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Ownership and Obligation: Restitution, Vindication and the Recovery of Moveables in Stair's Institutions

Document Cited in Related
Vincent
DOI10.3366/elr.2017.0409
AuthorBonnie Holligan
Date01 May 2017
Published date01 May 2017
Pages169-191
INTRODUCTION

The doctrinal nature of an owner's right to recover possession of moveable property, and the extent to which it rests on proprietary right as opposed to personal obligation, has long been a topic of some complexity in Scots law.1 This can be attributed in no small part to the “massively influential”2 yet somewhat opaque account of Viscount Stair in his Institutions, in particular his rejection of the Roman division between real and personal actions and his declaration that “we make not use of the name or nature of Vindication”.3 This article examines the context for Stair's statement, connecting it to both the emergence in Europe of a Reformed natural law tradition and Stair's conception of legal authority and the value of Roman law in Scotland.4 It contributes to a growing body of research investigating the impact of moral theology on development of legal doctrine in the seventeenth century,5 adding a new perspective on the link between theology and understandings of property and ownership.

The article begins by asserting Civilian influence on the Scots law prior to Stair. It highlights what appears to be a dialogue between Stair and one of the other great seventeenth-century Scots jurists, Sir George Mackenzie, arguing that Stair's comments regarding the vindicatio may be read as a direct criticism of Mackenzie's fidelity to the Romanist distinctions in his Treatise on Actions. Possible reasons for this divergence are considered; although Stair's account of restitution reflects a long Scholastic tradition, it is radical among the Civilian jurists of the period in detaching the right to recover from its doctrinal basis in ownership. Stair's approach, it is contended, substantiates Ford's thesis regarding his willingness to depart from learned authority.6

A further important feature of Stair's work is his concern to provide a justificatory account of the development of private property and his engagement with the right to recover as a question the answering of which requires more than an application of learned authority. The philosophical move from property to obligation, from a relation between a person and a thing to a relation between people, preoccupied both Stair and one of his most obvious and significant influences in this area, Hugo Grotius. It is argued that Stair's view of vindication is informed by a morally and theologically rich understanding of ownership that focussed on the creation of a sphere of individually protected rights rather than the strictures of the Roman distinction between property and obligation.

 BEFORE STAIR: HOPE, SPOTTISWOODE AND CIVILIAN LEARNING Hope's <italic>Practicks</italic>

This section affirms the influence of Civilian terminology and concepts on the way the Scots jurists of the early seventeenth century understood the recovery of moveables. The Roman action for the recovery of a thing, the rei vindicatio,7 had several significant features. The action lay only against the possessor,8 and gave a right to recovery based upon proof of ownership: “[f]or once I have proved that the thing is mine, the possessor will have to deliver it to me”.9 In contrast to systems which require a wrong before the owner can assert his or her right, the vindicatio was available against any possessor, whether in good or bad faith.10 The distinction between actions in rem (against the thing itself) and those in personam (against a specified person) emerges from the structure of the vindicatio: in contrast to an action in personam, the possessor was not personally liable for the return of the thing and could not be forced to defend the action.11 This might, in theory, mean that the rei vindicatio could not be tried. For this reason, in respect of moveable property the praetor granted the actio ad exhibendum,12 by means of which the plaintiff could demand the production of the thing.13 If the defendant failed to comply, he or she was condemned to pay the value of the thing as assessed by the plaintiff.14 Even where the thing was produced, the difficulties of proving ownership meant that it was often preferable to use the possessory interdicts to gain possession, placing the burden of proof on the other party who would then be forced to bring his or her own vindicatio.15

Prior to the publication of the first printed edition of Stair's Institutions in 1681 there existed no comparably comprehensive account of the Scots law relating to the recovery of moveable property;16 there is, however, ample evidence of the influence of Civilian learning on Scottish legal culture.17 Indeed, according to Thomas Craig's “great work of legal history and exegesis”,18 Ius Feudale, Roman principles are particularly applicable to transfer of moveables: “We follow the Civil Law, whether decisions or rules, especially in the administration of moveables”.19 Craig also states that in a number of respects, including the law of actions, “[w]e presume to follow completely the Civil Law”.20

