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Published online by Cambridge University Press: 31 January 2018
The current law relating to the unauthorised dispositions of chattels is an arbitrary and unpredictable mess that has grown up haphazardly and piecemeal. In this connection we need a default rule that is straightforward rational and logical. Such a rule should follow three principles. First there should be a background rule of entrustment, whereby anyone entrusting another with goods takes the risk of subsequent misdealing. Secondly, this rule should apply to all proprietary interests and not simply to ownership. Thirdly, it should be open to exceptions where there is good reason to admit them, for example to accommodate specific schemes covering particular types of security interest.
Professor of Commercial Law, University of Swansea.
1 Typical is Denning L.J.’s sonorous but ultimately vacuous statement in Bishopsgate Motor Finance Corp Ltd. v Transport Brakes Ltd. [1949] 1 K.B. 322, 366 (“In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title. The first principle has held sway for a long time, but it has been modified by the common law itself and by statute so as to meet the needs of our own times”).
2 A representative sample: Diamond, A., “Law Reform Committee: Twelfth Report on the Transfer of Title to Chattels” (1966) 29 M.L.R. 418 Google Scholar; Greig, D., “The Passing of Property and the Misidentified Buyer” (1972) 35 M.L.R. 306 Google Scholar; Ulph, J., “Sale and Lease-Back Agreements in a World of Title Relativity: Michael Gerson (Leasing) Ltd. v Wilkinson and State Securities Ltd.” (2001) 64 M.L.R. 481 CrossRefGoogle Scholar; L. van de Vliet, Note (2001) 5 Edin.L.Rev. 361; Hare, C., “Identity Mistakes: A Missed Opportunity?” (2004) 67 M.L.R. 993 CrossRefGoogle Scholar; Miller, D., “Plausible Rogues: Contract and Property” (2005) 9 Edin.L.Rev. 150 CrossRefGoogle Scholar; Merrett, L., “The Importance of Delivery and Possession in the Passing of Title” [2008] C.L.J. 376 Google Scholar.
3 For commendable exceptions see Thomas, S., “Mistaken Identity: A Comparative Analysis” [2008] L.M.C.L.Q. 188 Google Scholar; and Miller, “Plausible Rogues” (though both these are essentially limited to the specific problem of goods obtained by fraud). A perceptive earlier example is Harding, C. and Rowell, M., “Protection of Property Versus Protection of Commercial Transactions in French and English Law” (1977) 26 I.C.L.Q. 354 CrossRefGoogle Scholar.
4 By the Sale of Goods (Amendment) Act 1994, repealing s. 22(1) of the Sale of Goods Act 1979. For a useful description of the old law, with all its curiosities and anomalies (e.g. its inapplicability to ordinary shops except in the City of London), see Crossley Vaines on Personal Property, 5th ed. (London, 1973), 174–75Google Scholar.
5 In summary, in early 1993 a person presented for valuation at Sotheby's a Gainsborough and a Reynolds, both previously stolen from Lincoln's Inn and later bought by him in Bermondsey Market for a princely £145. He was accepted to have impeccable title under the then rule of market overt (see The Independent, Saturday 6 March 1993). The art community was outraged; pressure was brought; market overt was duly suppressed.
6 Some of the issues here were helpfully covered in I. Davies, “Continuing Dilemmas with Passing of Property in Part of a Bulk” [1991] J.B.L. 111.
7 Section 27 of the Hire Purchase Act 1964, allowing anyone other than a motor dealer to get good title to a hire-purchased vehicle, gets close. But even there the distinction is not exact: any business buyer other than a motor dealer is equally protected.
8 See e.g. the decision in Bulbruin Ltd. v Romanyszyn [1994] R.T.R. 273 (abandoned stolen van recovered and sold off by local authority under statutory powers: original owner's rights held overridden by sale).
9 For full coverage, see Benjamin's Sale of Goods, 9th ed. (London 2016), ch. 7Google Scholar.
10 Said to come from Ulpian: D. 50.17.54.
11 E.g. Whistler v Forster (1863) 14 CBNS 248, 257, per Willes J.; Cundy v Lindsay (1878) 3 App. Cas. 459, 463–64, per Lord Cairns; Colonial Bank v Whinney (1886) 11 LR App. Cas. 426, 435–36; Cole v North Western Bank (1874–75) L.R. 10 C.P. 354, 362–63, per Lord Blackburn; Farquharson Bros & Co. v King & Co. [1902] A.C. 325, 335–36, per Lord MacNaghten.
12 E.g. pledge (Paterson v Tash (1742) 2 Strange 1179; Hartop v Hoare (1743) 1 Wils. K.B. 8) or lien (Buxton v Baughan (1834) 6 C. & P. 674). It equally applies where O has a proprietary interest less than ownership: e.g. Reeves v Capper (1838) 5 Bing. N.C. 136 (competition between pledgees).
13 Namely, where P purports to sell outright to R. It follows that in so far as provisions in the 1979 Act protect non-buyers such as pledgees (e.g. ss. 24 and 25) they are strictly speaking exceptions not to s. 21 but to the common-law rules.
14 And any third party taking from R: Mercantile Credit Co. Ltd. v Hamblin [1965] 2 Q.B. 242, 270, per Pearson L.J.; and Big Rock Pty Ltd. v Esanda Finance Ltd. (1992) 10 W.A.R. 259, 270–71.
15 There must be a positive misleading of R. A mere transfer to P of possession or the trappings of ownership will not do: Central Newbury Car Auctions Ltd. v Unity Finance Ltd. [1957] 1 Q.B. 371, 388, 393, per Hodson and Morris L.JJ., and a fortiori neither will mere fault by O (Moorgate Mercantile Co. Ltd. v Twitchings [1977] A.C. 890).
16 E.g. Pickard v Sears (1837) 6 Ad. & El. 469; more recently, Chatfields-Martin Walter Ltd. v Lombard North Central Plc [2014] EWHC 1222 (QB).
17 E.g. Eastern Distributors Ltd. v Goldring [1957] 2 Q.B. 600.
18 E.g. Pickard v Sears (1837) 6 Ad. & El. 469.
19 By s. 21 above “ … unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell”.
20 See e.g. the Singapore decision in Pan-Electric Industries Ltd. v Oversea-Chinese Banking Corp Ltd. [1994] 1 S.L.R. 185 (equitable mortgage).
