2 Relative Title and Deemed Ownership in English Personal Property Law

Oxford Journal of Legal Studies, Vol. 35, No. 1 (2015), pp. 31–54doi:10.1093/ojls/gqu016Published Advance Access July 22, 2014

Relative Title and Deemed Ownership in

English Personal Property Law

Luke Rostill*

Abstract—This article is concerned with two elementary propositions of Englishproperty law: (i) in general, a person acquires a title in respect of a tangible chattelif and when he or she obtains possession of it; and (ii) titles are relative. Neitherclaim is as straightforward as it seems. Much hinges on the answer to one question:is a title a property right, or is it something else? A number of prominent propertylaw scholars have claimed that, for the purposes of (i) and (ii), a title is indeed aproperty right. This article claims that there is a plausible alternative, one that iscommitted to the view that in English law, having possession of a chattel is acondition of the law deeming a person to be its owner. It argues that this assertionis supported by an important line of cases. And it maintains that, if that assertion iskept in mind, one can make better sense of the otherwise obscure view that havingpossession of a chattel is a condition of a person acquiring a ‘claim’ to theownership of it and hence a title that is not a property right.

Keywords: property, property rights, common law, commercial law, private law

1. Introduction

The primary aim of this article is to provide support for the claim that English

personal property law contains a doctrine of deemed ownership, that is, a

doctrine which provides that, in certain circumstances, a person is to be

deemed to be the owner of a tangible chattel.1 A secondary aim of this article is

to explain how a commitment to that claim might lead one to accept a certain

sort of account of the doctrine of relative title. It will be convenient to

introduce the doctrine of relative title before discussing deemed ownership.

* Luke Rostill, Wadham College, Oxford. Email: [email protected]. I would like to thank the membersof the Oxford Law Faculty’s Property Law Discussion Group, particularly Simon Douglas, Joshua Getzler, MikeMacnair and Robert Stevens, and an anonymous reviewer, for their insightful and helpful comments on a draft ofthis article. I am especially grateful to Ben McFarlane, my doctoral supervisor, and William Swadling for theirvery valuable comments, criticisms and advice. Finally, I would like to thank the Arts and Humanities ResearchCouncil for supporting this work. I am, of course, solely responsible for any errors.

1 A tangible chattel is a corporeal, movable thing that is capable of being possessed (and hence a chose inpossession), and which may be the object of property rights. Such chattels are sometimes called ‘goods’. Thisarticle is only concerned with tangible chattels, although it generally uses ‘chattels’ simpliciter to refer to them.

� The Author 2014. Published by Oxford University Press. All rights reserved. For permissions,please e-mail: [email protected]

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A. Title and Relativity

It seems that few lawyers would dissent from the following two claims about

the content of English law: (a) in general, a person acquires a title to, or in

respect of, a chattel if and when he or she obtains possession of it;2 and (b)

titles to, or in respect of, chattels are relative.3 We will see that scholars have

offered different accounts of both of these claims, but it seems that, according

to all of the views considered in this article, at least part of the explanation of

(b) is captured by the following propositions:

(1) a title to a thing can be compared with one other, or more than oneother, title to the same thing: with respect to any other such title, it canbe said to be better than it or worse than it;

(2) if a title (X) is better than another title (Y), X might be ‘good against’the holder of Y, but Y cannot be ‘good against’ the holder of X;4 and

(3) a person’s title might be better than another person’s title, but worsethan the title of some third person.

Legal scholars disagree, however, about the nature of the thing that lies at the

heart of the doctrine: title. Some scholars claim that a title is a property right

(or a proprietary interest);5 other scholars assert that a title is a ‘claim’ to a

property right rather than a property right itself. The persistence and depth of

the disagreement is surprising, for many writers regard the doctrine of relative

title as a distinctive and significant feature of the common law.6 The truth is,

however, that academics have advanced fundamentally different accounts of

title and, accordingly, of the doctrine of relative title. It is suggested below that

one reason for this is that some academics believe that English law contains a

doctrine of deemed ownership and others do not.

Before discussing the debate over the nature of title, and the related debate

over whether English law contains a doctrine of deemed ownership, it is worth

noting that the term ‘title’ is used in a variety of ways. In his essay on

2 cf F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press 1888) 22, 95.3 cf ibid 23–24.4 In general at least, titles ‘are better or worse as they are more ancient or more recent’: AWB Simpson, A

History of the Land Law (2nd edn, Clarendon Press 1986) 40. On one account of the doctrine of relative title,discussed below, one should add that the title of a ‘true owner’ to the ownership of her chattel is always betterthan any other title to the ownership of the very same chattel.

5 Ownership, leases, easements and the like are generally believed to be types of property right. But not allscholars are happy with this. Nicholas McBride, for instance, finds this belief ‘inexcusable’—‘the range ofproprietary interests that someone may have in a thing (ownership, charge, beneficial interest, lease) are not inand of themselves rights’: N McBride, ‘Rights and the Basis of Tort Law’ in D Nolan and A Robertson (eds),Rights and Private Law (Hart 2012) 347. In order to adequately examine this claim, one would need to providean account of the nature of property rights and the nature of the ‘interests’ mentioned—ownership, charge, etc.Its truth may depend, for instance, on the soundness of a ‘bundle theory’ of property. These issues cannot beexplored here. In this article, ‘property right(s)’ should not be regarded as necessarily excluding what McBridecalls ‘proprietary interests’. If McBride is right, ‘proprietary interests’ should replace or supplement ‘propertyrights’ in this article.

6 D Fox, ‘Relativity of Title at Law and in Equity’ (2006) 65 CLJ 330; K Gray and S Gray, Elements of LandLaw (5th edn, OUP 2009) 2.2.4.

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ownership, AM Honore identified three different uses of ‘title’.7 Firstly, ‘it

refers to the conditions of fact which must be fulfilled in order that a person

may acquire or lose a claim to a thing.’8 These are sometimes called ‘modes of

acquisition or loss’. Secondly, the term is used to refer to a right to possess a

thing.9 Thirdly, ‘title’ is sometimes used synonymously with ‘ownership’.10 The

term is used in a further way, which Honore did not identify. When ‘title’ is

used in this fourth way, it refers to a ‘claim’ to a property right in a thing.11

Robin Hickey has claimed that, when used in this way, title is ‘purely a juridical

notion, occupying a conceptual space between causative event and resultant

right’.12 We will see that a good way to make sense of this use of ‘title’, and the

ideas that lie behind it, is to keep in mind the view that English law contains a

doctrine of deemed ownership.

One consequence of the fact that ‘title’ is used in these various ways is that

lawyers have been able to escape some important controversies on more

occasions than they should have. For on many occasions it is no doubt possible

to say that some person or other ‘has a title’ and leave it at that; and thus

significant conceptual and legal disagreements are allowed to remain in the

background. This article is concerned with some of these conceptual and legal

disagreements. It asks: is the title acquired by a possessor a property right, or is

it something else?

B. Title and Possession: Property and Deemed Ownership

The disagreement over the nature of title is tied to a disagreement over the

proper interpretation of the rule that a person’s possession of a chattel is a

condition of that person acquiring a title to, or in respect of, it. On one view,

this rule provides for the acquisition of property rights. Those who take this

view are committed to what is referred to below as the Acquisition of Property—

or AP—Thesis: Generally speaking, a person (P) acquires, in English law, a property

right of a certain kind in a chattel (X) if and when that person obtains possession of

X, provided that P is a person that may have a property right of that kind in X. A

7 AM Honore, ‘Ownership’ in his Making Law Bind (Clarendon Press 1987) 184.8 ibid. James Harris used the term ‘title’ in this way: JW Harris, Property and Justice (Clarendon Press 1996)

39–40, 80–81. cf N MacCormick, Institutions of Law: An Essay in Legal Theory (OUP 2007) 139.9 William Swadling uses ‘title’ to refer to a ‘right to exclusive possession forever’: WJ Swadling, ‘Property:

General Principles’ in A Burrows (ed), English Private Law (3rd edn, OUP 2013) 4.131. cf WJ Swadling,‘Ignorance and Unjust Enrichment: The Problem of Title’ (2008) 28 OJLS 627, 640–41.

10 Honore (n 7) 184; R Hickey, Property and the Law of Finders (Hart 2010) 165–66.11 For example, HL Ho, ‘Some Reflections on ‘‘Property’’ and ‘‘Title’’ in the Sale of Goods Act’ (1997) 56

CLJ 571, 573.12 Hickey (n 10) 165.

