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2. Property Torts Notes

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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. o Green and Randall describe the nature of possession, as distinct from ownership as an "intrinsically valuable phenomenon". o 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. o 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. o 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.

1 o According to Bridge, Gullifer, McMeel & Worthington however, although the action of protection is tortious in nature, the substance is proprietary.Historical Development: o 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. o 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 ChattelsWeir gives a classic account of the distinction between mere possession, and legal ownership: o "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?
o 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" o 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 nonsequitur 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: o 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

2 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 BailmentKey Definition: o 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: o Bridge: "possessory relationship by which a bailor transfers possession of a chattel to a bailee" o McMeel: "merely a body of rules derived from general conceptual categories deployed in a particular contextual scene".

2. Historical RootsTwo key landmarks in the development of the law of bailment: o (1) Coggs v Bernard 1703, Holt CJ identified six types of bailment with fourfold hierarchy of standards of liability o (2) Publication of 'An Essay on the Law of Bailment' (Williams Jones) - proposed that the degree of care required infinitely variable, dependent on the nature of bailment. Note that this provided a precursor to the assumption of responsibility test emerging from Hedley Byrnes v Heller.

3. Common Examples??Gratuitous deposit for safe keeping Delivery of chattel with instruction to do something with it for the bailor, without reward Pawn or pledge to hold as security Gratuitous loan of a chattel for use Hire of chattel or services by bailee from bailor for reward o Authority - Lord Hope in TRM Copy Centres

4. Requirements for Bailment

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Four Main Requirements: (1) Bailor had possession or a right to possess (2) Bailee is put into possession (3) Bailee has voluntarily assumed possession of goods belonging to another (4) Goods are capable of bailment.(1) Bailor's possession or right to possess: o Possession gives possessory title, the owner is merely the person with the best possessory title. o Possible that bailor has possessory title but is not owner. o Could even be bailee himself in case of sub-bailment.
? Authority - Armory v Delamirie - a chimney sweep found a jewel whilst at work then bailed it to a jeweller despite not being the "owner" of it.(2) Bailee is put into possession: o Requires physical possession and intention to possess. o Example of possible complexities:
? Authority - Ashby v Tolhurst 1937 - Court of Appeal held there was no bailment when a car was left in a car park as the keys had not been handed over to the attendant, therefore the means of control had not been transferred.(3) Voluntary assumption of another's goods: o Uncertainty in this area in the past, but now it is settled that the bailor's mindset is irrelevant, therefore you look exclusively at the bailee's state of mind.
? Authority - East West Corporation v DKBS 2003 o Two sub-elements:
? (i) Voluntary assumption of possession?

Authority - East West Corporation v DKBS 2003 (ii) Knowledge that the chattel belongs to another?Authority - Marcq v Christie's 2004 - Defendant could not be held to be a bailee of the true owner of a stolen painting as they did not know the actual bailor was not the true owner. Tuckey LJ suggested that it was an objective test, but appeared to apply a subjective one as the chattel in question was on a register of stolen paintings.

(4) Goods must be capable of bailment: o Three sub-elements:
? (i) Possible and intended that the very property is returned?

Note money can be bailed but not if it is intended to be used as currency, but only if the very notes and coins are to be returned.
? Authority - Taylor v Chester 1869 (ii) Capable of being ownedMostly straightforward, but in relation to body parts they cannot usually be owner, there is an exception however

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when they have been subjected to preservation or other processes.
? Authority - Yearworth v North Bristol NHS Trust 2009 - Court of Appeal found that sperm frozen could be owner, the focus was on negative control, the need for the Trust to gain the claimant's permission to deal with the sperm etc. (iii) Tangible vs. intangible property?

Current law is that only tangible property can be bailed Authority - Hoath v Connect Internet Services 2006 (Australian case that was influenced by English law) - Held an internet domain name cannot be bailed.

5. Consequences of Property Being the Subject of a Bailment(1) Bailee and third party o Even though the bailee is not the owner, he can sue third parties (negligence, trespass to goods, conversion) o The basis is relativity of title, the superior possessory title grounds the bailee's claim. o The bailee is entitled to recover in full.
? Authority - The Winkfield 1902 - Collins MR: "as between bailee and stranger, possession gives title, that is, not a limited interest but absolute and complete ownership". o Statutory qualification - the common law bar to ius tertii (asserting a third party superior right in defence) has been abolished
? Authority - s.8 Torts (Interference with Goods) Act 1977(2) Bailor and third party o Bailor, under certain conditions, can also sue in the property torts. o Immediate right to possession can ground actions in most property torts (note that trespass to goods traditionally requires actual possession to sue, an immediate right is insufficient therefore) o When will there be a right to immediate possession?
? If specified in the bailment
? If it is a bailment at will, not for a term
? In the case of serious damage or destruction to the chattel, a right arises immediately.
? Authority - O'Sullivan v Williams 1992 - bailor loaned his car to his girlfriend, it was damaged by a third party, the bailor sued under a right to immediate possession which precluded the claim by the bailee. o If there is no immediate right to possession, must show that the reversionary interest has been adversely affected.
? Authority - HSBC Rail v Network Rail 2005 - Longmore LJ: must show permanent damage. o However the possibility of repair does not prevent it being permanent.
? Authority - Mears v London & South Western Railway(3) Bailor and bailee's claims are mutually exclusive o If one recovers in full, that claim excludes the other's.

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