21 Sale of Goods Act 1979, s. 17.
22 Dating from the Factors Act (Amendment) Act 1877, s. 3, in the case of sellers in possession of documents of title, and otherwise from 1889 (Factors Act 1889, s. 8) (which is still in force and essentially duplicates it).
23 Originally s. 4 of the 1877 Act, above, in the case of buyers armed with documents of title; otherwise dating from, and duplicated by, the Factors Act 1889, s. 9.
24 Including the case where R obtains the goods directly from O with P's acquiescence: see Four Point Garage Ltd. v Carter [1985] 3 All E.R. 12; and the earlier Langmead v Thyer Rubber Co. Ltd. [1947] S.A.S.R. 29.
25 Since in both cases the reference is to “any sale, pledge, or other disposition thereof”. As to what “other disposition” means, see Benjamin on Sale, 9th ed. (London, 2016)Google Scholar, paras. 7–064, 7–79 to 7–80; for an example of a “disposition” other than a sale or pledge, see Shenstone & Co. v Hilton [1894] 2 Q.B. 452 (handing over to an agent for onsale).
26 E.g. a mortgage or charge, held in Joblin v Watkins & Roseveare (Motors) Ltd. [1949] 1 All E.R. 47 (a case under s. 2 of the Factors Act 1889, which uses the same words) not to be an “other disposition”.
27 Pickering v Busk (1812) 15 East 38. This however applied only to sales and not to pledges: Paterson (1742) 2 Strange 1179. It was extended to them progressively by legislation, starting in 1823 and culminating in the 1889 Act. See Thomas, S., “The Origins of the Factors Acts 1823 and 1825” (2011) 32 J. Legal Hist. 151 CrossRefGoogle Scholar; also Gilmore, G., “The Good Faith Purchase Idea and the Uniform Commercial Code: Confessions of a Repentant Draftsman” (1981) 15 Ga L.Rev. 605 Google Scholar, 608 et seq.
28 An entrustment for some other purpose such as repair or hiring-out is not enough, even though R has no means of knowing anything about these circumstances: Astley Industrial Trust Ltd. v Miller [1968] 2 All E.R. 36.
29 See Benjamin on Sale, 9th ed. (London, 2016)Google Scholar, para. 7–023 for discussion of the issue of the cases where P's title is voidable and where it is wholly void.
30 According to Kingsford v Merry (1856) 1 H. & N. 503, voidable title can only arise under a sale from O to P. But this seems doubtful. Cf. Shalson v Russo [2003] EWHC 1637 (Ch); [2005] Ch. 281, at [126], per Rimer J. (concerning a voidable transfer of money to a fraudster).
31 The earliest example seems to be Parker v Patrick (1793) 5 T.R. 175. See too White v Garden (1851) 10 CB 919; Babcock v Lawson (1880) 5 Q.B.D. 284. This remains important where R's interest is less than ownership, such as a pledge (Babcock v Lawson, above), or an equitable security (Attenborough v London & St. Katharine's Dock Co. (1878) 3 C.P.D. 450).
32 See s. 23 of the 1979 Act.
33 Hire Purchase Act 1964, s. 27.
34 This is not a mere theoretical possibility: for a thoroughly commercial example see MCC Proceeds Inc v Lehman Brothers International (Europe) [1998] 4 All E.R. 675 (pledge of bearer securities held on bare trust).
35 The only legal security interest, a mortgage of chattels, is hardly used (though this may change if the 2016 report from the Law Commission on bills of sale (Law Com Report No. 369) is put into effect, as presaged in the June 2017 Queen's Speech).
36 See the Companies Act 2006 (Amendment of Part 25) Regulations 2013, 2013 SI 600, introducing the present Part 25 of the Companies Act 2006.
37 See the International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015, SI 2015/ 912.
38 E.g. Insolvency Act 1986, s. 284(4)(a). Note also the analogous protection in insolvency law for good-faith transferees for value in cases of transactions impugnable as unfair preferences or transfers at an undervalue (s. 241(2)(a)).
39 Notably in the shape of the Crowther Report of 1971 on Consumer Credit ((1971) Cmnd 4596); the 1982 Cork Report on Insolvency Law and Practice ((1982) Cmnd 8558); the 1989 Diamond Report (A Review of Security Interests in Property); the Law Commission's Report on Company Security Interests in 2005 (2005 Cm 6654); and most recently another report from the Law Commission on bills of sale (Law Com Report No. 369). There is also an ongoing Secured Transactions Law Reform Project administered from Oxford University: see https://securedtransactionslawreformproject.org.
40 See its Twelfth Report: Transfer of Title to Chattels, 1966 Cmnd 2958: see Diamond, “Law Reform Committee”; and (more sour) Atiyah, P., “Law Reform Committee: Twelfth Report” (1966) 29 M.L.R. 541 Google Scholar.
41 Notably Ingram v Little [1961] 1 Q.B. 31; Newtons of Wembley Ltd. v Williams [1965] 1 Q.B. 560; and Car & Universal Finance Co. Ltd. v Caldwell [1965] 1 Q.B. 525.
42 A Review of Security Interests in Property (HMSO, 1989). The author, Aubrey Diamond, was at various times a solicitor, Law Commissioner and law professor at the University of London. At the time the report appeared he was retired.
43 Consultation Document, Transfer of Title: Sections 21 to 26 of the Sale of Goods Act 1979 (20 January 1994).
44 Provisions in a number of civil law jurisdictions are mentioned below in Section V(A).
45 E.g. Davenport, B., “Consultation – How Not To Do It” (1994) 110 L.Q.R. 165 Google Scholar; and Miller, D., “Transfer of Title: A New Legal Regime in Only Three Paragraphs” [1994] L.M.C.L.Q. 322 Google Scholar. Interestingly, almost no stir at all had resulted from a similar proposal by the Scottish Law Commission nearly 20 years earlier, in 1976 (see Memorandum 27 – Corporeal Moveables – Protection of the Onerous bona fide Acquirer of Another's Property, para. 28).
