1. Blackstone, Commentaries On The Laws Of England II (1857), para 199: ‘For it is an ancient maxim of the law, that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplieatum, or droit droit. And when to this double right the actual possession is also united there is, according to the expression of Fleta, juriset seisine conjunctio, then, and then only, is the title completely legal’.

2. Cf Dolan JF, ‘The UCC Framework: Conveyancing Principles And Property Interests’ (1979) 59 Boston L R, p 811.

3. See Crossley Vaines, Personal Property (5th ed, 1973), p 39.

4. Sale of Goods Act 1979, s 61(1) defines property as meaning ‘the general property in goods, and not merely a special property.’.

5. Chalmers, The Sale of Goods Including The Factor's Act 1889 (1890), p 93.

6. Cf Friedman LM, A History of American Law (1973), at p 223:‘… [Nineteenth century American Commercial Law was] too elegant and too unknown except to lawyers to have much effect on the actual working of the market.’.

7. It is an error to assume that chattels were not important in feudal times. Part of the difficulty in this context is that Bracton did not finish his work on the personal actions (although he did elaborate upon the actio furti) while the Statue of Gloucester ensured that litigation concerning chattels was pursued in mainly local courts which kept no records. See Pollock and Maitland, History of England Law, Vol II (2nd ed, 1968) 149–183.

8. John Locke, Two Treatise Of Government (1968), Bk II.

9. It is arguable that property distribution should be seen as a quest for distributive justice especially in the light of the problems posed by the common pool. Cf Nozick R, Anarchy, State and Utopia (1974). See n 179 below, with accompanying text.

10. Novel Disseisin, Mort d'Ancestor, Darrein, Presentment.

11. The essence of the assize of novel disseisin was that it made every disseisin a breach of the peace. Cf Pollock and Wright. Possession In The Common Law (1888), 5: ‘So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that possession largely usurped not only the substance but the name of the property…’.

12. Maitland, ‘The Mystery of Seisin’ (1886) 2 LQR 481.

13. Thus the appeal of larceny could not be brought by the bailor (owner) but by the bailee [Glanvil X 131. The actual basis of the bailee's right to sue is a subject of contention, especially since the bailor was regarded as being the owner. Indeed Bracton ‘in the very sentence in which he concedes to the bailee the appeal of larceny, denies that he is the owner of the things that have been bailed to him’, (Pollock and Maitland, op cit n 7, p 176). Roman law could have had some influence here since the bailee usually alleged in these appeals that he was accountable to the owner (Bracton f 103 b; Holdsworth, A History of English Law III, p 340) and the Institutes of Justinian gave the actio furti to the bailee because he was answerable to the bailor [Institutes IV I. 13–17].

14. Maitland, op cit n 12, p 481, 488.

15. Fitz Abr, tresp, 153. See Ames J B, ‘The Disseisin of chattels’ (1889–90) 3 Harv L R 23, 313, 337.

16. Up to the time of recaption the disseisor had the jus habendi and the jus dispodendi. The assize of novel disseisin when it was brought against the disseisor himself was a personal action founded in tort and herein lies the explanation of the action not being available against the heir of the disseisor. (See Bracton f 164b, 175b–179, 187; Ames, ibid, p 31–34).

17. By the fifteenth century the sphere allowed to self-help was greater than that in the twelfth century and Maitland (‘The Beatitude of Seisin’ (1888) 4 LQR 24, 286) has traced the development of titular seisin (seisitus de Libero tenemento) during this time, the theory being that one who is ‘in by title’ as contrasted with one who is ‘in by tort’ ought not to be ejected without process of law. The element of title is stressed by Swcet C in ‘Seisin’ (1896) 12 LQR 239, 240. Cf de Longrais F J, La conception anglaise de La Saisine du XII′ au XIV′ Siècle (i) 45: ‘Cest une jouissance tout pénétrée d'elements de droit, elle se fond avec le droit sous toutes des formes, et n'en distingue pas sa nature.’.

18. If he failed to retake promptly he had to retake via Legis. See Pollock and Maitland, op cit n 7, pp 155–165.

19. Maitland, ‘The Beatitude of Seisin’ (1888) 4 LQR 24 and 286; Pollock and Maitland, History of English Law, Vol 2, p 29; Sweet C, ‘Seisin’ (1896) 12 LQR 239, 240. In Taylor v Horde 1 Burr 107 at 110, Lord Mansfield described seisin as ‘a technical term to denote the completion of that investiture, by which the tenant was admitted into the tenure and without which no freehold could be constituted or pass’.

20. The sphere allowed to self help in the fifteenth century was greater than that allowed by the law of the twelfth century and Maitland, considering the Statutes of Forcible Entry 1381, 1391, 1402, 1409, said:. ‘It may I think be gathered from these statutes and the decision upon them, that the true remedy for a crying evil was found in making forcible entry a crime.’ Maitland, ibid, p 286, 291.

21. Blackstone, Commentarics On The Law Of England (1857), para 196. ‘The lowest kind of title consists in the mere naked possession… But to constitute a good and perfect title something more is necessary, namely the right of possession which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised … though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of the occupany which he has so illegally gained…’.

22. Cf Pollock and Wright, Possession In The Common Law (1888), p 14.

23. Ibid, p 25.

24. Thus a bailee had a proprietary interest and at common law he could not commit larceny of the res bailed except for breaking bulk as laid down in the Carrier's Case (1473) 64 SS 30. The treatment of the pecuniary characters of chattels is highly significant in this context, the law not being concerned to return to the ‘owner’ the very thing lost but rather only the value. This rule ‘served Englishmen well enough until the middle of the nineteenth century, it showed itself to be compatible with peace and order and an abundant commerce’. See Pollock and Maitland, op cit n 7, p 178. In some circumstances the owner may have been found guilty of theft of the res bailed. See R v Wilkinson (1821) R & R 470; Rose v Matt [1951] I KB 810. Cf Goode R M, Commercial Law (1982), p 54: ‘Absolute ownership exists when the interest is absolute and the title indefeasible. Frequently, however, these two ingredients are not conjoined. A person may have indefeasible title to a limited interest, and he may have relative title to an absolute interest. A good example is the interest enjoyed by a person receiving possession of goods as a bailee of the absolute owner… He has a right to continue in possession on the terms of the bailment, and since no one else has a better right he has an indefeasible title to his limited interest as bailee…’.

25. It has been suggested that it was possible that English land law did arrive at the concept of absolute right through the development of the action of ejectment; a careful examination of the cases has not supported this conclusion. See Holdsworth, A Histoy of English Law VII, p 30, 62, 79. Cf Hargreaves, ‘Terminology And Title In Ejectment - A Reply’ (1940) 56 LQR 376, 377.

