Beruflich Dokumente
Kultur Dokumente
3154
doi:10.1093/ojls/gqu016
Published Advance Access July 22, 2014
Keywords: property, property rights, common law, commercial law, private law
1. Introduction
The primary aim of this article is to provide support for the claim that English
personal property law contains a doctrine of deemed ownership, that is, a
doctrine which provides that, in certain circumstances, a person is to be
deemed to be the owner of a tangible chattel.1 A secondary aim of this article is
to explain how a commitment to that claim might lead one to accept a certain
sort of account of the doctrine of relative title. It will be convenient to
introduce the doctrine of relative title before discussing deemed ownership.
* Luke Rostill, Wadham College, Oxford. Email: luke.rostill@law.ox.ac.uk. I would like to thank the members
of the Oxford Law Facultys Property Law Discussion Group, particularly Simon Douglas, Joshua Getzler, Mike
Macnair and Robert Stevens, and an anonymous reviewer, for their insightful and helpful comments on a draft of
this article. I am especially grateful to Ben McFarlane, my doctoral supervisor, and William Swadling for their
very valuable comments, criticisms and advice. Finally, I would like to thank the Arts and Humanities Research
Council for supporting this work. I am, of course, solely responsible for any errors.
1
A tangible chattel is a corporeal, movable thing that is capable of being possessed (and hence a chose in
possession), and which may be the object of property rights. Such chattels are sometimes called goods. This
article is only concerned with tangible chattels, although it generally uses chattels simpliciter to refer to them.
The Author 2014. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
32
VOL. 35
Legal scholars disagree, however, about the nature of the thing that lies at the
heart of the doctrine: title. Some scholars claim that a title is a property right
(or a proprietary interest);5 other scholars assert that a title is a claim to a
property right rather than a property right itself. The persistence and depth of
the disagreement is surprising, for many writers regard the doctrine of relative
title as a distinctive and significant feature of the common law.6 The truth is,
however, that academics have advanced fundamentally different accounts of
title and, accordingly, of the doctrine of relative title. It is suggested below that
one reason for this is that some academics believe that English law contains a
doctrine of deemed ownership and others do not.
Before discussing the debate over the nature of title, and the related debate
over whether English law contains a doctrine of deemed ownership, it is worth
noting that the term title is used in a variety of ways. In his essay on
2
cf F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press 1888) 22, 95.
cf ibid 2324.
In general at least, titles are better or worse as they are more ancient or more recent: AWB Simpson, A
History of the Land Law (2nd edn, Clarendon Press 1986) 40. On one account of the doctrine of relative title,
discussed below, one should add that the title of a true owner to the ownership of her chattel is always better
than any other title to the ownership of the very same chattel.
5
Ownership, leases, easements and the like are generally believed to be types of property right. But not all
scholars are happy with this. Nicholas McBride, for instance, finds this belief inexcusablethe range of
proprietary interests that someone may have in a thing (ownership, charge, beneficial interest, lease) are not in
and of themselves rights: N McBride, Rights and the Basis of Tort Law in D Nolan and A Robertson (eds),
Rights and Private Law (Hart 2012) 347. In order to adequately examine this claim, one would need to provide
an account of the nature of property rights and the nature of the interests mentionedownership, charge, etc.
Its truth may depend, for instance, on the soundness of a bundle theory of property. These issues cannot be
explored here. In this article, property right(s) should not be regarded as necessarily excluding what McBride
calls proprietary interests. If McBride is right, proprietary interests should replace or supplement property
rights in this article.
6
D Fox, Relativity of Title at Law and in Equity (2006) 65 CLJ 330; K Gray and S Gray, Elements of Land
Law (5th edn, OUP 2009) 2.2.4.
3
4
(1) a title to a thing can be compared with one other, or more than one
other, title to the same thing: with respect to any other such title, it can
be said to be better than it or worse than it;
(2) if a title (X) is better than another title (Y), X might be good against
the holder of Y, but Y cannot be good against the holder of X;4 and
(3) a persons title might be better than another persons title, but worse
than the title of some third person.
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33
AM Honore, Ownership in his Making Law Bind (Clarendon Press 1987) 184.
ibid. James Harris used the term title in this way: JW Harris, Property and Justice (Clarendon Press 1996)
3940, 8081. cf N MacCormick, Institutions of Law: An Essay in Legal Theory (OUP 2007) 139.
9
William Swadling uses title to refer to a right to exclusive possession forever: WJ Swadling, Property:
General Principles in A Burrows (ed), English Private Law (3rd edn, OUP 2013) 4.131. cf WJ Swadling,
Ignorance and Unjust Enrichment: The Problem of Title (2008) 28 OJLS 627, 64041.
10
Honore (n 7) 184; R Hickey, Property and the Law of Finders (Hart 2010) 16566.
11
For example, HL Ho, Some Reflections on Property and Title in the Sale of Goods Act (1997) 56
CLJ 571, 573.
12
Hickey (n 10) 165.
8
34
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13
For example, B McFarlane, The Structure of Property Law (Hart 2008) 15456; S Douglas, Liability for
Wrongful Interferences with Chattels (Hart 2011) 2030; Swadling, Property (n 9) 4.422. Robin Hickey has
claimed that the general trend of the cases does lend some support to the view that possession generates a
relatively good property right, but he has some reservations: Hickey (n 10) 10911. James Gordley and Ugo
Mattei have claimed that the doctrine that possession gives a kind of titleie a right of ownershipwas in fact
invented by Oliver Wendell Holmes and Sir Frederick Pollock: J Gordley and U Mattei, Protecting Possession
(1996) 44 Am J Comp L 293, 294.