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number of prominent property law scholars believe in this thesis.13 If the AP

thesis is true, then English law must contain a rule of law, or some set of such

rules, in virtue of which the AP thesis is true. It will be helpful to refer to such

laws as AP-supporting rules. Some property lawyers think that the property right

a person acquires under the (supposed) AP-supporting rules is ownership;14

others believe that the right a person acquires under those rules is not

ownership, or, at any rate, should not be called ‘ownership’. William Swadling,

for instance, prefers to say that, under the rule(s), a person acquires a ‘right to

exclusive possession forever’.15

In order to explain how the AP thesis has been associated with a particular

view of the relative title doctrine, it will be helpful to consider the following

example:

Example 1. A leaves his umbrella in an umbrella stand at a museum. B, desiring the

umbrella for himself, takes it without A’s consent. Later, C takes the umbrella

without B’s consent and uses it to keep himself dry. A short time later, B demands

the return of the umbrella. C refuses to return it to B.

Suppose that each of A, B and C obtain possession of the umbrella in turn.

When A obtains possession, A acquires, under the (supposed) AP-supporting

rules, a ‘title’, that is, a property right, as does B when B acquires possession

and C when C acquires possession. How do their rights compare? Most

persons committed to the AP thesis accept that the ‘title’, the property right,

that one acquires with respect to a chattel under the AP-supporting rules binds

persons generally but not any one with a better, because pre-existing, ‘title’ to

the chattel.16 If this rule is considered to form part of the doctrine of relative

title, then that doctrine orders and prioritizes property rights.17 The ranking

partly determines which persons are bound by the right. On this view, A’s title,

which arose before B’s and C’s, is, accordingly, better than theirs, and, as B’s

title arose before C’s, B’s title is better than C’s. This is to say that, other things

being equal, A’s property right binds B and C, B’s property right binds C but

not A, and C’s property right binds neither A nor B. For B to succeed in an

action in tort for (say) conversion of the umbrella against C, B must show that

he has a ‘relatively better’ property right in the umbrella, ie that his title is

13 For example, B McFarlane, The Structure of Property Law (Hart 2008) 154–56; S Douglas, Liability forWrongful Interferences with Chattels (Hart 2011) 20–30; Swadling, ‘Property’ (n 9) 4.422. Robin Hickey hasclaimed that ‘the general trend of the cases does lend some support’ to the view that ‘possession generates arelatively good property right’, but he has some reservations: Hickey (n 10) 109–11. James Gordley and UgoMattei have claimed that the ‘doctrine that possession gives a kind of title’—ie a right of ownership—‘was in factinvented’ by Oliver Wendell Holmes and Sir Frederick Pollock: J Gordley and U Mattei, ‘Protecting Possession’(1996) 44 Am J Comp L 293, 294.

14 For example, McFarlane (n 13) 140; Hickey (n 10) 122–24, 164; Douglas (n 13) 26.15 Swadling, ‘Property’ (n 9) 4.422.16 McFarlane (n 13) 146; Swadling, ‘Property’ (n 9) 4.427.17 McFarlane (n 13) 146; Douglas (n 13) 24–27. cf Fox (n 6) 336–38.


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better, because older, than C’s so that, other things being equal, C was bound

by his property right.

On an alternative view, a title is not a property right and the doctrine of

relative title is not about the priority and ‘bindingness’ of property rights.

Rather, at its core it is about when legal officials and legal institutions,

principally the courts, are to act as if some person or other has a property right,

such as ownership. In other words, it is about when legal officials are to accept

that some person or other has a property right.18 According to this view, a

person with a title (or ‘claim’) to the ownership of a chattel, is a person who

the law is to treat as the chattel’s owner in at least some circumstances. The

law treats a person who has had possession of a chattel as its owner in certain

circumstances, and hence such a person has a title to the ownership of the

chattel. A person who believes that these claims are true is committed to what

is referred to herein as the deemed ownership thesis: In certain circumstances,

English law deems a person who was in possession of a chattel to have, or to have

had, ownership of it, ie it accepts that he or she has, or had, ownership.19

According to the view we are considering, possession can be said to be a

‘title’, according to something akin to the first use of the term ‘title’ identified

by Honore, inasmuch as having possession of a chattel is a condition of a

person being treated as the chattel’s owner. And when title is reified, when it is

regarded as a thing the law confers on persons and so as a thing that persons

have, it can be said that possession ‘gives rise’ to a title: a person who obtains

possession of a chattel thereby acquires, and so has, a title in respect of it. This

way of talking is liable to cause confusion unless it is remembered that, on this

view, to claim that B in Example 1 has, on the basis of his possession of the

umbrella, a ‘title’, or ‘claim’, to the ownership of it, means that, for at least

some purposes (such as an action in conversion) the law is to treat B as its

owner against a person who does not have, and cannot rely on, a better title.

B’s title is, or may be, ‘good against’ C but it is not ‘good against’ A. In other

18 Joseph Raz has drawn a distinction between believing a proposition and accepting a proposition.‘[A]ccepting a proposition is conducting oneself in accord with, and because of, the belief that there is sufficientreason to act on the assumption that the proposition is true: acceptance of the proposition P entails belief, butnot belief that P. Rather it entails belief that it is justified to act as if P’: J Raz, From Normativity to Responsibility(OUP 2011) 37.

19 The identification of those legal scholars who are committed to this thesis is hindered by the numerousambiguities and confusions that afflict this area of the law and discussions of it. It is arguable that NormanPalmer and David Fox are committed to the thesis (or a very similar thesis): N Palmer, ‘Possessory Title’ in NPalmer and E McKendrick (eds), Interests in Goods (2nd edn, LLP 1998) esp 66–71; N Palmer (ed), Palmer onBailment (3rd edn, Sweet & Maxwell 2009) 4–005, 4–093; Fox (n 6) 340. However, these scholars do notdistinguish the AP thesis from the deemed ownership thesis. Indeed, Fox seems to be committed to a version of theAP thesis, and it appears that this commitment is based on his belief that a person in possession of a chattelbenefits from a ‘presumption of ownership’: Fox (n 6) 332–34, 336–38, 340–42. The distinction collapses for onewho believes that it is necessarily the case that a person has ownership (in law) of a thing if courts treat thatperson as having ownership of it. But such a belief would be plainly mistaken. Of course, one might identify thetwo distinct theses and claim that both theses are true (cf D Sheehan, The Principles of Personal Property Law (Hart2011) 13 and fn 72). It should also be noted that, whether or not Fox is committed to the deemed ownership thesis,his account of the doctrine of relative title is closer to Swadling’s account, discussed above, than it is to theaccount that is here allied with the deemed ownership thesis: Fox (n 6) esp 336–38.


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words, B is to be deemed, other things being equal, to be the owner of it

against C but not against A. On this view, one may, like B, have a title in

respect of a chattel and not be its owner; indeed, one may have a title in respect

of a chattel and have no property right in it at all. For those committed to this

view of the doctrine of relative title, the titles with which that doctrine is

concerned are not themselves property rights.

This article claims that the deemed ownership thesis is plausible and supported

by an important line of cases. It also offers some reasons for doubting that the

AP thesis is correct. Hence, the article’s ambitions are quite modest. But, for a

number of reasons, they are not insignificant. Firstly, the deemed ownership thesis

has been rejected by many property lawyers. Accordingly, one would perform a

useful service if one successfully argued that the deemed ownership thesis

deserves serious consideration. In trying to do just that, this article hopes to

advance some fresh arguments in support of the thesis. It is suggested,

moreover, that some of the hostility to the thesis has to do with its association

with certain troublesome claims that it may, in fact, discard. The thesis itself

has a long pedigree; but this article hopes to strengthen its appeal by

combining it with some views that it has not traditionally been associated

with.20

Secondly, the answer to the question, ‘is the deemed ownership thesis, or the

AP thesis, true?’, has important implications for the nature of English personal

property law, as is suggested by the differences between the two explanations of

the relative title doctrine briefly canvassed above. By comparing and contrast-

ing the two theses, along with two accounts of the doctrine of relative title, and

by setting out some arguments that support the deemed ownership thesis and cast

doubt on the AP thesis, this article hopes to contribute to the task of

establishing the truth or falsity of each thesis, as well as to the conceptualiza-

tion of an area of law that Peter Birks thought academics had neglected,21 and

which has been described, more recently, as ‘conceptually underdeveloped’22

and ‘underconceptualized’.23

This article’s conclusions are, moreover, relevant to the controversy

surrounding the place and significance of ownership in English law. On some

accounts of the doctrine of relative title, the doctrine appears to present a

problem for those writers who would like to claim that English personal

property law confers, and is concerned to protect, ownership. For, on some

views, the doctrine of relative title allows there to be multiple ‘ownerships’ of

the same chattel; it enables multiple persons to have, severally, concurrently,

and with respect to the very same chattel, those rights, powers and immunities

that constitute, or partly constitute, ownership—and this appears to be at odds

20 Text to nn 62–66.21 P Birks, ‘Personal Property: Proprietary Rights and Remedies’ (2000) 11 KCLJ 1, 2.22 M Bridge, Personal Property Law (3rd edn, OUP 2002) 14.23 A Pretto-Sakmann, Boundaries of Personal Property: Shares and Sub-shares (Hart 2005) 3.