26. Honoré A M, ‘Ownership’ in Oxford Essays in Jurisprudence, ed A G Guest (1961), Ch V, p 107 at 134.

27. See Bingham J W, ‘The Nature and Importance of Legal Possession’ (1915) 13 Mich L R 535.

28. The transient value of chattels together with the difficulty of proving title makes the chain of title particularly short.

29. See Battersby C and Preston A D, ‘The Concepts of “Property”“Title” and “Owner” Used In The Sale of Goods Act 1893’ (1972) 35 MLR 268, 274.

30. This cannot be excluded by virtue of s 6(1) of the Unfair Contract Terms Act 1977.

31. Lawson F H, ‘The Passing of Property And Risk in Sale of Goods - A Comparative Study’ (1949) 65 LQR 352.

32. Atiyah P S, The Sale of Goods (7th ed, 1985), p 221.

33. Op cit n31, p 359.

34. Cf Kruse V, The Right Of Property (1939), Vol 1, p 124. ‘The doctrine of the distinction between real rights and obligatory rights (rights in rem and rights in personam) forms one of the most extraordinary chapters in the history of human error…’. Hohfeld stressed ((1913) 23 Yale LJ 16) that there can be no rights against things but only rights against persons which may of course be in respect of things. See also Kocourek, ‘The Hohfeld System of Fundamental Legal Concepts’ (1920) 15 Ill L R 24.

35. Reg 139. See Williams T C, ‘The Terms Real And Personal In English Law’ (1888) 4 LQR 394.

36. But see now Redler Grain Silos Ltd v BICC Ltd [1982] I Lloyd's Rep 435.

37. Honoré, op cit n 26, at p 137.

38. Cf usucapio which protected a bona fide possessor. This meant that for a short time there were two titles but when the periods of usucapio were short this was not of much significance.

39. Torts (Interference with Goods) Act 1977 s 8. Prior to this there was some debate as to the extent of the jus tertii defence. See Atiyah, ‘A Re-Examination of the Jus Tertii in Conversion’ (1955) 18 MLR 97. Cf Jolly, ‘The Jus Tertii and the Third Man’ (1955) 18 MLR 371.

40. Under RSC Ord 15, r 10A(4).

41. This was repealed by the Theft Act 1968 s 31(2).

42. Battersby and Preston, op Cit n 29, at p 280; Latty E R, ‘Sales And Title And The Proposed Code’ (1951) 6 LCP 3, 51.

43. Op Cit n 32, p 221. Cf Atiyah The Sale of Goods (6th ed, 1980), p 181.

44. AIV v Romalpa Aluminium Ltd [19761] WLR 676, Re Bond Worth [1980] Ch 228, Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25, Re Peachdart [1983] 3 All ER 204, Clough Mill v Martin [1984] 1 All ER 721.

45. [1986] 2 All ER 145. Cf Llewellyn K, Cases and Materials On The Law of Sales (1929), pp 571–574, who suggested that if the courts discussed as well as decided the narrow issue in each case eg may the buyer sue the carrier for negligence instead of seeking to find the ‘title’ to the goods and then deductively to the issue in the case, the result would be a much clearer and sounder analysis in the solution of the cases.

46. Sealy L S, “‘Risk” In The Law Of Sale’ [1972] CLJ 225. Cf Lord Blackburn in Anderson v Morice 10 CP 58. ‘It may be observed that risk and property generally go together and consequently in many of the cases, though the important point was, at whose risk is the thing, it is treated as if the sole question was, whose property is it? In the present case however, the real question was, whose risk was it?’. For some of the early US cases separating property from risk see Steffen and Danziger, ‘The Rebirth Of The Commercial Factor’ (1936) Col L R 745, 753–54.

47. Sale of Goods Act 1979 s 20(1). Roman Law adopted the approach that as soon as the emptio venditio was perfecta ie identity, quality and quantity of the things had been ascertained and the price settled, then risk of damage passed to the buyer. One possible reason for placing the risk on the buyer in this way was to encourage trade between Rome and different parts of the Empire. See de Page, Traité de Droit Belge vi, p 85.

48. Op cit n 46, at p 227.

49. See above, pp 3–5.

50. 2 TR 63 (KB 1787); revd 1 HB 6 357 (Ex Cha 1790), revd and venire de novo ordered, 5 TR 367 (HL 1793). Cf Solomans v Nissen 2 TR 674 (KB 1788).

51. Sewell v Burdirk (1884) 10 App Cas. See below.

52. The defendant was not a wholesaling purchaser. The distinction between a consignee and a factor was unclear at common law. See Yunday R, ‘A Legal History of the Factor’ (1977) 6 Anglo-Am L R 221–260. The importance of the factor as a catalyst br trade will be considered in the context of the Factors Acts 1823–1889, below.

53. Cf Godfery v Furzon 3 P Wms 185 (Ch 1733); Hibbert v Carter 1 TR 745 (KB 1787).

54. 5 B & A 817 (KB 1833).

55. The ‘special property’ is an old concept in the common law and it was referred to in Miller v Race 97 ER 398, 400. Holmes O W, in his essay ‘The Common Law’ (1884), referred to it (p 244) as a ‘qualified right’ and denoting an interest inferior to the general property. The Sale of Goods Act 1893 s 62(1) defined property as meaning ‘the general property in goods and not merely special property’.

56. Loc cit n 51.

57. It had been possible by the manipulation of the mortgage device to maintain Buller J's position. Thus in Glyn v East and West India Dock Co 6 QB 475 (CA 1880) it was held that property could pass by indorsement and delivery of the bill of lading but the indorser and those claiming under him were protected through the equity of redemption. Cf Lord Blackburn (1882) 9 App Cas 591, 604; Kempt v Falk (1882) 7 App Cas 573.

58. Cf Burdick v Sewell 13 QBD 159 (CA 1884).

59. Loc cit n 51, at p 95.

60. Thus in the initial comment to the Sales Article (Comment to UCC 2:101) it is pointed out that the legal consequences of the sale transaction depend upon the contractual relationship of the parties and their action under it ‘without resorting to the idea of when property or title passed or was to pass as being the determining factor’. A further example is provided in Art 9:202 where location of title is irrelevant to the Article 9 rights of debtor, secured creditor and third parties.

61. See above, p 8.

62. Holmes O W, The Common Law (1884), p 244.

63. Wilbraham v Snow 86 ER 37 (KB 1726). See now The Torts (Interference With Goods) Act 1977.

64. UCC Art 2:502.

65. UCC Art 2:402(1).

66. UCC Art 1:201(37).

67. UCC Art 9:307(1).

68. Some of the US cases seem to resurrect the title concept even though this stands in the face of such legislative prohibition like UCC Art 2:401(1). One example of this phenomenon can be seen in the Fifth Circuit case of Weisbart and Co v First National Bank (568 F2d 391 (1978)). This case involved the application of one of the major good faith purchase rules in Art 9 viz s 9–306(2) (see also Art 9–307(1)) which permits any buyer to defeat the secured creditor if the creditor authorises the sale of the inventory. Here the seller agreed with the purchaser to fatten livestock and sell them to the buyer. The bank financed the seller and retained a perfected security interest in the cattle. The bank knew of this contract and when cattle and feed prices rose, the bank on behalf of its client participated in negotiations to extend the time of delivery to the buyer. When it became obvious that the seller would not be able to fulfil the contract without incurring a loss, thereby not generating enough funds to satisfy the loans with the bank, the bank seized the cattle under the security arrangement. The court held that Art 9–306(2) did not apply even though that section extended not only to sales but also to ‘exchange or other disposition’. The court held that there was no sale here (the court did not distinguish sale from ‘exchange or other disposition’) which was defined in UCC 2–106(1) as ‘the passing of title from the seller to the buyer for a price.’ The case demonstrates, as Dolan has said:. ‘the reluctance of courts to give full effect to the Code's property interest scheme. On identification ofthc cattle to the contract, the buyer obtained a special property in them. Identification then operated to “dispose” of part ofthe seller's property interest in the goods and the evidence strongly suggests that the bank authorised that “disposition”’. See Dolan J F, ‘Title And Special Property’ (1979) 59 Boston L R 811, 853; Gilmore G, ‘Commercial Doctrine of Good Faith Purchase’ (1954) 63 Yale L J 1057; Warren W D ‘Cutting Off Claims of Ownership Under The UCC’ (1963) 30 U Chi L R 469. The view expressed here is that neither delivery nor passage of title are prerequisites for the operation of the buyer protection rules of Art 9:306(2). It follows that the effect of the Weisbart case is that it distorts priorities and can give substance to the common banking practice of cross-collaterialsation of loans. As Dolan has pointed out, ibid, at p 854:. ‘Unrestricted use of such an arrangement in Weisbart would permit the seller to tap the increased value of the cattle identified to the buyer's contract to finance the performance of the other contracts, thus diluting the bargain won by the buyer in a rising market.’.

69. 59 Wis 2d 219, 208 NW 2d 97 (1973). Cf Farnum v CJ Merill Inc, 264 A2d 15052 (Me 1970).

70. 35 App Div 2d 469, 381 NYS 2d 764F, affd 20 NY 2d 690, 274 NE 2d 751 325 NYS 2d 419 (1979); Tambro Fabrics Corp v Deering Milliken Inc 48 App Div 2d 784, 369 NYS 2d 146 (1975); affd 39 NY 2d 632, 350 NE 2d 590, 383 NYS 2d 260 (1976).

71. See Kreindler, ‘The Uniform Commercial Code and Priority Rights Between the Seller In Possession and a Good Faith Third-Party Purchaser’ (1977) 82 Com L J 86; Kripke, ‘Should Section 9:307(1) of the Uniform Commercial Code Apply Against a Secured Party in Possession?’ (1977) 33 Bus Law 153. Cf Birnbaum, ‘Section 9:307(1) of the Uniform Commercial Code Versus Possessory Security Interests: A Reply to Professor Kripke’ (1978) 33 Bus Law 2607; Gottlieb, ‘Section 9:307(1) and Tanbru Fabrics: A Further Response’ (1978) 33 Bus Law 2611; Coogan ‘Article 9 - An Agenda for the Next Decade’ (1978) 87 Yale LJ 1012. The notice function of possession will be discussed by the author in an article to appear elsewhere.

72. Dolan J F, ‘The Conflict Between Possession And Special Property Interest Under The UCC’ (1978) 56 Texas L R 1147.

73. Under Art 9:306–307 the identification rule only applies to sales from inventory thus excluding farm products and consumer goods.

74. See below, pp 14–38.

75. Cf Bishopsgate Motor Finance Corp v Transport Brakes Ltd [1949] 1 KB 332, especially Denning LJ at 336–337.

76. A delivery order is an undertaking to deliver possession. As such it is not a document of title although s 1(4) of the Factors Act 1889 for the purpose of that Act and s 61(1) of the Sale of Goods Act 1979 which adopts the same approach defines a document of title as including inter alia. ‘… any bill of lading, deck warrant, warehouse-keeper's certificate and warrant or order for the delivery of goods …’. For examples of documents which were held not even to come under the extended definition, see: Gunn v Bolcknow, Vaughan and Co (1875) 10 Ch App 491; Dublin City Distillery Ltd v Doherty [1914] AC 823.

77. Section 47(2) of the Sale of Goods Act 1979 provides. Where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods and that person transfers the document to a person who takes it in good faith and for valuable consideration, then. (a) if the last-mentioned transfer was by way of sale the unpaid seller's right of lien … or stoppage in transit is defeated, and. (b) if the last-mentioned transfer was made by way of pledge or other disposition for value, the unpaid seller's right of lien … or stoppage in transit can only be exercised subject to the rights of the transferee.’.

78. Cf Mourdaunt Bros v The British Oil Co [1910] 2 KB 502.

79. [1960] 1 QB 159.

80. Cf Borrie G, ‘Documents of Title’ (1960) 23 MLR 101.

81. [1914] 3 KB 40.

82. (1896) 1 Comm Cas 314.

83. This has been re-enacted as s 25(1) of the Sale of Goods Act 1979 which is substantially identical to s 9 of the Factors Act 1889, although s 9 does contain the additional words ‘or under any agreement For sale, pledge, or other disposition’.

84. Emphasis added.

85. Nicol A, ‘The Passing of Property in Part of a Bulk’ (1979) 42 MLR 129, 133.

86. What is envisaged is that the buyer acts in the ordinary course of business as a mercantile agent which is anticipated in s 25(1). The buyer/agent can bind his principal/seller under an agreement to sell an unascertained part of a specified bulk. The former being a mercantile agent has authority to receive the purchase price and the sub-purchaser is given a personal action against the original seller for failure to deliver or return the price. See Nicol, ibid, 137.

87. See n 45 above.

88. See below, pp 30–38.

89. The sub-buyer will have an immediate right of possession in that he can demand separation from the remainder of the bulk. Atiyah has noted:. ‘… it would be pure pedantry to deny him [the sub-buyer] the right to claim a title under s 9 merely because as between himself and the intermediate seller there has not been a separation of the part sold from the rest sufficient to pass property.’. See Atiyah P S, Sale of Goods (7th ed, 1985), p 300. This will be discussed in greater detail in an article to appear elsewhere.

90. See Goode R M, Proprietory Rights And Insolvency In Sales Transactions (1985), p 58.

91. Another Latin version is Qui non habet, ille non dat.

92. Under Roman law by the time of Justinian the dispossessed owner was generally protected although a good faith possessor could acquire just title if he was in possession for three years, otherwise a period of thirty years was required. See Buckland W and McNair A, Roman Law and Common Law (2d ed, 1965), pp 67–68; de Zulueta F, The Roman Law of sale (1945).

93. Perkins Profitable Book 14 (15th ed, 1827).

94. H 14 Hen 4, Estop, 109.

95. See Gilmore G, Security Interests In Personal Property (1965), Vol 1, 7:10 n 1.

96. Barthelmess v Cavalier (1934), 2 Cal App 2d 477, 487.

97. Milsom S F C, Historical Foundations Of The Common Law (2nd ed, 1981), pp 364–366.

98. Cf Gilmore G, (1954), 63 Yale LJ 1057.

99. The English courts of the 1820s measured the ‘good faith’ of a purchaser of a negotiable instrument by an objective standard although by 1836 this was replaced by a subjective standard. See Gill v Cubbitt (1824) 107 ER 806. Cf Goodman v Harvey (1836) 111 ER 1011. This was also the US position as in Goodman v Simonds (1857) 61 US 343.

100. Holdsworth, A History of English Law V (2nd ed, 1937), pp 79–80. Cf Powell R, ‘Good Faith In Contracts’ (1956) 9 CLP 16, 25. ‘[There is]… no overriding general positive duty of good faith imposed on the parties to a contract’. See also Lloyd's Bank Ltd v Bundy [1975] QB 326; National Westminster Bank plc v Morgan [1983] 3 All ER 85.

101. Sale of Goods Act 1979 s 21(1).

102. Cf above, pp 8–11.

103. Gilmore G, ‘The Good Faith Purchase Idea And The UCC: Confessions Of A Repentant Draftsman’ (1981) 15 Ga LR 605, 612.

104. See above, pp 3–5.

105. Cf Benjamin's Sale of Goods, ed Guest A G (2nd ed (NS), 1981), para 646. ‘… the terminology used may have been intended to render this principle intelligible in Scots law where the specific term “estoppel” is unknown’.

106. Co Litt 352a.

107. London Wine Company (Shippers) Ltd (1975). A transcript of Oliver J's judgment (as he then was) can be found in Goode R M, Proprietary Rights And Insolvency In Sales Transactions (1985), Appendix.

108. Cf Atiyah, The Sale of Goods (7th ed, 1985), p 277. ‘… (the estoppel) will not bind anyone who does not claim under the person estopped. A person claiming under title paramount cannot be bound by an estoppel to which he is not privy.’.

109. Battersby and Preston (1975) 38 MLR 77, 78.

110. Battersby and Preston (1972) 35 MLR 286, (1975) 38 MLR 77, 80; Cf Powles (1975) 38 MLR 83.

111. Benjamin's Sale of Goods, ed Guest A G (2nd ed (NS), 1981), para 465.

112. [1957] 2 QB 600. See also Lord Denning's judgment in Moorgate Mercantile Co v Twitchings [1975] 3 All ER 314, 323–324. Although the decision in the Court of Appeal was reversed in the House of Lords, Lord Denning's dictum on proprietary estoppel was not disapproved.

113. Per Devlin LJ, ibid, p 610.

114. [1965] 2 QB 537.

115. [1967] 2QB 786.

116. Ibid, pp 803–804.

117. Motor Credits (Hire Finance) Ltd v Pucific Motor Auctions Pty Ltd (1963) 109 CLR 87 (reversed on other grounds). Cf Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242.

118. See below, pp 29–32.

119. Sale of Goods Act 1979 s 17 and 19. Cf where a voidable title is given. Here the terminology used suggests that legal title has passed to the first vendee whereas in the case of estoppel the purchaser bases his claim on the acts of the original owner.

120. Smith T B, Property Problems In Sale (1978), pp 163–164. See text n 158–161. Cf Richards v Johnston 4 H & N 660. Here it was held that the sheriff was not bound by an estoppel on the ground that he was not party to it. As Martin B pointed out (at p 664):. The fi fa directs the sheriff to seize the goods of the debtor. The sheriffis a stranger to the debtor and the only question for his is - “Are these goods the goods of the debtor or not?”’.

121. Bills of Exchange Act 1882 s 29(3).

122. Pickard v Sears 6 A & E 469; Henderson v Williams [1895] 1 QB 521; Farquharson Bros & Co v King & Co [1902] AC 325; Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242; Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890.

123. See below, pp 26–34.

124. Harvey E J, The Victims Of Fraud (1932), p 64.

125. See Jones J W, Bona Fide Purchase of Goods (1921), p 48.

126. Law Reform Committee, Twelfth Report (1966) Crnnd 2958, para 11. The effect of this recommendation was to shift the right of action available to the bona fide purchase of goods under s 12 of the Sale of Goods Act to the owner. See below.

127. See also Blackstone's Commentaries On The Laws Of England II (1857), pp 460–461.

128. Institutes II 713. Market overt does not protect the innocent pledgee. Sales in market overt are encouraged as was pointed out in Hartop v Hoare (1742) 2 Str 1187 ‘because they are a circulation of property, whereas pawning is pro tem on locking of it up’.

129. The most famous example of market overt is London where every shop in the City in which goods are exposed publicly for sale is a market overt for such things only as the owner professes to deal in, everyday being a market overt except Sundays and holidays. As Coke pointed out (5 Co Rep 83b):. ‘So every shop is a market overt for such things only which by the trade of the owner are put there to sale…’. Auction rooms are not shops (Clayton v Le Roy [1911] 2 KB 1031). There have been difficulties in applying the ancient concept of market overt to modern retailing situations, as Pease has pointed out (1915) 31 LQR 270, 284:. ‘When the Elizabethan judges speak of “shops”, “open shops”, “inward shops”, and “things which are put there to sale by the trade of the owner”, we must be careful that in applying those phrases to modern conditions we do not enlarge or alter the custom.’ See also Hargreaves v Spink [1892] 1 QB 25.

