Delivery of Goods in the Custody of a Third Party: Operation and Basis
| Date | 01 May 2015 |
| Author | Craig Anderson |
| Published date | 01 May 2015 |
| Pages | 165-185 |
| DOI | 10.3366/elr.2015.0270 |
The common law required delivery for the transfer of ownership of corporeal moveable property. This requirement was, however, abolished for sales of corporeal moveables by the Sale of Goods Act 1893,
See now Sale of Goods Act 1979 s 17. The 1979 Act replaced the 1893 Act, and is in substantially identical terms. Because of the 1893 Act, case law on delivery is generally older.
although a limited role for delivery is retained in certain circumstances.See e.g. ss 20(4), 24 and 25 of the 1979 Act. However, for the case where the goods are in the hands of a third party, s 29(4) gives a definition of delivery that follows the English rule of attornment, outlined below, rather than the general rules of Scots law discussed here, at least in cases where there is no document of title. For discussion, see K G C Reid, A G M Duncan, A J Gamble, and W M Gordon,
Thus the creation of a pledge requires delivery. Of course, some securities, such as a floating charge or the landlord's hypothec do not require the creditor to possess the property, but that arises from the nature of those securities and has nothing to do with the Sale of Goods Acts.
1979 Act, s 62(4). For discussion of the scope of this provision, see e.g. G L Gretton, “Security over Moveables without Loss of Possession” 1978 SLT (News) 107; G L Gretton, “The Concept of Security” in D J Cusine (ed),
In its simplest form, delivery involves simply the handing over of the goods by the transferor to the transferee. However, delivery may take diverse forms. Fundamentally, delivery means a giving of possession to the transferee.
Stair,
Stair,
If delivery means a giving of possession to the transferee, then delivery may be effected by any means by which the transferee may satisfy the requirements of possession. Thus, for example, delivery of goods in a locked store may be made by delivery of the key, this being known in Roman law as
Bell,
Stair,
W M Gordon,
Reid et al,
As possession may be held civilly, through another's acts, delivery may be made to the transferee by handing the goods over to someone acting on the transferee's behalf, such as an employee or an agent. As we shall see, this idea has been extended to allow delivery of goods held in the custody of a third party, on the transferor's instructions, by intimation to that third party custodier.
Those forms of delivery that do not involve a direct handing over of the goods are often collectively known as “constructive delivery”.
See e.g. Carey Miller with Irvine,
It is a common observation that Scots property law is strongly influenced by Roman law,
On this, see e.g. Reid et al,
Reid et al,
For example, all of the references in Stair's general account of possession (
D L Carey Miller, “Derivative Acquisition of Moveables” in R Evans-Jones (ed),
Mungo P Brown,
C von Bar & E Clive (eds),
Thus, in the preface (v) to R Zimmermann, D Visser & K Reid (eds),
C G van der Merwe & M J de Waal,
In Scotland, this form of delivery appears relatively late: in all of the institutional writings and other Scots legal literature before Bell, there is only one, doubtful, reference to this form of delivery.
Stair,
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