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John Swan
Wed, 15 Nov 2006 16:25:25 -0500


While I agree that the common law looks messy and cumbersome, perhaps it’s not quite as bad as Andrew suggests as it does go a considerable distance in the civil law direction with the various statutory protections for bona fide third party purchasers for value in the Sale of Goods Act and the Factors Act. I admit that, at least from a Canadian perspective, the English position looks unnecessarily crude and retrograde after Shogun Finance Ltd. v. Hudson, [2004] 1 A.C. 919; I had always thought that Lewis v. Averay reflected a satisfactory position. The position of the beneficial owner in equity is, of course, another thing altogether.


John Swan


-----Original Message-----
From: A.M.Tettenborn
Sent: November 15, 2006 2:46 PM
Subject: [RDG] [Fwd: Re: [RDG] U2]

I think there may be a different answer to Eoin's point. The Roman vindicatio, like the modern civilian actions for the return of moveables (eg the French revendication and the Scotch action of restitution), was a non-wrong-based means of getting back your thing from someone else who was in possession of it. The plaintiff just said "It's mine: he's got it: make him give it back or at least pay me its value." PB was right to say that English law -- incredibly -- does not have any equivalent to this.

What English law does have, however, is the action for conversion (and in other common law countries there is also detinue). This is wrong-based: conversion and detinue are torts, after all. So it's quite true that the common law plaintiff has to show that the defendant committed a wrong in order to get his thing back: if he can't, he fails. But in practice this doesn't matter. This is because of the astonishingly wide scope of detinue and conversion. The defendant converts the plaintiff's chattel -- ie commits a wrong -- if he in any way deals with the chattel inconsistently with the owner's rights, or if, having possession, he refuses to surrender it on demand. So all the plaintiff has to do if he finds that someone else has got his thing is ask for it back. If he doesn't get it, the defendant -- however innocently he may be acting -- becomes a converter. The plaintiff has his tort and thus his ticket to court. The measure of damages is arbitrarily set at the value of the thing: or if it prefers, the court can, as Eoin rightly says, tell the defendant to give it back in specie. So in the U2 case, as soon as the defendant refused to return the baubles she laid herself open to a tort action, and with it to an order to give back what she had.

Of course, this is a cack-handed, belt-and-braces approach. And while it does allow the English plaintiff John Smith to recover his thing, as can his equivalents Titius, Hamish McSporran, Jean Dupont and Hans Schmidt, it has other baneful effects. One is the arbitrary measure of damages in conversion: these have to be set automatically at the goods' value, rather than the plaintiff's loss, to make the whole caboodle work. Another is the strict liability of the converter. This has to be, since the plaintiff has to be able to get his car back from a defendant who acquired it, and continues to possess it, innocently and reasonably. But it also means that other converters are liable without proof of fault who very definitely shouldn't be. For example, if my stolen Rembrandt is auctioned at Christies, Christies have to pay me its value with no questions asked even if they acted entirely innocently and with impeccable diligence throughout (nice work for property insurers). Continental lawyers regard this as barmy, and of course they are absolutely right. A French or German lawyer correctly insists that if I deal with your goods and you want to complain, you (a) only recover your loss, if any, and (b) as in any other tort action have to prove that I was at fault. For once the Continentals do things better.

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