14
For example, McFarlane (n 13) 140; Hickey (n 10) 12224, 164; Douglas (n 13) 26.
15
Swadling, Property (n 9) 4.422.
16
McFarlane (n 13) 146; Swadling, Property (n 9) 4.427.
17
McFarlane (n 13) 146; Douglas (n 13) 2427. cf Fox (n 6) 33638.
SPRING 2015
35
18
Joseph Raz has drawn a distinction between believing a proposition and accepting a proposition.
[A]ccepting a proposition is conducting oneself in accord with, and because of, the belief that there is sufficient
reason to act on the assumption that the proposition is true: acceptance of the proposition P entails belief, but
not belief that P. Rather it entails belief that it is justified to act as if P: J Raz, From Normativity to Responsibility
(OUP 2011) 37.
19
The identification of those legal scholars who are committed to this thesis is hindered by the numerous
ambiguities and confusions that afflict this area of the law and discussions of it. It is arguable that Norman
Palmer and David Fox are committed to the thesis (or a very similar thesis): N Palmer, Possessory Title in N
Palmer and E McKendrick (eds), Interests in Goods (2nd edn, LLP 1998) esp 6671; N Palmer (ed), Palmer on
Bailment (3rd edn, Sweet & Maxwell 2009) 4005, 4093; Fox (n 6) 340. However, these scholars do not
distinguish the AP thesis from the deemed ownership thesis. Indeed, Fox seems to be committed to a version of the
AP thesis, and it appears that this commitment is based on his belief that a person in possession of a chattel
benefits from a presumption of ownership: Fox (n 6) 33234, 33638, 34042. The distinction collapses for one
who believes that it is necessarily the case that a person has ownership (in law) of a thing if courts treat that
person as having ownership of it. But such a belief would be plainly mistaken. Of course, one might identify the
two distinct theses and claim that both theses are true (cf D Sheehan, The Principles of Personal Property Law (Hart
2011) 13 and fn 72). It should also be noted that, whether or not Fox is committed to the deemed ownership thesis,
his account of the doctrine of relative title is closer to Swadlings account, discussed above, than it is to the
account that is here allied with the deemed ownership thesis: Fox (n 6) esp 33638.
better, because older, than Cs so that, other things being equal, C was bound
by his property right.
On an alternative view, a title is not a property right and the doctrine of
relative title is not about the priority and bindingness of property rights.
Rather, at its core it is about when legal officials and legal institutions,
principally the courts, are to act as if some person or other has a property right,
such as ownership. In other words, it is about when legal officials are to accept
that some person or other has a property right.18 According to this view, a
person with a title (or claim) to the ownership of a chattel, is a person who
the law is to treat as the chattels owner in at least some circumstances. The
law treats a person who has had possession of a chattel as its owner in certain
circumstances, and hence such a person has a title to the ownership of the
chattel. A person who believes that these claims are true is committed to what
is referred to herein as the deemed ownership thesis: In certain circumstances,
English law deems a person who was in possession of a chattel to have, or to have
had, ownership of it, ie it accepts that he or she has, or had, ownership.19
According to the view we are considering, possession can be said to be a
title, according to something akin to the first use of the term title identified
by Honore, inasmuch as having possession of a chattel is a condition of a
person being treated as the chattels owner. And when title is reified, when it is
regarded as a thing the law confers on persons and so as a thing that persons
have, it can be said that possession gives rise to a title: a person who obtains
possession of a chattel thereby acquires, and so has, a title in respect of it. This
way of talking is liable to cause confusion unless it is remembered that, on this
view, to claim that B in Example 1 has, on the basis of his possession of the
umbrella, a title, or claim, to the ownership of it, means that, for at least
some purposes (such as an action in conversion) the law is to treat B as its
owner against a person who does not have, and cannot rely on, a better title.
Bs title is, or may be, good against C but it is not good against A. In other
36
VOL. 35
20
21
22
23
Text to nn 6266.
P Birks, Personal Property: Proprietary Rights and Remedies (2000) 11 KCLJ 1, 2.
M Bridge, Personal Property Law (3rd edn, OUP 2002) 14.
A Pretto-Sakmann, Boundaries of Personal Property: Shares and Sub-shares (Hart 2005) 3.
SPRING 2015
37
with the widespread belief that ownership is, or ought to be, exclusive. As
Larissa Katz has said, exclusivity . . . is, on most accounts of ownership, at the
very core of the idea of ownership.24
One response to this is to claim that English personal property law is not
concerned with ownership per se. Some scholars have claimed just that.25
Alternatively, one might abandon the claim that ownership is, or ought to be,
exclusive (in the relevant sense);26 or one might explain how the doctrine of
relative title is compatible with the exclusivity of ownership. Larissa Katz,
taking the latter option, has argued that ownership is an exclusive right to set
the agenda for a thing, and that non-owners can have standing to make
decisions about things without violating the exclusivity of ownership.27 But, it
is arguable that, if the deemed ownership thesis is sound and the AP thesis is
falseand if there is no other basis for the existence of multiple, competing
ownershipsthen the problem does not really arise; one can, so to speak,
solve the problem by dissolving it. For, according to the deemed ownership thesis,
a person who obtains possession of a chattel that is owned by another, such as
B in Example 1, does not thereby acquire a property right in it; B is merely to
be treated as having the rights, powers etc that he would have if he were the
owner. Thus, it seems that such a person would not acquire anything that
could challenge or undermine the exclusive legal-normative position that the
owner occupies qua owner (if the owner does, indeed, occupy such a position).
