Protection of Personal Property Rights: Roman Law vs English Law

Roman Law

Under Roman Law it was possible for B to simply assert his property right by means of a vindicatio action. The victim would go to court and assert “this is my thing” and would receive the monetary value of the property.

• Note that there were also other ways of protecting property rights in Roman Law (e.g. the possessory interdicts, the law of delict)

• The action directly protected dominium (ownership) of the property. It also changed the legal relationship of the parties by giving rise to a duty to return the goods or pay an equivalent sum of money with a corresponding right.

English Law

However, in English Law, B can only assert his right indirectly through D’s ‘wrong’ (i.e. by bringing an action in tort). There is no equivalent to the vindicatio. A property right gives someone a right not to have the rest of world interfere with their title. This means that if someone breaches their corresponding duty not to interfere with the title then the victim can sue them for the wrong they have committed.

• Note that there is some dispute over whether a secondary right arises on breach of the primary duty or whether the defendant is simply liable to be sued

  • John Gardner’s continuity thesis: the claimant has acquired a secondary right that arises on breach of the primary right to bring an action against the defendant

  • In Professor Swadling’s opinion, the better view is not to talk in terms of rights and duties, but to simply say that the defendant is liable to be sued

Could there ever be a vindicatio in English Law?

One feature of English property law that poses a potential barrier to a vindicatio action is relativity of title. An equivalent action to the vindicatio in English law would therefore need to adopt relativity of title by allowing someone with less than the best title to bring the claim.

In line with the rest of English law, it would be expected that the remedy for a vindicatio action in English law would be damages (value of property) or specific recovery of the chattel in unique cases.

Should there be a vindicatio in English Law?

N McBride (2016) 28 SAcLJ 1052:

1. Argument 1: No because it would arguably add little to the remedies currently available

   • It is difficult to see what the advantage to using a vindicatio action over conversion. Pre-action protocol would require C to first ask D for the chattel back and for D to refuse before a claim was brought. C would likely meet the requirements for a claim in conversion at this point anyway.

2. Argument 2: No because inefficient use of court resources

• By waiting to see if D has violated C’s rights it ensures that court resources are only spent on cases where intervention is urgently required

• Analysis: given that court proceedings are costly to the individual, they will only be relied upon in cases where there has been a violation of rights.

3. Argument 3: Yes because historical absence of vindicatio remedy

• Many legal academics argue that the reason why there is strict liability in conversion is because common law failed to provide an effective vindicatio

• If we argue that strict liability is unjustified in the tort of conversion (which we can on a Fullerian view of legal duties) then we need a vindicatio remedy to take its place

Protection under Common Law: The Old Actions

There were a number of torts that were historically used to protect rights in personal property.

Detinue

• Substance of Action: wrongful detention of chattel

• Requirements:

  • Mere possession was not enough- there must be evidence of wrongful detention

    • Wrongful detention means a refusal to recognise the title of the claimant

    • E.g. in Clayton clear evidence of a demand and refusal was needed for the limitation period to begin

    • Although refusal to recognise title did not always require actual demand and refusal

• Abolished by 1978 Act, S2- no longer possible to bring an action in the name of detinue

  • But the very facts that gave rise to liability in detinue today seem to give rise to liability in conversion. It seems to have been adopted under the head of conversion

    • E.g. Harrods adopted the Clayton requirement of an unequivocal refusal

Trespass to Goods

• Requires a direct physical interference with the property of another (e.g. scratching the panel of a car)

Trover

• Claimant alleged that he had casually lost a chattel out of his possession , that it afterwards came into D’s possession by finding, and that D, well knowing it to be C’s property, yet refused to return it and converted and disposed of it to his own use

• Unlike trespass it requires an element of intention to convert the title to the property, as opposed to mere possession

Overview of Torts used Today

There are three torts that are commonly used to protect personal property rights in English Law today.

Trespass

• Substance: deliberately and directly physically interfering with C’s exclusive control of a thing.

• Damages: the value of the loss caused

Conversion

• Substance: deliberately interfering with C’s right to exclusive control of the thing

• Mindset required: need to deliberately interfere with the physical goods but not the right

• Damages: the value of the property

Negligence

• Substance: carelessly damaging the thing of another

Trespass and conversion are strict liability wrongs in the sense that C only needs to deliberately do the act that causes the interference, he need not know of B’s property right to the thing. Negligence requires an element of fault.

Monetary Damages

Where D pays C monetary damages for interfering with C’s property right then C’s ownership will cease to exist. In that sense, the money received by C functions as a substitute for C’s right.

• BBMB Finance: where C commits the wrong of conversion, the basic rule is that C will be ordered to pay a sum equal to the value of B’s right at the time of C’s interference with that right. Therefore, C is liable for the difference in value of the shares....

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