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with the widespread belief that ownership is, or ought to be, exclusive. As

Larissa Katz has said, ‘exclusivity . . . is, on most accounts of ownership, at the

very core of the idea of ownership’.24

One response to this is to claim that English personal property law is not

concerned with ownership per se. Some scholars have claimed just that.25

Alternatively, one might abandon the claim that ownership is, or ought to be,

exclusive (in the relevant sense);26 or one might explain how the doctrine of

relative title is compatible with the exclusivity of ownership. Larissa Katz,

taking the latter option, has argued that ownership is an exclusive right to set

the agenda for a thing, and that ‘non-owners can have standing to make

decisions about things without violating the exclusivity of ownership’.27 But, it

is arguable that, if the deemed ownership thesis is sound and the AP thesis is

false—and if there is no other basis for the existence of multiple, competing

‘ownerships’—then the problem does not really arise; one can, so to speak,

solve the problem by dissolving it. For, according to the deemed ownership thesis,

a person who obtains possession of a chattel that is owned by another, such as

B in Example 1, does not thereby acquire a property right in it; B is merely to

be treated as having the rights, powers etc that he would have if he were the

owner. Thus, it seems that such a person would not acquire anything that

could challenge or undermine the exclusive legal-normative position that the

owner occupies qua owner (if the owner does, indeed, occupy such a position).

Hence, a person who is committed to the deemed ownership thesis may claim that

the existence of the doctrine of relative title is not a good reason for a common

lawyer to jettison the claim that English personal property law is concerned

with the protection of ownership.

2. Deemed Ownership and the Chattel Torts

The primary focus of this section is on the alleged operation of a doctrine of

deemed ownership in the context of the so-called ‘chattel torts’. This is not

because it is presupposed that the doctrine, if it exists, does not operate beyond

that context. It is simply a result of the fact that many of the cases that have

been, or could be, advanced to support the deemed ownership thesis are cases in

which a person has alleged that someone has tortiously interfered with his or

24 L Katz, ‘The Concept of Ownership and the Relativity of Title’ (2011) 2 Jurisprudence 191, 197. Indeed,Katz herself has claimed that ownership is ‘exclusive in the sense that its holder occupies a special position thatothers do not share’: L Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58 U Toronto LJ 275, 277(emphasis removed).

25 For example, Swadling, ‘Ignorance’ (n 9) 640: ‘despite what a layperson might think, English law has nonotion of ‘‘ownership’’’; n 97 and accompanying text.

26 cf McFarlane (n 13) 144–46.27 Katz (n 24) 192 (emphasis in original). According to Katz, ‘[t]he relativity of title, and the substitution of

possessors for owners pro tem, can be explained in terms that relate to the coordination function of ownership:ownership is, in a sense, an office that must be filled to avoid moral exhaustion on the one hand, and conflict onthe other’: Katz (n 24) 202; cf L Katz, ‘The Relativity of Title and Causa Possessionis’ in J Penner and H Smith(eds), Philosophical Foundations of Property Law (OUP 2013).


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her goods. Accordingly, the law of torts is an obvious place to begin. In

beginning there, we will be following in the footsteps of many other lawyers.28

Nonetheless, it is necessary to discuss the cases in some detail. Property

lawyers have disagreed about how these cases should be interpreted; the

disagreement runs deep, and part of the case in support of the deemed ownership

thesis rests on a particular interpretation of them.

There is something that should be noted before the cases are discussed. This

is the fact that, in general, the common law, and common lawyers, tend to focus

on actions and remedies. This is so in the context of the law of torts,

notwithstanding that a tort involves the violation of a right; that it is, in general,

a condition of a person having a right to reparation in tort that one of his or her

rights has been violated.29 The ‘primary right’ on which a right to reparation in

tort is premised is not often articulated and, too often, it is not kept in mind.

Why is this relevant? It has long been said that a person who has possession of a

chattel may successfully sue for conversion, trespass to goods, or negligently

caused damage to chattels, and this might tempt one—and no doubt has

tempted some—to conclude that ‘possession’ is itself a (type of) property right in

English law. But one should not draw that conclusion so quickly. For one must

consider just why a person who has had possession of a chattel may appear to be

entitled to sue a person who, say, takes, or uses, or damages it. From the

perspective of a person who is committed to the deemed ownership thesis, the

reason why a person who was in possession of a chattel can, in certain

circumstances, successfully sue in tort for, say, conversion, in circumstances in

which the doctrine of deemed ownership applies, is that the law treats that

person as the owner, and thus as a person who has whatever rights, powers, etc

are attached to ownership in law. Suppose that B in Example 1 brings an action

in conversion against C and that, on the law as it applies to the facts, the law is

to treat B as the owner of the umbrella for the purposes of his action. Now, if

one’s reasoning is to proceed on the basis that B is the owner of the umbrella,

the conclusion must be that C, by refusing to return the umbrella, has violated

B’s rights (assuming, that is, that a refusal to return the umbrella amounts to a

conversion vis-a-vis its owner); the violation of B’s rights amounts to a tort, a

legal wrong, and this is the ground of B’s right to reparation in tort against C.30

Again, if one is committed to the AP thesis, then the reason why a person who has

had possession of a chattel may, in certain circumstances, successfully sue a person

28 Many of the cases that support the argument advanced in this article are cited, for example, in Palmer,Bailment (n 19) 4–005, 4–093.

29 JCP Goldberg and BC Zipursky, ‘Torts as Wrongs’ (2010) 88 Tex L Rev 917; J Gardner, ‘Torts and OtherWrongs’ (2012) 39 Florida State UL Rev 43, 45–46.

30 As John Gardner has recently explained, the legal right to reparation is complex: ‘[i]ts incidents include notonly the wrongdoer’s legal duty to repair, but also a largely undirected legal power’—ie a legal power that is notcoupled with legal duties regulating its exercise—‘for the person wronged to determine whether that legal duty isconcretized and enforced through the courts, with a consequent duty on the courts to assist, when that power isvalidly exercised by the issue of proceedings’: J Gardner, ‘What is Tort Law For? Part 2. The Place ofDistributive Justice’ in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (OUP 2014) 340.


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in tort for, say, conversion is that a possessor actually acquires, when she obtains

possession, a property right. If some other person converts the chattel, this amounts

to a violation of her right(s), and this is what grounds her right to reparation.

The point is that, according to these accounts of the law, one cannot simply

take the possession and the right to reparation and put them together: one

cannot jump directly from the former to the latter. If one were to do so, one

would miss a crucial part of the reasoning and, accordingly, one’s understand-

ing of the law would be incomplete and distorted.

With the foregoing in mind, we can turn to the cases. The view that there is

a doctrine of deemed ownership in English law is most clearly supported by the

Court of Appeal’s decision of 1902 in The Winkfield,31 in which Sir Richard

Collins MR, giving the leading judgment, relied heavily on Jeffries v Great

Western Railway Co.32 Accordingly, it seems appropriate to begin with Jeffries

and to consider earlier cases if and when it becomes necessary.

A. Jeffries v GWR: Possession, Presumptions and Property

The facts of Jeffries are simple. The claimant had been in possession of some

trucks, which he claimed as his own property under an assignment from one

Owen. The defendants, who also claimed that the trucks were their own under

an assignment from Owen, seized the trucks. The claimant brought an action

in trover, the name of the action from which the modern tort of conversion

derives. The defendant pleaded that, since Owen had become bankrupt before

the claimant took possession of the trucks, Owen’s interest in them had vested

in his assignee-in-bankruptcy and, therefore, the trucks were not the claimant’s

property. The judge refused to permit this defence, and, on a motion for a new

trial, the Queen’s Bench upheld the judge’s decision.