46 As part of its ninth programme of law reform: see Law Com No. 293, paras. 3.51–3.57 (March 2005). This was partly spurred by the decision in Shogun Finance Ltd. v Hudson [2003] UKHL 62; [2004] 1 A.C. 919.
47 Law Com No. 330, paras. 3.4–3.6 (July 2011).
48 This is because of the limitation already referred to in ss. 24 and 25 of the 1979 Act, and s. 2 of the Factors Act 1889, restricting protection to sales, pledges and other dispositions.
49 Hire Purchase Act 1964, s. 27. To make confusion yet worse confounded, the financier can get the vehicle back if it was transferred in payment of a pre-existing debt, since this does not count as a sale: VFS Financial Services Ltd. v JF Plant Tyres Ltd. [2013] EWHC 346 (QB); [2013] 1 W.L.R. 2987.
50 As illustrated by the majority and minority judgments in Shogun Finance Ltd. [2003] UKHL 62; [2004] 1 A.C. 919. Chitty on Contracts, 32nd ed. (London, 2015)Google Scholar, paras. 3–036 to 3–048, takes eight closely printed pages to say that the law is unsatisfactory and uncertain. For further criticism see C. Macmillan, “Rogues, Swindlers and Cheats: The Development of Mistake of Identity in English Contract Law” [2005] C.L.J. 711; also Shogun Finance Ltd. [2003] UKHL 62; [2004] 1 A.C. 919, at [5], per Lord Nicholls, [57]–[71], per Lord Millett. A perceptive comparison of the English and US (UCC, Article 2–403(1)) approaches comes in Thomas, “Mistaken Identity”.
51 Indeed, in the case of voidable title it seems that the sale from O to P may equally be a mere paper transaction: Benjamin on Sale, para. 7–027.
52 Expressly so (“sale, pledge, or other disposition … made by him when acting in the ordinary course of business …”). To complicate matters even further, the same seems to apply by a side-wind to buyers in possession, because under s. 25 of the 1979 Act the sale “has the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods”. See Newtons of Wembley Ltd. [1965] 1 Q.B. 560, 580, per Pearson L.J.; and Martin v Duffy [1985] N.I. 417.
53 See Whitehorn Bros. v Davison [1911] 1 K. B. 463 (upheld by the Court of Appeal in the unreported decision in Thomas v Heelas, CA, 27 November 1985).
54 Heap v Motorists’ Advisory Agency Ltd. [1923] 1 K.B. 577.
55 See the arguments in Miller, “Transfer of Title”, p. 324; and Davenport, “Consultation”.
56 We talk of ownership for brevity: but most of what we say applies to proprietary interests as a whole.
57 E.g. C. Reich, “The New Property” (1963) 73 Yale L.J. 733, at 773; Dorfman, A., “Private Ownership” (2010) 16 L.Th. 1, 17CrossRefGoogle Scholar.
58 E.g. Demsetz, H., “Toward a Theory of Property Rights” (1967) 57 Am.Ec.Rev. Papers 347Google Scholar; Michelman, F., “Property, Utility and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harv.L.Rev. 1165 CrossRefGoogle Scholar; more recently, Huffman, J., “The Public Interest in Private Property Rights” (1997) 50 Okla.L.Rev. 377 Google Scholar.
59 An obvious point is that one can hardly make sense of trading goods without a background concept of ownership. But there are others: e.g. insolvency law presupposes a distinction between interests in chattels that do, and do not, prevail in insolvency: Goode on Proprietary Rights in Insolvency, 3rd ed. (London 2009), 3–5 Google Scholar.
60 An idea that seems to originate with W.W. Buckland: see Buckland, W. and McNair, A., Roman Law and Common Law, 2nd ed. (Cambridge, 1952), 65–66 CrossRefGoogle Scholar.
61 Examples: the right to a quantity of goods from a given source whose content is subject to change (Re Stapylton Fletcher Ltd. [1994] 1 W.L.R. 1181), or to take percolating water under one's land (Bradford Corp. v Pickles [1895] A.C. 587, esp. 593–94, per Lord Halsbury). Both are clearly legal rights in respect of things: both fall short of ownership. See generally on permanence and ownership Merrill, T. and Smith, H., “What Happened to Property in Law and Economics?” (2001) 111 Yale L.J. 357 CrossRefGoogle Scholar; and on precariousness and property Gray, K., “Property in Thin Air” [1991] C.L.J. 252 CrossRefGoogle Scholar, at 266 et seq.
62 Cf. Penner, J., “The Bundle of Rights Theory of Property”, 43 UCLA L.Rev. 711 Google Scholar, at 742.
63 Admittedly, we are not requiring actual intent here. But this seems also to be the rule for direct transfers of ownership; although there are few cases directly in point, this view seems implicit in decisions such as Mercantile Credit Ltd. [1965] 2 Q.B. 242 and, for that matter, in the land case of Saunders v Anglia Building Society [1971] A.C. 1039.
64 Cf. Note, “The Owner's Intent and the Negotiability of Chattels: A Critique of Section 2–403 of the Uniform Commercial Code” (1964) 72 Yale L.J. 1205 Google Scholar, at 1209 (commenting on a semi-entrustment rule in UCC, Article 2–403(2)). Or, to quote a pithy French commentator, “Morality is secured. All the more so because the owner who is caught by [the entrusting rule] has always consented to being dispossessed; where this is not so (the case of theft or loss), the law protects him”. See Malaurie, P. and Aynès, L., Les Biens, 6th ed. (Paris 2015)Google Scholar, s. 576 (author's translation).
65 This view, interestingly, is sometimes expressed as a defence of the entrustment principle in France: see Harding and Rowell, “Protection of Property”, pp. 358–63.
66 Schwartz, A. and Scott, R., “Rethinking the Laws of Good Faith Purchase” (2011) 111 Col.L.Rev. 1332 Google Scholar; also Phillips, D., “The Commercial Culpability Scale”, 92 Yale L.J. 228 CrossRefGoogle Scholar. Cf. Burgess, H., “The Market Overt Rule: A Time for Reform?” (2015) 53 Ir.Jur. 154 Google Scholar.
