2 Relative Title and Deemed Ownership in English Personal Property Law

Oxford Journal of Legal Studies, Vol. 35, No. 1 (2015), pp.
3154
doi:10.1093/ojls/gqu016
Published Advance Access July 22, 2014
Relative Title and Deemed Ownership in

English Personal Property Law
Luke Rostill*
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: luke.rostill@law.ox.ac.uk. I would like to thank the members
of the Oxford Law Facultys Property Law Discussion Group, particularly Simon Douglas, Joshua Getzler, Mike
Macnair and Robert Stevens, and an anonymous reviewer, for their insightful and helpful comments on a draft of
this article. I am especially grateful to Ben McFarlane, my doctoral supervisor, and William Swadling for their
very valuable comments, criticisms and advice. Finally, I would like to thank the Arts and Humanities Research
Council 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 in
possession), and which may be the object of property rights. Such chattels are sometimes called goods. This
article 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: journals.permissions@oup.com
Downloaded from http://ojls.oxfordjournals.org/ at New York University on April 13, 2015
AbstractThis article is concerned with two elementary propositions of English

property law: (i) in general, a person acquires a title in respect of a tangible chattel
if and when he or she obtains possession of it; and (ii) titles are relative. Neither
claim 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 property
law scholars have claimed that, for the purposes of (i) and (ii), a title is indeed a
property right. This article claims that there is a plausible alternative, one that is
committed to the view that in English law, having possession of a chattel is a
condition of the law deeming a person to be its owner. It argues that this assertion
is supported by an important line of cases. And it maintains that, if that assertion is
kept in mind, one can make better sense of the otherwise obscure view that having
possession of a chattel is a condition of a person acquiring a claim to the
ownership of it and hence a title that is not a property right.
32
Oxford Journal of Legal Studies
VOL. 35
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:
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.
cf ibid 2324.
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 better
than 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 all
scholars are happy with this. Nicholas McBride, for instance, finds this belief inexcusablethe range of
proprietary interests that someone may have in a thing (ownership, charge, beneficial interest, lease) are not in
and 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 provide
an account of the nature of property rights and the nature of the interests mentionedownership, charge, etc.
Its truth may depend, for instance, on the soundness of a bundle theory of property. These issues cannot be
explored here. In this article, property right(s) should not be regarded as necessarily excluding what McBride
calls proprietary interests. If McBride is right, proprietary interests should replace or supplement property
rights 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 Land
Law (5th edn, OUP 2009) 2.2.4.
3
4
(1) a title to a thing can be compared with one other, or more than one
other, title to the same thing: with respect to any other such title, it can
be 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 persons title might be better than another persons title, but worse
than the title of some third person.
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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 persons 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 APThesis: 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
AM Honore, Ownership in his Making Law Bind (Clarendon Press 1987) 184.
ibid. James Harris used the term title in this way: JW Harris, Property and Justice (Clarendon Press 1996)
3940, 8081. 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, 64041.
10
Honore (n 7) 184; R Hickey, Property and the Law of Finders (Hart 2010) 16566.
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.
8
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?
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Example 1. A leaves his umbrella in an umbrella stand at a museum. B, desiring the

