Reputed Ownership in Scots Law: An Historical and Doctrinal Analysis
DOI | 10.3366/elr.2021.0672 |
Published date | 01 January 2021 |
Date | 01 January 2021 |
Pages | 23-47 |
Author |
In Scotland, the doctrine of reputed ownership is one means of protecting third parties in transactions with non-owning possessors of goods. It is the purpose of this article firstly to discuss the foundations of this doctrine, more specifically its doctrinal and judicial development and its requirements. The article will then provide an evaluation of the underlying legal basis of the doctrine, as well as its possible relevance in modern times. Reputed ownership is, and always has been, the subject of little academic analysis in Scotland. The historical development of the doctrine lies largely with the institutional writers of Scots law and with 19th and 20th century cases. There are, however, elements of the law found in other legal systems relevant to reputed ownership, such as the law of England and of South Africa, which help to provide clarity on the underlying legal basis of the doctrine. This article, therefore, seeks to consolidate all of these sources in order to assess the modern relevance of reputed ownership to those concerned with its possible applicability. As will become clear, such applicability is in the context of diligence. Those concerned are creditors, their debtors and the owners of corporeal moveable property in the possession of such debtors.
In certain circumstances a person who has possession but not ownership of property is treated as a “reputed owner” of that property. It is unclear whether the doctrine applies solely to moveable property, although nearly all of the authorities are concerned with moveables and, as will be explained, it is difficult to see how the doctrine could apply to heritable property. Traditionally, the effect of reputed ownership has been for the moveable to be exposed to the diligence of the possessor's creditors, in the same manner in which the property would be exposed if the possessor were the owner of the goods.
Stair does not engage directly with reputed ownership. He does, however, speak of “collusion” being committed when creditors are misled by the conduct of their debtor into poinding the moveable(s) in the debtor's possession, suffering loss as a result.
However, regard for the position of the poinding creditor was to be developed. Erskine discusses the ability of creditors to poind goods in the possession of their debtors in the belief that the goods belong to such debtor. According to Erskine, the creditor “may proceed in the poinding” even when the debtor alleges that the goods in fact belong to another
It was not until the publication of the works of Bell, in the early nineteenth century, that reputed ownership was developed most extensively and it is from Bell's works that a coherent exposition of the doctrine can be derived. In his
For collusive possession to exist, Bell requires: (1) “the appearance of uncontrolled possession and power of disposal”; and (2) “acquiescence [by the owner] in something beyond the possession requisite to a fair contract”.
Acting upon such “appearance” of ownership, the creditor was able to poind. This, in turn, entitled the true owner “by civil process”
In
The mention of “collusion” implies that some form of “fraud”, or fraudulent act, has been committed. In
However, can it be said that the owner is at fault where he has
Delivery is, of course, “necessary” for the constitution of certain real rights such as pledge.
However, the owner is not the only person who is at fault. As we have seen, the institutional writers also mention the terms “collusion” and “collusive possession”.
To continue reading
Request your trial