Hence, a person who is committed to the deemed ownership thesis may claim that
the existence of the doctrine of relative title is not a good reason for a common
lawyer to jettison the claim that English personal property law is concerned
with the protection of ownership.
38
VOL. 35
28
Many of the cases that support the argument advanced in this article are cited, for example, in Palmer,
Bailment (n 19) 4005, 4093.
29
JCP Goldberg and BC Zipursky, Torts as Wrongs (2010) 88 Tex L Rev 917; J Gardner, Torts and Other
Wrongs (2012) 39 Florida State UL Rev 43, 4546.
30
As John Gardner has recently explained, the legal right to reparation is complex: [i]ts incidents include not
only the wrongdoers legal duty to repair, but also a largely undirected legal powerie a legal power that is not
coupled with legal duties regulating its exercisefor the person wronged to determine whether that legal duty is
concretized and enforced through the courts, with a consequent duty on the courts to assist, when that power is
validly exercised by the issue of proceedings: J Gardner, What is Tort Law For? Part 2. The Place of
Distributive Justice in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (OUP 2014) 340.
SPRING 2015
39
The question at issue in Jeffries was whether the defendant could escape liability
by showing that the goods were not the plaintiffs34 because Owens interest in
them had vested in the assignees. The Lord Chief Justice, agreeing with the trial
judge, Pollock CB, opined that, because the defendants were wrongdoers, they
could not. According to the statement quoted above, it is a necessary, but not a
31
32
33
34
[1902] P 42 (CA).
Jeffries v GWR Co (1856) 5 El & Bl 802, 119 ER 680.
ibid 805.
ibid 802.
in tort for, say, conversion is that a possessor actually acquires, when she obtains
possession, a property right. If some other person converts the chattel, this amounts
to a violation of her right(s), and this is what grounds her right to reparation.
The point is that, according to these accounts of the law, one cannot simply
take the possession and the right to reparation and put them together: one
cannot jump directly from the former to the latter. If one were to do so, one
would miss a crucial part of the reasoning and, accordingly, ones understanding of the law would be incomplete and distorted.
With the foregoing in mind, we can turn to the cases. The view that there is
a doctrine of deemed ownership in English law is most clearly supported by the
Court of Appeals decision of 1902 in The Winkfield,31 in which Sir Richard
Collins MR, giving the leading judgment, relied heavily on Jeffries v Great
Western Railway Co.32 Accordingly, it seems appropriate to begin with Jeffries
and to consider earlier cases if and when it becomes necessary.
40
VOL. 35
35
ibid.
ibid 805. Wightman J made a similar assertion in argument: ibid 805. But it seems that the principles
application is not, in the modern law at least, restricted to claims against persons who are what Lord Campbell
CJ called wrongdoers: see text to n 65.
37
ibid 806.
38
Swadling Property (n 9) 4.426. cf Hickey (n 10) 10910.
39
Ibid. For a general discussion of presumptions in the law of proof see, eg, R Glover and P Murphy, Murphy
on Evidence (13th edn, OUP 2013) 7581, 70919.
40
For a philosophical account of presumptions, one that is concerned with their role in practical reasoning
and the theory of action, see E Ullmann-Margalit, On Presumption (1983) LXXX J Phil 143. It seems likely
that the reason some legal scholars reject the view that legal statements can be statements of presumed facts is
that they regard presumptions as involving an inference from the primary fact to the presumed fact: for example
Murphy (n 39) 709. If Edna Ullmann-Margalit is correct, however, then there are presumptions that, very
roughly, are not about the presumed fact being inferred from the primary fact, but about persons acting as if the
presumed fact were true. This is a complex issue that cannot be satisfactorily considered here. The important
point is that one should not regard the criticism of the phrase presumption of ownership as providing any reason
to reject the deemed ownership thesis.
36
sufficient, condition of a person being a wrongdoer that that person has taken
the goods out of another persons possession. This is important. For his
Lordships reason for believing that a wrongdoer cannot defend himself by
shewing that there was a title in some third person has to do with the
importance of protecting possession: I think it most reasonable law, and
essential for the interests of society, that peaceable possession should not be
disturbed by wrongdoers.35 This reasoning proceeded on the basis that, as the
Lord Chief Justice put it, against a wrongdoer, possession is a title;36 that, in
trover, as in trespass, the presumption of law is that the person who has
possession has the property.37
This use of the term presumption has been criticized. William Swadling, for
instance, has claimed that the statement sometimes made that the fact of
possession gives rise to a presumption of ownership is a misnomer.38 One
of his reasons for this is that presumptions properly-so-calledor true
presumptionsare methods of proof of facts, whereby if one fact (the
primary fact) is proved, then another fact (the presumed fact) is to be taken to
be proved, and no fact is here in issue, merely a legal inference from facts
proved by evidence.39 The assumption underpinning this claim is that
a statement such as the claimant had ownership of the chattel does not
count as a statement of fact. Suppose, for the sake of argument, that whether
or not a person had propertyor ownershipdoes not count as an issue of
fact, so that, in Jeffries, the issue of whether or not the claimant had the
property could not have been a fact in issue. If that is so, then no true
presumption could itself enable a claimant to establish that he had the property
in a chattel. But suppose, further, that there is a rule of law to the effect that, in
certain circumstances, such as those in Jeffries, a person who had possession of a
chattel is to be treated as having the property in it. Where that rule of law
applies, it does not seem inappropriate, as a matter of ordinary language, to say
that the law is to presume thatacts as ifthe relevant person has or had the
property.40 One might think that, for the sake of clarity, one should, in
SPRING 2015
41
41
technical, legal discourse at least, avoid using presume in this way. But even if
one were right to think that, judges and legal writers may use the term in this
context; one may wish to interpret what they have said; and there is no
guarantee that an interpretation in line with the technical, true meaning will
be a good one.