130. See Hamilton W H, ‘The Ancient Maxim Caveat Emptor’ (1931) 40 Yale LJ 1133. For a modern example see Reid v Commissioner of Police of the Metropolis [1973] QB 551.

131. Cf Hamilton, ibid, p 1147:. ‘The theory probably was that if goods had been stolen the owner or his representative or neighbour would go to the market where they were likely to be offered for sale to reclaim them. In market overt the good could not be disposed of without publicity, and with publicity stolen property was not likely to escape detection. In days when theft did abound in the land, the market overt seems to have been a kind of mercantile purgatory; the emerging good went forth with a clean, or nearly clean bill of health.’.

132. Property of the Crown was excluded from the market overt doctrine, as well as knowledge by the buyer that the property was not that of the seller. See Benjamin, op Cit n 111, para 480.

133. The Statute of 31 Elizabeth 12, concerning Sellers of Horses In Fairs And Markets 1589, provided that the sale of horses be made in a place that is overt, that a credible person avouch the seller, that the price be entered in the toller's book, that a note in writing be given to the purchaser that the true owner might redeem within six months for so much money as the purchaser paid and that all accessories to a felonious sale be deprived and put from all benefit of clergy. This statute has now been repealed by s 10(2), Sch 3, Pt 1 of the Criminal Law Act 1967, together with s 22(2) of the Sale of Goods Act 1893.

134. Section 24 of the Sale of Goods Act 1893 provided for the automatic reverting of property in the true owner where the goods sold in market overt had been stolen and the offender prosecuted to conviction. See above. This has now been repealed by s 33(3), Sch 3, Pt III of the Theft Act 1968.

135. On conviction the owner had extensive remedies because if the purchaser in market overt's vendor had not himself purchased in market overt from the thief then the owner could sue the latter in trover for damages as well as recover the property from the innocent purchaser.

136. 8 QBD 109.

137. Cf Hatton v Car Maintenance Co Lfd [1915] 1 Ch 621; Re Southern Livestock Producers Ltd [1964] 1 WLR 24.

138. Regular markets and fairs were held in Boston and other towns as early as 1633 and these were after the English model. See Hughes J, Social Control in the Colonial Economy (1976). Also the Pennsylvania General Assembly enacted a statute (Law of September 23, 1780, Ch 908 s 7) declaring that no sale of any stolen horse … shall be deemed a public sale in market overt, so as to change the property thereof. See Weinberg H R, ‘Market Overt, Voidable Titles and Feckless Agents: Judges an Efficiency in the Antebellum Doctrine of Good Faith Purchase’ (1981) 56 Tul LR 1.

139. See Hawkland, ‘Curing An Improper Tender Of Title To Chattels: Past, Present and Commercial Code’ (1962) 46 Minn LR 697, 699.

140. Gilmore G, The Ages of American Law (1977), pp 8–11.

141. See, for example, Hosack v Weaver I Yeates 475 (Pa 1795); Heacock v Wulker 1 Tyl 388 (vt 1802).

142. Op cit n 108.

143. See above, p 18.

144. Linton v Potter 31 Ill 107 (1863); Computing Scales v Long 66 SC 379, 44 SE 963 (1903).

145. See n 119.

146. English law is often presented as an example of causa theory, whereas Roman law is categorised as ‘abstract theory’ by avoiding the necessity for distinguishing between void and voidable contracts since the contract and conveyance are totally separated and the transfer of ownership depends solely upon delivery with the necessary animus transferendi. There may be problems even under the abstract theory where, for example, the transferor had the intention to pass ownership but not to the person to whom the delivery was actually made. See Scholtens J E, ‘Justa Causa Traditionis And Contracts Induced By Fraud’ (1957) 74 SALJ 280; Lambiris MAK, ‘An Analysis of the Relationship between the Concepts of Cash and Credit Sales and the Transfer of Ownership’ (1985) 102 SAIJ 452.

147. Cf Gilmore G (1954) 63 Yale LJ 1057, 1059:. ‘… [The voidable title cases represent] a vague idea, never defined and perhaps incapable of definition, whose greatest virtue, as a principle of growth, may have been its shapeless imprecision of outline.’.

148. Cf King D B, ‘New Conceptualism of the UCC: Ethics, Title and Good Faith Purchase’ (1966) 11 St Louis ULJ 15, 39:. ‘The question whether a thousand angels could dance on the head of a pin would hardly seem more meaningless than the questions of intent that were debated by both scholars and practising lawyers.’.

149. See Beale, ‘The Borderland of Larceny’ (1892) 6 Harv LR 244. Even in the nineteenth century the doctrine was criticised as making little sense even in the context of criminal law. See Holmes, ‘The Path of the Law’ (1897) 10 Harv LR 456, 469–470.

150. In determining the intention of the parties the subjective test of Pothier in his Traite Obligations, para 19, was adopted in Lake v Simmkons [1927] AC 487; Sowler v Potter [1940] 1 KB 271. This test has now been rejected in favour of the objective test. Sec Ingram v Little [1961] 1 QB 31 especially Pearce LJ, at 55–56; Lewis v Avery [1972] 1 QB 198.

151. (1878) 23 App Cas 459.

152. In the first trial of the civil action in the Queen's Bench Division it was held that the plaintiff had intended to contract not with the firm of William Blenkiron but with the person who lived at 37 Wood Street. This was overturned in the Court of Appeal. In the House of Lords it is remarkable that essential facts with regard to the address and signature of A Belnarn's letters to the plaintiff are stated differently from the preceding reports. Thus it is said in the House of Lords that the letters were signed not “A Blenkiron and Co” but simply ‘Blenkiron and Co’ (p 460) and there is no mention of the words ‘Entrance, second door into Love Lane’ (p 467).

153. The Lickbarrow v Mason ((1787) 2 TR 63) doctrine was unanimously disapproved of by the House of Lords on the basis that a true owner cannot be deprived of his goods in favour of an innocent purchaser by any amount of negligence. See below.

154. The Louisiana Civil Code of 1808 departed from the French rule (Art 2279 CC) of ‘la possession vaut titre’ although recently Art 522 of the La Civ Code Ann (1980) aims to realign Louisiana law with modern civil law and the UCC. See Ellis L, ‘Symposium: Louisiana Property Law Revision, Transfer of Movable by a Non Owner’ (1980) 55 Tul LR 145, 158–167.

155. (1841) 18 La 585.

156. Ibid, at 587.

157. Cf French Civil Code Art 2279.

158. 6 E & B 23.

