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Example research essay topic: Pre Existing Relationship Pre Existing Legal Relationship Defendant - 1,108 words

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... nt, as it was here. Despite this change in terminology, it is still important to draw a distinction between those cases in which a stranger has intervened in circumstances of necessity and those in which the plaintiff who intervened has a pre-existing relationship with the defendant. The change in terminology in respect of the latter doctrine emphasises that the preexisting relationship between the parties need not have been an agency relationship. Lord Diplock did suggest that the conditions which need to be satisfied before an agency of necessity is established will not necessarily have to be satisfied before the plaintiff obtains reimbursement from the defendant.

Consequently, for example, restitution will not be denied simply because the plaintiff was in fact able to communicate with the defendant, it being sufficient, as occurred in The Winson itself, that, despite the communication with the defendant by the plaintiff, the defendant had failed to give any instructions to the plaintiff as to what to do with the wheat. Where there is a pre-existing legal relationship between the parties, restitution may be awarded by reason of necessity if certain conditions are satisfied, as was recognised in The Cook Star. However, as Lord Diplock recognised in The Winson, the key issue for the courts to determine is whether the plaintiff's conduct was reasonable, so the fact that one of these conditions is not satisfied does not mean that the plaintiff's conduct must automatically be considered to have been unreasonable. 1. There must be an actual and definite commercial necessity for the plaintiff to intervene having regard to the particular circumstances of the case. It was for this reason that an agency of necessity was not established in Sachs v. Miklos where the defendant had agreed to store the plaintiff's furniture free of charge.

After a considerable time the plaintiff had not reclaimed the furniture and, since the defendant wished to rent out the room where it was stored, the defendant attempted to contact the plaintiff. Despite numerous attempts to make contact, the defendant could not find the plaintiff and so he sold the furniture. The plaintiff then returned to claim his furniture and, when he discovered that it had been sold, he sued the defendant in conversion. The defendant argued that he was an agent of necessity but the Court of Appeal held that this had not been established, simply because there was no need for the furniture to be sold. Similarly, in Munro v. Will mott the defendant sold the plaintiff's car which had been left on his premises for a number of years.

Again the defendant was not characterised as an agent of necessity because the sale of the car was not required as a matter of real urgency but was done simply for the defendant's convenience. It would have been different in both cases if the plaintiff's property had been perishable, such as fruit and vegetables, so that there was a commercial necessity for the property to be disposed of, otherwise it would have perished. 2. It must have been practically impossible to obtain the defendant's instructions about what should be done in time. Restitutionary relief may, however, still be awarded where the plaintiff asks the defendant for instructions and the defendant fails to respond. 3. The burden is on the plaintiff to show that he or she was acting in good faith in the best interests of the defendant. It follows that the plaintiff's action must have been reasonable and prudent in the particular circumstances of the case and must have been taken to protect the interests of the defendant, otherwise it will smack of officiousness.

The problem with the action for reimbursement in circumstances of necessity where there is a pre-existing legal relationship between the parties is whether it really forms part of the law of restitution. The difficulty arises from the requirement that there must be a pre-existing relationship, whether it be agency or bailment or whatever. The effect of the doctrine is that the plaintiff's authority under this relationship is extended to include the reaction to the emergency. This suggests that the doctrine is part of the law governing the pre-existing relationship, such as contract, rather than the law of restitution, with the consequence that, if the plaintiff has a remedy, it will be contractual rather than restitution ary.

Whilst this may be true in most cases, there is still a role for the doctrine to apply within the law of restitution. This will particularly be the case where, as in The Winson, the pre-existing relationship between the parties is not contractual but arises, for example, from a gratuitous bailment or where the previous contractual relationship may have ended. In these circumstances the law of restitution intervenes to impose an obligation on the defendant by operation of law to ensure that the defendant does not receive enrichment without reimbursing or remunerating the plaintiff. In China Pacific S. A. v.

Food Corporation of India, The Winson, the House of Lords applied these same cases so as to allow the plaintiffs, who were professional sailors, to recover the charges incurred by them in storing the defendants' cargo of wheat after saving it from the stranded ship in which it was being carried. But in this case their Lordships took the opportunity to make an adjustment of terminology. They said that the words 'agency of necessity's hold not be used except to denote the circumstances in which the facts would allow a contractual relationship to be created between the agent's principal and the outsider. The phrase should not be used where the only issue was restitution in respect of such steps as had been reasonably necessary to preserve the owner's goods. These two groups of cases -- those between strangers and those extending a pre-existing contractual relationship -- can be perceived as different applications of a single principle.

That is to say, a pre-existing relationship appears to be no more than one way, albeit the most common, of satisfying prerequisites of a restitution ary claim which can be satisfied, more rarely, by facts other than such a relationship. The notion of an agency of necessity could not be applied except where there was a pre-existing relationship on which to build. The consequent isolation of the relationship cases will not really be diminished if the phrase 'agency of necessity' is displaced by a new analysis in which the right to reimbursement is seen to be correlative with a duty to keep safe. For the duty element will not easily be found without a pre-existing relationship between the parties. Where a stranger intervenes, the duty upon him is moral, not legal.


Free research essays on topics related to: plaintiff, existing, pre existing, defendant, necessity

Research essay sample on Pre Existing Relationship Pre Existing Legal Relationship Defendant

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