Whatever Lord Campbell CJ intended to convey by his use of the term
presumption, it will be seen below that the later history of the law suggests
that his Lordship should be interpreted as using that term in a way that
supports the deemed ownership thesis. When it is said that a person who has
possession of a chattel is to be presumed to be its owner, it is meant that the
law is to act as if this person has ownership of it.
Wightman and Crompton JJ also thought that Pollock CBs decision was
correct. Wightman J maintained that the defendants ought not to be able to
defeat the prima facie right arising from possession by shewing title . . . in a
stranger against whom they would be wrongdoers.41 All three judges referred
with approval to Williams note to Wilbraham v Snow: possession with an
assertion of title, or even possession alone, gives the possessor such a property as
will enable him to maintain this action against a wrongdoer; for possession is
prima facie evidence of property.42 The statement that a possessor has
property for the purposes of an action against a wrongdoer can be seen as
supporting the AP thesis. But one should not overlook Williams reason:
possession, he claimed, is prima facie evidence of property. One might wonder
how the fact that a person had possession of a chattel could itself be evidence
that he or she had property. A solution to this puzzle might lie in the view that
there is a rule of law which provides that, in certain circumstances, possession
should be treated as evidence of property;43 with the result, in some cases, that
a person who was in possession is to be treated as having property. Interpreted
in this way, Williams statement supports the view that a claimant who had
possession of a chattel is to be treated as having property for the purposes of an
action in trover. This is the prima facie position. It is defeasible: the possessor is
not to be taken to have property come what may. This meshes well with
Wightman Js reference to the prima facie right arising from possession, and
with Lord Campbell CJs assertion that there is a presumption that the person
who has possession has the property.
42
VOL. 35
The reasoning in Jeffries was adopted and extended by the Court of Appeal in
The Winkfield,44 which may well be regarded as the leading case in this area: it
provided a clear answer to a question that had plagued the law for some time,
and it has been cited with approval on numerous occasions by the Privy
Council,45 and by Law Lords in speeches to the House of Lords.46
44
[1902] P 42 (CA).
For example Glenwood Lumber Co Ltd v Phillips [1904] AC 405 (PC) 41011; Eastern Construction Co v
National Trust Co Ltd [1914] AC 197 (PC) 210; The Jag Shakti [1986] AC 337 (PC).
46
For example Morrison Steamship Co Ltd v Greystoke Castle [1947] AC 265 (HL) 278 (Lord Roche), 293
(Lord Porter), 302 (Lord Simonds), 309 (Lord Uthwatt); The Albazero [1977] AC 774 (HL) 846 (Lord
Diplock); Panatown Ltd v Alfred McAlpine Construction Ltd [2001] 1 AC 518 (HL) 581 (Lord Millett).
47
[1902] P 42 (CA) 54.
48
ibid.
49
ibid 55, citing Jeffries (n 32) 806; 681 (Lord Campbell CJ).
50
ibid 55, citing Jeffries (n 32) 805; 681 (Lord Campbell CJ).
51
Winkfield (n 47) 55.
52
Sutton v Buck (1810) 2 Taunt 302, 127 ER 1094; Burton v Hughes (1824) 2 Bing 173, 130 ER 272; Turner
v Hardcastle (1862) 11 CB (NS) 683, 142 ER 964 (CP); Swire v Leach (1865) 18 CB (NS) 479, 144 ER 531
(CP).
45
In The Winkfield, two steamships, the Mexican and the Winkfield, were involved in a
collision, as a result of which the Mexican sank with a portion of the mails which
she was carrying at the time. The Postmaster-General brought a claim in negligence
to recover the value of letters and parcels lost on board the Mexican. Sir FH Jeune P
disallowed the claim on the basis that the Postmaster-General was not under any
liability to the parties interested in the lost letters and parcels in respect of
which the claim was made. The Court of Appeal allowed the claimants appeal.
Sir Richard Collins MR, in a judgment with which Stirling and Mathew LJJ
concurred, said that it is well established in our law that possession is
good against a wrongdoer and that the latter cannot set up the jus tertii unless he
claims under it.47 In his Lordships view, a long series of authorities established
this in actions of trover and trespass at the suit of the possessor, and,
the principle being the same, the possessor can equally recover the whole value
of the goods in an action on the case for their loss through the negligent conduct of the defendant.48 A bailees entitlement to sue does not, in his
Lordships view, rest on the ground that the bailee is liable to the bailor
for the loss of the goods converted or destroyed.
