2. Property Torts Notes

Property Torts

Introduction & General Principles

1. Nature of the Protection of Personal Property

a. Role of Possession

• The concept of possession is key in determining rights to chattels, however it is famously difficult and controversial to expand principles and rules relating to it.

• Whether there is an abstract concept of “ownership” in chattels beyond the strongest possessory right is controversial.

  • Green and Randall describe the nature of possession, as distinct from ownership as an “intrinsically valuable phenomenon”.

  • According to Bridge, it is due to the movable, commonly short-lived and protean character of chattels, that property rights in chattels should be defined in possessory rather than abstract terms – compare ownership in land.

  • Weir argues that the concept of possession is independently valuable and must be protected for the sake of public order – when this is done, possession becomes a ground of entitlement the fact of possession giving rise to the right to possess.

    • Sohm: “the justice of ownership yields to the order of possession”.

    • Bridge, McMeel, Gullifer & Worthington: “possession embraces all proprietary interests in goods short of outright ownership”.

      • NB/ This quote shows that some are of the opinion that possession cannot replace ownership entirely, but that there remains an independent concept of ownership

    • Bridge, McMeel, Gullifer & Worthington use the term “vindicatory possession”, as a cause of action by which such property law rights and interests (in chattels) are enforced. Possession provides the basis upon which there is necessary title to sue.

  • According to Harris, the account of the concept of possession put forwards in the 1960s was used as a “functional and relative” concept used to address the subconscious, underlying question of whether the plaintiff had entered into a sufficiently close relationship with the chattel for the application of a certain rule against a particular defendant.

• There are likenesses between the way in which English law protects ownership of chattels with that of Roman law, via the possessory interdicts.

b. Role of Tort

• The concept of “vindicatory possession” (see above) as a cause of action is tortious in nature.

• This is crucial for understanding an action for conversion.

  • According to Bridge, Gullifer, McMeel & Worthington however, although the action of protection is tortious in nature, the substance is proprietary.

• Historical Development:

  • Historically, England has had what Weir describes as a lack of a rational system of law, meaning that the law of property provides no means for an owner to recover his property from another, this gap is filled by the law of tort. Weir believes that there are unfortunate consequences that flow from the fact that tort fills this gap, for example that it leads to strict liability, that tort looks to past conduct rather than current possession leading to multiple defendants. However, it must be noted that even in Roman classical law, the remedy given under the vindicatio (action at law allowing the owner to reclaim his property from another) is not generally specific recovery.

  • However, Green & Randall believe that the common law is far more sophisticated than Scots law in dealing with dispossession with the law of torts rather than the law of property, allows for the protection of a wider range of parties.

2. Nature of Ownership of Chattels

• Weir gives a classic account of the distinction between mere possession, and legal ownership:

  • “Ownership is a legal right, possession a physical fact”, however it must be questioned whether this underplays the legal complexities of the concept of possession.

• Is There a Concept of Ownership in Chattels?

  • No:

    • Green & Randall believe there is no concept of ownership at common law, largely because it is not needed.

      • “There is in English law no absolute and inviolable entitlement to assets”

  • Yes:

    • Dicta in Armory v Delamirie 1712 referring to the “rightful owner” and to “absolute property or ownership”.

    • Bridge says that there is no notion of ownership at common law, in comparison to civil law, in the absolute sense. Although ownership in relation to chattels is often spoken of in absolute terms but it is, in reality, relative in nature. However it is a non-sequitur to say that because the law protects a stronger interest over a weaker one that no concept of best or absolute interest in goods can exist.

    • Torts (Interference with Goods) Act 1977: the concept of ownership is presupposed in the statutory reference to “true owner”.

• Importance of Ownership:

  • Weir believes that the concept of ownership is important as it gives rise to the right to possess (right to enjoyment), however concedes that ownership is not the only means of creating a right to possess, contract can also provide this thus there is a blurring of the concepts of possession and ownership.

    • NB/ The nature of the relationship between ownership and possession, in particular in relation to chattels is circular, according to some ownership gives rise to possession, but we also see possession, giving rise to a right to bring an action in tort to protect that possession, resembling ownership.

• Unlike in relation to real property, there is no system of registration.

Bailment

1. Essence & Definition of Bailment

• Key Definition:

  • Lord Hope in TRM Copy Centres v Lanwall: “Bailment is not synonymous with hire. It embraces all situations in which possession of goods is given by one person to another upon the condition that they shall be restored to the person by when possession has been given, or dealt with as he directs, upon expiry of the agreed period of possession”.

• Other Definitions:

  • Bridge: “possessory relationship by which a bailor transfers possession of a chattel to a bailee”

  • McMeel: “merely a body of rules derived from general conceptual categories deployed in a particular contextual scene”.

2. Historical Roots

• Two...

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