Judgments were delivered by Lord Campbell CJ and Wightman and

Crompton JJ. A passage from the Lord Chief Justice’s judgment captures the

essence of the decision:

I am of the opinion that the law is that a person possessed of goods as his property

has a good title as against every stranger, and that one who takes them from him

having no title in himself, is a wrongdoer, and cannot defend himself by shewing that

there was title in some third person; for against a wrongdoer possession is a title.33

The question at issue in Jeffries was whether the defendant could escape liability

by showing that the goods ‘were not the plaintiff’s’34 because Owen’s interest in

them had vested in the assignees. The Lord Chief Justice, agreeing with the trial

judge, Pollock CB, opined that, because the defendants were ‘wrongdoers’, they

could not. According to the statement quoted above, it is a necessary, but not a

31 [1902] P 42 (CA).32 Jeffries v GWR Co (1856) 5 El & Bl 802, 119 ER 680.33 ibid 805.34 ibid 802.


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sufficient, condition of a person being a ‘wrongdoer’ that that person has taken

the goods out of another person’s possession. This is important. For his

Lordship’s reason for believing that a ‘wrongdoer’ ‘cannot defend himself by

shewing that there was a title in some third person’ has to do with the

importance of protecting possession: ‘I think it most reasonable law, and

essential for the interests of society, that peaceable possession should not be

disturbed by wrongdoers’.35 This reasoning proceeded on the basis that, as the

Lord Chief Justice put it, ‘against a wrongdoer, possession is a title’;36 that, in

trover, as in trespass, ‘the presumption of law is that the person who has

possession has the property’.37

This use of the term ‘presumption’ has been criticized. William Swadling, for

instance, has claimed that ‘the statement sometimes made that the fact of

possession gives rise to a ‘‘presumption’’ of ‘‘ownership’’ is a misnomer’.38 One

of his reasons for this is that ‘presumptions properly-so-called’—or ‘true’

presumptions—‘are methods of proof of facts’, whereby if one ‘fact’ (the

‘primary fact’) is proved, then another fact (the ‘presumed fact’) is to be taken to

be proved, and ‘no fact is here in issue, merely a legal inference from facts

proved by evidence’.39 The assumption underpinning this claim is that

a statement such as ‘the claimant had ownership of the chattel’ does not

count as a statement of ‘fact’. Suppose, for the sake of argument, that whether

or not a person had ‘property’—or ‘ownership’—does not count as an issue of

‘fact’, so that, in Jeffries, the issue of whether or not the claimant had ‘the

property’ could not have been a ‘fact in issue’. If that is so, then no ‘true’

presumption could itself enable a claimant to establish that he had ‘the property’

in a chattel. But suppose, further, that there is a rule of law to the effect that, in

certain circumstances, such as those in Jeffries, a person who had possession of a

chattel is to be treated as having ‘the property’ in it. Where that rule of law

applies, it does not seem inappropriate, as a matter of ordinary language, to say

that the law is to presume that—acts as if—the relevant person has or had ‘the

property’.40 One might think that, for the sake of clarity, one should, in

35 ibid.36 ibid 805. Wightman J made a similar assertion in argument: ibid 805. But it seems that the principle’s

application is not, in the modern law at least, restricted to claims against persons who are what Lord CampbellCJ called ‘wrongdoers’: see text to n 65.

37 ibid 806.38 Swadling ‘Property’ (n 9) 4.426. cf Hickey (n 10) 109–10.39 Ibid. For a general discussion of presumptions in the law of proof see, eg, R Glover and P Murphy, Murphy

on Evidence (13th edn, OUP 2013) 75–81, 709–19.40 For a philosophical account of presumptions, one that is concerned with their role in practical reasoning

and the theory of action, see E Ullmann-Margalit, ‘On Presumption’ (1983) LXXX J Phil 143. It seems likelythat the reason some legal scholars reject the view that legal statements can be statements of presumed facts isthat they regard presumptions as involving an inference from the primary fact to the presumed fact: for exampleMurphy (n 39) 709. If Edna Ullmann-Margalit is correct, however, then there are presumptions that, veryroughly, are not about the presumed fact being inferred from the primary fact, but about persons acting as if thepresumed fact were true. This is a complex issue that cannot be satisfactorily considered here. The importantpoint is that one should not regard the criticism of the phrase ‘presumption of ownership’ as providing any reasonto reject the deemed ownership thesis.


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technical, legal discourse at least, avoid using ‘presume’ in this way. But even if

one were right to think that, judges and legal writers may use the term in this

context; one may wish to interpret what they have said; and there is no

guarantee that an interpretation in line with the ‘technical’, ‘true’ meaning will

be a good one.

Whatever Lord Campbell CJ intended to convey by his use of the term

‘presumption’, it will be seen below that the later history of the law suggests

that his Lordship should be interpreted as using that term in a way that

supports the deemed ownership thesis. When it is said that a person who has

possession of a chattel is to be presumed to be its owner, it is meant that the

law is to act as if this person has ownership of it.

Wightman and Crompton JJ also thought that Pollock CB’s decision was

correct. Wightman J maintained that the defendants ought not to be able to

‘defeat the prima facie right arising from possession’ by ‘shewing title . . . in a

stranger against whom they would be wrongdoers’.41 All three judges referred

with approval to Williams’ note to Wilbraham v Snow: ‘possession with an

assertion of title, or even possession alone, gives the possessor such a property as

will enable him to maintain this action against a wrongdoer; for possession is

prima facie evidence of property’.42 The statement that a possessor has

‘property’ for the purposes of an action against a ‘wrongdoer’ can be seen as

supporting the AP thesis. But one should not overlook Williams’ reason:

‘possession’, he claimed, ‘is prima facie evidence of property’. One might wonder

how the fact that a person had possession of a chattel could itself be evidence

that he or she had ‘property’. A solution to this puzzle might lie in the view that

there is a rule of law which provides that, in certain circumstances, possession

should be treated as evidence of ‘property’;43 with the result, in some cases, that

a person who was in possession is to be treated as having ‘property’. Interpreted

in this way, Williams’ statement supports the view that a claimant who had

possession of a chattel is to be treated as having ‘property’ for the purposes of an

action in trover. This is the ‘prima facie’ position. It is defeasible: the possessor is

not to be taken to have ‘property’ come what may. This meshes well with

Wightman J’s reference to ‘the prima facie right arising from possession’, and

with Lord Campbell CJ’s assertion that there is a ‘presumption’ that ‘the person

who has possession has the property’.

41 Jeffries (n 32) 806.42 Jeffries (n 32) 805 (Lord Campbell CJ), 806 (Wightman J), 808 (Crompton J) citing note (1) to Wilbraham

v Snow (1668) 2 WMS Saunders 47, 47f; 85 ER 624, 628.43 cf C Tapper (ed), Cross and Tapper on Evidence (12th edn, OUP 2010) 38: ‘possession is always treated as

prima facie evidence of ownership of real, or personal, property’ (emphasis added).


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The reasoning in Jeffries was adopted and extended by the Court of Appeal in

The Winkfield,44 which may well be regarded as the leading case in this area: it

provided a clear answer to a question that had plagued the law for some time,

and it has been cited with approval on numerous occasions by the Privy

Council,45 and by Law Lords in speeches to the House of Lords.46

B. The Winkfield and Beyond

In The Winkfield, two steamships, the Mexican and the Winkfield, were involved in a

collision, as a result of which the Mexican sank with a portion of the mails which

she was carrying at the time. The Postmaster-General brought a claim in negligence

to recover the value of letters and parcels lost on board the Mexican. Sir FH Jeune P

disallowed the claim on the basis that the Postmaster-General was not under any

liability to the parties interested in the lost letters and parcels in respect of

which the claim was made. The Court of Appeal allowed the claimant’s appeal.

Sir Richard Collins MR, in a judgment with which Stirling and Mathew LJJ

concurred, said that it ‘is well established in our law’ that ‘possession is

good against a wrongdoer and that the latter cannot set up the jus tertii unless he

claims under it’.47 In his Lordship’s view, a long series of authorities established

this in actions of trover and trespass at the suit of the possessor, and,

‘the principle being the same’, the possessor can ‘equally recover the whole value

of the goods in an action on the case’ for their loss through the negligent con-

duct of the defendant.48 A bailee’s entitlement to sue does not, in his

Lordship’s view, rest on the ground that the bailee is liable to the bailor

for the loss of the goods converted or destroyed.

In reaching these conclusions, the Master of the Rolls noted that, as between

possessor and wrongdoer, the ‘presumption of law’ is ‘‘that the person who

has possession has the property’’;49 ‘‘against a wrongdoer possession is title’’;50

and ‘it is not open to the defendant, being a wrongdoer, to inquire into

the nature or limitation of the possessor’s right’.51 Collins MR could see no

reason why these principles should not apply in the case of a bailee and he

referred to several cases that, in his opinion, supported this view.52

44 [1902] P 42 (CA).45 For example Glenwood Lumber Co Ltd v Phillips [1904] AC 405 (PC) 410–11; Eastern Construction Co v

National Trust Co Ltd [1914] AC 197 (PC) 210; The Jag Shakti [1986] AC 337 (PC).46 For example Morrison Steamship Co Ltd v Greystoke Castle [1947] AC 265 (HL) 278 (Lord Roche), 293

(Lord Porter), 302 (Lord Simonds), 309 (Lord Uthwatt); The Albazero [1977] AC 774 (HL) 846 (LordDiplock); Panatown Ltd v Alfred McAlpine Construction Ltd [2001] 1 AC 518 (HL) 581 (Lord Millett).