In reaching these conclusions, the Master of the Rolls noted that, as between
possessor and wrongdoer, the presumption of law is that the person who
has possession has the property;49 against a wrongdoer possession is title;50
and it is not open to the defendant, being a wrongdoer, to inquire into
the nature or limitation of the possessors right.51 Collins MR could see no
reason why these principles should not apply in the case of a bailee and he
referred to several cases that, in his opinion, supported this view.52
SPRING 2015
43
Importantly, the Master of the Rolls then set out the principle that underpinned his
conclusions:
[T]he root principle of the whole discussion is that, as against a wrongdoer, possession
is title. The chattel that has been converted or damaged is deemed to be the chattel of
the possessor and of no other, and therefore its loss or deterioration is his loss . . . . As
between bailee and stranger possession gives titlethat is, not a limited interest, but
absolute and complete ownership . . . . As between bailor and bailee the real interests of
each must be inquired into, and, as the bailee has to account for the thing bailed, so he
must account for that which has become its equivalent and now represents it.53
[t]he principle here is that as between bailee and stranger possession gives a complete title
and entitles the bailee to damages for the loss or injury to the property itself, whereas as
between bailee and bailor the real interests of each must be ascertained.57
This, said his Lordship, is not a true exception to the rule; so far as the wrongdoer is
concerned, the bailee has full ownership and recovers damages for his own loss;58 the
fact that the contracting party is not the full owner of the property which has been lost
or damaged is disregarded in ascertaining the extent of the wrongdoers liability.59
53
There can be no doubt that this supports the deemed ownership thesis. In the Court
of Appeals view, a claimant who had possession of chattel is, other things being
equal, to be deemed to have absolute and complete ownership of the chattel for
the purposes of an action in conversion, or in negligence for damage to, or the
destruction of, goods.
The Court of Appeals reasoning in The Winkfield was approved by the Privy
Council in Glenwood Lumber Co v Phillips, Eastern Construction Co v National Trust
Co and The Jag Shakti.54 The nature of the apparent right to reparation, for a
tortious interference with a chattel, that might accrue to a person that has had
possession of a chattel was also considered by Lord Millett in his speech to the
House of Lords in Panatown v Alfred McAlpine,55 and by the Court of Appeal in R v
Allpress.56 In Panatown, Lord Millett considered whether the right of a bailee in
possession to recover for loss or damage to his bailors goods, even though the bailee
would have had a good defence to an action by the bailor, constituted an exception
to the rule that parties to a contract, apart from nominal damages, can recover for its
breach only such actual loss as they themselves sustained. According to his
Lordship,
44
VOL. 35
[t]he reason is that as a matter of policy the law will not allow a wrongdoer to enquire
into the nature or limitation of the possessors right, but as between the possessor and
the wrongdoer the law will presume that the person who has the possession has the
property, in the words of Lord Campbell in Jeffries . . . . That is far removed from the
question whether a mere custodian has a right to possession so as to have an interest
in property for the purposes of s84(2) [of the 2002 Act].61
In the Court of Appeals view, then, the fact that a person who has had
possession of a chattel may maintain an action against a person who tortiously
interferes with the goods and may thereby recover the full value of the chattel,
does not support the claim that such a person has a right to possession so as to
have an interest in property for the purposes of the 2002 Act. For, in its view,
the reason that such a person may successfully sue is that, as between that
person and a wrongdoer, the law will presume that the possessor has the
property.
These cases do not support the proposition that, in general, a person
acquires, if and when he or she obtains possession of a chattel, a property right
in it; they do not, in other words, support the AP thesis. Rather, they support
the claim that the law is that, at least for the purposes of an action in tort for
conversion or negligently caused damage to goods, a person who, like B in
Example 1, had possession of a chattel is deemed or, if you will, presumed to
have ownership of it against a person who does not have, and who is not able
to rely on, a better title.
60
[2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58. Section 84(2)(b) of the 2002 Act provides that
property is obtained by a person if he obtains an interest in it; and section 84(2)(h) provides that references to
an interest, in relation to property other than land, include references to a right (including a right to possession).
61
ibid [76] (citation omitted, emphasis added).
Lord Milletts assumption here, that the person who is deemed to have full
ownership does not in fact have it, seems safe given the context: he was only
concerned with bailees. But it would seem that, in principle, a person who, under the
doctrine we are considering, is deemed to have ownership of a chattel for some
purpose or other, might or might not in fact be the full owner.
In R v Allpress, one question for the Court of Appeal was whether a
defendant who had acted as a courier or custodian of cash or goods for another
was a person who had obtained property for the purposes of certain
provisions of the Proceeds of Crime Act 2002.60 What is most important here
is not the fact that the Court of Appeal decided that the defendants did not
have property for the purposes of the relevant provisions of the 2002 Act, but
the courts reasons for rejecting the Crowns submission that the defendants
had property for those purposes. In response to the Crowns reliance on the
fact that a bailee can maintain an action for the value of the goods against a
third party who wrongfully interferes with his possession, Toulson LJ, giving
the judgment of the court, explained that
SPRING 2015
45
Jeffries (n 32).
Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381, [2001] 1 WLR 1437. For a critical
discussion of Costello, and the principle it supports, see R Hickey, Possession Taken by Theft and the Original
Acquisition of Personal Property Rights in N Hopkins (ed), Modern Studies in Property Law, vol 7 (Hart 2013).
64
The Winkfield (n 47). For a different view see E McKendrick (ed), Goode on Commercial Law (4th edn,
Penguin 2010) 35.
