LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 39
Don Lye
Useful as a case study.
Bailment – occurs when one person is in possession of someone else’s goods.
Bailee’s rights against third parties – jus tertii – bailee cannot assert that someone
else has superior right against the bailor to refuse to return the item.
E.g. Devonshire gives mug to a student – ducks out of class for a few minutes – student
discovers that the true owner of the mug was someone else.
Student cannot refuse to return the mug – even though someone else had a better
right to the mug than Devonshire. Student’s own claim is derivative (secondary) to
Three basic scenarios.
(1) Explicit acknowledgment of the jus tertii principle.
When Devonshire gives mug to student, could say explicitly, you are
taking my goods and therefore acknowledge my superior claim – you
must give the goods back when I ask.
(2) Presumption of jus tertii – no need for explicit acknowledgment – principle
applies even if Devonshire is silent on the point.
(3) Can also by conduct or words destroy the presumption that would
otherwise operate in your favour.
Webb v Ireland
– the solicitor’s letter has negated the presumption that applies in their
favour by raising doubt as to the legal ownership of the goods.
The items are of immense historical and monetary value – 5.5m pounds in 1982. State
offers the land owners 50,000 pounds to assign their interest to the Crown – alternative is
a fight in court over ownership.
Non-legal factors – consider the value of the offer vs the value of the hoard.
Likely to be a long lengthy court battle – end only in the appellate courts.
Uncertainty of outcome in litigation.
What are the legal strengths and weaknesses of the owners’ case? Does the land
occupier have a better claim than the finders?
Nature of the site – pasture and bog – owners would not venture there often.
Compare with
Hannah v Peel
– acquired title to house – had ownership, but
not considered to have occupied it.
Once aspect of occupation – involves the ability to prevent unlawful
Can put up ‘no trespass’ signs.
Even if not done so, can argue that they were aware of public
traversing the land, but would not have consented to invasive activity.
An implied limited license rather than an unconditional license.
No suggestion that they had permission to dig for objects or
remove goods from the land – would have become trespassers.
Arguably – they would have become trespassers the moment
they entered with intention to dig on the land.
A strong point for the occupier.
If compare with goods on land – case would have been weaker – would require
manifest intention to control.
Owners accepted the money from the state and assigned to the state any rights
they may or may not have in the goods.
Finlay CJ

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