47 [1902] P 42 (CA) 54.48 ibid.49 ibid 55, citing Jeffries (n 32) 806; 681 (Lord Campbell CJ).50 ibid 55, citing Jeffries (n 32) 805; 681 (Lord Campbell CJ).51 Winkfield (n 47) 55.52 Sutton v Buck (1810) 2 Taunt 302, 127 ER 1094; Burton v Hughes (1824) 2 Bing 173, 130 ER 272; Turner

v Hardcastle (1862) 11 CB (NS) 683, 142 ER 964 (CP); Swire v Leach (1865) 18 CB (NS) 479, 144 ER 531(CP).


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Importantly, the Master of the Rolls then set out the principle that underpinned his

conclusions:

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession

is title. The chattel that has been converted or damaged is deemed to be the chattel of

the possessor and of no other, and therefore its loss or deterioration is his loss . . . . As

between bailee and stranger possession gives title—that is, not a limited interest, but

absolute and complete ownership . . . . As between bailor and bailee the real interests of

each must be inquired into, and, as the bailee has to account for the thing bailed, so he

must account for that which has become its equivalent and now represents it.53

There can be no doubt that this supports the deemed ownership thesis. In the Court

of Appeal’s view, a claimant who had possession of chattel is, other things being

equal, to be deemed to have ‘absolute and complete’ ownership of the chattel for

the purposes of an action in conversion, or in negligence for damage to, or the

destruction of, goods.

The Court of Appeal’s reasoning in The Winkfield was approved by the Privy

Council in Glenwood Lumber Co v Phillips, Eastern Construction Co v National Trust

Co and The Jag Shakti.54 The nature of the apparent right to reparation, for a

tortious interference with a chattel, that might accrue to a person that has had

possession of a chattel was also considered by Lord Millett in his speech to the

House of Lords in Panatown v Alfred McAlpine,55 and by the Court of Appeal in R v

Allpress.56 In Panatown, Lord Millett considered whether the right of a bailee in

possession to recover for loss or damage to his bailor’s goods, even though the bailee

would have had a good defence to an action by the bailor, constituted an exception

to the rule that parties to a contract, apart from nominal damages, can recover for its

breach only such actual loss as they themselves sustained. According to his

Lordship,

[t]he principle here is that as between bailee and stranger possession gives a complete title

and entitles the bailee to damages for the loss or injury to the property itself, whereas as

between bailee and bailor the real interests of each must be ascertained.57

‘This’, said his Lordship, ‘is not a true exception to the rule; so far as the wrongdoer is

concerned, the bailee has full ownership and recovers damages for his own loss’;58 ‘the

fact that the contracting party is not the full owner of the property which has been lost

or damaged is disregarded in ascertaining the extent of the wrongdoer’s liability.’59

53 The Winkfield (n 47) 60–61 (emphases added).54 Glenwood Lumber (n 45); Eastern Construction (n 45); The Jag Shakti (n 45) esp 345–49. In Eastern

Construction Lord Atkinson, delivering the Privy Council’s advice, opined that, where a bailee is in possession of achattel, he might be able to recover the full value of it ‘not because [he has] in truth and fact any proprietaryright in, or title to, the property but because . . . ‘‘against a wrongdoer, possession is title’’’: 209–10 (LordAtkinson) citing Jeffries (n 32) 805; 681 (Lord Campbell CJ).

55 [2001] 1 AC 518 (HL).56 [2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58.57 [2001] 1 AC 518 (HL) 581 (emphases added).58 ibid (emphasis added).59 ibid (emphases added).


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Lord Millett’s assumption here, that the person who is deemed to have ‘full

ownership’ does not in fact have it, seems safe given the context: he was only

concerned with bailees. But it would seem that, in principle, a person who, under the

doctrine we are considering, is deemed to have ownership of a chattel for some

purpose or other, might or might not in fact be the ‘full owner’.

In R v Allpress, one question for the Court of Appeal was whether a

defendant who had acted as a courier or custodian of cash or goods for another

was a person who had obtained ‘property’ for the purposes of certain

provisions of the Proceeds of Crime Act 2002.60 What is most important here

is not the fact that the Court of Appeal decided that the defendants did not

have ‘property’ for the purposes of the relevant provisions of the 2002 Act, but

the court’s reasons for rejecting the Crown’s submission that the defendants

had ‘property’ for those purposes. In response to the Crown’s reliance on the

fact that a bailee can maintain an action for the value of the goods against a

third party who wrongfully interferes with his possession, Toulson LJ, giving

the judgment of the court, explained that

[t]he reason is that as a matter of policy the law will not allow a wrongdoer to enquire

into the nature or limitation of the possessor’s right, but as between the possessor and

the wrongdoer the law will presume ‘‘that the person who has the possession has the

property’’, in the words of Lord Campbell in Jeffries . . . . That is far removed from the

question whether a mere custodian has a right to possession so as to have an interest

in property for the purposes of s84(2) [of the 2002 Act].61

In the Court of Appeal’s view, then, the fact that a person who has had

possession of a chattel may maintain an action against a person who tortiously

interferes with the goods and may thereby recover the full value of the chattel,

does not support the claim that such a person ‘has a right to possession so as to

have an interest in property’ for the purposes of the 2002 Act. For, in its view,

the reason that such a person may successfully sue is that, as between that

person and a ‘wrongdoer’, the law will ‘presume’ that the possessor ‘has the

property’.

These cases do not support the proposition that, in general, a person

acquires, if and when he or she obtains possession of a chattel, a property right

in it; they do not, in other words, support the AP thesis. Rather, they support

the claim that the law is that, at least for the purposes of an action in tort for

conversion or negligently caused damage to goods, a person who, like B in

Example 1, had possession of a chattel is deemed or, if you will, presumed to

have ownership of it against a person who does not have, and who is not able

to rely on, a better title.

60 [2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58. Section 84(2)(b) of the 2002 Act provides that‘property is obtained by a person if he obtains an interest in it’; and section 84(2)(h) provides that ‘references toan interest, in relation to property other than land, include references to a right (including a right to possession).’

61 ibid [76] (citation omitted, emphasis added).


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Although this view cannot be adequately defended here, it seems that the

strongest account of the deemed ownership thesis would be committed to the

following five claims. First, it does not matter, for the purposes of the doctrine,

whether the claimant’s possession was unlawful. This is supported by Jeffries,62

and also by the recent decision of the Court of Appeal in Costello v Chief

Constable of Derbyshire.63 Secondly, for one to be deemed to be the owner of a

chattel under the doctrine, one need not have acted as if the chattel were one’s

own.64 Thirdly, the application of the doctrine is not restricted to claims

against persons who are what Lord Campbell CJ in Jeffries referred to as

‘wrongdoers’, that is, persons who, without lawful justification, have interfered

with the claimant’s possession of the chattel.65 Fourthly, it seems that, for the

doctrine to apply, it is not necessary that the claimant was in possession at the

time of the alleged tort. At least, there is some support for the view that one may

be treated as having ownership, though not necessarily ‘full and complete

ownership’, if one had possession at the time of the alleged tort or at some time

before the alleged tort.66 Finally, it is clearly not the case that a claimant is to be

deemed to be the owner of a chattel no matter what. For instance, the law is

not to treat B, in Example 1, as the owner against a person who has a better

title, such as A. Moreover, it seems that B may divest himself, or be divested

of, his title. If B had lost his title before C took the umbrella, B would not be

deemed to be the owner of it for the purposes of an action against C.

What does it mean, on this view, to say that B acquired, when he obtained

possession of the umbrella, a title? It may be said that B has, as a result of his

possession of the umbrella, a title or ‘claim’ to the ownership of it in that, as a

result of his possession, the law is to deem B to be the owner of it against

anyone who does not have a better title to it and who cannot, or does not,

show that a better title to it exists. Thus, for the purposes of an action against

C in the chattel torts, B’s title would be ‘good against’ C, unless C is permitted

to establish, and actually establishes, that A’s title to the umbrella is better than

B’s, an issue we will return to in Section 3.

C. Armory v Delamirie and ‘Finders’

Since some of the resistance to the deemed ownership thesis presupposes a

commitment to the AP thesis, it is worth saying something briefly about the

62 Jeffries (n 32).63 Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381, [2001] 1 WLR 1437. For a critical

discussion of Costello, and the principle it supports, see R Hickey, ‘Possession Taken by Theft and the OriginalAcquisition of Personal Property Rights’ in N Hopkins (ed), Modern Studies in Property Law, vol 7 (Hart 2013).

64 The Winkfield (n 47). For a different view see E McKendrick (ed), Goode on Commercial Law (4th edn,Penguin 2010) 35.

65 Armory v Delamirie (1722) 1 Strange 505, 93 ER 664; The Winkfield (n 47); Costello (n 63); AP Bell,Modern Law of Personal Property in England and Ireland (Butterworths 1989) 80.

66 Hannah v Peel [1945] KB 509 (KB); Webb v Chief Constable of Merseyside [2000] QB 427 (CA); Costello (n63). For a different view see McKendrick (n 64) 29, 36; Fox (n 6) 344–51.


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case that is commonly cited in support of the AP thesis, namely, Armory v

Delamirie.67 In Armory, a boy found a jewel which he later delivered to an

apprentice at the defendant goldsmith’s shop. The master offered the boy a

sum of money, but the boy refused to take it and insisted on having the jewel

back again. The apprentice delivered to the boy the socket without the stones

and the boy later brought an action in trover against the master. Pratt CJKB

ruled that

the finder of a jewel, though he does not by such finding acquire an absolute property

or ownership, yet he has such a property as will enable him to keep it against all but

the rightful owner, and consequently may maintain trover.

The court decided that the boy could maintain trover—this, at least, cannot be

disputed. But why did the boy succeed? In particular, did the Chief Justice

think that the boy had a property right in the jewel? The matter is not as

straightforward as it may seem. The statement that the boy did not have an

‘absolute property’ suggests that the ‘property’ that he had was ‘special

property’, and a number of lawyers have maintained that ‘special property’ was

simply possession or lawful possession.68 Now, whether that is correct or not, it

does suggest that if one wants to claim that Armory supports the AP thesis, one

needs to consider the Chief Justice’s use of the term ‘property’. And if one

does so, one will encounter the problem that the judgment is frustratingly

short, with the result that one cannot know exactly why the Chief Justice

thought that the boy had ‘property’. In the 20th century, moreover, the Court

of Appeal,69 and the Privy Council,70 interpreted Armory as a case that

supported the claim that, in certain circumstances, a claimant who had

possession is to be treated as its owner. These remarks are plainly inconclusive.

But they do imply that, as things presently stand, the claim that Armory

provides clear support for the AP thesis is not beyond doubt.

3. Fictions and the Jus Tertii

The foregoing discussion provides some support for the deemed ownership thesis.

But it raises a number of questions, including: (1) what reasons are there, if

any, for deeming a person who has had possession of a chattel to be its owner?

(2) Is a defendant permitted to show that a person who is, or would otherwise

be, deemed to be the owner of the chattel, is not, in fact, the owner because

some third party has a better title? This section considers these questions in the

context of two responses to the argument in support of the deemed ownership

67 (1722) 1 Strange 505, 93 ER 664. For a detailed discussion of the case see Hickey (n 10) ch 1.68 OW Holmes, The Common Law (Little, Brown and Co 1881) 242: ‘special property did not mean anything

more’ than possession; N Curwen, ‘General and Special Property in Goods’ (2000) 20 Legal Studies 181, esp181–83; Hickey (n 10) 100.

69 The Winkfield (n 47) 55.70 Eastern Construction (n 45) 210.


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thesis. The first response is based on a worry about fictions, which might

provide a motivation for resisting the deemed ownership thesis and defending the

AP thesis. The second response questions whether the deemed ownership thesis

leads to doctrinal incoherence because it does not sit well with the common

law jus tertii doctrine.

A. Fictions and the Rationalization of Deemed Ownership

The authorities discussed in the previous section are generally well known. But

many scholars have rejected the deemed ownership thesis nonetheless. To some

lawyers, that thesis is inherently problematic because, if it is true, the law

embraces a fiction: on some occasions, the law acts as if a person who had

possession of a chattel is its owner when, in fact, he or she is not.71

It is true that, if the thesis is sound, it may be the case that claimants are

treated as owners when in fact they are not owners; and, when that is so, the law

entertains and acts upon a fiction. But what does this show? It does not show

that the statement ‘the law, in certain circumstances, deems a person who has

been in possession of a chattel to be its owner’, is false. It may form part of an

argument—although it is not yet an argument—as to why the law should not

treat possessors, or anyone else, as owners. This raises the question whether the

law is, in this context, justifiable, desirable, in need of reform etc. Now, this

article does not aim to justify or comprehensively evaluate the deemed ownership

thesis, and so such questions are beyond this article’s scope. But, given the

dissatisfaction with the idea of deemed ownership, it is worth identifying the

sorts of considerations that may be advanced in support of a doctrine of deemed

ownership. To be clear, the aim here is merely to consider how the doctrine

might be rationalized. It is not to show that some particular version of the

doctrine is in fact justified or preferable to alternative approaches.

It is certainly arguable that a doctrine of deemed ownership represents an

attempt to deal with certain problems that result from particular facts about

chattels. The history of many chattels is not only unknown, or only partially

known, but, to some extent at least, unknowable. And since whether or not

someone has a property right in law partly depends on what has happened, our

lack of knowledge is likely to make an assessment of the legal position difficult.

Moreover, even where the history of a chattel is known, or knowable, it may be

difficult, and costly, to prove it.

Different legal systems might respond to these problems in different ways.

One response is to make it easier for persons to acquire ownership of chattels

by prescription. Another response, one could argue, is for the law, in certain

71 It is not at all unusual for the law to act as if something or other is so when it is not. Examples of it doingso can be found in the law of estoppel: for example Knights v Wiffen (1869–70) LR 5 QB 660 (QB); Simm vAnglo-American Telegraph Co (1879) 5 QBD 188 (CA) 206 (Brett LJ): ‘[t]he estoppel assumes that the reality iscontrary to that which the person is estopped from denying, and the estoppel has no effect at all upon the realityof the circumstances.’


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circumstances, to act, in the first instance at least, as if certain persons have

property rights. It seems that it must frequently be the case that all a claimant

to an action in the ‘chattel torts’ can establish with certainty is that a chattel

was in his or her possession at some point in the past (or in the possession of

his or her predecessor in title). It is thus very convenient to allow claimants to

rely in some way on the fact that they had possession. And, in a society in

which most people generally abide by the law, and in which it is typical for

owners to be in possession of the things they own, it might be reasonably safe

to presume, in the first instance at least, that a person in possession of a chattel

has ownership of it.72 One might add that making possession a condition of a

person being treated as the owner serves the common interest by discouraging

interferences with the possession of goods and securing social harmony and

public order.

True, the doctrine may, in the eyes of the law at least, engender injustice by

allowing claimants to obtain remedies that they are not actually entitled to in law.

But it is arguable that the law has adopted a series of measures in order to

mitigate the apparent unfairness. If the defendant is required to pay, and actually

pays, damages representing the value of the chattel to the claimant, and if the

claimant in fact had no property right in the chattel at the material time, then

the claimant has received a windfall: but the claimant’s windfall is, for a time at

least, far from secure. She may be liable to account to a person with a better

title;73 and if a person with a better title also receives damages from the

defendant, representing the full value of the chattel, then the defendant will be

entitled to recover in unjust enrichment.74

If the existence of a doctrine of deemed ownership is primarily a concession

to convenience and our knowledge deficit, then one would expect, perhaps,

that, where a claimant in a tort action is deemed to be the owner, a defendant

will be permitted to show, at least in some circumstances, that the claimant is

not in fact the owner because some third party has a better title. This brings us

to the second response to the deemed ownership thesis, which relies on the

supposed fact that, in general, a defendant is not permitted to rely on the jus

tertii.

B. Deemed Ownership and the Jus Tertii Doctrine

Critics of the deemed ownership thesis have, on occasion, emphasized the

supposed fact that a defendant to an action in the chattel torts is not, at

72 Sir Frederick Pollock thought that, ‘for the very reason that possession in fact is the visible exercise ofownership, the fact of possession, so long as it is not otherwise explained, tends to show that the possessor isowner’: Pollock and Wright (n 2) 25. It is arguable that Pollock was committed to both the AP thesis and thedeemed ownership thesis, although his arguments in support of his view focus almost entirely on cases involvingland rather than chattels: Pollock and Wright (n 2) 22–24, 93–100.