159. Ibid, p 60.

160. Benjamin, op cit n 111, para 490. Another authority which is sometimes cited is Re Stapleford Colliery Co, Barrow's Case (1879) 14 Ch D 432. However, this case involved the question of notice under companies legislation and not title in the case of a contract avoided as a consequence of fraud.

161. [1922] WN 170 (CA).

162. Although in Earl of Bristol v Wilsmore 1 B & C 514 and Ferguson v Carrington 9 B & C 59 Lord Tenterden thought that the issue that the purchaser intended to pay for the goods was fundamental and he doubted whether even a voidable title would pass to the purchaser when the owner was wilfully deceived nevertheless, in Irving v Motley (1831) 7 Bing 541 Tindall LJ firmly scotched this doctrine. He held, at pp 550–551: ‘It is put very forcibly on the part of the Defendants that it would be very dangerous to lay down the rule, where a person purchases commodities, which at the time, he is conscious he shall be unable to pay for, that though these goods may have afterwards passed through other hands in the fair way of purchase, the original seller shall a right to recover them, whosesoever hands they may be in. I agree with the truth of this proposition; but I think such a transaction will not amount to a case or fraud…’. This case was decided on the basis that a principal cannot benefit from the misconduct of his agent. See also Loud v Green 15 M & W 216; Re Eastgate (1905) 1 KB 465.

163. In some of the English cases difficulties were presented by the question as to what time the contract was concluded because the s 18 ‘rules’ in the Sale of Goods Act 1893 would apply. See Dennant v Skinner [1948] 2 KB 164. Cf Ingram v Little [1961] 1 QB 31 where Pearce LJ held, at p 58, that the contract had not been concluded since the parties were not ad idem vis à vis delivery and payment until the nature of the transaction as a credit sale as distinct from a cash sale had been established.

164. Phillips v Brooks [1919] 2 KB 243; Lewis v Averay [1972] 1 QB 198. Cf Ingram v Little [1961] 1 QB 31.

165. Cundy v Lindray, loc cit n 151. These two lines of authority still have important ramifications in criminal law since in Cundy v Lindsay no property had passed, Blernkarn could be convicted of theft. In contrast, in King's Norton Metal Co Ltd v Mridge (1897) 14 TLR 98, Wallis had a voidable title so no theft charge could prevail. Since the distinction has proved to be very refined there have been many problems where s 15 of the Theft Act 1968, obtaining by deception, has not been applied, and the rogue has been charged with theft under s 1 of the Theft Act 1968, and s 5(4) of the Theft Act 1978. See Williams G, ‘Theft and Voidable Title’ [1981] Crim LR 666; Smith JC, ‘Theft and Voidable Title: A Reply’ [1981] Crim LR 677.

166. 186 Min 236, 243 NW 106 (1932).

167. See Vold, ‘Worthless Check Cash Sales “Substantially Simultaneous” and Conflicting Analysis’ (1949) 1 Hasting LJ 111.

168. Cf Note, ‘The Cash Sale Presumption in Bad Check Cases: Doctrinal and Policy Anomaly’ (1952) 62 Yale LJ 101.

169. Gilmore G (1954) 64 Yale LJ 1061; Warren W D, Cutting Off Claims of Ownership under the UCC (1963) 30 U Chi LR 469.

170. Jillson K F, ‘UCC Section 2–403: A Reform In Need Of Reform’ (1979) 20 W & M LR 513, 535.

171. Art 2–403(1) provides:. (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though. (a) the transferor was deceived as to the identity of the purchaser, or. (b) the delivery was in exchange for a check which is later dishonoured, or. (c) it was agreed that the transaction was to be a “cash sale”, or. (d) the delivery was procured through fraud punishable as larcenous under the criminal law.

172. Gilmore G, ‘Good Faith Purchase’ (1954) 63 Yale LJ 1057.

173. Helstan Securities v Hertfordshire County Council [1978] 3 All ER 262. Cf Benedict v Ratner 268 US 353.

174. (1758) I Burr 452.

175. See below, pp 33–38.

176. Cf Calbresi G and Melamed D, ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ (1972) 85 Harv LR 1089.

177. Cf fraudulent conveyance in bankruptcy.

178. Cf bona fide purchase doctrine.

179. See eg Gordon, ‘The Economic Theory of a Common Property Resource: The Fishery’ (1954) 62 J Pol Econ 124; Sweeney Tollison and Willett, ‘Market Failure, The Common Pool Problem and Ocean Resource Exploitations’ (1974) 17 JIL & Econ 179; Gaffney, ‘Economic Aspects of Water Resource Policy’ (1969) 28 Am J Econ Soc'y 131.

180. Consumer Credit Act 1974 ss 8–20.

181. UCC Art 3–305; 9–206. Cf Kripke H, ‘Chattel Paper as a Negotiable Speciality under the UCC’ (1950) 59 Yale LJ 1209, 1215–1216; Gilmore G (1954) 63 Yale LJ 1057, 1097–1100.

182. Titmus R, The Gift Relationship: From Human Blood to Social Policy (1971).

183. See Davies I R, ‘Fabricated Man: The Dilemma Posed by Artificial Reproductive Techniques’ (1984) 35 NILQ 354.

184. In the USA, Maine, Maryland, Massachusetts, New York, Ohio, Pennsylvania, Rhode Island and Tennessee enacted similar laws. See Gilmore (1981) 15 Ga LR 605, 609.

185. 21 Hen VIII c 11; 7 & 8 Geo IV c 29, s 57; 20 & 21 Vict c 54, s 4. See above, pp 18–19.

186. See 7 & 8 Geo IV c 29, s 57; Larceny Act 1861 s 100. Sale of negotiable instruments was specifically excepted from the Larceny Act 1861. The Sale of Goods Act 1893 s 24(2) restored the old rule. Cf Moss v Hancock [1899] 2 QB 111.

187. Cf William v Burton (1825) 3 Bing 139, 145:. ‘Had I authority to alter the law, as the mode of carrying on commerce has altered, I would say that, when the owner of property conceals himself, whoever can prove a good title under the person whom the concealed owner permits to hold it, should retain that property against the owner - but this is not yet the law of England. Possession is not proof of property’ (per Best CJ). See also Queiroz v Trueman (1824) 3 B & C 342.

188. Blackburn, A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise (1845), pp 189–198.

189. There existed two schools of thought, the first represented by Choke and Littleton LJJ in Anon YB 17 Ed IV f 1, pl 2 and the other represented by Brian CJ in 18 Ed w IV, Hf 21, pl 1. For a discussion on these dimerent approaches see Milsom, ‘The Sale of Goods in the Fifteenth Century’ [1961] LQR 257, 276; Simpson A W B, A History of the Common Law of Contract (1975), p 169.