67 See in particular Ingram [1961] 1 Q.B. 31, 73–74, per Devlin L.J. (“The plain answer is that the loss should be divided between them in such proportion as is just in all the circumstances. If it be pure misfortune, the loss should be borne equally; if the fault or imprudence of either party has caused or contributed to the loss, it should be borne by that party in the whole or in the greater part”). This is different from fault because of the proposal to split losses equally where no one is to blame.
68 E.g. Weinberg, H., “Sales Law, Economics, and the Negotiability of Goods”, 9 J.Leg.St. 969 Google Scholar; Mautner, M., “‘The Eternal Triangles of the Law’: Toward a Theory of Priorities in Conflicts Involving Remote Parties” (1991) 90 Mich. L.Rev. 95 CrossRefGoogle Scholar, at 99.
69 E.g. Radin, M., “Property and Personhood” (1982) 34 Stanford L.Rev. 957 CrossRefGoogle Scholar.
70 Mautner, “‘The Eternal Triangles of the Law’”.
71 See e.g. Merrill and Smith, “What Happened to Property in Law and Economics?”. Some writers cheerfully admit their devaluation of ownership: see e.g. Keating, D., “Examining UCC Title Battles through a Torts Lens” 2011 Utah L.Rev. 255 Google Scholar; and the comment in Mautner, “‘The Eternal Triangles of the Law’”, p. 102, that title conflicts have a great deal in common with accidents.
72 This, among others, was the reason for the summary rejection of the idea by the Law Reform Committee in its Twelfth Report (note 40 above). See too Keating, “Examining UCC Title Battles”, p. 270.
73 Mautner, “‘The Eternal Triangles of the Law’”, p. 107. The same approach is evident in Phillips, “The Commercial Culpability Scale”, p. 232. Throughout the latter article the emphasis is on a broad estimation of who typically is likely to be at fault, rather than on anything more precise.
74 The 1966 Twelfth Report on the Transfer of Title to Chattels, 1966 Cmnd 2958, fairly summarily rejected apportionment as unworkable: paras. 8–13. In this connection see too Benjamin on Sale, para. 7–008, observing that we can now forget Ashurst J.’s antique apophthegm in Lickbarrow v Mason (1787) 2 T.R. 63, 70, that “wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it”.
75 Cf. Lord Nicholls’ comments in his dissenting opinion in Shogun Finance Ltd. [2003] UKHL 62; [2004] 1 A.C. 919, at [35] (burdening the “person who takes the risks inherent in parting with his goods” is “the direction in which, under the more recent decisions, the law has now been moving for some time”).
76 Debs v Sibec Developments Ltd. [1990] R.T.R. 91 would have been such a case had the representation not been made under duress.
77 Helby v Matthews [1895] A.C. 471.
78 A point made by the Court of Appeal in Helby [1895] A.C. 471: see [1894] 2 Q.B. 262. It is true that today there may be other reasons connected with tax or accounting for choosing lease-purchase over sale as a financing tool; but this is no reason to alter the protection given to third parties.
79 Even though the point was apparently regarded by Chapman J. in Astley Industrial Trust Ltd. [1968] 2 All E.R. 36, 40, as self-proving.
80 The Uniform Law Commissioners’ Uniform Sales Act of 1906, ss. 23–25, e.g. reproduced virtually word-for-word what are now ss. 21, 23 and 24 of the Sale of Goods Act 1979; and most states had some equivalent of the Factors Act 1889 to deal with mercantile agents and buyers in possession. For a brief history see Gilmore, G., “The Commercial Doctrine of Good Faith Purchase” (1954) 63 Yale L.J. 1057 CrossRefGoogle Scholar, at 1057–63; and Gilmore, “The Good Faith Purchase Idea”. Note also Jillson, K., “UCC §2–403: A Reform in Need of a Reform” (1979) 20 Wm & Mary L.Rev. 513 Google Scholar.
81 See Article 2–403(1).
82 See Article 2–403(2). The whole subject is admirably summarised in White, J. and Summers, R., Uniform Commercial Code, 6th ed. (St. Paul 2010), 200–07Google Scholar.
83 In this respect it has been criticised as anomalous: see Note, “The Owner's Intent”.
84 See White and Summers, Uniform Commercial Code, p. 205.
85 Thomas, “Mistaken Identity”, pp. 204 et seq.
86 See in particular Article 9–320. This indeed protects such a buyer even if it does know of the general existence of a security interest created by the seller.
87 A useful summary of the civil law situation appears in Basedow, J., Hopt, K., Zimmermann, R. and Stier, A., Max Planck Encyclopedia of Comparative Law, vol. 1 (Hamburg 2012), 15Google Scholar. See von Bar, C., Clive, E. and Schulte-Nölke, H. (eds.), Principles, Definitions and Model Rules of European Private Law Draft Common Frame of Reference (DCFR) (London 2010)Google Scholar, VIII-3:101.
88 The rule is contained in BGB, § 932 (nicely summarised in Prütting, H., Wegen, G. and Weinreich, G., Bürgerliches Gesetzbuch: BGB, 11th ed. (Munich 2016), § 932)Google Scholar; the exception in § 935.
89 HGB, § 366: see the summary in Münchener Kommentar zum HGB, 3rd ed. (Munich 2013)Google Scholar, § 366, Nr 22–23.
90 See BGB, § 1244 (pledgees) and HGB, § 366.3 (assorted lienholders).
91 See ZGB, § 714.2 (good-faith acquisition); § 934 (exclusion of cases of theft or dispossession). As in Germany, protection is extended beyond ownership to other interests: see ZGB, §§ 746.2, 884, 895.
92 Because it extends to all cases where R believes in P's power of disposal, even where P is not a businessperson. See ZGB, § 933.
93 Code Civil, Article 2276 (Article 2279 before 2008).
94 For a description of how this happened, see generally Terré, F. and Simler, P., Les Biens, 8th ed. (Paris 2014), ss. 425–427Google Scholar; Malaurie, P. and Aynès, L., Les Biens, 6 ed. (Paris 2015) s. 576Google Scholar.
95 As one contemporary German work puts it, summing up summing up extensive earlier scholarship, it is a matter of the danger of malversation that is obvious to anyone who voluntarily surrenders possession of a thing: Baur, F. and Stürmer, R., Sachenrecht, 18th ed. (Munich 2009), s. 52Google Scholar, Nr 8–9. See too in the French context Malaurie and Aynès, Les Biens, s. 576.
