What determines whether a mistake is fundamental and ownership passes? This textbook doesn't expound how to determine whether a mistake is fundamental enough. Assume that A and D mightn't have contracted. Under section 5(4) of the Theft Act 1968: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or its proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. This subsection deals with the situation where the defendant has received property as a result of another’s mistake and is under an obligation to restore the proceeds or their value. A good example of where section 5(4) operates is Attorney-General’s Reference (No. 1 of 1983),39 where a police officer was overpaid her salary by the police force. She was under an obligation to return the money (once she was aware of the overpayment) and therefore the money could be treated as belonging to another (the police force). DEFINITION Where A hands to D property on the basis of a mistake, four situations need to be distinguished: (1) The mistake is so fundamental that ownership does not pass. So although D possesses the property, in fact it is still owned by A. There is therefore no difficulty in establishing the ‘property belonging to another’ requirement if D is charged with theft. (2) The mistake is not so fundamental that ownership does not pass and so D owns the property. But the mistake is sufficient to mean that D is under an obligation to return the money or its proceeds. This means that, relying on section 5(4), the property belongs to A for the purposes of the law of theft and so D can be convicted. (3) The mistake is one that means that D holds the property on trust for A. In such a case A has an equitable interest in the property and the property belongs to A under section 5(1) of the Theft Act, so D can be convicted of theft (see e.g. Shadrokh-Cigari [1988] Crim LR 465 (CA); Hallam and Blackburn [1995] Crim LR 323 (CA)). (4) The mistake is not significant enough to give rise either to a claim that ownership did not pass, or to a claim that there is a legal obligation to make restoration. In that case the property will belong to D and no theft charge can lie, unless the transfer from A itself can be regarded as dishonest. In that case, after Hinks [2000] 3 WLR 1590 (HL), a charge of theft could be brought. Herring, Criminal Law: Text, Cases, and Materials (2020 9 ed). p 525.
What determines whether a mistake is fundamental and ownership passes? Short answer: When the facts show it is a blatantly obvious error. For example: I park my car on my neighbour's driveway by mistake (maybe at night in a driving blizzard). Although my neighbour possesses the car as it's on his land, ownership does not pass to him as it's an obvious error on my part. If he treats the car as his own (i.e., dishonestly appropriates) then he may be guilty of theft. Long answer: The word &quot;fundamental&quot; does not appear in the cited legislation, but has been introduced by the courts to mean something akin to being crucial, pivotal or critical to, for example, a contract - which can be mapped across to the OP's theft scenarios with a similar meaning. Here are some examples of when a fundamental mistake has, or may be, considered by the courts (with thanks to Law Teacher lectures) In Strickland v Turner (1852) 7 Ex 208 Strickland took out an insurance policy on the life of Turner but, unbeknownst to him and the insurance company, Turner was already dead. Strickland sued for the return of his premium payments, and it was held that &quot;a mistake to the subject matter of a contract must be fundamental and persuade each of the parties to enter into that agreement. Since turner was dead at the time the parties made the contract, this agreement was void.&quot; The perishing of specific goods will amount to a fundamental mistake, as per Section 6 of the Sale of Goods Act 1979. Goods which have never existed at all will also amount to a fundamental breach, as in Associated Japanese Bank (International) Ltd v Credit du Nord [1989] 1 WLR 255
A clause states &quot;If the contract is breached you accept that you must pay for damages. We shall determine the amount.&quot; Will this hold up in court? A court is going to want to look for context and an interpretation that would make this provision make sense before invalidating it (which it might). For example, if there was a schedule of the amount of damages for various violations attached to the contract, a court might interpret this language to mean that the drafting, non-breaching party will invoice you for damages in amount that it determines in good faith to be the correct amount with reference to the schedule or some formula set forth in the contract (e.g. an interest rate on an open account loan), in much the same way that a landlord might dock your security deposit and send you a letter telling you what was deducted in what amounts and why, or that a credit card company might charge you interest and late fees on a monthly basis. A court would, of course, be unlikely to interpret the clause as affording final and binding legal authority to decide what is owed. In the face of a clause like this one, the other party could bring a lawsuit to dispute the amount determined to be owed by the drafting, non-breaching party (unless the contract is a third-party arbitration clause and simply doesn't read like one because it is out of context).
Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable.
I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence).
I belive you have misread the linked article: &quot;A Narrow Lane: Navigating Claims for Breach of the Duty of Good Faith and Fair Dealing&quot;/ It says thst all conrtreacts involve a duty of good faith: It is a settled principle of New York law that “all contracts imply a covenant of good faith and fair dealing in the course of performance.” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (2002) (collecting cases). Courts have described this covenant as a duty “encompassing any promises which a reasonable person in the position of the promisee would be justified in understanding were included and which are not inconsistent with the contract.” It goes on to say that it is tempting for a plaintiff to include a bad faith claim in any contract dispute: After all, most plaintiffs probably believe that the defendant did not act in good faith and/or that the result was unfair. But it says that courts are reluctant to honor such claims in ordinary contract disputes: ... courts are loath to make rulings that might vary the terms to which the parties agreed. A party’s conduct either breaches the terms of the agreement or it does not; if it does not, that is generally the end of the line for a breach of contract claim. A party seeking to impose an additional duty on the ground that it is “implied” bears a heavy burden. In short, claims for breach of the duty of good faith and fair dealing fail far more often than they succeed. This article explores some of the nuances that make such claims particularly thorny. ... “[t]he law encourages ‘efficient breaches’”; that is, breaches committed based on the breaching party’s calculated determination that it “will still profit after compensating the other party for that party’s expectancy interest.” 28A N.Y. Prac. Contract Law § 23.2. Absent a specific provision in the contract that requires good faith, a “bad faith breach” is no different from any other. ... although a claim for breach of the duty of good faith and fair dealing requires that the parties have a valid contract ..., such a claim will fail if it is based on the same alleged conduct that forms the basis for a cause of action for breach of the contract’s express terms. See Kim v. Francis, 184 A.D.3d 413, 414 (1st Dept. 2020). So the article explicitly says that a claim for breach of contract does not automatically imply a breach of good faith. To the contrary, something more is required.
There isn't an automatic exclusion rule for all forms of improperly acquired evidence in the UK. I can't find the exact quote but there was a judgement from a senior court that said in terms: &quot;it's not the court's job to discipline the police but to see that justice is done.&quot; However, judges have the discretion to disallow individual pieces of evidence if they think the interests of justice require it. Section 78 (1) of PACE (1984) has: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Senior judges have been reluctant to lay down general guidelines, holding the trial judge best placed to make these decisions (although of course, subject to appeal). The foundational principle is the accused's right to a fair trial, so in principle one could appeal to the ECtHR under Article 6. However it generally takes a similar line to courts in the UK: It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. PACE Section 78(2) is: Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. The general principle in 78 (1) does not override specific prohibitions: for instance, intercept evidence is never admissable under the Regulation of Investigatory Powers Act 2000.
Florida Title XXXIX, chapter 687 of the 2022 Florida Statutes covers usury. The technical definitions of what it is are earlier, but the punishment is as follows (I skipped the couple of exceptions to it) 687.04 Penalty for usury; not to apply in certain situations.—Any person, or any agent, officer, or other representative of any person, willfully violating the provisions of s. 687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, either at law or in equity; and when said usurious interest is taken or reserved, or has been paid, then and in that event the person who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest shall forfeit to the party from whom such usurious interest has been reserved, taken, or exacted in any way double the amount of interest so reserved, taken, or exacted. So basically the lender can only collect the original amount loaned, no interest, and if they already collected some of the interest, they have to return that at a 2 for 1 rate. It's a civil law, so I don't know if that's what you meant by &quot;breaking the law/illegal&quot;, but they can go to court to recover the interest doubled. The contract wouldn't change anything, as you can't enforce the terms of an illegal contract.
This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits.