THE DELIVERY OF CHATTELS
| Author | Samuel Stoljar |
| Published date | 01 January 1958 |
| Date | 01 January 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00456.x |
THE
DELIVERY
OF
CHATTELS
THERE is the famous rule that to obtain rights to chattels
a
manual delivery is required from donor to d0nee.l This rule was
nurtured by
a
long history from Bracton2
to
Cochrane
v.
and has become
a
veritable axiom
in
English law.
It
is true that
today several prominent exceptions overshadow the residuary rule
‘;
but the delivery-requirement remains much alive, and it is its
basic nature that we shall hereafter discuss.
THE
PRINCIPAL
THEORIEB
OF
DELIVERY
Consider
at
the outset some primary and macroscopic points. Why
has the law ever insisted on actual delivery and why does
it
still do
so
in the cnse of gift
and
pledge
?
Is
delivery
a
useful requirement in
a
modern
or
functional sense?
Or
is it mainly a survival, justified
by historical continuity and little else? Speaking of the medieval
position, when delivery was essential in sale as in giftyo Maitland
thought that the rule of manual transfer was not derivable from
“
considerations of public policy
”
or from
‘‘
a wide view of social
needs,” but derived from what he described as “a mental in-
capacity, an inability to conceive that mere rights can pass from
person to person.”‘
A
transfer
of
things was obvious, it
was
“visible to the eye; but how rights? You have not your rights
in your hand or your pocket, nor can you put them into the hand
of another nor lead him into them and bid him walk about within
their mctcs and bounds.” The accomplished jurist, continued
1
C/.
“A
Rationale of Gifts and Favours
”
(1956) 19
M.L.R.
237.
The present
paper pursues,
in
some
respects. the discussion of the previous one; but this
from
an
obverse, which
is
also
the more orthodox, point-of view.
2
Bracton, f. 58b.
f.
41,
f.
62.
J
(1890) 25
Q.B.D.
57;
and see
7
Holdsworth,
H.E.L.,
GO4
et seo.
The
decision settied
an
old controversy: see authorities cited therein.
At
its time,
“
the hi8torical method was at the hei
ht
of
its
vogue. Accordingly, the
elaborate opinion
of
Fr
L.J.
proceeds neiger
upon
analog nor
upon
annlytical
reawning
a8
to
the eLments of the legal trananction
of
gifts, but
upon
n:
elaborate historical investigation
”
:
Pound,
“
Juristic Science and Law
(1918) 91
Hnrv.L.R.
1047,
nt
1056.
4
Briefly, delivery
is
no
longer necessary where
a
chattel
is
acquired by eale,
by deed
or
by way
of
trust. Concerning the last
as
well
as
sdme other (and
less wcll-known) exceptions germane to gifts, see article mentioned note
1.
8
For
pledge, eee
Reeoes
v.
Capper
(1838)
5
Bing.N.C.
196;
Martin
v.
Reid
(1862) 11
C.B.(N.B.)
790,.799;
Ez
p.
Hubbard
(1886) 17
Q.B.D.
690, 698;
Ifilton
v.
Tucker
(1888)
39
Ch.D.
669, 679;
Dublin
City
Distillery.
Ltd.
v.
DohertU
119143
A.C.
829,
849,
852;
Waight
v.
Waight
[1952] 2
All
E.R.
290,
292.
Delivery can similnrly be essential in absolute bills of snle:
Robinson
v.
Bn‘ggs
(1870)
L.R.
6
Exch.
1;
Ancona v.
Rogers
(1876)
1
Ex.D.
285;
Seal
v.
Claridqe
(1881) 7
Q.B.D.
516.
*
3
Holdsworth,
H.E.L..
954956;
7
Holdeworth,
H.E,L.,
503-504.
7
“The
Mystery
of
Seiain”
(1886)
2
L.Q.R.
481;
Collected
Papers,
i,
958.
972-373;
Select
Essays
in Anglo-Amencon Legal History,
iii,
501, 601-602.
27
28
THE
MODERN
LAW REVIEW
VOL
21
Maitland, entertains a different view:
‘‘
when a gift is made
of
a corporeal thing, of a sword or a hide
of
land, rights are trans-
ferred; if at the same time there is a change of possession, that
is another matter; whether
a
gift can be made without such a
change of possession, the law of the land will decide; but every
gift is a transfer of ownership, and ownership is a right or a bundle
of
rights; if gift be possible, transfer of rights is possible.” Such
ideas, Maitland concluded, may prevail
c‘
in thcsc analytic times;
but
I
may have here and there
a
reader who can remember to have
experienced in his own person what
I
take to be the history of
the race, who can remember how it flashed across him as a truth,
new though obvious, that the essence of
a
gift is a transfer
of
[things].”
His
thoughts contain
a
curious mixturc
:
half-Year Book, half-Austin,
with a dash of Savigny to boot.g Nor does his accomplished jurist
truly meet the medieval point. That point, essentially, is not that
one cannot transfer rights, but that transferring rights and things
is all one. Moreover, in requiring a manual delivery medieval law
was systematic in the best
sense
of that word. For the dclivery
or livery of seisin, both of land or chattcls,1° had this spccific effect
:
it formaliscd the
causa traditionis,
and espccially the donor’s
voluntary
parting with posscssion in either sale or gift. For in
the many disputes about things,
it
often was essential
to
trace
one’s rightful ownership, or possession, or seisin-one’s
‘‘
rightful
”
as distinct from one’s “wr~ngful’~ holding a thing-to a donor,
a warrantor,
an
auctor,
who had freely consented to give.“
All
this reflects the cruder realities of medieval life and above all thc
self-executive nature of its law.
In
this light, the delivery-require-
ment did rcpresent “considerations
of
public policy” as well as
“social necds,” and it is thus of little hclp
to
fasten on mental
incapacity as an ultimate legal source. Several explanations
8
The threo printed texts put
“
rights
”
for the word
“
things.” But this must
bo an error
or
G
misprint. Since Maitland was drawing a contrast betwcen
(il
the accomplished jurist who fiees in the transfer of chattels
a
transfer of
rights. nnd (ii)
the
”
unanalytical
”
reader who
ECCR
a
new truth, what can
My substitution
of
’‘
things
”
for
rizhts is further supported
by
Maitland’s next line: “You cannot give
whnt you have not got-this seems clear; but put
just
the right accent on tho
wort18
give
and
got,
and we have revcrted to an old way of thinking. You
can’t give
a
thing if you havcn,:t got that thiEg. and
yoti
haven’t got that
thing if someone else has Fot it. materialism
which
is natural
to
us
all
”
makes
for
a
transfer of things rather than that of rights.
Compare
2
Pollock and
Maitland.
H.E.L.,
180-181,
where the whole matter
is
somcwhnt differently
explained.
1‘’
Maitland,
“
T’b
Seisin of Chattels
”
(188f)
1
L.Q.R.
324;
Collected
Papers.
i.
320;
Ames. The Disseisin of Chattels
(1890)
3
Harv.L.R.
23, 313,
337;
revised and reprinted in
3
Select
Essays.
641.
11
Cj.
2
Holdsworth,
H.E.L..
110
et
seq.
(cap.
at
113); 3
Holdsworth,
op.
cit..
310
et
acq.;
2
Pollock
and
Maitland,
op.
cit.,
162
et
seq.
Yet on this occasion Maitland does not take
us
very far.
But what of
‘‘
thesc analytic times
”?
latte: see but a transfer of
things?
Surely this
9
Biit thefie wcro perhaps Maitland’s earlier thoughts.
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