Sorting Out Mixtures of Property at Common Law
| Published date | 01 January 2021 |
| Author | Alexander Waghorn |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12572 |
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Modern Law Review
DOI:10.1111/1468-2230.12572
Sorting Out Mixtures of Property at Common Law
Alexander Waghorn∗
This article asks a simple question: when indistinguishable items of personal property ownedby
A and by B are mixed together, what rights do A and B have in relation to the resultantmass? It
is argued that there is insucient evidence in the positive lawto provide any convincing answer
to this question, and so it is asked which interpretation that can be drawn out from the law
ought to be adopted. It will be shown that – both in relation to mixtures of goods and mixtures
of cash – a rule of co-ownership is to be preferred. The article’s framework of analysis will be
of interest to all those concerned by the relatively sparse case law that deals with foundational
principles of personal property, and can help to guide a way forward in other contexts where
the cases are silent, muddled, or fail to speak with one voice.
INTRODUCTION
It is not dicult to nd statements to the eect that English personal property
law is in a mess. Peter Birks, who did more to try to clean it up than most, once
lamented that this area of private law is ‘in a bad state’, at least in part because
‘there is no secure foundation’ within legal academia from which practising
lawyers and judges could build.1Since then, however, a relatively steady ow
of literature has begun to emerge, and that foundation is beginning to take
shape.2
This article aims to contribute to that process, by asking a deceptively simple
question: when indistinguishable items of personal property owned by A and
by B are mixed together, what rights do A and B have in relation to the resultant
mass? This question is simple in the sense that only a cursory glance at most
of the leading textbooks on personal property will provide an answer: A and B
become co-owners, tenants in common of each and every constituent part of
the mass.3This answer,however, masks a number of deeply rooted problems in
our thinking about per sonal property.For a start, as will become clear,a number
∗PhD Candidate, University of Cambr idge. My thanks to Nick McBride, Graham Virgo, and the
anonymous reviewers for extremely helpful comments on earlier drafts of this article.All remaining
errors are my own.
1 P.Birks, ‘Personal Property: Proprietary Rights and Remedies’ (2000) 11 KCLJ 1, 1-2. See too
A. Pretto-Sakmann, Boundaries of Personal Property: Shares and Sub-Shares (Oxford:Hart, 2005) 3.
2 In addition to numerous new textbooks, a numberof excellent monographs havebeen produced
on specic areas of personal property law. Examples include,but are by no means limited to: S.
Green and J. Randall, The Tort of Conversion (Oxford: Hart, 2009); R. Hickey, Property and the
Law of Finders (Oxford: Hart, 2010); S. Douglas, Liability for Wrongful Interferences with Chattels
(Oxford: Hart, 2011).
3 See for example A.P. Bell, Modern Law of Personal Property in England and Ireland (London: But-
terworths, 1989) 72; W.J.Swadling, ‘Property: General Principles’ in A.S. Burrows (ed), English
© 2020 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 61–88
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the or iginal work is properlycited.
Sorting Out Mixtures of Property at Common Law
of lengthier discussions of the law relating to mixtures take issue with that claim,
either qualifying it, doubting it, or rejecting it altogether. Leading textbooks on
private law oer accounts of the law that appear contradictory with each other
as a result.4A review of the law governing mixtures is, therefore, necessary, if
not to iron out these inconsistencies once and for all, then at least to highlight
more clearly that they exist within the academic literature.
The root of the problem is one that tends to aict private law scholarship
more generally. There are not enough cases that explicitly and decisively deal
with the question of what rights A and B actually hold in a mixture. And
so, much legal scholarship is backwards. We ask what rights in A and B are
consistent with the cases that we do have, with the result that any number of
answers to our question might be correct, as a descriptive account of the law
as it stands.5How are we to choose between competing accounts when we are
faced with this kind of problem? In this article, it will be asked which of those
descriptive accounts English law would do better to adopt.6The reasons the
law has to respond to the event of mixture will be considered, and it will then
be asked which account provides the best method that the law might adopt to
give eect to those reasons. It will be seen that those reasons might be given
eect in a variety of ways,but that a co-ownership rule can do so in a way that
is more coherent and more intelligible than others.
The article is split into several sections. The r st, unfortunately necessary,
section deals with terminology.As noted by other writers,7the loose terminol-
ogy of personal property is one signicant reason for the lack of clarity in our
reasoning about it, and so pinning down the precise meaning of ‘mixture’ is an
essential exercise.The second section aims to set out the current state of English
law, or, more accurately,the plausible interpretations of English law that can be
drawn out from our existing legal materials. It will be seen that there are two
competing views, neither of which can be decisively proven to be correct from
the materials alone. The third section asks what good reasons the law has to
adopt the sort of response that it does; the fourth asks which of our two views
gives eect to those reasons in the most satisfactory way.Finally,the fth section
applies the preceding analysis to one particularly troubling,but very important,
class of mixture: that of money.
Private Law (Oxford:OUP,3
rd ed, 2013) 4.443; M. Br idge et al, The Law of Personal Property
(London: Sweet & Maxwell, 2nd ed, 2013) 16.017; M. Bridge, Personal Property Law (Oxford:
OUP, 4th ed, 2015) 134; D. Sheehan, The Principles of Personal Property Law (Oxford: Hart, 2nd ed,
2017) 28.
4 Contrast the works cited ibid, with C.Mitchell, P.Mitchell and S. Watterson,Go and Jones: The
Law of Unjust Enrichment (London: Sweet & Maxwell,9th ed, 2016) 7.20.
5 This problem is starkest in discussion of mixtures of money,on which see below,pp. 81-88.
6 One might consider this to be an attempt to inter pretthe law in its ‘best light’, along the lines of
the model of adjudication advocated by Ronald Dworkin. However,there is no need to endorse
that model to make out the claim that,when f aced with indeterminacy in the law’s rules, courts
should resolve that indeterminacy by adopting rules that they havegood reason to adopt, so long
as they are able to do so coherently with existing precedent.Hart endorsed a similar proposition:
H.L.A. Hart, The Concept of Law (Oxford: OUP, 3rd ed, 2012) 274-275.
7 For example Hickey,n 2 above,162-168; L. Rostill, ‘Terminology and Title to Chattels: A Case
against “Possessory Title”’ (2018) 134 LQR 407.
62 © 2020 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 61–88
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