I just phrased it wrongly.

Piff, bloody first year know-it-alls :D

Ok ok! Just for you...yes! Jill confessed! She wrote an apology, she cried, she admitted every little sordid details, from how she convinced the maid to let her into my house, claiming to be a cousin, how she built a replica of the horse out of cheese complete with little cheese horse apples, called the contracted caretaker and cancelled the services I arranged, how she used words like, 'magnificent' and 'arousing' entirely too often in her prose...the Crown prosecutor, moved to tears at the total lack of literary talent in Jill, took pity on her and decided not to press charges.

http://i54.photobucket.com/albums/g87/afresno/smiley/pissmyselflaughing.gif

Ok... *ahem*...

So, it was obtained without the alleged under duress?

I'd say that:
you are entitled the usual fee for loaning such an item/animal plus your expenses if any minus the defendant's expenses if any;
you are entitled a public apology if you wish so.
Legal fees divided equally between plaintiff and defendant.

I'd flat-out disagree with this.

I could certainly see the plaintiff getting the cost of renting a horse paid to them. However, any money Jill spent on taking care of the horse should be her cost and her cost alone, as should any court fees incurred by either of them.

Jill is clearly in the wrong here. The plaintiff should not be punished in any way for her actions.

Not to sound obnoxious, but it would be terribly douchebaggy to press charges in such a senario. But technically, under Common law, I think you (the owner of the horse) would probably be the winner. Allowance to come and care for the horse is not the same as allowing the horse to be removed from the property and relocated somewhere else, except in extreme conditions (which weren't present).

Yes, my case would be successful, I just wouldn't get squat out of it as the law now stands, which is the issue.

I'm not all that familiar with Canada's law on this (or overly familiar with US law or the laws in various states), but I do believe there are cases in the US of emotional attachment to pets being recognized. It hasn't become standard yet, but I do think it's moving in that direction.

Now that's interesting, I'd like to see some cases on point...I'll take a look but I'm fairly certain there is nothing here, especially dealing with after-the-fact knowledge. If we could start recognising the emotional attachment to pets in a situation like this, I wonder if we could stretch it to certain non-animate objects? Enquiring minds want to know!

My view:

We disregard the criminal charges that can be pressed.
The horse is returned.
If Jill demands her money back it will be denied, as there were no agreement between the two of you.
Since you have suffered no loss you have no monetary claim either.

The remedy you would desire is found outside civil law.


...cause, I'm not using the common law approach, so it's simple in my mind. :)




In my mind!

http://i54.photobucket.com/albums/g87/afresno/smiley/pissmyselflaughing.gif

Ok... *ahem*...

So, it was obtained without the alleged under duress?

Well she agreed to the confession in return for the Crown prosecutor's undivided attention to a poetry reading. I think the CP is actually considering his own charges now, having had suffered extreme emotional suffering after only twenty minutes of Jill's tripe. He has a ringing in his ears, and suffers from panic attacks, believing Jill might, at any time, leap out of a dark corner and read him her 'Ode to the Magnificent, Arousing Forlock of a Horse'.

Now that's interesting, I'd like to see some cases on point...I'll take a look but I'm fairly certain there is nothing here, especially dealing with after-the-fact knowledge. If we could start recognising the emotional attachment to pets in a situation like this, I wonder if we could stretch it to certain non-animate objects? Enquiring minds want to know!

I don't have particular cases bookmarked, unfortunately. I remember my husband linking me to an article or two once on how the law is swinging that way.

I don't know about inanimate objects, though. I doubt any case law established for pets would extend to that point. The idea behind it, as I recall, was in recognizing the fact that animals, though treated as property by law , are already treated differently than other property. For instance, it animal cruelty where I live is a felony charge. But you can destroy inanimate property in whatever way you like (providing that it is no danger to others) with no problems. We recognize that living things should be treated differently by the law, so acknowledging the emotional bonds formed between people and their pets wouldn't be such a stretch.

Now, from what I understand, most of the caselaw has ignored emotional attachment and treated the animal as straight-up property, so that a person who had a prize-winning show dog killed would get much more compensation than a person who had a family pet that was a mutt. But it's possibly shifting towards recognizing emotional damages.

Or something like that. Damn, I wish I could find that article.

I don't have particular cases bookmarked, unfortunately. I remember my husband linking me to an article or two once on how the law is swinging that way.