65
Armory v Delamirie (1722) 1 Strange 505, 93 ER 664; The Winkfield (n 47); Costello (n 63); AP Bell,
Modern Law of Personal Property in England and Ireland (Butterworths 1989) 80.
66
Hannah v Peel [1945] KB 509 (KB); Webb v Chief Constable of Merseyside [2000] QB 427 (CA); Costello (n
63). For a different view see McKendrick (n 64) 29, 36; Fox (n 6) 34451.
63
Although this view cannot be adequately defended here, it seems that the
strongest account of the deemed ownership thesis would be committed to the
following five claims. First, it does not matter, for the purposes of the doctrine,
whether the claimants possession was unlawful. This is supported by Jeffries,62
and also by the recent decision of the Court of Appeal in Costello v Chief
Constable of Derbyshire.63 Secondly, for one to be deemed to be the owner of a
chattel under the doctrine, one need not have acted as if the chattel were ones
own.64 Thirdly, the application of the doctrine is not restricted to claims
against persons who are what Lord Campbell CJ in Jeffries referred to as
wrongdoers, that is, persons who, without lawful justification, have interfered
with the claimants possession of the chattel.65 Fourthly, it seems that, for the
doctrine to apply, it is not necessary that the claimant was in possession at the
time of the alleged tort. At least, there is some support for the view that one may
be treated as having ownership, though not necessarily full and complete
ownership, if one had possession at the time of the alleged tort or at some time
before the alleged tort.66 Finally, it is clearly not the case that a claimant is to be
deemed to be the owner of a chattel no matter what. For instance, the law is
not to treat B, in Example 1, as the owner against a person who has a better
title, such as A. Moreover, it seems that B may divest himself, or be divested
of, his title. If B had lost his title before C took the umbrella, B would not be
deemed to be the owner of it for the purposes of an action against C.
What does it mean, on this view, to say that B acquired, when he obtained
possession of the umbrella, a title? It may be said that B has, as a result of his
possession of the umbrella, a title or claim to the ownership of it in that, as a
result of his possession, the law is to deem B to be the owner of it against
anyone who does not have a better title to it and who cannot, or does not,
show that a better title to it exists. Thus, for the purposes of an action against
C in the chattel torts, Bs title would be good against C, unless C is permitted
to establish, and actually establishes, that As title to the umbrella is better than
Bs, an issue we will return to in Section 3.
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(1722) 1 Strange 505, 93 ER 664. For a detailed discussion of the case see Hickey (n 10) ch 1.
OW Holmes, The Common Law (Little, Brown and Co 1881) 242: special property did not mean anything
more than possession; N Curwen, General and Special Property in Goods (2000) 20 Legal Studies 181, esp
18183; Hickey (n 10) 100.
69
The Winkfield (n 47) 55.
70
Eastern Construction (n 45) 210.
68
The court decided that the boy could maintain troverthis, at least, cannot be
disputed. But why did the boy succeed? In particular, did the Chief Justice
think that the boy had a property right in the jewel? The matter is not as
straightforward as it may seem. The statement that the boy did not have an
absolute property suggests that the property that he had was special
property, and a number of lawyers have maintained that special property was
simply possession or lawful possession.68 Now, whether that is correct or not, it
does suggest that if one wants to claim that Armory supports the AP thesis, one
needs to consider the Chief Justices use of the term property. And if one
does so, one will encounter the problem that the judgment is frustratingly
short, with the result that one cannot know exactly why the Chief Justice
thought that the boy had property. In the 20th century, moreover, the Court
of Appeal,69 and the Privy Council,70 interpreted Armory as a case that
supported the claim that, in certain circumstances, a claimant who had
possession is to be treated as its owner. These remarks are plainly inconclusive.
But they do imply that, as things presently stand, the claim that Armory
provides clear support for the AP thesis is not beyond doubt.
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thesis. The first response is based on a worry about fictions, which might
provide a motivation for resisting the deemed ownership thesis and defending the
AP thesis. The second response questions whether the deemed ownership thesis
leads to doctrinal incoherence because it does not sit well with the common
law jus tertii doctrine.
71
It is not at all unusual for the law to act as if something or other is so when it is not. Examples of it doing
so can be found in the law of estoppel: for example Knights v Wiffen (186970) LR 5 QB 660 (QB); Simm v
Anglo-American Telegraph Co (1879) 5 QBD 188 (CA) 206 (Brett LJ): [t]he estoppel assumes that the reality is
contrary to that which the person is estopped from denying, and the estoppel has no effect at all upon the reality
of the circumstances.
The authorities discussed in the previous section are generally well known. But
many scholars have rejected the deemed ownership thesis nonetheless. To some
lawyers, that thesis is inherently problematic because, if it is true, the law
embraces a fiction: on some occasions, the law acts as if a person who had
possession of a chattel is its owner when, in fact, he or she is not.71
It is true that, if the thesis is sound, it may be the case that claimants are
treated as owners when in fact they are not owners; and, when that is so, the law
entertains and acts upon a fiction. But what does this show? It does not show
that the statement the law, in certain circumstances, deems a person who has
been in possession of a chattel to be its owner, is false. It may form part of an
argumentalthough it is not yet an argumentas to why the law should not
treat possessors, or anyone else, as owners. This raises the question whether the
law is, in this context, justifiable, desirable, in need of reform etc. Now, this
article does not aim to justify or comprehensively evaluate the deemed ownership
thesis, and so such questions are beyond this articles scope. But, given the
dissatisfaction with the idea of deemed ownership, it is worth identifying the
sorts of considerations that may be advanced in support of a doctrine of deemed
ownership. To be clear, the aim here is merely to consider how the doctrine
might be rationalized. It is not to show that some particular version of the
doctrine is in fact justified or preferable to alternative approaches.
