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General and special property in goods

Published online by Cambridge University Press:  02 January 2018

Nicholas Curwen
Nicholas Curwen*
Affiliation:
Southampton Institute
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Abstract

The law of goods remains in a relatively undeveloped state, retaining both a vocabulary and doctrines which derive from the late Year Book period. That vocabulary is expressed in terms of general and special property in goods. The ‘property’ in goods was always regarded as indivisible because there could be no estate in goods. That doctrine survives in the modern rule that ownership of goods is indivisible. The difficulty of reconciling the old language with modern usage is conventionally overcome by assuming that the old terms simply correspond with ownership and possession. It will be argued in this paper that no such correspondence exists because general and special property always represent an aspect of ownership. In order to demonstrate this assertion it is necessary to depart from orthodox doctrine and insist that ownership is severable. This will be illustrated by the way in which proprietary interests behave upon the creation of a pledge and a hiring of goods.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 2 , June 2000 , pp. 181 - 197
Copyright
Copyright © Society of Legal Scholars 2000

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References

1 See s 61(1) of the Act. The draftsman of the original Sale of Goods Act 1893, Sir MacKenzie Chalmers, in a commentary on the Bill (The Sale of Goods (London, 1st edn, 1890) p 93) identified ownership with general property but did not define special property; instead he cited the interest of a pledgee as an example.

2 Personal Proper5 Law (London: Blackstone, 2nd edn, 1996) p 23.

3 (1902) P 42.

4 Ibid at 60.

5 See Coggs v Bernard (1703) 2 M Raym 909 and Donald v Suckling (1866) LR 1 QB 585.

6 See Ratcliff v Davis (1610) 1 Bulst 29; Ryall v Rowles (1750) 1 Atk 165; Donald v Suckling (1866) LR 1 QB 585; Sewell v Burdick (1884) 10 App Cas 74; and Re Morritt (1886) 18 QBD 222.

7 See eg R H Kersley (ed) Goodeve's Modem Law of Personal Property (London: Sweet and Maxwell, 9th edn, 1949) pp 8–9; R Goode Commercial Law (London: Penguin, 2nd edn, 1995) p 28; and Bridge, above n 2, pp 11 and 23.

8 See eg E L G Tyler and N E Palmer (eds) Crossley Vaines’ Personal Property (London: Butterworths, Sthedn, 1973) p 41; Goode, above n 7, pp 37–38; and Bridge, above n 2, p 23.

9 See A P Bell Modern Law of Personal Property in England and Ireland (London: Butterworths, 1989) p 62.

10. See Goode, above n 7, p 39.

11. See Sir William, Holdsworth. A History of English Law (London: Sweet and Maxwell, 3rd edn, 1923) vol 3, p 337 Google Scholar; Sir Frederick Pollock A First Book of Jurisprudence (London: Macmillan, 6th edn, 1929) p 184; Kersley, above n 7, p 29; and J H Baker An Introduction to English Legal History (London: Butterworths, 3rd edn, 1990) p 439.

12. ‘The Concept of Property in the Early Common Law’ (1994) 12 Law and History Rev 29 at 61.

13. Ibid p 84.

14. See B Nicholas An Introduction to Roman Law (Oxford: Clarendon Press, 1962) p 157.

15. In the famous case of Armory v Delamirie (1721) 1 Str 505 this was taken for granted.

16. See F Pollock and R S Wright Possession in the Common Law (Oxford: Clarendon Press, 1888) pp 91–100.

17. ‘Property in Chattels’ (1978) 94 Selden Society 204.

18. Presumably Baker thinks that it should read ‘bailee’ but if the bailor has no property in the goods then it is he and not the bailee who ‘has no more to do with the goods than a stranger’.

19. Ibid p 218.

20. Ibid, p 218.

21. Percy Bordwell (‘Property in Chattels III’ (1897) 11 HLR 73 1 at 745) attributed the use of ‘special property’ to Fineux CJ in (1506) YB Hil 21 Hen VII, fo 15, pl 23.

22. (1866) LR 1 QB 585.

23. Ibid at 595.

24. (1916) 1 AC 145.

25. Ibid pp 158–159.

26. See R Zimmermann The Law of Obligations Roman Foundations of the Civilian Tradition (Oxford: Clarendon Press, 1996) p 223.

27. An Introduction to Roman Law (Oxford: Clarendon Press, 1962) p 157.

28. ‘Pledge’ in N Palmer and E McKendrick (eds) Interests in Goods (London: Lloyds of London Press, 2nd edn, 1998) ch 24, p 633.

29. See Gordon v Harper (1796) 7 TR 9 and Jarvis v Williams (1955) 1 WLR 71.

30. See Webb v Fox (1797) 7 TR 391.

31. See International Factors Ltd v Rodriguez (1979) 1 QB 351.

32. See A Tettenborn ‘Wrongful Interference With Goods’ in Clerk & Lindsell on Torts (London: Sweet and Maxwell, 17th edn, 1995) ch 13, p 665.

33. See Commercial Law, above n 7, pp 28 and 37–38.

34. Ibid p 39.

35. See the text referred to at n 4 above. 36.

36. Above n 7, pp 38–39.

37. See the text referred to at n 34 above.

38. See the text referred to at n 41 below.

39. (1913) AC 76.

40. Ibid at 84.

41. ‘The True Nature of a Pawnee's Interest in Goods Pawned’ (1915) 31 LQR 75 at 78–79.

42. Elements of Law (Oxford: Clarendon Press, 6th edn, 1905) p 158.

43. Above n 11, pp 179–180.

44. Above n 8, p 41.

45. See the text referred to at n 43 above.

46. Ibid, p 41.

47. Ibid, p 43.

48. ‘Ownership’ in A G Guest (ed) Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961) ch 5, p 128. Honoré's view that residuarity is no more important than any other ingredient of ownership is criticised by K Campbell in ‘On the General Nature of Property Rights’ (1992) 3 King's College LJ 79 at 93–94.

49. Above n 48, p 113. In the light of such a statement it is surprising that Honor C did not make greater use of the right to possession in his analysis of ownership.

50. See ‘The Proprietary Effects of a Hire of Goods’ in Palmer and McKendrick (eds), above n 28, ch 20.

51. (1933) 33 LQR 576 at 580.

52. (1974) 13 JSPTL 150 at 151.

53. Ibid, p 151.

54. Ibid, p 515.

55. (1863) 2 H & C 121. In that case it was said by Pollock CB (at 127) that: ‘A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property …’

56. It is this characteristic of conversion that enables it to straddle the divide between tort and the law of property.

57. See International Factors Lrd v Rodriguez (1979) QB 35 1.

58. (1796) 7 TR 9.

59. See the text referred to at n 20 above.

60. (1862) 11 CB (NS) 850.

61. The Lnw of Property (Oxford: Clarendon Press, 2nd edn, 1982) p 202.

62. See Donald v Suckling (1866) LR 1 QB 585 and Hallihy v Holgate (1868) LR 3 Ex 299.

63. See Donald v Suckling (1866) LR 1 QB 585.