umbrella for himself, takes it without As consent. Later, C takes the umbrella
without Bs 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, As title,
which arose before Bs and Cs, is, accordingly, better than theirs, and, as Bs
title arose before Cs, Bs title is better than Cs. This is to say that, other things
being equal, As property right binds B and C, Bs property right binds C but
not A, and Cs 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) 15456; S Douglas, Liability for
Wrongful Interferences with Chattels (Hart 2011) 2030; Swadling, Property (n 9) 4.422. Robin Hickey has
claimed that the general trend of the cases does lend some support to the view that possession generates a
relatively good property right, but he has some reservations: Hickey (n 10) 10911. James Gordley and Ugo
Mattei have claimed that the doctrine that possession gives a kind of titleie a right of ownershipwas in fact
invented 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) 12224, 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) 2427. cf Fox (n 6) 33638.
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:
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35
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 sufficient
reason to act on the assumption that the proposition is true: acceptance of the proposition P entails belief, but
not 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 numerous
ambiguities and confusions that afflict this area of the law and discussions of it. It is arguable that Norman
Palmer and David Fox are committed to the thesis (or a very similar thesis): N Palmer, Possessory Title in N
Palmer and E McKendrick (eds), Interests in Goods (2nd edn, LLP 1998) esp 6671; N Palmer (ed), Palmer on
Bailment (3rd edn, Sweet & Maxwell 2009) 4005, 4093; Fox (n 6) 340. However, these scholars do not
distinguish the AP thesis from the deemed ownership thesis. Indeed, Fox seems to be committed to a version of the
AP thesis, and it appears that this commitment is based on his belief that a person in possession of a chattel
benefits from a presumption of ownership: Fox (n 6) 33234, 33638, 34042. The distinction collapses for one
who believes that it is necessarily the case that a person has ownership (in law) of a thing if courts treat that
person as having ownership of it. But such a belief would be plainly mistaken. Of course, one might identify the
two distinct theses and claim that both theses are true (cf D Sheehan, The Principles of Personal Property Law (Hart
2011) 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 Swadlings account, discussed above, than it is to the
account that is here allied with the deemed ownership thesis: Fox (n 6) esp 33638.
better, because older, than Cs 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 chattels 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 chattels 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.
Bs title is, or may be, good against C but it is not good against A. In other
36
VOL. 35
20
21
22
23
Text to nn 6266.
P Birks, Personal Property: Proprietary Rights and Remedies (2000) 11 KCLJ 1, 2.
M Bridge, Personal Property Law (3rd edn, OUP 2002) 14.
A Pretto-Sakmann, Boundaries of Personal Property: Shares and Sub-shares (Hart 2005) 3.
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 articles 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 contrasting 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 conceptualization of an area of law that Peter Birks thought academics had neglected,21 and
which has been described, more recently, as conceptually underdeveloped22
and underconceptualized.23
This articles 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, ownershipand this appears to be at odds
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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 that
others 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 no
notion of ownership; n 97 and accompanying text.
26
cf McFarlane (n 13) 14446.
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 on
the 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).
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
falseand if there is no other basis for the existence of multiple, competing
ownershipsthen 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.
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28
Many of the cases that support the argument advanced in this article are cited, for example, in Palmer,
Bailment (n 19) 4005, 4093.
29
JCP Goldberg and BC Zipursky, Torts as Wrongs (2010) 88 Tex L Rev 917; J Gardner, Torts and Other
Wrongs (2012) 39 Florida State UL Rev 43, 4546.
30
As John Gardner has recently explained, the legal right to reparation is complex: [i]ts incidents include not
only the wrongdoers legal duty to repair, but also a largely undirected legal powerie a legal power that is not
coupled with legal duties regulating its exercisefor the person wronged to determine whether that legal duty is
concretized and enforced through the courts, with a consequent duty on the courts to assist, when that power is
validly exercised by the issue of proceedings: J Gardner, What is Tort Law For? Part 2. The Place of
Distributive Justice in J Oberdiek (ed), Philosophical Foundations of the Law of Torts (OUP 2014) 340.
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 oneand no doubt has
tempted someto 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
ones 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
Bs rights (assuming, that is, that a refusal to return the umbrella amounts to a
conversion vis-a`-vis its owner); the violation of Bs rights amounts to a tort, a
legal wrong, and this is the ground of Bs 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
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39
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, Owens interest in them had vested
in his assignee-in-bankruptcy and, therefore, the trucks were not the claimants
property. The judge refused to permit this defence, and, on a motion for a new
trial, the Queens Bench upheld the judges decision.
Judgments were delivered by Lord Campbell CJ and Wightman and
Crompton JJ. A passage from the Lord Chief Justices 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 plaintiffs34 because Owens 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
32
33
34
[1902] P 42 (CA).
Jeffries v GWR Co (1856) 5 El & Bl 802, 119 ER 680.
ibid 805.
ibid 802.
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, ones understanding 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 Appeals 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.
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35
ibid.
ibid 805. Wightman J made a similar assertion in argument: ibid 805. But it seems that the principles
application is not, in the modern law at least, restricted to claims against persons who are what Lord Campbell
CJ called wrongdoers: see text to n 65.
37
ibid 806.
38
Swadling Property (n 9) 4.426. cf Hickey (n 10) 10910.
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) 7581, 70919.
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 likely
that the reason some legal scholars reject the view that legal statements can be statements of presumed facts is
that they regard presumptions as involving an inference from the primary fact to the presumed fact: for example
Murphy (n 39) 709. If Edna Ullmann-Margalit is correct, however, then there are presumptions that, very
roughly, are not about the presumed fact being inferred from the primary fact, but about persons acting as if the
presumed fact were true. This is a complex issue that cannot be satisfactorily considered here. The important
point is that one should not regard the criticism of the phrase presumption of ownership as providing any reason
to reject the deemed ownership thesis.
36
sufficient, condition of a person being a wrongdoer that that person has taken
the goods out of another persons possession. This is important. For his
Lordships 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-calledor true
presumptionsare 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 propertyor ownershipdoes 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 thatacts as ifthe relevant person has or had the
property.40 One might think that, for the sake of clarity, one should, in
SPRING 2015
41
41
Jeffries (n 32) 806.

