or animus furandi: Secondly, some degree of violence, or putting in fear:
and thirdly, a taking from the person of another.'
At page 291 'theft' is defined (page 14, herein);
"A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the
owner of it ...”
Consequently learned counsel for the third party argued that robbery and theft
are two separate and distinct offences and supported his contention with the
words of Edmund Davies LJ at page 293 (Words and Phrases supra)
" ..... I dissent from the view that criminal law should be treated as
irrelevant merely because a document is commercial. After all, criminal
is still law and so are its definitions and rules."
Learned Counsel further relied on the text book The Interpretation of
Contracts 2ND ED. By Kim Lewinson Q.C. London Sweet & Maxwell 1997
quote:
"Where parties have entered into written agreements, it is manifestly not
desirable to extend them by any implications; the presumption is that,
having expressed some, they have expressed all the conditions by which
they intend to be bound"
He invited the court to find that theft and robbery are different offences, the
operative clause of the agreement i.e clause 6.1 is clear that the Third Party's
liability could only inter alia arise in the event of loss occasioned by theft and
there is no mention of robbery.
As far as indemnity on the ground of “any loss is concerned, counsel submitted
that the word loss should not be given the widest meaning as submitted for
the Defendant as this will make it uncertain, it would imply that the Third Party
is liable for loss in any event including loss arising from force majeure which is
excluded in the agreement.
Counsel contended that for the court to discern the kind of loss for envisaged,
the agreement ought to be construed as a whole and therefore invited the
court to read the provisions of clause 6.1 and 6.2 in particular:
42