96 For the variations see generally Drobnig, U., “Transfer of Property” in Hartkamp, A. (ed.), Towards a European Civil Code, 3rd ed. (Nijmegen 2004), 741Google Scholar.
97 See von Bar et al., Principles, Definitions and Model Rules.
98 See ibid., at pp. 4153–55, 4162.
99 See, in connection with English law in this respect, Merrett, “The Importance of Delivery and Possession in the Passing of Title” [2008] C.L.J. 376.
100 Indeed, there is every reason not to define it: compare the problems that have arisen over the instances given in UCC, Article 2–403(1)(a)-(d), described in Gilmore, “The Good Faith Purchase Idea”, pp. 617 et seq.
101 E.g. Folkes v King [1923] 1 K.B. 282, esp. 296, 305; Du Jardin v Beadman Bros. [1952] 2 Q.B. 712 (on mercantile agents); Newtons of Wembley Ltd. [1965] 1 Q.B. 560 (buyer in possession). See too Ingram [1961] 1 Q.B. 31, 70, per Devlin L.J.
102 Germany is typical: here, consent is expressed negatively as an absence of previous theft, loss or similar dispossession (“wenn die Sache dem Eigentümer gestohlen worden, verloren gegangen oder sonst abhanden gekommen war” – BGB, § 935). There has been held to be no such fatal dispossession in cases of fraud or trickery, or even duress other than direct violence: see Prütting et al., Bürgerliches Gesetzbuch: BGB, § 935, Rz 5.
103 Or possibly a copy of a PIN, if obviously extended to be exclusive. The point can matter, since PINs are often used today to give access to valuable cargoes: see e.g. the facts of Glencore International AG v Mediterranean Shipping Co. SA [2017] EWCA Civ 365, [2017] 2 Lloyd's Rep. 186.
104 E.g. in pledge: see the venerable cases of Hilton v Tucker (1888) 39 Ch.D. 669; and Wrightson v Macarthur [1921] 2 K.B. 807.
105 Cf. City Fur Manufacturing Co. Ltd. v Fureenbond (Brokers) London Ltd. [1937] 1 All E.R. 799.
106 Expressly so in ss. 24 and 25 of the Sale of Goods Act and s. 2 of the Factors Act, all of which refer to goods or documents of title; but there is no reason why an owner should not equally be estopped from asserting its rights in respect of a documentary transfer. See generally S. Thomas, “Transfers of Documents of Title under English Law and the Uniform Commercial Code” [2012] L.M.C.L.Q. 574.
107 For an excellent and detailed coverage, see ibid., at pp. 585–603.
108 A point stressed in Germany: Münchener Kommentar zum HGB, § 366, Nr 49.
109 Under ss. 24 and 25 of the 1979 Act, the buyer is defeated if it has notice of the previous sale (s. 24) or of “any lien or other right of the original seller” (s. 25): from which it seems to follow that R is unprotected if it knows of such rights but believes that P still has authority to sell the goods (which it might well have in cases of sale under retention of title). By contrast, under the Factors Act, s. 2, R is defeated only by notice “that the person making the disposition has not authority to make the same”, suggesting the opposite answer. It also seems clear that estoppel may go to authority as much as ownership.
110 Germany and Austria limit protection of this kind to goods bought from business sellers, otherwise requiring a belief in ownership: see respectively HGB, § 366 and ABGB, § 367. Switzerland seems be wider and always to accept as sufficient a belief in the right of P to act on behalf of O: see ZGB, § 933 and the Basler Kommentar zum Zivilgesetzbuch, 5th ed. (Basel 2015), § 933, Rn 29. The DCFR also adopts this solution, having discussed the matter: see von Bar et al., Principles, Definitions and Model Rules, p. 4158.
111 There is a further point: in German law, where the distinction between belief in ownership and belief in authority has to be drawn in non-commercial cases, the drawing of it has been found to be, to say the least, difficult. See Baur, F. and Stürmer, J., Sachenrecht, 18 ed. (Munich 2009) s. 52, Nr 29–30Google Scholar.
112 See s. 23 (“in good faith and without notice of the seller's defect of title”); ss. 24, 25 (“in good faith and without notice …”); also Factors Act 1889, s. 2 (“provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same”).
113 See s. 61(3) of the Sale of Goods Act 1979.
114 Notably Worcester Works Finance Ltd. v Cooden Engineering Co. Ltd. [1972] 1 Q.B. 210, 218, per Lord Denning M.R., dealing with notice under what is now s. 24 of the Sale of Goods Act; and Feuer Leather Corp. v Frank Johnston & Sons Ltd. [1981] Lexis Citation 837 (Neill J): see too Benjamin on Sale, para. 7–047 ((“‘notice’ of a fact prima facie means actual knowledge of that fact”). More general dicta not in the specific context of ownership of goods include Manchester Trust Ltd. v Furness Withy & Co. Ltd. [1895] 2 Q.B. 539, 545, per Lindley L.J.; and Polly Peck International plc v Nadir (No. 2) [1992] 4 All E.R. 769, 782, per Vinelott J. See too Benjamin on Sale, para. 7–047, n. 313.
115 See Macmillan Inc. v Bishopsgate Investment Trust Plc. (No. 3) [1995] 1 W.L.R. 978, 1000–01, per Millett J.; Sinclair Investments (UK) Ltd. v Versailles Trade Finance Ltd. [2010] EWHC 1614 (Ch), at [88], per Lewison J.; [2011] 1 B.C.L.C. 202; [2011] W.T.L.R. 839; Gray v Smith [2013] EWHC 4136 (Comm); [2014] 2 All E.R. (Comm) 359, at [132]–[136], per Cooke J. Note that in one case of nemo dat constructive notice is statutorily excluded: see the Hire Purchase Act 1964, s. 29(3), dealing with the non-dealer purchaser of a hire-purchased car.
