THE CONCEPTS OF “PROPERTY,”“TITLE” AND “OWNER” USED IN THE SALE OF GOODS ACT 1893
| Author | A. D. Preston,G. Battersby |
| Published date | 01 May 1972 |
| Date | 01 May 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01333.x |
THE CONCEPTS
OF
"
PROPERTY,''
''
TITLE" AND
"
OWNER
"
USE'D
IN
THE
SALE
OF
GOODS
ACT
1893"
TIIREE of the fundamental proprietary concepts,
"
property,"
"
title
''
and
('
owner," are frequently used in the Sale of Goods
Act
1893.
Of these, only
''
property
"
is defined by the Act, and
the statutory definition,l
as
we shall show, is incomplete. This
fact, together with the absence of any statutory definition of
"
title
'?
and
"
owner," means that these concepts can be understood only
against the background of the general law of property
in
goods.
It
will
be our submission that an analysis of these proprietary concepts
against this background will disclose a more coherent view of the
structure of the Sale of Goods Act and dispel some of the difficulties
that have been thought to exist.
A.
THE THREE ELEMENTS
INVOLVED
IN
A
TRANSFER
OF
TANGIBLE
PROPERTY
In the transfer of any tangible property, whether land
or
chattels,
three elements are distinguishable, namely, the estate
or
interest
which is transferred, the title to that estate
or
interest, and the
evidence of that title.
(1)
Estate
or
interest transferred
What rights are being transferred and what is their duration?
In the context of land, the rights might be, for example, the fee
simple, the residue of
a
999-year lease, a life estate,
or
some lesser
interest such as a perpetual easement. Similarly, in relation to
chattels, although the range of interests recognised by the law is
restricted, one needs to distinguish life interests, entailed interests
and absolute interests,2 as well as various kinds of incumbrance.
Whether the transfer involves land
or
chattels, therefore, its nature
can be understood only when the estate
or
interest to be transferred
is
defined.
*
The following abbreviations will be used
:
Sale of Goods Act
1893.
Atiyah,
The
Sale
of
Goods,
4th ed.
S.G.A.
Atiyah
1
"
'
Property
'
means the general property in goods, and not merely a special
property
"-S.G.A.,
8.
62
(1).
2
Settlements of chattels are rare, though
not
unknown-see the cases referred
to. in Crossley Vaines,
Personal Property,
4th ed., pp.
41-43.
Entailed
interests
in
personal property are permitted by
s.
130
of
the Law
of
Property
Act
1925.
268
MAY
1972
“
PROPERTY,”
“
TITLE
”
AND
“
OWNER
”
269
(2)
Title to that estate or interest
Is
there anyone who can show that the transferor’s title to the
estate
or
interest is defective
?
The fundamental rule of the English
law of property affecting title is
nemo dat
quod
non
h~bet.~
Its
effect is that, although
a
transfer may comply with the legal
for-
malities required for the transfer of the interest in question,
it
may
yet fail to take effect because the transferor has
no
title to transfer.
It
is equally possible, however, that the transferor may have a
title, but one which is less than perfect. This follows from the
elementary proposition of
our
law that title to tangible property,
whether,land.or chattels, is relative. The title to such property is
protected by the possessory actions, which require only that the
plaintiff must have possession
or
the immediate right to possession.
This principle, and the converse rule that, subject to very narrow
exceptions, the defendant cannot plead
jus
tertii,
mean that mere
adverse possession of property confers
a
title which is good against
all the world except
a
person who can prove
a
better title, that is
to say, a person with a continuing prior title. This notion of relative
title permeates
our
law, and is one of the key concepts in the law
of property, though in sale of goods, unlike conveyancing of land,
it
is frequently forgotten. Given such a concept, the phrase
‘c
owner
of
property
”
assumes significance only in relation to
a
particular
issue with
a
particular person. This is revealed most clearly with
regard to chattels in
The Wi~zkfield,~
where, as between bailor and
bailee, the bailor, having had prior possession and therefore having
prior title, would be regarded as
“
the owner,’’ yet, as against
the tortfeasor, the bailee was regarded as
(‘
the owner
”
entitled to
sue in negligence for damage to the property.6 The concept of
absolute ownership, by which
is
meant an indefeasible title to the
absolute interest
in
the particular property, is as elusive in the
realm
of
chattels as in that of land. True, there are exceptional
cases of absolute ownership:
a
sale of goods in market overt to a
purchaser in good faith is an exception relating to chattelsY7 and
in the case of land one may instance the statutory procedure by
8
There are several exceptions
to
the
nemo
dat
rule in sale of goods.
In
the case
of land the statutory power of
a
mortgagee by demise or legal chargee to
convey the mortgagor’s fee simple or leasehold reversion
(L.P.A.
1925,
8s.
88
(1) and 89
(1))
appears to be the only exception, and that exists solely
for conveyancing reasons, not for the purpose of protecting
an
innocent
purchaser.
4
[1902]
P.
42 (Postmaster-General,
as
bailee of mails, able to recover full value
of mails lost by negligence of defendant).
5
See
per
Collins M.R.,
ibid.
at p. 55, acknowledging the bailee’ru obligation to
account to his bailor, which must be based
on
the bailor’s title
as
against
the bailee.
6
See
per
Collins M.R.,
ibid.
at pp. 54-55. Any possessor would have ehjoyed
the position
of
owner as against the tortfeasor.
7
Injra,
p.
287.
See also Bankruptcy
and
Deeds of Arrangement
Act
1913,
8.
15,
as
interpreted in
Curtis
v.
Maloney
[1951]
1
K.B.
736
and
Dyal
Singh
v.
Kenyan
Insurance
Ltd.
[1954] A.C. 287.
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