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).
42
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 CBs 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 Js reference to the prima facie right arising from possession, and
with Lord Campbell CJs assertion that there is a presumption that the person
who has possession has the property.
42
VOL. 35
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
44
[1902] P 42 (CA).
For example Glenwood Lumber Co Ltd v Phillips [1904] AC 405 (PC) 41011; 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 (Lord
Diplock); 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).
45
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 claimants 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 Lordships 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 conduct of the defendant.48 A bailees entitlement to sue does not, in his
Lordships 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 possessors 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
SPRING 2015
43
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 titlethat 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
[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 wrongdoers liability.59
53
The Winkfield (n 47) 6061 (emphases added).

Glenwood Lumber (n 45); Eastern Construction (n 45); The Jag Shakti (n 45) esp 34549. In Eastern
Construction Lord Atkinson, delivering the Privy Councils advice, opined that, where a bailee is in possession of a
chattel, he might be able to recover the full value of it not because [he has] in truth and fact any proprietary
right in, or title to, the property but because . . . against a wrongdoer, possession is title: 20910 (Lord
Atkinson) 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).
54
There can be no doubt that this supports the deemed ownership thesis. In the Court
of Appeals 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 Appeals 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 bailors 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,
44
VOL. 35
[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 possessors 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 Appeals 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 to
an 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).
Lord Milletts 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 courts reasons for rejecting the Crowns submission that the defendants
had property for those purposes. In response to the Crowns 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
SPRING 2015
45
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).
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 Original
Acquisition 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 (n
63). For a different view see McKendrick (n 64) 29, 36; Fox (n 6) 34451.
63
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 claimants 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 ones
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 claimants 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, Bs title would be good against C, unless C is permitted
to establish, and actually establishes, that As title to the umbrella is better than
Bs, an issue we will return to in Section 3.
46
VOL. 35
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 goldsmiths 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.
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.
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, esp
18183; Hickey (n 10) 100.
69
The Winkfield (n 47) 55.
70
Eastern Construction (n 45) 210.
68
The court decided that the boy could maintain troverthis, 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 Justices 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.
SPRING 2015
47
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
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 doing
so can be found in the law of estoppel: for example Knights v Wiffen (186970) LR 5 QB 660 (QB); Simm v
Anglo-American Telegraph Co (1879) 5 QBD 188 (CA) 206 (Brett LJ): [t]he estoppel assumes that the reality is
contrary to that which the person is estopped from denying, and the estoppel has no effect at all upon the reality
of the circumstances.
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
argumentalthough it is not yet an argumentas 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 articles 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
48
VOL. 35
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 of
ownership, the fact of possession, so long as it is not otherwise explained, tends to show that the possessor is
owner: Pollock and Wright (n 2) 25. It is arguable that Pollock was committed to both the AP thesis and the
deemed ownership thesis, although his arguments in support of his view focus almost entirely on cases involving
land rather than chattels: Pollock and Wright (n 2) 2224, 93100.
73
Torts (Interference with Goods) Act 1977, s 7(3).
74
ibid s 7(4).
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 claimants 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.
SPRING 2015
49
mere proof that the plaintiff does not have the best right is irrelevant. The defendants
interference with the plaintiffs 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 was
tortious, it is certainly a wrong. The distinction between something being wrongful (ie unjustified) and it being a
wrong (ie a breach of a duty) is drawn by John Gardner in his Wrongs and Fault in A Simester (ed), Appraising
Strict Liability (OUP 2005) 5457.
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).
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:
50
VOL. 35
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.

Pollock and Wright (n 2) 91; WS Holdsworth, A History of English Law, Vol VII (Methuen 1925) 42131.
P Atiyah, A Re-Examination of the Jus Tertii in Conversion (1955) 18 MLR 97, esp 1002; G Battersby, The
Present Status of the Jus Tertii Principle [1992] Conv 100, esp 106110; Baker (n 79) esp 5157; Douglas (n 13) 2627.
82
See Baker (n 79) 6162.
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) . . . any
other 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).
80
81
possessionmight 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 Atiyahs 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 laws 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 partys 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 thesisand 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 goods84 is
SPRING 2015
51
The deemed ownership thesis explains why a claimants 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):
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 defendants 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 laws 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).