116 Heap [1923] 1 K.B. 577.
117 “A person may have knowledge of a fact either by direct communication, or by being aware of circumstances which must lead a reasonable man, applying his mind to them, and judging from them, to the conclusion that the fact is so” – Lord Tenterden in Evans v Trueman (1830) 1 Moo. & Rob. 10, 11 (under a predecessor of the Factors Act 1889). See too The Saetta [1994] 1 W.L.R. 1334, 1349–50, per Clarke J.; Gray [2013] EWHC 4136 (Comm); [2014] 2 All E.R. (Comm) 359, at [132], another Factors Act case (“it is appropriate that the court should apply an objective test to determine whether, in the circumstances of the sale, the buyer as a reasonable man, must have known of the agent's want of authority (or defect in title) or must have had suspicions and wilfully shut his eyes to the means of knowledge available to him. It is a question of fact and degree”.).
118 The Saetta [1994] 1 W.L.R. 1334, 1349–50, per Clarke J., following the non-sale case of Feuer Leather Corporation [1981] Com.L.R. 251, 253, per Neill J.; Gray [2013] EWHC 4136 (Comm); [2014] 2 All E.R. (Comm) 359, at [136].
119 Gray [2013] EWHC 4136 (Comm); [2014] 2 All E.R. (Comm) 359, at [135]–[136].
120 Which does not appear at all in the relevant provision (Code Civil, Article 2276), but unsurprisingly is accepted to be implicit in it: Terré and Simler, Les Biens, s. 436.
121 See Malaurie and Aynès, Les Biens, s. 579 (“The fact that the acquisition happened in suspicious circumstances is of itself enough to exclude [good faith]”) and the citations to be found there.
122 In part because fairly venial fault has often been equiparated to gross negligence. The position is summarised, with copious references, in Baur and Stürmer, Sachenrecht, s. 52, Nr 26.
123 von Bar et al., Principles, Definitions and Model Rules, p. 4159.
124 See cases such as Moorgate Mercantile Co. Ltd. [1977] A.C. 890 (car dealer owes no duty to register hire-purchase transaction with HPI so as to save dealer-buyer from being defrauded).
125 See cases at note 117 above, and also e.g. Barclays Bank Plc. v O'Brien [1994] 1 A.C. 180, 195–96, per Lord Browne-Wilkinson (notice of equitable right); and Bank of Credit & Commerce International (Overseas) Ltd. v Akindele [2001] Ch. 437, 449–57, per Nourse L.J.
126 See Heap [1923] 1 K.B. 577, 589, per Lush J.; Stadium Finance Ltd. v Robbins [1962] 2 Q.B. 664, 673, per Willmer L.J.; Newtons of Wembley Ltd. [1965] 1 Q.B. 560, 574–76, per Sellers L.J.; also The Saetta [1994] 1 W.L.R. 1334, 1349–50 (following two non-sale cases; Baker (G.L.) Ltd. v Medway Building & Supplies Ltd. [1958] 1 W.L.R. 1216, 1220; and Feuer Leather Corporation [1981] Com.L.R. 251, 253).
127 With sale under a voidable title, it seems it is up to the original owner to prove bad faith in the receiver: see Whitehorn Bros. [1911] 1 K. B. 463 (upheld by the Court of Appeal in the unreported decision in Thomas, CA, 27 November 1985, but distinguished in Heap [1923] 1 K.B. 577, a case under the Factors Act, s. 2, and regarded with scepticism by Benjamin on Sale, para. 7–029).
128 Even though both France and Germany take a different view: see Malaurie and Aynès, Les Biens, s. 579; and Baur and Stürmer, Sachenrecht, s. 52, Nr 25.
129 Notably on buyers and sellers in possession and mercantile agents. See Sale of Goods Act 1979, s. 24: “Where a person having sold goods continues or is in possession of the goods … the delivery or transfer by that person … of the goods … to any person receiving the same in good faith and without notice of the previous sale, has the same effect as if …”. (Italics supplied). Section 25 and s. 2 of the Factors Act 1889 are similarly worded on the basis that it is the buyer in possession or mercantile agent originally entrusted, and no one else, who makes the wrongful disposition.
130 This is essentially what happened in Car & Universal Finance Co. Ltd. [1965] 1 Q.B. 525, where the fraudster who had obtained the car by deception sold to another rogue, who in turn sold to the innocent buyer. If the sale had been direct to the innocent purchaser the section would have applied: cf. Newtons of Wembley Ltd. [1965] 1 Q.B. 560. For a statement that this was the reason why what is now s. 25(1) did not apply in Caldwell, see the first instance decision in Newtons [1964] 1 W.L.R. 1028, 1033.
131 So P does not get title under s. 25(1): Re Highway Foods International Ltd. (In Administrative Receivership) [1995] B.C.C. 271. This result itself ought to be open to question in a logical scheme of things: see Section V(F) below.
132 This implicit in the decision in National Employers’ Mutual General Insurance Association v Jones [1990] 1 A.C. 24, 63, per Lord Goff. In that case Y was the victim of blatant theft and thus deserving of protection anyway: but the House of Lords were explicit that s. 25 of the 1979 Act only affected the rights of the person immediately selling to the buyer in possession, leaving others’ rights intact even though they might have voluntarily surrendered possession. This is precisely what happened in the New Zealand case of Elwin v O'Regan [1971] N.Z.L.R. 1124, 1131, per Beattie J.; and Ahdar, R., “The Buyer in Possession Exception Revisited” (1989) 4 Canterbury L.Rev. 149, 150Google Scholar.
133 Which, curiously, has been held to constitute O a mercantile agent for Y under s. 2 of the Factors Act, thus allowing R to prevail: see Lloyds Bank Ltd. v Bank of America National Trust & Savings Association [1938] 2 K.B. 147.
134 As it is put in German, R is entitled to receive lastenfreier Erwerb (unencumbered title), a point emphasised by BGB, § 936 (“If the thing is encumbered by a third-party right, that right gives way when ownership is received [by the good-faith recipient]”).
135 Where Article 2276(1) of the Code Civil, which in saying “in the matter of moveables, possession is as good as title”, is referring simply to the good-faith possession of the recipient. The exclusion of goods lost or stolen appears later, at Article 2276(2).