I don't know about inanimate objects, though. I doubt any case law established for pets would extend to that point. The idea behind it, as I recall, was in recognizing the fact that animals, though treated as property by law , are already treated differently than other property. For instance, it animal cruelty where I live is a felony charge. But you can destroy inanimate property in whatever way you like (providing that it is no danger to others) with no problems. We recognize that living things should be treated differently by the law, so acknowledging the emotional bonds formed between people and their pets wouldn't be such a stretch.

Now, from what I understand, most of the caselaw has ignored emotional attachment and treated the animal as straight-up property, so that a person who had a prize-winning show dog killed would get much more compensation than a person who had a family pet that was a mutt. But it's possibly shifting towards recognizing emotional damages.

Or something like that. Damn, I wish I could find that article.

Now this is really interesting. I could see the argument made, and of course, shifting societal beliefs will influence the development of the law here. Now, I think about cultural property, for example...let's say someone takes a sacred Cree object, and we don't even know it's gone...and then, some years later, we realise what happened and it is returned, none the worse for wear. However, the fact that this particular object was not in the proper hands has resulted in a loss of cultural value...it is dirtied, no longer sacred. I wonder how that would fly. It wouldn't be emotional distress, it would be devaluation...hmmmm. Anyway, I must run, please feel free to continue, I'll check in later...and thanks!

In response to the OP:

Remedy: abandon the topic. Resistance is futile.

Her loss is her problem, unless you can show that it somehow resulted in my gain. We allow people to spend their money in silly ways all the time without the courts intervention. Hahahaha, but maybe you could say that the horse's gain flowed from Jill's loss and he should compensate her for it...but you might get locked up for arguing such in court :D Highly doubtful since i'm the judge. :p
so the question is what civil suit are you bringing to Jill. Tresspass? ok, she said she did it, she admitted she had the horse and cared for it, but because she did not have any monetary gain, but intellectual one, what do you want?

Irrelevant. Assume I was in a Buddhist monastery without the possibility of contact with the outside world :P actually, relevant, because there would be a police report.
True true. In this scenario I didn't have to pay the $3980 I would have otherwise had to pay (minus the $20 cancellation fee I'd returned). If that were the case, then it could be argued that I had gained by not having had to pay. But as I said, I could still likely defeat that claim because I had it all set up to pay, I never contracted with Jill for her to pay, I never accepted or requested her stepping in to pay. She would argue incontrovertible benefit, but her actions only usurped the care the horse would have received even if she had not stepped in. She would most likely fail in her attempts to recover from me. which leads back to the question, what is the basis of your suit?

Not the issue really, but fair enough.

actually, while not the issue, I would question why the person you contracted did not 1) file a police report 2) attempt to find the horse because under the contract, he would be responsible for it and 3) why you are bringing jill into court when a breach of contract is more evident with the person you made arraingements with. especially if you had to pay a cancellation fee?

Now this is really interesting. I could see the argument made, and of course, shifting societal beliefs will influence the development of the law here. Now, I think about cultural property, for example...let's say someone takes a sacred Cree object, and we don't even know it's gone...and then, some years later, we realise what happened and it is returned, none the worse for wear. However, the fact that this particular object was not in the proper hands has resulted in a loss of cultural value...it is dirtied, no longer sacred. I wonder how that would fly. It wouldn't be emotional distress, it would be devaluation...hmmmm. Anyway, I must run, please feel free to continue, I'll check in later...and thanks!

That's an interesting question. I would argue intellectually that some sort of compensation would be in order (assuming that the person in possession of the object recognized that such distress would be caused - not so sure if they weren't aware and returned it once they realized), but I'm not sure how it would fit into the law.

I'll stick to the painting since it's supposed to be used for looking upon

So you'd award me the market price for renting a comparable horse for that period of time, but you'd minus her expenses for the upkeep? But I never gave her permission to undertake those expenses...why should I be forced to essentially 'pay' them by having them taken out of what I would get from the 'fee'? If the court were willing to do that, what would stop me from stealing your car while you're on vacation, putting it in a special, temperature controlled garage, washing it lovingly, waxing it, detailing it, and never ever driving it? You'd get back I'd return it in better condition than when I took it, and you'd have to pay ME the cost of my labour minus what it'd cost me to rent the car from you for that time. I shouldn't be able to force those expenses on you.