190. (1821) 17 Mass 110.

191. Benjamin's Treatise on the Law of Sale of Personal Property (3rd ed, 1883), p 332.

192. Smith T B, Property Problem in Sale (1978), p 150.

193. Cf Hatfield v Phillips 9 M & W 647 (Ex Ch 1842) 647, 650:. ‘The legislature has enabled the factor to pledge goods, not when he has the possession only of the goods, because the owner cannot earmark them and so give the pawnee notice that “they are not the property of the factor but where he has a document shewing” the title to the goods, which may be so marked as to shew whose the goods are; therefore, if the owner does so mark the document, the factor cannot pledge; if the owner does not so mark it he holds the factor out to the world as owner, and must take the consequence. But he cannot be justly said to hold the factor out to the world as owner by such document, unless he has intrusted him with the document; and hence the legislature has made such intrusting a necessary circumstance to bring the case within the operation of the statute in question’ (per Lord Denman).

194. 6 M & W 572 (Ex 1840).

195. See Steffan and Danziger, ‘The Rebirth of the Commercial Factor’ (1936) 36 Col LR 745.

196. (1877) 3 CPD 32, 47 LJQB 241.

197. Section 3 of the Factors Act 1877 provided. ‘Where any goods have been sold, and the vendor or any person on his behalf continues or is in possession of the documents of title thereto, any sale, pledge or other disposition of the goods or documents made by such vendor or any person or agent entrusted by the vendor with the goods or documents … shall be as valid and effectual as if such vendor or person were an agent or person entrusted by the vendee with the goods or documents … provided the person to whom the sale, pledge or other disposition is made has no notice that the goods have been previously sold.’.

198. See below.

199. The words in brackets are included in s 8 of the Factor's Act 1889.

200. Rutherford L A and Todd I A, ‘Section 25(1) of The Sale of Goods Act 1893: The Reluctance to Create a Mercantile Agency’ (1979) 38 (2) C LJ 345.

201. Section 2(1) of the Factor's Act 1889 is as follows. ‘Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge or other disposition of the goods, made by him when acting in the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.’.

202. The differences between the two sections were noted by Pearson LJ in Newtons of Wembley Ltd v Williams [1965] 1 QB 560:. ‘Under section 8, the effect of the disposition by the seller is that it shall have “the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.” On the other hand, in section 9, there is a different provision as to the effect of the transaction, because it is to have “the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods, or documents of title with the consent of the owner.” It is also to be observed that almost identical provisions were inserted in section 25 of the Sale of Goods Act 1893. Section 25(1) of the Act of 1893 is almost exactly the same as section 8 of the Act of 1889; section 25(2) of the Act of 1893 is almost identical with section 9 of the Act of 1889; and the same difference in the effect of the transaction is preserved in those two subsections. Thus there cannot be any suggestion that the difference in language is merely per incuriam’.

203. See above, pp 3–5.

204. Cf Nicol A, ‘The Passing of Property in Part of a Bulk’ (1979) 42 MLR 129.

205. Chalmers, The Sale of Goods Including the Factor's Act 1889 (1890).

206. Ibid, p 107.

207. Blackburn, A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise (3rd ed, 1910), p 465.

208. The distinction between the functions of a factor and those of a broker were often blurred eg Cole v North Western Bank (1875) LR 10 CP 354. See Munday R, ‘A Legal History of the Factor’ (1977) 6 Anglo-American LR 221.

209. The Factors Act 1889 can be considered as being ‘curiously named’ since it deals with classes of agent other than the factor and equally included provisions governing disposition by buyers and sellers in possessions. The broad definition of mercantile agent makes it no longer necessary to distinguish between factors and brokers. See Gutteridge (1935) 51 LQR 140.

210. See Gough WJ, Company Charges (1978), p 147.

211. The Factors Act 1889 substituted ‘agent’ for ‘mercantile agent’ which is defined in s 1(1) of the 1889 Act and s 26 of the Sale of Goods Act 1979. In Oppenheimer v Attenborough (1908) 1 KB 221 the question arose whether the agent for sale is authorised to pledge. The court expressed the opinion that the 1889 Act made no difference to the pre-existing law. With respect, this approach cannot be sustained, especially in view of the inclusion of ‘ordinary course of business’. Moreover, the definition of mercantile agent stipulates four kinds of activity and it is obvious that the ordinary course of business of each will be different. Indeed it appears from Hansard that the clause as originally drafted contained the words ‘such a mercantile agent’ which shows what the intention of the draftsman was. See 339 (Official Report), p 230.

212. Green v Wachs 229 App Div 147, 241 NY Supp 341 (1930). Here a large diamond dealer had given some diamonds on memorandum to Vollman who delivered them to dealers upon the same conditions which provided that they were ‘for inspection’ only. The Court of Appeal restrictively construed the US Factor's Act (s 43(1) NY Pers Prop Law) so that possession would only be relevant in so far as it was for the purpose of sale in the Green case the diamond was for the purpose of inspection only.

213. Weiner v Gill [1906] 2 KB 574; Kemper v Bravington (1925) 133 LT 680; Percy Edwards Ltd v Vaughan (1910) 26 TLR 349. See Taylor A S, ‘Goods on Sale or Return and the “Nemo Dat” Rule’ [1985] JBL 390.

214. [1951] I KB 275.

215. Ibid, p 288.

216. A degree of illogicality has entered into English law because the courts, although recognising that a car log book is not a document of title, nevertheless give some special status to it in relation to ‘ordinary course of business of a mercantile agent’. See Stadium Finance Ltd v Robbins [1962] 2 QB 664. Cf Beverley Acceptance Ltd v Oakley [1982] RTR 417.

217. 2 Williston, Sales (1948) s 249.

218. See, for example, Zendman v Harry Winston Inc 305 NY 180, 111 NE 2d 871 (1953).

219. (1787) 2 TR 63. This doctrine has been severely qualified and dissented from; for example, Farquharson Bros v C King and Co [1902] AC 335; London Joint Stock Bank v Mac Millan [1918] AC 777; Wilson and Meeson v Pickering [1946] I KB 422.

220. Vold L, ‘Worthless Check Cash Sales, “Substantially Simultaneous” and Conflicting Analogies’ (1950) 1 Hastings LJ 111.

221. Thus Art 2:403(3) defines entrusting to include ‘any delivery and any acquiescence in retention of possession regardless of any conditions expressed between the parties…’ Furthermore larceny is expressly approved provided the goods have been so entrusted to ‘a merchant who deals in goods of that kind’.