It is certainly arguable that a doctrine of deemed ownership represents an
attempt to deal with certain problems that result from particular facts about
chattels. The history of many chattels is not only unknown, or only partially
known, but, to some extent at least, unknowable. And since whether or not
someone has a property right in law partly depends on what has happened, our
lack of knowledge is likely to make an assessment of the legal position difficult.
Moreover, even where the history of a chattel is known, or knowable, it may be
difficult, and costly, to prove it.
Different legal systems might respond to these problems in different ways.
One response is to make it easier for persons to acquire ownership of chattels
by prescription. Another response, one could argue, is for the law, in certain
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49
mere proof that the plaintiff does not have the best right is irrelevant. The defendants
interference with the plaintiffs better right to possession is still wrong,75 even if the
plaintiff is liable to a third person with an even better right.76
This, of course, is premised on the belief that the plaintiff actually had, at the
material time, a better right to possession.
This response to the deemed ownership thesis raises two questions: (1) are
defendants able at common law to rely on the better title of a third party? (2)
And if they are not, how can a person committed to the deemed ownership thesis
explain this state of affairs?
The orthodox position is that if the claimant was in possession at the time of
the defendants alleged tort, then the defendants are not permitted to show that
some third party has a better title unless they (the defendants) claim or justify
under it.77 A critic of the deemed ownership thesis might seize on that fact: how, he
or she asks, does this fit with the doctrine of deemed ownership? As we have
seen, Lord Campbell CJ provided an answer to that question some 150 years
ago, in Jeffries. His Lordship said, I think it most reasonable law, and essential
for the interests of society, that peaceable possession should not be disturbed
by wrongdoers.78 The worry, it seems, is that a failure to provide legal
protection to possessors would be likely to lead to an undignified scramble for
75
It seems that it may or may not be wrong all things considered but, assuming that the interference was
tortious, it is certainly a wrong. The distinction between something being wrongful (ie unjustified) and it being a
wrong (ie a breach of a duty) is drawn by John Gardner in his Wrongs and Fault in A Simester (ed), Appraising
Strict Liability (OUP 2005) 5457.
76
R Chambers, An Introduction to Property Law in Australia (2nd edn, Thomson Lawbook Co 2008) para
[7.75] (emphasis added).
77
This is clearly supported by the cases: Jeffries (n 32) (trover/conversion); The Winkfield (n 47) (negligence);
Wilson v Lombank [1963] 1 WLR 1294 (trespass).
78
(1856) 5 El & Bl 802, 805; 119 ER 680, 681 (Lord Campbell CJ).
common law, permitted to claim that some third party has a better title than
the claimant; that, in other words, the defendant is not permitted to rely on the
jus tertii. These critics have asked: if the claimant is only treated as having a
property right, why is a defendant to such an action not generally permitted to
show that some third party has a better title than the claimant?
The very same critics have, in some cases at least, pointed out that the
(purported) fact that a defendant cannot, in general, escape liability by relying
on the jus tertii makes perfect sense if the AP thesis is true. For: if the claimants
actually had a property right grounding duties on persons generally not to, say,
convert, trespass against, or negligently destroy or damage the chattels in their
possession, then in an action by them against a defendant who owed and
breached such a duty, it would seem quite irrelevant that some other party has
a better right than the claimants. Robert Chambers has advanced this point in
the context of an account of the law of property in Australia:
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entitled to show, in accordance with rules of court,85 that a third party has a better
right than the plaintiff as respects all or any part of the interest claimed by the
plaintiff, or in right of which he sues and any rule of law . . . to the contrary is
abolished.86
79
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The deemed ownership thesis explains why a claimants action fails if a defendant
successfully relies on the jus tertii in accordance with section 8(1), as well as
why a claimant who recovers damages from a defendant in an action for
wrongful interference with goods might not be entitled to keep, say, a sum of
money that she has received by way of compensation for the apparent wrong.
Consider the statutory example given in section 7(4):
Norman Palmer has noted that the finder in this example is not unjustly
enriched as the result of the enforcement of a double liability against the
wrongdoer; rather, he is enriched simply because he has recovered a greater
sum by virtue of his own claim than the value of his interest.88 Be that as it
may, the important point is that it makes sense to say that the finder in the
statutory example was unjustly enriched if one accepts the deemed ownership
thesis. If B is deemed to be the owner of the umbrella for the purposes of, say,
an action in conversion against C, and if B succeeds and C is ordered by a
court to pay, and actually pays, damages to the claimant representing the full
value of the umbrella,89 then, if it becomes apparent that B was not, in fact, the
owner and had no other property right in the umbrella at the material time, B
has been unjustly enriched and, accordingly, is not entitled to keep what he has
received.
Of course, it does not follow from the fact that in such a case the claimant is
not entitled to keep the damages, that she had no property right in the thing.