73 Torts (Interference with Goods) Act 1977, s 7(3).74 ibid s 7(4).


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common law, permitted to claim that some third party has a better title than

the claimant; that, in other words, the defendant is not permitted to rely on the

jus tertii. These critics have asked: if the claimant is only treated as having a

property right, why is a defendant to such an action not generally permitted to

show that some third party has a better title than the claimant?

The very same critics have, in some cases at least, pointed out that the

(purported) fact that a defendant cannot, in general, escape liability by relying

on the jus tertii makes perfect sense if the AP thesis is true. For: if the claimants

actually had a property right grounding duties on persons generally not to, say,

convert, trespass against, or negligently destroy or damage the chattels in their

possession, then in an action by them against a defendant who owed and

breached such a duty, it would seem quite irrelevant that some other party has

a better right than the claimants. Robert Chambers has advanced this point in

the context of an account of the law of property in Australia:

mere proof that the plaintiff does not have the best right is irrelevant. The defendant’s

interference with the plaintiff ’s better right to possession is still wrong,75 even if the

plaintiff is liable to a third person with an even better right.76

This, of course, is premised on the belief that the plaintiff actually had, at the

material time, a ‘better right to possession’.

This response to the deemed ownership thesis raises two questions: (1) are

defendants able at common law to rely on the better title of a third party? (2)

And if they are not, how can a person committed to the deemed ownership thesis

explain this state of affairs?

The orthodox position is that if the claimant was in possession at the time of

the defendants’ alleged tort, then the defendants are not permitted to show that

some third party has a better title unless they (the defendants) claim or justify

under it.77 A critic of the deemed ownership thesis might seize on that fact: how, he

or she asks, does this fit with the doctrine of deemed ownership? As we have

seen, Lord Campbell CJ provided an answer to that question some 150 years

ago, in Jeffries. His Lordship said, ‘I think it most reasonable law, and essential

for the interests of society, that peaceable possession should not be disturbed

by wrongdoers’.78 The worry, it seems, is that a failure to provide legal

protection to possessors would be likely to ‘lead to an undignified scramble for

75 It seems that it may or may not be wrong all things considered but, assuming that the interference wastortious, it is certainly a wrong. The distinction between something being wrongful (ie unjustified) and it being awrong (ie a breach of a duty) is drawn by John Gardner in his ‘Wrongs and Fault’ in A Simester (ed), AppraisingStrict Liability (OUP 2005) 54–57.

76 R Chambers, An Introduction to Property Law in Australia (2nd edn, Thomson Lawbook Co 2008) para[7.75] (emphasis added).

77 This is clearly supported by the cases: Jeffries (n 32) (trover/conversion); The Winkfield (n 47) (negligence);Wilson v Lombank [1963] 1 WLR 1294 (trespass).

78 (1856) 5 El & Bl 802, 805; 119 ER 680, 681 (Lord Campbell CJ).


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possession—might would be right’.79 One could debate whether that would be

the case or not; but the reasoning is compatible with the deemed ownership thesis.

What is the legal position in cases involving claimants who were not in

possession at the time of the defendants’ alleged wrong? In such cases, are the

defendants permitted to rely on the jus tertii even though they do not claim or

justify under it? Respected lawyers, such as Sir Frederick Pollock and Sir William

Holdsworth, have asserted that this is, indeed, the position at common law.80

However, a number of scholars have followed Patrick Atiyah in claiming that the

cases cited by Holdsworth and Pollock do not adequately support that view.81

There is much to be said in favour of Atiyah’s position, but it must also be said

that the cases provide only very limited support for the claim that, in these

circumstances, the common law does not allow defendants to establish that a third

party has a better title than the claimant unless they claim or justify under it.82

There is, accordingly, reason to think that the common law’s position on this

issue is unsettled. But let us suppose for a moment that, even in cases involving

claimants who were not in possession at the time of the alleged tort, the

defendants cannot at common law rely on a third party’s title (unless they claim or

justify under it). It must be admitted that it would be less straightforward for a

supporter of the deemed ownership thesis to rationalize such a state of affairs than it

would be for a supporter of the AP thesis—and it is questionable whether a

supporter of the deemed ownership thesis could rationalize it at all. Still, it would not

follow that the deemed ownership thesis is unsound, although a supporter of that

thesis would have reason, it seems, to argue that the common law jus tertii doctrine

is flawed and ought to be reformed.83

As a matter of fact, the doctrine has been reformed. It is significant that,

whatever the position at common law, section 8(1) of the Torts (Interference

with Goods) Act 1977 provides that a defendant to an action for ‘wrongful

interference with goods’84 is

entitled to show, in accordance with rules of court,85 that a third party has a better

right than the plaintiff as respects all or any part of the interest claimed by the

plaintiff, or in right of which he sues and any rule of law . . . to the contrary is

abolished.86

79 CD Baker, ‘The Jus Tertii: A Restatement’ (1991) 16 U Queensland LJ 46, 50.80 Pollock and Wright (n 2) 91; WS Holdsworth, A History of English Law, Vol VII (Methuen 1925) 421–31.81 P Atiyah, ‘A Re-Examination of the Jus Tertii in Conversion’ (1955) 18 MLR 97, esp 100–2; G Battersby, ‘The

Present Status of the Jus Tertii Principle’ [1992] Conv 100, esp 106–110; Baker (n 79) esp 51–57; Douglas (n 13) 26–27.82 See Baker (n 79) 61–62.83 I am indebted to an anonymous reviewer for his or her comments on this issue.84 Section 1 of the 1977 Act defines ‘‘wrongful interference’’ as ‘(a) conversion of goods (also called trover),

(b) trespass to goods, (c) negligence so far as it results in damage to goods or to an interest in goods, (d) . . . anyother tort so far as it results in damage to goods or to an interest in goods.’

85 CPR 19.5A.86 In order for the defendant to be able to rely on this provision, the third party must be identified: CPR

19.5A; Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381, [2001] 1 WLR 1437 [15] (Lightman J);and there is some support for the view that the third party must be joined: de Franco v Commissioner of Police(1987) Times Law Reports, May 8 (CA).


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The deemed ownership thesis explains why a claimant’s action fails if a defendant

successfully relies on the jus tertii in accordance with section 8(1), as well as

why a claimant who recovers damages from a defendant in an action for

‘wrongful interference with goods’ might not be entitled to keep, say, a sum of

money that she has received by way of compensation for the apparent wrong.

Consider the statutory example given in section 7(4):

[w]here, as the result of enforcement of a double liability, any claimant is unjustly

enriched to any extent, he shall be liable to reimburse the wrongdoer to that extent.

For example, if a converter of goods pays damages first to a finder of the goods, and

then to the true owner, the finder is unjustly enriched unless he accounts over to the

true owner under subsection (3); and then the true owner is unjustly enriched and

becomes liable to reimburse the converter of the goods.87

Norman Palmer has noted that the ‘finder’ in this example is not unjustly

enriched ‘as the result of the enforcement of a double liability against the

wrongdoer’; rather, ‘he is enriched simply because he has recovered a greater

sum by virtue of his own claim than the value of his interest’.88 Be that as it

may, the important point is that it makes sense to say that the ‘finder’ in the

statutory example was unjustly enriched if one accepts the deemed ownership

thesis. If B is deemed to be the owner of the umbrella for the purposes of, say,

an action in conversion against C, and if B succeeds and C is ordered by a

court to pay, and actually pays, ‘damages’ to the claimant representing the full

value of the umbrella,89 then, if it becomes apparent that B was not, in fact, the

owner and had no other property right in the umbrella at the material time, B

has been unjustly enriched and, accordingly, is not entitled to keep what he has

received.

Of course, it does not follow from the fact that in such a case the claimant is

not entitled to keep the ‘damages’, that she had no property right in the thing.

And, even assuming that the AP thesis is true, there may be reasons for denying

a claimant a remedy where a person with a ‘better right’ is joined under section

8(1). But the point being made here is not a logical one. The point, rather, is

that a defendant’s ability to escape liability to a particular claimant, in certain

circumstances, by relying on the jus tertii in order to show that the claimant is

not the owner, and the law’s willingness to divest, in certain circumstances, a

person of all of the damages that she has received, are easily explained, and

make perfect sense, if one accepts the deemed ownership thesis. Suppose that B in

Example 1 brought an action in conversion against C and that C established,

87 Torts (Interference with Goods Act) 1977, s 7(4).88 N Palmer (ed), Palmer on Bailment (3rd edn, Sweet & Maxwell 2009) 4–139.89 The 1977 Act uses the term ‘damages’: see, eg, section 3. It has been ‘assumed that the word ‘‘damages’’

includes both compensatory (loss-based) awards and gain-based awards’: D Nolan and J Davies, ‘Torts andEquitable Wrongs’ in A Burrows (ed), English Private Law (3rd edn, OUP 2013) 17.314.