136 Hence the structure of German law: providing first that “[T]the person receiving a thing becomes the owner of it even where it does not belong to the transferor, unless he was not in good faith ….”, it then goes on to disapply this provision “if the thing was stolen from, or lost by, the owner, or otherwise taken from his possession. …”. See BGB, §§ 932, 935. The point that R is entitled to receive lastenfreier Erwerb (unencumbered title) is emphasised by BGB, § 936, referred to above.
137 As it must in many civil law systems. In France the whole basis of R's rights is the phrase en fait de meubles, possession vaut titre (Code Civil, Article 2276), which obviously pre-empts the issue. In Germany the result is the same, but one suspects by accident and not design: the reason is that under BGB § 929 ownership cannot on principle be transferred without delivery, even by someone who is the undisputed owner of a thing.
138 The DCFR disagrees, saying that “in cases where [P] stays in possession of the goods after their transfer to [R] … [R] must normally be suspicious” (see von Bar et al., Principles, Definitions and Model Rules, p. 4156). With respect, it is hard to see the basis for this.
139 Which it is with sales, but not necessarily elsewhere. A pledge, for example, cannot be created without a transfer of possession (Inglis v Robertson [1898] A.C. 616). Where this is the case, obviously the issue is pre-empted.
140 This point is not new. It is forcefully made in van de Vliet, Note (an excellent note by a civil lawyer on the difficult case of Michael Gerson (Leasing) Ltd. v Wilkinson [2001] Q.B. 514).
141 As in Michael Gerson (Leasing) Ltd. [2001] Q.B. 514 (a paper attornment).
142 See e.g. The Saetta [1994] 1 W.L.R. 1334; and Angara Maritime Ltd. v OceanConnect UK Ltd. [2010] EWHC 619 (QB); [2011] 1 Lloyd's Rep. 61. Nor is this a purely English phenomenon. The law in Germany is if anything even more convoluted, requiring two highly complex provisions of the BGB (§§ 933–934) and a great deal of exegesis. For a summary, see Baur and Stürmer, Sachenrecht, s. 52, Nr 16–24.
143 Benjamin's Sale of Goods, paras. 7–042, 7–064, 7–080. One strand in the argument is that in the words “sale, pledge or other disposition” in these sections, “disposition” is to be read eiusdem generis with sale or pledge, which both obviously do require value. See Peden, J., “Common Law Liens: An Anglo-Australian Conflict” (1968) 6 Syd.L.Rev. 39 Google Scholar, at 49; and Roache v Australian Mercantile Land & Finance Co. Ltd. (No. 2) (1966) 67 S.R. (N.S.W.) 54.
144 Which may be encountered even in a commercial context: e.g. goods given away as part of a marketing exercise.
145 Admittedly in a roundabout way. On its face BGB § 932 protects the ownership of all good-faith receivers, gratuitous or otherwise. However, BGB § 816.2 then says that gratuitous transferees are in these circumstances unjustly enriched and must return any benefit received, if necessary by reconveying the goods to the original owner. For a brief explanation of the relation between these provisions, see e.g. Peters, F., Der Entzug des Eigentums an beweglichen Sachen durch gutgläubigen Erwerb (Tübingen 1991), 78Google Scholar; and Tiedtke, K., Gutgläubiger Erwerb im bürgerlichen Recht, im Handels- und Wertpapierrecht sowie in der Zwangsvollstreckung (Berlin 1985), 49CrossRefGoogle Scholar.
146 In particular France, where the Code Civil, Article 2276, refers merely to the recipient's possession, and never mentions value, even inferentially. For a recent example of a case where a gratuitous transferee succeeded, see Cass Civ 1, 17.02.2016, No 15–14121. The same is probably true in Switzerland: see Basler Kommentar zum Zivilgesetzbuch, § 933, Rn 33 (stating that this is the prevailing, though controversial, opinion).
147 “The consequence of good faith acquisition for A – namely expropriation – is so severe that only good faith acquirers who would equally suffer a significant disadvantage by not allowing good faith acquisition deserve protection” – see von Bar et al., Principles, Definitions and Model Rules, p. 4156. There is also a practical point: acquisition at an undervalue, and a fortiori acquisition for nothing at all, are very – though admittedly not conclusive – indications of a lack of good faith. See Goode, R., Commercial Law, 5th ed. (London 2016)Google Scholar, para. 16.44.
148 Save perhaps estoppel. If O positively misleads P into believing that M is the owner of O's thing and as a result P accepts it as a gift from M, it is suggested that whatever the position as to ownership any claim by O in tort arising out of P's innocent receipt or disposal of the thing would fail on orthodox estoppel grounds.
149 Under the rule in Solloway v McLaughlin [1938] A.C. 247; and BBMM Finance (Hong Kong) Ltd. v Eda Holdings Ltd. [1990] 1 W.L.R. 409.
150 This is because the right of O to claw back the benefit obtained by an innocent donee under BGB § 816 is based on R's unjust enrichment, to which R has a defence of good-faith disenrichment. See the articles referred to at note 145 above.
151 See e.g. German law as described at note 134 above, making it clear that a good-faith receiver takes free of all interests that would otherwise inhere in entrusters.
152 See Lloyds Bank Ltd. [1938] 2 K.B. 147 (pledgee is “owner” within Factors Act, s. 2, so that when goods returned to dealer-pledgor under trust receipt, latter could sell unencumbered); see too Beverley Acceptances Ltd. v Oakley [1982] R.T.R. 417 (same assumption), and cf. National Employers’ Mutual General Insurance Association Ltd. [1990] 1 A.C. 24 (“owner” under s. 25 of the Sale of Goods Act embraces good-faith possessor of stolen car).
153 Where protection is extended it to good-faith pledgees (BGB, § 1244) and to a few privileged lienholders, such as carriers and commission agents (see HGB, § 366.3). Switzerland does much the same: ZGB, § 714.2 (ownership) is extended to cover usufruct (§ 746.2), pledge (§ 884) and lien (§ 895).
154 French jurists regard the wording of Code Civil, Article 2276 as limited to ownership, insisting accordingly that only possession animo domini in R will do. But case law has grudgingly allowed at least some créanciers gagistes (i.e. holders of liens and pledges) to benefit as well. See generally Terré and Simler, Les Biens, s. 433; Malaurie and Aynès, Les Biens, s. 577.