And, even assuming that the AP thesis is true, there may be reasons for denying
a claimant a remedy where a person with a better right is joined under section
8(1). But the point being made here is not a logical one. The point, rather, is
that a defendants ability to escape liability to a particular claimant, in certain
circumstances, by relying on the jus tertii in order to show that the claimant is
not the owner, and the laws willingness to divest, in certain circumstances, a
person of all of the damages that she has received, are easily explained, and
make perfect sense, if one accepts the deemed ownership thesis. Suppose that B in
Example 1 brought an action in conversion against C and that C established,
87
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pursuant to section 8(1), that A had a better title than B. Bs action fails
because B, at the material time, had, in truth, no property right at all.90 His
ownership has been exposed for what it is: a fiction; and he has been exposed
as someone who did not have, at the relevant time, a property right in the
thingand, thus, as someone who, as we now know, was not wronged.
This discussion discloses a further point. Tort law remedies for wrongful
interference with goods can be effectively conditional and so non-final. In
certain circumstances, the position of a successful claimant is precarious
because she might be, or become, liable to, say, repay all or part of a sum that
a defendant has paid her in execution of a court order. Thus, the claimants
remedy may turn out to be, in effect, temporarymuch depends on what
happens, on whether, for instance, someone with a better title, with a better
claim to the ownership of the chattel, goes to court. In this way, the law
reflects and responds to the fact that our knowledge about chattelsabout
their history, and about the legal rights in themis typically limited and
fragmentary.
If some sort of deemed ownership doctrine forms part of the common law, it
seems to put the law in the business of entertaining, now and then, a certain
fiction. The doctrine might be rationalized on the basis of our knowledge
deficit and convenience. But the foregoing discussion of section 8(1), and tort
law money remedies, shows that the laws break from reality, even supposing
that the deemed ownership thesis is sound so that it does sometimes occur, is far
from complete and far from conclusive.
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92
Isaack v Clark (1615) 2 Buls 306, 308; 80 ER 1143, 1146 (Dodderidge J); Jarvis v Williams [1955] 1 WLR
71 (CA); Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 (HL); N Curwen,
Title to sue in Conversion [2004] Conv 308; Douglas (n 13) 1214; cf MCC Proceeds Inc v Lehman Brothers
International [1998] 4 All ER 675 (CA); Iran v Barakat Galleries Ltd [2007] 2 CLC 994 (CA) 1006 (Lord Phillips
CJ); Palmer, Possessory Title (n 19) 63.
93
N Curwen, Title to Sue in Conversion [2004] Conv 308.
94
Gordon v Harper (1796) 7 TR 9, 101 ER 828; HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005]
EWCA Civ 1437, [2006] 1 WLR 643.
95
Tancred v Allgood (1859) 4 H & N 438, 157 ER 910; Mears v L & SWR (1862) 11 CB (NS) 850, 142 ER
1029. For discussion see A Tettenborn, Reversionary Damage to Chattels (1994) 53 CLJ 326; S Green,
Understanding the Wrongful Interference Actions [2010] Conv 15, 2124.
96
For a different view see R Kersley, Goodeves Modern Law of Personal Property (9th edn, Sweet & Maxwell
1949) 89; S Green and J Randall, The Tort of Conversion (Hart 2009) 8688.
97
JHM van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and International
Property Law (Hart 2012) 346. cf Green and Randall (n 96) 80; E Tyler and N Palmer (eds), Crossley Vaines
Personal Property (5th edn, Butterworths 1973) 39: It is possible, and, perhaps, even desirable, to write a treatise
on English law without defining ownership or mentioning it as a juridical concept . . . . The reason is that English
law has never had any theory of ownership.
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98
If a title-holder is entitled to be treated as the owner of a chattel, and if this entitlement is alienable, then
one could argue, perhaps, that this entitlement is itself the title-holders property. If this argument is a good one,
it might appear to suggest a way of combining the deemed ownership thesis and the AP thesis. But, for the argument
to succeed, one would need to establish (among other things): (a) that a person who has a title to ownership has
the power to transfer that title, and not merely that such a persons title may be transferred as a result of his
purported exercise of the power to transfer ownership, a power which he might be treated as having only if and
insofar as he is treated as owner; and (b) that a person who has such a power has property. Even if the argument
did succeed, it is doubtful that it would support the AP thesis because that thesis states that a possessor acquires
not simply property but a property right in a chattel.
99
Birks (n 21) 2.
and hence a property right, the easier it becomes to see such a title as a
property right. If the law treats the title-holder as having a property right in
many contextsfor the purposes of, say, the chattel torts, the law of theft, and
the Sale of Goods Act 1979then it might look like title is a kind of property
right. But, if the deemed ownership thesis is sound, we must not let the
appearance mislead us: the title that accrues to a person in possession of a
chattel, while it may result in its holder being treated as having a property right
on many occasions, is not a property right, and, as R v Allpress demonstrates, a
title-holder is not always treated as having a property right (or property).98
Still, if a person with a title to ownership is generally treated by the law as
having a property right, one may be tempted by the thought that the
disagreement discussed in this articleconcerning whether the fact of having
possession of a chattel is a condition of the possessor acquiring a property right
in it, or merely a condition of him being treated as having a property right in
itis unimportant. This temptation should be resisted. The position one takes
on the issue that lies at the heart of that disagreement affects the property
rights that people have in law, and it shapes our view of other parts of personal
property law, such as the jus tertii doctrine and the doctrine of relative title.
These considerations suggest that it is worth discussing that disagreement.
And, if we have that discussion, we might, along the way, relieve our personal
property law of its status as a mere wallflower.99