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pursuant to section 8(1), that A had a better title than B. B’s action fails

because B, at the material time, had, in truth, no property right at all.90 His

‘ownership’ has been exposed for what it is: a fiction; and he has been exposed

as someone who did not have, at the relevant time, a property right in the

thing—and, thus, as someone who, as we now know, was not wronged.

This discussion discloses a further point. Tort law remedies for ‘wrongful

interference with goods’ can be effectively conditional and so non-final. In

certain circumstances, the position of a successful claimant is precarious

because she might be, or become, liable to, say, repay all or part of a sum that

a defendant has paid her in execution of a court order. Thus, the claimant’s

remedy may turn out to be, in effect, temporary—much depends on what

happens, on whether, for instance, someone with a better title, with a better

‘claim’ to the ownership of the chattel, goes to court. In this way, the law

reflects and responds to the fact that our knowledge about chattels—about

their history, and about the legal rights in them—is typically limited and

fragmentary.

If some sort of deemed ownership doctrine forms part of the common law, it

seems to put the law in the business of entertaining, now and then, a certain

fiction. The doctrine might be rationalized on the basis of our knowledge

deficit and convenience. But the foregoing discussion of section 8(1), and tort

law money remedies, shows that the law’s break from reality, even supposing

that the deemed ownership thesis is sound so that it does sometimes occur, is far

from complete and far from conclusive.

4. Conclusion: Possession, Ownership and Title

There is, then, a collection of cases that support the deemed ownership thesis,

and some of the criticisms that have been, or might be, directed at a doctrine

of deemed ownership are not insurmountable. But the thesis is likely to

encounter another objection, one that notices that it has often been repeated,

by textbook writers and judges, that, for a person to be able to successfully

bring an action in tort for conversion, he or she must have had possession or an

immediate right to possession at the material time.91 A critic of the deemed

ownership thesis might claim that, for the purposes of such an action, ownership

is neither necessary nor sufficient: a person might have possession or a right to

immediate possession without having ownership and, conversely, a person

90 The position would be different, of course, if the claimant had, not ownership, but a ‘limited interest’.Nonetheless, the claimant, if the deemed ownership thesis is correct, might be treated as the owner for the purposesof, say, an action in conversion.

91 For example Winkworth v Christie Manson & Woods Ltd [1980] Ch 496 (Ch) 499 (Slade J); EmpresaExportadora De Azucar v Industria Azucarera Nacional SA [1983] 2 Lloyd’s Rep 171 (CA) 187 (Ackner LJ); TheJag Shakti (n 45) 345 (Lord Brandon); HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005] EWCA Civ1437, [2006] 1 WLR 643 [25] (Longmore LJ); M Jones and A Dugdale (eds), Clerk & Lindsell on Torts (20thedn, Sweet & Maxwell 2010) 17–43.


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might have ownership without having possession or a right to immediate

possession.

Unfortunately for the critic, this objection makes the mistake of assuming

that the deemed ownership thesis claims to be the whole story. It does not, and it

need not, make such a claim. The deemed ownership thesis does not imply or

presuppose that, for a claimant to be able to successfully bring an action for,

say, conversion or negligently caused damaged to goods, he or she must have

had ownership. The better view seems to be that, for a claimant to have such a

right to reparation, it is necessary that she had a property right of some kind at

the material time.92 Ownership is a kind of property right. Moreover, an owner

of a chattel ordinarily has, qua owner, a (proprietary) right to immediate

possession of the chattel.93 It is true that the owner of a chattel, or a person

treated as the owner of a chattel, might have divested herself, or purported to

divest herself, of her (actual or apparent) right to immediate possession.94 In

such circumstances, the person who is, or who is treated as, the owner, must

show, in order to succeed, that the defendant’s alleged tortious interference

with the chattel has caused ‘reversionary damage’.95

The foregoing discussion brings to the fore another important point: a

person committed to the deemed ownership thesis would deny that the line of

cases discussed in Section 2 supports the view that ‘possession’ is a property

right.96 Furthermore, if the deemed ownership thesis is sound, it would suggest

that ownership is a type of property right conferred by English law. This is not

an uncontroversial view. It has recently been said, for instance, that ‘[t]here is

no concept of ‘‘ownership’’ in English law with regard to goods’.97

Now, suppose that the deemed ownership thesis is sound and that, in

accordance with the explanation in Section 1, a person who, in virtue of his

or her possession of a chattel, is deemed to have ownership of it under the

doctrine, can be said to have a title to the ownership of the chattel. The more

robustly title is treated as an entity, as a thing that the law confers on persons,

and the more often a person with such a title is treated as having ownership

92 Isaack v Clark (1615) 2 Buls 306, 308; 80 ER 1143, 1146 (Dodderidge J); Jarvis v Williams [1955] 1 WLR71 (CA); Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 (HL); N Curwen,‘Title to sue in Conversion’ [2004] Conv 308; Douglas (n 13) 12–14; cf MCC Proceeds Inc v Lehman BrothersInternational [1998] 4 All ER 675 (CA); Iran v Barakat Galleries Ltd [2007] 2 CLC 994 (CA) 1006 (Lord PhillipsCJ); Palmer, ‘Possessory Title’ (n 19) 63.

93 N Curwen, ‘Title to Sue in Conversion’ [2004] Conv 308.94 Gordon v Harper (1796) 7 TR 9, 101 ER 828; HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005]

EWCA Civ 1437, [2006] 1 WLR 643.95 Tancred v Allgood (1859) 4 H & N 438, 157 ER 910; Mears v L & SWR (1862) 11 CB (NS) 850, 142 ER

1029. For discussion see A Tettenborn, ‘Reversionary Damage to Chattels’ (1994) 53 CLJ 326; S Green,‘Understanding the Wrongful Interference Actions’ [2010] Conv 15, 21–24.

96 For a different view see R Kersley, Goodeve’s Modern Law of Personal Property (9th edn, Sweet & Maxwell1949) 8–9; S Green and J Randall, The Tort of Conversion (Hart 2009) 86–88.

97 JHM van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and InternationalProperty Law (Hart 2012) 346. cf Green and Randall (n 96) 80; E Tyler and N Palmer (eds), Crossley Vaines’Personal Property (5th edn, Butterworths 1973) 39: ‘It is possible, and, perhaps, even desirable, to write a treatiseon English law without defining ownership or mentioning it as a juridical concept . . . . The reason is that Englishlaw has never had any theory of ownership.’


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and hence a property right, the easier it becomes to see such a title as a

property right. If the law treats the title-holder as having a property right in

many contexts—for the purposes of, say, the chattel torts, the law of theft, and

the Sale of Goods Act 1979—then it might look like ‘title’ is a kind of property

right. But, if the deemed ownership thesis is sound, we must not let the

appearance mislead us: the title that accrues to a person in possession of a

chattel, while it may result in its holder being treated as having a property right

on many occasions, is not a property right, and, as R v Allpress demonstrates, a

title-holder is not always treated as having a property right (or ‘property’).98

Still, if a person with a title to ownership is generally treated by the law as

having a property right, one may be tempted by the thought that the

disagreement discussed in this article—concerning whether the fact of having

possession of a chattel is a condition of the possessor acquiring a property right

in it, or merely a condition of him being treated as having a property right in

it—is unimportant. This temptation should be resisted. The position one takes

on the issue that lies at the heart of that disagreement affects the property

rights that people have in law, and it shapes our view of other parts of personal

property law, such as the jus tertii doctrine and the doctrine of relative title.

These considerations suggest that it is worth discussing that disagreement.

And, if we have that discussion, we might, along the way, relieve our personal

property law of its status as a mere ‘wallflower’.99

98 If a title-holder is entitled to be treated as the owner of a chattel, and if this entitlement is alienable, thenone could argue, perhaps, that this entitlement is itself the title-holder’s property. If this argument is a good one,it might appear to suggest a way of combining the deemed ownership thesis and the AP thesis. But, for the argumentto succeed, one would need to establish (among other things): (a) that a person who has a title to ownership hasthe power to transfer that title, and not merely that such a person’s title may be transferred as a result of hispurported exercise of the power to transfer ownership, a power which he might be treated as having only if andinsofar as he is treated as owner; and (b) that a person who has such a power has property. Even if the argumentdid succeed, it is doubtful that it would support the AP thesis because that thesis states that a possessor acquiresnot simply ‘property’ but a ‘property right in a chattel’.

99 Birks (n 21) 2.


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