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Lionel Smith
Thu, 16 Nov 2006 16:45:17 -0500


I agree that it is a strange way to operate, to make the order for delivery dependent upon showing damages are inadequate. But, in line with what Andrew said, one thing about Cohen v Roche is that it is very close to specific performance: the plaintiff was the buyer of the chairs, the defendant was the seller, property had passed but the defendant wouldn't deliver. I think in that particular context it is not surprising that the judge thought of it as attracting the same kind of test as specific performance. It was not a case of dispossession. Presumably we could argue that it should be easier to get the order for delivery up when the defendant has taken the plaintiff's thing, than when the plaintiff has never had possession and is seeking to enforce a title acquired by sale. But Andy you know better than I do whether other cases will allow that line.

For John Blackie: in Quebec we also have the actio spolii for possessors, as distinct from the rei vindicatio, but we have a less poetical name for it than the Scots: "art. 929". Actually it is usually called a possessory action. If the common lawyers are feeling inadequate about their remedies, I note that in Quebec the action is available to one who has been in continuous possession for more than a year. Some authors say moreover that the action is only for immovables. I have never understood the gap this leaves. Can it be that there is no claim by a non-owning possessor, who has had possession for less than a year, if he is dispossessed? Eventually a possessor will acquire ownership by prescription but that takes a while. In France there is a possessory action for immovables that requires a year of possession, but there is also another action, available to any possessor, in respect of violent dispossession. That makes a bit more sense.




On 16/11/06 05:37, "Andrew Burrows" wrote:

I agree with what Lionel Smith and Andrew Tettenborn have so elegantly said. But one point that has always puzzled me on this - and for which I would be very grateful for views - is the extent to which for wrongful interference with goods the owner needs to show that damages are inadequate. My understanding is that, in order to be granted delivery up (which is the remedy we are talking about) the law does require a dispossessed 'owner' to show that damages are inadequate. And furthermore that the adequacy hurdle is a substantial one, similar to that applying to specific performance: see eg Cohen v Roche [1927] 1 KB 169. If this is correct we do still have the astonishing position in England that, if someone steals and keeps my goods, a court will not order them to be returned to me (in a tort action for conversion) unless I can establish that damages are inadequate eg because the goods are unique. I consider this point in the 3rd ed of my Remedies book at pp 578-581. Of course, there would appear to have been no problem for U2 on this because the goods were presumably 'unique'.

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