Effects of mistake and other defects on the passage of legal title / Samuel Zogg.

Format:

Book

Author/Creator:

Zogg, Samuel, author.

Language:

English

Subjects (All):

Personal property--Great Britain.

Personal property.

Transfer (Law).

Great Britain.

Transfer (Law)--Great Britain.

Physical Description:

1 online resource (xxvi, 198 pages) : digital, PDF file(s)

Place of Publication:

Cambridge : Intersentia, 2019.

System Details:

text file

PDF

Summary:

This book analyses the mechanics of how legal ownership in tangible movable property is transferred from one person to another and whether certain kinds of defects, particularly mistakes, may prevent its passage. Though this area of the law may well be regarded as a core area of English private law, it has not yet received much attention in academic literature. It is argued that English law, on its best interpretation, and contrary to the traditionally accepted approach, adopts a principle of separation (id est that the underlying contract or other transaction is notionally distinct from the conveyance of title) and abstraction (id est that the conveyance of title is not dependent on the validity of the underlying contract or other transaction). This applies for transfers by delivery, transfers by sale and transfers by deed. Further, it is very rare for mistakes to prevent the passage of ownership. In fact, title passes unless the transferor's intention to transfer property is virtually absent altogether. For this purpose, an analogy is drawn with the distinctions made in Shogun Finance Ltd v Hudson. DR SAMUEL ZOGG is a senior lecturer at the University of Zurich, Switzerland, an attorney at law and law clerk at the Zurich Court of Appeal (civil law chamber).

Contents:

Chapter 1 An Introduction to Defective Transfers of Property p. 1

1 Three Distinct Levels where a Defect Might Operate: Property, Contract and Unjust Factors p. 1

1.1 Interrelation between the Three Levels p. 4

1.2 Mistake as an Example p. 5

2 Contractual and Non-Contractual Transfers of Property p. 6

2.1 Contractual Transfers of Property p. 7

2.1.1 Valid Contracts: "Curing Effects" p. 7

2.1.1.1 Unjust Factor Regime: Contract as a Justifying Factor p. 7

2.1.1.2 If a Defect Cannot Affect a Contract, it Can Neither Affect the Passage of Property p. 10

2.1.2 Terminated (Discharged) Contracts p. 10

2.1.3 Unenforceable and Voidable Contracts p. 11

2.2 Non-Contractual Transfers of Property p. 12

2.2.1 Gifts p. 12

2.2.2 Transfers without (Any) Basis p. 13

2.2.3 Void Contracts p. 14

3 Defects in the Formation Stage and Defects in the Execution Stage p. 15

Chapter 2 Transfer of Legal Ownership in Tangible Movable Property p. 19

1 Transfer of Legal Title by Delivery p. 23

1.1 Voluntary Transfer of Possession p. 23

1.2 Intention of the Transferor to Transfer Ownership p. 25

1.3 Intention of the Transferee to Receive Ownership p. 26

1.4 The Principles of Separation and Abstraction in Transfers by Delivery p. 27

2 Transfer of Legal Title by Sale p. 30

2.1 The Requirement of Specific or Ascertained Goods p. 30

2.2 Intention of the Parties to Transfer Ownership: Contractual Intention or Principle of Separation? p. 31

2.3 Transfer by Sale: Principle of Causality or Abstraction? p. 37

2.3.1 Cases where the Relevant Contract was Void and where Property had Not Passed: The Doctrine of Dual Defects p. 38

2.3.2 Cases where the Contract was Void but where Property did Pass: Abstraction as the Best Explanation p. 40

2.3.3 Arguments in Favour of Abstraction Derived from the Law of Rescission p. 48

2.3.4 History and Coherence p. 52

3 Scope of the Transfer by Sale and the Transfer by Delivery p. 54

3.1 Transfer of Goods for Non-Money Consideration p. 55

3.2 Transfer of Goods for No Consideration p. 59

3.2.2 Transfers Carried Out Under Void Contracts: Delivery Required? p. 60

3.2.2.1 Sale of Goods Act 1979 May Apply to Void Contracts of Sale p. 60

3.2.2.2 Consideration in Transfers Made Under Void Contracts? p. 61

4 Transfer of Legal Title by Deed p. 73

4.2 Scope of Transfers by Deed p. 75

4.3 Requirements to Effect a Transfer by Deed p. 76

4.3.1 Drawing Up and Delivery of a Deed p. 76

4.3.2 Conveyance: Real Agreement p. 77

4.4 Principle of Separation: Deed May Contain an Obligation and/or a Conveyance p. 78

4.5 Abstraction or Causality? p. 79

5 Transfer of Legal Title by Registration (A Brief Overview) p. 83

5.1 Transfer of Registered Legal Estates in Land: "Super-Abstract" Transfer p. 83

5.2 Registration Requirements in Transfers of Personal Property: Shares and British Ships p. 85

Chapter 3 Defects which Prevent the Passage of Legal Ownership p. 87

1 Complete Absence of Intention: Theft, Loss and Misappropriation p. 89

2 Lack of Authority p. 90

3 Fundamental Duress p. 93

Chapter 4 Fundamental Mistake in Particular p. 97

1 Mistakes which Render Contracts Void p. 98

1.1 Mistakes which Negative Consent p. 98

1.2 Mistakes which Nullify Consent (Common Mistakes) p. 100

2 Mistakes which Prevent the Passage of Legal Ownership p. 101

2.1 Motivational Mistakes (Particularly Liability Mistakes) p. 103

2.1.1 Property Not Prevented from Passing p. 103

2.1.2 Transfers of Property Under Contracts which are Void for Common Mistakes p. 108

2.2 Mistakes as to the Transferee's Identity p. 110

2.2.1 Contract: Void or Voidable? p. 111

2.2.1.1 Cases Prior to Shogun Finance p. 112

2.2.1.2 The Shogun Finance Case p. 115

2.2.1.3 Conclusions and Scope of the Face-to-Face Principle p. 120

2.2.2 Proprietary Transfer: Void or Voidable? p. 123

2.2.2.1 Parallel between the Contractual and the Proprietary Position: Identity Mistakes as Dual Defects p. 123

2.2.2.2 Dealings at a Distance: Identification by Description (or Otherwise than by Sight) p. 125

2.2.2.3 Face-to-Face Dealings: Identification by Sight p. 128

2.3 Mistakes as to the Transferred Property's Identity p. 135

2.3.1 Contractual Level p. 135

2.3.1.1 Five Ways How a Mistake as to the Contract Goods Maybe Relevant p. 135

2.3.1.2 Identification of the Contract Goods p. 137

2.3.2 Proprietary Level p. 147

2.3.2.1 The Contract Analogy p. 147

2.3.2.2 Identification by Description (at a Distance) p. 148

2.3.2.3 Identification by Sight p. 149

2.3.2.4 Identification by Touching p. 152

2.3.2.5 Chattels Contained within Other Chattels p. 155

2.4 Mistakes as to the Transferred Property's Quantity p. 157

2.4.1 Contractual Level p. 158

2.4.1.1 Sale of Generic, Quasi-Specific or Specific Goods? p. 158

2.4.1.2 Appropriation and the Problem of s 30 of the SGA 1979 p. 160

2.4.2 Proprietary Level p. 162

2.4.2.1 Lack of Clear Authority p. 163

2.4.2.2 The Problem of Identification and Mixture: Co-Ownership Rights and the Rules of Following p. 168

2.4.2.3 The Difficult Distinction between Genuine Quantity Mistakes and Mere Motivational Mistakes p. 171

2.4.2.4 The Difficult Distinction between Genuine Quantity Mistakes and Mistakes as to the Transferred Property's Identity or Quality p. 176

2.5 Mistakes as to the Nature of the Underlying Transaction: Fundamental if Relating to the Legal Interest to be Transferred p. 178.

Notes:

Title from publisher's bibliographic system (viewed on 08 Nov 2019).

Other Format:

Print version:

ISBN:

9781780689333

Access Restriction:

Restricted for use by site license.