THE JUS TERTII AND THE THIRD MAN
| Date | 01 July 1955 |
| Author | Anthony Jolly |
| Published date | 01 July 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00308.x |
THE
JUS
TERTII AND THE THIRD MAN
MR.
ATIYAH has patently put much thought and labour into his
re-examination of the
jus
tertii.’
Two aspects of
his
article are,
however, open to serious question. First, his assertion that the
defence of
jus
tertii
(strictly
so
called) to an action for the recovery
of chattels does not exist. Secondly, his suggestion that
if
such
a
defence did exist,
it
would be possible for a defendant to plead
US
tertii
without establishing any particular person to be the true
owner
or
repository of the right in question.
The first question resolves itself into a dispute as to the signifi-
cance of
jus
tertii.
Holdsworth is accused of confusing two types of
case.= Firstly,
Mr.
Atiyah’s
jus
tertii
which is apparently only
relevant
“
where the plaintiff has
a
better right to possession than
the defendant but
a
third party has a better right than either of
them.” Secondly, cases where
“
the plaintiff fails; not because
a
third party has the best right of all, but because the plaintiff him-
self has not a better right than the defendant.” This article
adopts the second sense and submits that the true
ius
tertii
is
a
means of effacing rather than overwhelming the plaintiff’s allega-
tion of a right to possession, and that
it
only concerns cases where
the plaintiff fails
in
iimine
because the validity
of
his prima facie
case is successfully impugned. The plaintiff alleges
a
right
to
possession, and the defendant defeats
it
not by confession and
avoidance but by traverse.’ The
jus
which the defendant puts
forward is not something superior to the plaintiff’s right yet com-
patible with it.
It
is something which by its very incompatibility
disproves the plaintiff’s right.6 The essence of the true
jus
tertii
is that it employs the technique of traverse. This clearly
differentiates
it
from the bastard
jus
tertii
to which a defendant
must resort when the plaintiff alleges possession, and which operates
by confessing the possession and avoiding
it
by alleging that the
defendant
himself
has a superior right derived from a
jus
tertii.
Mr.
Atiyah proceeds to term cases where the plaintiff has
a
right consistent with the
jus
tertii
but overwhelmed by
it
as
‘‘
the
orthodox view
”
‘of this defence. The authority which he produces
in favour of this
“
orthodox view” (before he explodes it) is
18
M.TJ.R.
p.
97.
2
H.E.L., Vol. VII.
.3
18
M.L.R.
p.
100.
4
18
M.L.R.
p.
100.
5
“
The defendant can negative the title
of
the plaintiff, by proving that
some
third person
is
entitled to the property-by setting up, that is, a
jus
tertii.”
H.E.L..
Vol. VII.
D.
65.
6
It is submitted that only an incompatible title and not an absolute one
is
371
logically necessary-cf. H.E.L., Vol. VII, p.
425.
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