I'll try to be more clear.
I assume that since you took arrangements to have your painting looked after you had some expenses involved.
These expenses I assumed to be not much lower than the expenses Jill has had to take care of your painting since, I assume, you care for your painting.
So, you are basically rewarded with the usual renting fee for the painting plus (or minus, your expenses could also have been greater than Jill's by your "cancellation fee") the difference between the upkeep expenses.
This difference is due to the fact that, again I assume, trough better upkeep (you said that the horse is now better than before) your property has now a greater market value. You are rewarded by this.
In the upkeep expenses I'd not count useless or redundant or outright idiotic items (having a singer sing to your painting for example).
In the end i think that Jill would end paying you the due rent for the painting plus or minus a small amount offsetted by the item's increase (or smaller decrease) in value.

Edit: In no case YOU would have to pay Jill, on the other hand you could also get next to nothing.
You forgot the legal fees. Jill is paying her part as a punishment for her incivil conduct. You are paying your part for wasting the judge's time on such a petty issiue.
Also I have to agree with JuNii, why aren't you sueing your contracted caretaker?

We have a commonlaw concept called adverse possession which is similar, but I do not believe either would apply in this situation since we're discussing personal property, not real property....personal property generally can not be adversely possessed. Otherwise I could just steal your things, hide them for however long the law says I need to in order to take possession of them, and voila!

We also have (as do most civil law jurisdictions) a concept of incontrovertible benefit. If someone undertakes an expense, without your permission or request, that nonetheless you would have HAD to undertake yourself, you are liable to them.

Actually usucapione is valid also for "mobile" items. (note: we distinguish between "mobile" property such as cars, furniture, paintings, animals... and "immobile" property such as real estate. I do not know the correct english translation for the two terms)

You'd not gain possession of them by stealing and hiding them because the law assumes that if you cared about that item you'd go denounce to the police that it was stolen. That is enough to negate usucapione.

Well she agreed to the confession in return for the Crown prosecutor's undivided attention to a poetry reading. I think the CP is actually considering his own charges now, having had suffered extreme emotional suffering after only twenty minutes of Jill's tripe. He has a ringing in his ears, and suffers from panic attacks, believing Jill might, at any time, leap out of a dark corner and read him her 'Ode to the Magnificent, Arousing Forlock of a Horse'.

...so, this woman is obsessed with this horse?

I say massively hike up the price, gauge the woman and find yourself a new steed. It's not like you fed it anyway. Consider it a profit to be made.

Jill has taken my horse without my permission, or in fact my knowledge. She returns it and present me with a bill for $4000 for its upkeep. Is that just? You need to assume that I wouldn't have left my horse to starve to death and that I had already made arrangements for it's care and feeding.

You don't owe her a dime. She took your horse, You didn't ask her to take care of your horse you had already made arrangements to take care of it while you were away.

You should get on your horse ride in circles around her house and fire flaming arrows at it.

*puts on Doctor's uniform and puts hand in Neesika's pants*

actually, relevant, because there would be a police report.
which leads back to the question, what is the basis of your suit?


I would be suing under trespass to chattel, which wouldn't be likely to give me much in the way of damages (remedy). So I'd also be suing under unjust enrichment, making the argument that although I didn't conventionally actually lose anything, and Jill didn't actually gain anything (essential elements of the claim) that I nonetheless DID suffer detriment by losing contol over my property. I'd be asking the court to give me a quite extraordinary remedy, one that currently doesn't exist in this form in the commonlaw...I'd be asking for the market value of the presence of my horse as compensation for my loss of proprietal control.

I'm just not convinced it would fly is all.

Heh, I'd suggest that possibly you could argue that her canceling the care amounts to fraud, and that it damaged your relationship between the caregiver who expected $4k in pay and got nothing.

And I would encourage the caregiver to go after her for the $4k he or she missed.

Perhaps you could argue that you don't feel particularly safe or assured that this woman won't choose to trespass and steal your horse again.

Were I the judge, because I would not want to reward her for essentially stealing your horse, and doing your hired caretaker out of his salary, I would award her a dollar for the care she gave your horse. That would be a mighty expensive disapproval of her actions.

Personally, I'd be embarrassed to take this to court.

Studying law in the UK means you need to spend a great deal of time on land law, given the ancient rights over the land - for example, old common paths that run through your enormous estate.