N Palmer (ed), Palmer on Bailment (3rd edn, Sweet & Maxwell 2009) 4139.
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 and
Equitable Wrongs in A Burrows (ed), English Private Law (3rd edn, OUP 2013) 17.314.
88
89
[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
52
VOL. 35
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 purposes
of, say, an action in conversion.
91
For example Winkworth v Christie Manson & Woods Ltd [1980] Ch 496 (Ch) 499 (Slade J); Empresa
Exportadora De Azucar v Industria Azucarera Nacional SA [1983] 2 Lloyds Rep 171 (CA) 187 (Ackner LJ); The
Jag Shakti (n 45) 345 (Lord Brandon); HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005] EWCA Civ
1437, [2006] 1 WLR 643 [25] (Longmore LJ); M Jones and A Dugdale (eds), Clerk & Lindsell on Torts (20th
edn, Sweet & Maxwell 2010) 1743.
pursuant to section 8(1), that A had a better title than B. Bs 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
thingand, 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 claimants
remedy may turn out to be, in effect, temporarymuch 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 chattelsabout
their history, and about the legal rights in themis 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 laws 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.
SPRING 2015
53
92
Isaack v Clark (1615) 2 Buls 306, 308; 80 ER 1143, 1146 (Dodderidge J); Jarvis v Williams [1955] 1 WLR
71 (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) 1214; cf MCC Proceeds Inc v Lehman Brothers
International [1998] 4 All ER 675 (CA); Iran v Barakat Galleries Ltd [2007] 2 CLC 994 (CA) 1006 (Lord Phillips
CJ); 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, 2124.
96
For a different view see R Kersley, Goodeves Modern Law of Personal Property (9th edn, Sweet & Maxwell
1949) 89; S Green and J Randall, The Tort of Conversion (Hart 2009) 8688.
97
JHM van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and International
Property 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 treatise
on English law without defining ownership or mentioning it as a juridical concept . . . . The reason is that English
law has never had any theory of ownership.
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 defendants 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
54
VOL. 35
98
If a title-holder is entitled to be treated as the owner of a chattel, and if this entitlement is alienable, then
one could argue, perhaps, that this entitlement is itself the title-holders 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 argument
to succeed, one would need to establish (among other things): (a) that a person who has a title to ownership has
the power to transfer that title, and not merely that such a persons title may be transferred as a result of his
purported exercise of the power to transfer ownership, a power which he might be treated as having only if and
insofar as he is treated as owner; and (b) that a person who has such a power has property. Even if the argument
did succeed, it is doubtful that it would support the AP thesis because that thesis states that a possessor acquires
not simply property but a property right in a chattel.
99
Birks (n 21) 2.
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 contextsfor the purposes of, say, the chattel torts, the law of theft, and
the Sale of Goods Act 1979then 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 articleconcerning 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
itis 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

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2 Relative Title and Deemed Ownership in English Personal Property Law

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Oxford Journal of Legal Studies, Vol. 35, No. 1 (2015), pp.

Relative Title and Deemed Ownership in

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AbstractThis article is concerned with two elementary propositions of English

Oxford Journal of Legal Studies

A. Title and Relativity

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English Personal Property Law

B. Title and Possession: Property and Deemed Ownership

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

Oxford Journal of Legal Studies

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

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

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

English Personal Property Law

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Oxford Journal of Legal Studies

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

English Personal Property Law

2. Deemed Ownership and the Chattel Torts

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Oxford Journal of Legal Studies

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

English Personal Property Law

A. Jeffries v GWR: Possession, Presumptions and Property

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Oxford Journal of Legal Studies

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English Personal Property Law

Jeffries (n 32) 806.

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Oxford Journal of Legal Studies

B. The Winkfield and Beyond

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English Personal Property Law

The Winkfield (n 47) 6061 (emphases added).

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Oxford Journal of Legal Studies

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English Personal Property Law

C. Armory v Delamirie and Finders

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Oxford Journal of Legal Studies

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

3. Fictions and the Jus Tertii

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English Personal Property Law

A. Fictions and the Rationalization of Deemed Ownership

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Oxford Journal of Legal Studies

B. Deemed Ownership and the Jus Tertii Doctrine

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

English Personal Property Law

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Oxford Journal of Legal Studies

CD Baker, The Jus Tertii: A Restatement (1991) 16 U Queensland LJ 46, 50.

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possessionmight would be right.79 One could debate whether that would be

English Personal Property Law