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Lionel Smith
Wed, 15 Nov 2006 13:35:58 -0500


I have always thought that there are two related questions here that are frequently conflated. One is about the kinds of claims that are justiciable, and the other is as to the kind of orders that courts can or will make.

So if we ask whether the common law has "a simple direct action by which to order personal property of one person in the hands of another to be returned", I think we actually have two questions: (1) is there a justiciable claim (cause of action) of the form, "that thing is mine" (as opposed eg to "you did me a wrong by taking my thing at some past time") (2) can courts order specific restitution of particular things?

Peter, as a Romanist, was talking about Q1 when he said the common law did not have such a claim for moveable personal property (though it always has had for freehold estates in land, and for a long time for leaseholds). The answer to Q2 is and has been "yes", even for courts of common law, even as regards moveable personal property, since 1854 (and since forever for freehold land, and for a long time for leaseholds). Conversely, in Roman law, even though the answer to Q1 was yes, because there was a rei vindicatio, the answer to Q2 was basically no (as in the common law before 1854, and since then if the court's discretion under the 1854 statutory reform is so exercised): the defendant got the choice as to whether to return the thing or to pay compensation (although this could be rigged by setting the compensation artificially high).

So if we set aside the question about what orders can be made, it comes down to Q1 which relates solely to form, the form of the claim that can be made and which the court will be obliged to evaluate and resolve. (This is also shown by the fact that Peter also thought that if there was an exception to the unavailability of a rei vindicatio for personal property, it arose in interpleader: if the police put the property into court, claiming no right, the court has to decide who among other claimants has the best right; as in rei vindicatio, it is not about whether anyone has done anything wrong. Interpleader is not a claim, it is a way that litigation gets started without anyone having sued in conversion etc. This shows that the question in Q1 is not as to rights that people have, but as to the ways in which those rights can be put to the court for adjudication.)

That in itself is enough to make sense of the U2 case. That is, if you take my cap, I might sue you in conversion, which is not a claim that satisfies Q1, and if I succeed, the court might order the return of the cap (possibly with a money award for loss of use). Such an order can be made whatever the answer to Q1 might be.

With some diffidence I have expressed the view that the answer to Q1 is not quite as clear as Peter thought. Detinue was in its origin clearly a claim that satisfied Q1. It foundered because defendants could wage their law. When it was resuscitated following that abolition of wager, it took on characteristics of an allegation of wrongdoing, but kept the rei vindicatio character as well; see General & Finance Facilities Ltd. v Cooks Cars (Romford) Ltd. [1963] 1 WLR 644, 650. The English law was changed in an obscure way by the 1977 legislation but that does not affect the rest of us (and even the meaning in England is not clear: Sir John Baker said that, not me).

There are other possibilities to satisfy Q1. An English court can make a declaration of a purely legal right. Seeking a declaration that a cap is legally mine is, effectively, requiring the court to make the same decision as it would be required to make if I had a rei vindicatio available to me. It seems to me that money had and received performs exactly the same procedural function in some of its manifestations, but that is controversial.

My own attempts to make sense of this question, in more detail, are in 79 Texas L. Rev. 2115, 2125-6.



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