So one case we spent much time on concerned two houses with adjoining gardens. One owner meticulously cared for his garden while the other let his garden turn into an urban jungle.

The idea was that the lazy owner was bringing down the value of the house of the meticulous owner.

Fair enough.

Here's where it became silly - the actual argument stemmed from the fact that the meticulous owner trimmed his half of the hedge and argued that the lazy owner should do likewise.

So the case devolved into searching through land record after land record in order to work out exactly whose land the hedge was on and therefore whose responsibility it was to trim it.

It was at this point that I realised that laws are made because a few people are idiots - most of us get by without noticing the law at all, we resolve our differences and, in the case of this horse as with the hedge, you'd hope and expect that might happen.

Yet it doesn't, because again, a few people are idiots and spoil it for the rest of us.

That's why we have the law.

Even worse, because people are idiots in an infinite amount of ways, the law becomes more and more complex as it tries to deal with every aspect of human behavior. This then means we have to pay more and more to lawyers for them to trawl through it all.

It's an ever decreasing circle of idiocy.

You know, I read this post last night, and for some reason, I dreamt about it. I've noticed the same thing actually; that some of the most important, precedent setting civil cases out there are based on ridiculous disputes that obviously must have escalated past the point of all reason. And yet, in this silly cases, legal principles are developed that help us with the more serious situations, so I don't think it's all that bad. Still, you do have to wonder about people's sanity when, during a baseball game, one person catches a ball, drops it, has someone else pick it up and claim it...and then have both parties go to court over who 'owns' the ball, spending more in legal fees than the ball could ever actually be worth. Is the 'principle of the thing' REALLY that important?

I disagree however, that law is mainly about idiots doing idiotic things. I welcome the developments. If Donoghue hadn't brought a suit agains the manufacturer of ginger beer, after finding a decomposed snail in the bottle, would we have been able to get around the problem of privity? A petty case perhaps, but incredibly important when it comes to negligence law, and product liability. And what about Carlill in the Carbolic Smoke Ball case? A product claiming to prevent influenza, backed up with an offer of a large sum of money to anyone who caught it after using the product. Had she simply thrown up her hands and said, 'we all know ads lie', we wouldn't have the annoying 'unilateral offer' principle :D

But I think you get what I mean :D

You know, I read this post last night, and for some reason, I dreamt about it.

Yeah you did ;)

I've noticed the same thing actually; that some of the most important, precedent setting civil cases out there are based on ridiculous disputes that obviously must have escalated past the point of all reason. And yet, in this silly cases, legal principles are developed that help us with the more serious situations, so I don't think it's all that bad. Still, you do have to wonder about people's sanity when, during a baseball game, one person catches a ball, drops it, has someone else pick it up and claim it...and then have both parties go to court over who 'owns' the ball, spending more in legal fees than the ball could ever actually be worth. Is the 'principle of the thing' REALLY that important?

You do have to wonder at people's sense of proportion, however...

I disagree however, that law is mainly about idiots doing idiotic things. I welcome the developments. If Donoghue hadn't brought a suit agains the manufacturer of ginger beer, after finding a decomposed snail in the bottle, would we have been able to get around the problem of privity?

A petty case perhaps, but incredibly important when it comes to negligence law, and product liability.

No, I agree with your disagreement here, though I'm not sure this was a petty case, both in terms of finding a snail in your drink and being a landmark precedent.

And what about Carlill in the Carbolic Smoke Ball case? A product claiming to prevent influenza, backed up with an offer of a large sum of money to anyone who caught it after using the product. Had she simply thrown up her hands and said, 'we all know ads lie', we wouldn't have the annoying 'unilateral offer' principle :D

Okay okay, I get your point, quit oppressing me.

But I think you get what I mean :D

In some senses, so many of the legal cases that make the news, if they're not sensationalist murder cases, tend to be overblown, misunderstood and outright distorted reporting such as McDonalds coffee. As such, we get a similarly distorted vision of 'crazy laws' without caring to read, especially where they're not reported outside law journals, into the details or significance of various cases.

So yeah, at the heart of it, I see a strong independent judiciary as the difference between a functioning and non-functioning state, I see consistent rulings and laws as central to a stable, equal society.

Yet at the same time, I recognise that this comes with various downsides, the ability for pedantic, technical and unreasonable people to use the law to justify their own esteem where a simple friendly discussion might resolve things easily.