A Re‐Examination of The Jus Tertii In Conversion
| Published date | 01 March 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00285.x |
| Date | 01 March 1955 |
THE
MODERN
LAW
REVIEW
Volume
18
March
1955
No.
2
A
RE-EXAMINATION
OF
THE
JUS
TERTII
IN CONVERSION
THE object of this article is to challenge the orthodox view as to the
validity of the defence of the
jus
tertii
to an action for the recovery
of chattels. In view of the almost universal agreement on this
question this might be thought a somewhat rash undertaking.
Nonetheless
it
will be submitted that the current view is wrong both
in principle and on authority, and is the result of a misinterpreta-
tion of the leading cases.
That
it
is no exaggeration to say that the orthodox view is
almost universally accepted may be seen from the following
quotations
:
Pollock and Wright on
Possession
put it thus:
“
Existing possession, however acquired, is protected
against any interference by a mere wrongdoer; and the wrong-
doer cannot defend himself by showing a better title than the
plaintiff’s in some third person through
or
under whom he does
not himself claim
or
justify.
. .
.
On the other hand, a plaintiff
who seeks redress solely for wrong done to his right to possess
is not favoured to the same extent.
If
his actual possession
has not been disturbed by the act complained of, he may be
defeated by showing that someone else, who need not be the
defendant
or
anyone through whom the defendant claims, had
a better right to possess.”
The eleventh edition of Salmond is to the same effect:
“
If,
however, the plaintiff was not in actual possession but
relies upon his right to possession, he must recover on the
strength of his title, and proof of the
jus
tertii
will destroy the
only thing upon which he relies.”
Winfield took the same view
:
“
Where the plaintiff was
in
possession
at the time of the
conversion, the defendant cannot set up
jus
tertii.”
1
At
p.
91.
2
At
p.
341.
Textbook
of
the
Law
of
Tort,
6th
ed.,
p.
422.
97
VOL.
18
7
To continue reading
Request your trial