222. The nature of the retailing outlet is important and reflects an underlying policy of the UCC, namely anyone who buys in normal trading channels is entitled to greater protection than one who does not. In some instances the US courts have been reluctant to apply the full rigours of the logic of Art 2:403 which suggests that goods have become negotiable. Thus, in Atlas Auto Rental Corp v Weisberg (4 UCC Rep Serv 572 NY (1967)) Greenfield J interpreted the entrusting provision as meaning that the ‘entruster’ knew that the person to whom he delivered was a dealer. Cf McDonald's Chevrolet Inc v Johnson 376 NE 2d 106 (1978). See Skilton R H, ‘Buyer in Ordinary Course of Business under Article 9 of The Uniform Commercial Code and Related Matters’ [1974] Wis LR 1.

223. Cornish WL (1964) 27 MLR 472; Powles DG (1974) 37 MLR 213; (1975) 38 MLR 83.

224. Newtons of Wembley Ltd v Williams [1965] 1 QB 560, 562.

225. [1965] 1 QB 525.

226. Op cit n 223, at p 477.

227. See above, p 16.

228. Battersby G and Preston A D, ‘The Concepts of “Property”, “Title” and “Owner” used in The Sale of Goods Act 1893’ (1972) 35 MLR 268.

229. Elwin v O'Regan and Maxwell [1971] NZLR 1124; Avco Corp v Borgal and Brandon v Leckie (1973) 29 DLR (3d) 633.

230. See Powles (1974) 37 MLR 213, 217.

231. See, for example, Cornish, op cit n 223.

232. Rutherford and Todd, op cit n 200.

233. 1966, Cmnd 2958. Cf the dissenting report of Lord Donovan.

234. Atiyah P S, The Sale of Goods (7th ed, 1985), p 302.

235. Cf Atiyah P S, ‘Law Reform Committee: Twelfth Report’ (1966) 29 MLR 541, 544.

236. Smith T B, Property Problems in Sale (1978), p 171.

237. Cf Morrison v Robertson (1908) SC 332.

238. No XXXI (1975).

239. Memorandum No 27.

240. Pollock and Maitland, The History of English Law Before the Times of Edward I (1895), p 75. See above.

241. See above, pp 3–5.

242. Cf the literalist approach to s 24 Sale of Goods Act 1979.

243. Martin v World Piano Co [1947] Malayan Union LR 61. See Bergman A, ‘The Duty of the Debtor to Protect the Creditor’ (1962) 11 ICLQ 742.

244. See Vold L (1950) 1 The Hastings LJ 111, 124.

245. Exodus 20:15, 17.

246. [1985] 3 All ER 12.

247. Law Commission Working Paper No 85 (1983), Sale and Supply of Goods.

248. The question of what constitutes a ‘new’ car was discussed in R v Ford Motor Co Ltd [1974] RTR 509, 518. See also Bernstein v Parsons Motors (Golders Green) Ltd (1986) Times, 25 October.

249. [1923] 2 KB 500. Since the defendant had made his own independent financial arrangements, no finance company was involved as under a hire-purchase facility.

250. An alternative argument adopted concerned the commercial dilemma posed by a Romalpa clause. The courts have consistently held that, where a sub-sale is envisaged, then it is possible to be an agent for this purpose but a bailee for another purpose, for example in the original contract of supply. See Davies I R, ‘Reservation of Title Clauses: A Legal Quagmire?’ [1984] LMCLQ 49; [1984] LMCLQ 280.

251. [1949] 1 All ER 215.

252. Op cit n 247.

253. Salmond On Jurisprudence, ed Fitzgerald PJ (1966), p 286.

254. Pollock and Wright, ‘Posseszion in the Common Law’ (1888), pp 25–27.

255. See also Harris DR, Oxford Essays in Jurisprudence, ed Guest A G (1961), pp 69–106.

256. As Earl Jowitt said in USA v Dollfus Mieg [1952] AC 582, 605:. ‘… in truth, the English law has never worked out a completely logical and exhaustive definition of “possession”.’.

257. (1935) 7 Res Judicatae 160.

258. Tay (1964) 4 Melb U LR 490.

259. Guest v Homfray (1801) 5 Ves 818; Hilton v Tucker (1888) 39 Ch D 669; Wrightson v McArthur and Hutchisons (1919) Ltd [1921] 2 KB 807; Official Assignee of Madras v Mercantile Bank of lndia (1934) AC 53. Cf Reeves v Capper and Another (1838) 5 Bing (NC) 136, 132 ER 12, 1057; Martin v Reid (1862) 11 CB (NS) 730, 142 ER 982.

260. This can be demonstrated by the ambiguity over possession under the pre 1882 Bills of Sale Acts which examined the mortgagees right of possession by having regard to such questions as ‘actual’‘apparent’ and ‘formal’ possession.

261. Hart H L A, ‘A Definition and Theory in Jurisprudcnce’ (1954) 70 LQR 37, 41.

262. Cf Simpson A W B, ‘The Analysis of Legal Concepts’ (1964) 80 LQR 535; Anerbach, ‘On Professor HLA Hart's Definition and Theory in Jurisprudence’ 9 JLE 39.

263. See Beverley Acceptances Ltd v Oakley [1982] RTR 417; Archivent Sales and Developments Ltd v Strathclyde Regional Council (1984) 27 Build LR 98 (Ct of Session).

264. The original vendors were treated as the intermediate party's agents for the purposes of the delivery to the sub-purchaser.

265. Brown, The Law of Personal Property (1975) 3rd ed by Raushenbush W B 20. Cf Hutley F C, ‘Some Remarks upon Possession’ (1943) 17 ALJ 145, 147:. ‘The concept or possession in any society is used in the demarcation of claims to property and as a condition of rights and as such in so far as that concept is not archaic, is laid down by judges and administrators in accordance with what they feel are just and reasonable solutions of the conflicts involving it with which they have to deal.’ (Emphasis added.).

266. See above, p 27.

267. The list price of the car on the road including accessories was £7,770.

268. Official Ford Source.

269. Helby v Matthews [1895] AC 471. Cf Lee v Butler [1893] 2 QB 318.

270. See text surrounding n 74–90 above. Cf Llewellyn K, ‘Through Title to contract and a Bit Beyond’ (1937–38) 15 NYULQ 159, 169–175.

271. The difficulties with a doctrine of apportionment are discussed in the Law Reform Cornmmittee's Twelfth Report (1966) Cmnd 2958.

272. See Diamond A L, ‘Security over Property other than Land’, Consultation Paper SS4AAN. The issues raised here will be discussed in an article to appear elsewhere.