Property Law
Essay Preview: Property Law
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Problems with title
Applies equally to heritable and movable property.
Distinct situations, defective because transferor was not the owner or not authorized by the owner (nemo dat)
Fraud or bad faith of transferee in issue (more complex), Eg. cheques, where transferee knows someone else already bought the property etc.
Distinguish owner/non-owner transferor case
Defect of transferors title:
No transmission of right deriving from purported transfer by a non-owner. Get possession (maybe good faith), but no ownership.
A void title is not a defective title but no title at all; A lends book to B who then sells it to C. C has good faith possession, not ownership. Cs possessory right position is best distinguished from a situation of defective title.
Note cases in which implied or inferred consent or authorization may be in issue; the question in these cases is whether title has passed.
Common law personal bar; provioso to s 21 of SGA; also ss24 and 25 (situations of good faith acquisition by subsequent transferee trumping because circumstances attributable to owner justify this)
Fraud or bad faith of transferee:
I) Fraud
Morrisson, (owner of cattle thought they were dealing with another farmer, purported to be an agent of them, therefore no transmission & void)
Shogun (appeared to be the person on the drivers license when buying a vehicle, hire purchase legislation debate, held not a contract because dealer intended to contract with the person on the ID) transferee pretending to be someone else.
Look at transferors intentions to see if there is a transfer of property
MacLeod – 3rd party transmission
II) Bad Faith
Focus on double sales; note offside goals label of Scots law (see Reid, Property paras 695-700)
The subsequent purchaser who is aware of the first contract amounts to offside goal, defective outcome, double sale knowledge critical.
Rodger