155 See, in the context of s. 24 of the 1979 Act (and by extension also s. 25(1) and s. 2 of the Factors Act 1889), Worcester Works Finance Ltd. [1972] 1 Q.B. 210, 220, per Megaw L.J.: “‘Disposition’ must involve some transfer of an interest in property”); also Ramsey J. in P4 Ltd. v Unite Integrated Solutions PLC [2006] EWHC 2640 (TCC) at [115] (need for “transfer of an interest, legal or equitable”), and in the parallel context of title by estoppel, Shaw v Met. Police Commissioner [1987] 1 W.L.R. 1332.
156 As with sellers and buyers in possession, and also mercantile agents. Sections 24 and 25 of the Sale of Goods Act and s. 2 of the Factors Act only protect recipients under a “sale, pledge or other disposition”.
157 Cf. Attenborough (1878) 3 C.P.D. 450 (holder of voidable title can create equitable pledge good against original owner).
158 See Re Highway Foods International Ltd. [1995] B.C.C. 271 (buyer under reservation of title which has taken delivery but not paid cannot be protected under Sale of Goods Act 1979, s. 25); and Shaw [1987] 1 W.L.R. 1332 (estoppel cannot protect interest of would-be buyer in possession to whom property has not yet passed).
159 Clerk & Lindsell on Torts, 21st ed. (London 2014), para. 17–64.
160 See Indian Herbs (UK) Ltd. v Hadley & Ottoway Ltd., unrep., CA, 21 January 1999.
161 See On Demand Information Plc (in Administrative Receivership) v Michael Gerson (Finance) Plc [2001] 1 W.L.R. 155, 171, per Robert Walker L.J.: “Contractual rights which entitle the hirer to indefinite possession of chattels so long as the hire payments are duly made, and which qualify and limit the owner's general property in the chattels, cannot aptly be described as purely contractual rights”.); also Hendy Lennox (Industrial Engines) Ltd. v Grahame Puttick Ltd. [1984] 1 W.L.R. 485, 491, 495, per Staughton J.
162 See generally On Demand Information Plc (in Administrative Receivership) [2001] 1 W.L.R. 155, 171; Watt, G., “The Proprietary Effect of a Chattel Lease” [2003] Conv. 61 Google Scholar. But not all agree: see e.g. Swadling, W., “The Proprietary Effect of a Hire of Goods” in Palmer, N. and McKendrick, E. (eds.), Interests in Goods, 2nd ed. (London 1998), ch. 20Google Scholar.
163 A point at least partly recognised in the UCC: see UCC, Article 2A-304, giving a good-faith lessee of goods from a non-owner a valid interest parallel to that of a good-faith buyer.
164 Save in one, admittedly very obscure, case: if a farmer fraudulently sells goods subject to an agricultural charge, the innocent auctioneer is protected under s. 6(3) of the Agricultural Credits Act 1928.
165 Consolidated Co. v Curtis & Son [1892] 1 Q.B. 495; Willis (RH) & Son v British Car Auctions Ltd. [1978] 1 W.L.R. 438. The suggestion in the old case of Shenstone & Co. [1894] 2 Q.B. 452 that X might be protected if R was a buyer in possession seems highly doubtful (cf. Roache (1966) 67 S.R.(N.S.W.) 54; and Suttons Motors (Temora) Pty Ltd. v Hollywood Motors Pty. Ltd. [1971] V.R. 684).
166 It seems a mere broker who does nothing but shuffle paper escapes liability: National Mercantile Bank v Rymill (1881) 44 L.T. 767; and Clerk & Lindsell on Torts, para. 17–17. But the boundary of this protection is alarmingly unclear, and the need for protection remains.
167 And of course their virtual doppelgangers in ss. 8–9 of the Factors Act 1889.
168 Partially, because it only applies to sales by P and not to the creation of other interests in R.
169 A point made in Benjamin's Sale of Goods, para. 7–008.
170 See s. 29(3) (though this also protects some non-consumer purchases). The Secured Transactions Law Reform Project's STR General Policy Paper (April 2016), para. 3–26, discusses whether consumers may need more generalised protection in.
171 Cf. Mautner, “‘The Eternal Triangles of the Law’”, p. 129.
172 Compare the limited immunity against seizure by creditors of art lent internationally for display in museums and galleries: see Tribunals, Courts and Enforcement Act 2007, Part 6.
173 A straightforward example: the 2008 French regime for creation and registration of charges (gages) over moveable property inserted by Ordonnance 2006–346, 23.03.2006 as Articles 2333–2350 of the Code Civil. Article 2337 states laconically in that, once a charge is registered, Article 2276 (the general provision giving title to a good-faith purchaser) does not apply.
174 See the International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015, SI 2015 No 912. For a neat account of its relation with national law, see Goode, R., “Private Commercial Law Conventions and Public and Private International Law: The Radical Approach of the Cape Town Convention 2001 and Its Protocols” (2016) 65 I.C.L.Q. 523 CrossRefGoogle Scholar.
175 Which, having set up a registration scheme, contains a general good-faith purchaser protection in s. 6(3)).
176 Insolvency Act 1986, Part IX, chapter II. This again contain a general good-faith purchaser provision: see s. 284(4)(a).
177 In particular, s. 16 and Sch. 1.
178 That is, the Bills of Sale Act 1878 and the Bills of Sale Act (1878) Amendment Act 1882. See the Law Commission's recommendation to that effect: Law Com Report No 369. The June 2017 Queen's Speech indicated that the Government was minded to accept the principle of the Law Commission's recommendations.
179 As advocated by the Law Commission in the past (Consultation Paper on Registration of Security Interests: Company Charges and Property other than Land, Law Com CP No. 164 (2002), para. 7.24), and discussed more recently by the Secured Transactions Law Reform Project: see STR General Policy Paper (April 2016), paras. 3.21–3.25.
180 As tentatively suggested by the Secured Transactions Law Reform Project: see Working Group A, Case for reform paper series, Methods of Perfection.
181 As proposed by the Law Commission in 2005 (see Law Com No. 296 Company Security Interests), and discussed on a continuing basis under the aegis of the Secured Transactions Law Reform Project.