Consistent with Craig's observations, a number of the extant legal writings suggest the influence of the Romanist division between actions against persons and those based on a right in a thing. One of the interesting features of the collections of Practicks21 made by Sir Thomas Hope of Craighall22 is the apparent demarcation of obligations from property.23 Hope's characterisation of real actions is clearly structured around the right of the owner to follow the thing and recover it from unauthorised possessors: “Actiones reales semper sequntur rem, in whois hands sover it be, and whither moveable or immoveable”.24 Hope refers extensively to the French jurist Jacques Godefroy25 and his work on the customs of Normandy;26 Ford makes the plausible suggestion that this represents an attempt to connect Scots law to a broader learned tradition rather than dwell on questions of the authenticity of the old Scots sources.27 Godefroy's description of a real action as based on a real right in a thing as opposed to an undertaking (promesse) made by its possessor would provide an obvious source for Hope's scheme.28

In the Minor Practicks, Hope refers to the vindicatio as the appropriate action for claiming moveable property: “A real right in moveable property is where the property in a moveable thing belongs to someone, and the action which is proper to them on account of this is called the rei vindicatio, and is available against any possessor, whether natural or civil.29 This is significant because of the implicit recognition of an action derived from the right of the owner, rather than any wrong committed; “Jus in re, or a Right in a Thing, is a Power or Faculty competent by Law, and inherent in the Thing itself, producing to the proprietor an Action against the Thing, towards the Recovery thereof”.30

 Spottiswoode's <italic>Practicks</italic>

Spottiswoode's Practicks provide further insight into the sources relied on in legal practice prior to the publication of Stair's Institutions.31 The nature of Spottiswoode's project is open to debate but Ford has suggested that it can be understood as part of a process of translation of learned authority to local culture.32 Cairns emphasises Spottiswoode's reliance on contemporary Civilian works, “the “common law” was coming to appear as the ius civile rather than as the utrumque ius”,33 and his title concerning rei vindicatio fits this general depiction. The text is substantially34 taken from a work on the Institutes by German professor and judge Joachim Mynsinger von Frundeck (1514–1588).35 On Spottiswoode/Mynsinger's account, rei vindicatio is a real action (actio realis), which is given to the owner against any possessor in order to recover his corporeal thing.36 If the defender denies that he is the possessor, he will not be compelled to submit to judgment, but the actio ad exhibendum will be competent against him for production of the thing.37 An owner wishing to vindicate his thing is advised to obtain possession through one of the possessory interdicts available, as it is difficult to prove ownership.38 Although adjusted to incorporate feudal landholdings,39 the basic structure of the action described is thus that of the Roman law set out above. Spottiswoode's collection does not, in itself, demonstrate reception of the vindicatio in Scotland but it nevertheless provides a further indication of influence of the Civilian distinction between real and personal actions and, by implication, Civilian concepts of ownership and possession.

 Use of Civilian terminology

Given Stair's contention that neither the name nor the nature of the vindicatio is recognised in Scotland, it is interesting that prior to the publication of the first printed edition of the Institutions in 1681 there are numerous case reports which make reference to recovery of a thing “rei vindicatione”.40 As early as 1566 a ship was claimed “per rei vindicationem” from the possessors; the defence that the defenders had been imprisoned on the ship by pirates and had “hazardit their lyves” to bring it safely to port failed to convince the court that they should be allowed to keep it.41

Of particular significance is Lord Durie's report of Brown v Hudelstone42 which refers to the owner's right to vindicate “à quocunqe fuerit possessa”.43 Brown concerned an accusation of spuilzie (a delictual claim for recovery based on wrongful dispossession)44 against a creditor who had poinded cattle not owned by his debtor. The Lords found the debtor's two years of possession to be a good defence against spuilzie and also against the claim for delivery of the cow (rei vindicatione).45 The scope of the owner's right to follow the thing is ambiguous: it is stated that the original owner would continue to have an action for restitution against the person who “received” it but it is unclear whether this refers to some subsisting right to recover the cow itself, or, as seems more likely, a personal claim against the person to whom the cow had originally been...

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