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Relativity Of Title Notes

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Relativity of Title There are different rules in relation to title in respect of corporeal and incorporeal chattels

Corporeal chattels Distinction between possession in fact and possession in law Factual possession means that a person has exclusive control of a chattel and intends to exercise that exclusive control. Legal possession is an interest in the property, independent of ownership or a right to possess, which gives a legal right to protect and enforce factual possession. An owner has ownership rights and the best right to possession. A person who has exclusive control over a chattel has legal possession and an incidental right to possess. Legal possession enables the person to protect their exclusive control and factual possession. A person who is a bare custodian may physically have the chattel, but they do not have exclusive control and so there is not factual possession and so there is not legal possession. If a thief steals from a bare custodian then the custodian is not able to sue to regain possession. It is the person who had legal possession that has a right to possess enforceable against the thief. Pollock and Wright explain legal possession as a protected state of affairs. The right to possess is a concept which will depend on whom a person is and whom they are asserting rights against. The owner does not have always have legal possession despite having the best right to possess. Legal possession is the right to protect existing factual possession. Pollock and Wright summarise possession as meaning that there is prima facie evidence of ownership enforceable against a mere wrongdoer interfering with possession. A person who finds a jewel and takes it into his possession has gained legal possession, and so this can protect his factual possession against interference by anybody except the true owner (Armor v. Delamirie) Fox says that Armor v. Delamirie means that whenever a party has a stronger right to possess they have relative title and can protect that through an action for conversion. Fox says that Pollock and Wright simply explain the right to possess as incidental to ownership to tidy up the law. The strongest relative right to possess is all that is important. Fox believes that Pollock and Wright mean that legal possession is evidence of title to possess against third parties who cannot prove better title. A bailee has exclusive control and intention to exercise that control. They have legal possession and so can sue for damage to goods to which they have legal possession even

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