sales without title

8/7/2019 Sales without title

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Nemo dat quod non habet. No one

can transfer a better title in property

than he himself has.


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Sales without title.


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Two principles are competing at law:

1. the protection of property; and2. the protection of commercial transactions

and in particular the person who takes in goodfaith.


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SGA s. 26 (1) Subject to this Act, if goods aresold by a person who is not the owner of them,and who does not sell them under the authorityor with the consent of the owner, the buyeracquires no better title to the goods than theseller had, unless the owner's conduct

precludes the owner from denying the seller'sauthority to sell.


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29 (1) If goods have been stolen and theoffender is prosecuted to conviction, theproperty in the goods stolen revests in theperson who was the owner of the goods, or thatperson's personal representative, despite anyintermediate dealing with them, whether by salein market overt or otherwise.(2) Despite any enactment to the contrary, ifgoods have been obtained by fraud or otherwrongful means not amounting to theft, theproperty in the goods does not revest in theperson who was the owner of the goods, or thatperson's personal representative, merely

because of the conviction of the offender.


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1. Estoppel.

An estoppel is where a man is concludedby his own act or acceptance to say the

truth. Coke.


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"a principle of justice and equity. It comes tothis: when a man, by his words or conduct, hasled another to believe in a particular state ofaffairs, he will not be allowed to go back on it

when it would be unjust or inequitable for him toso."MoorgateMercantile v Twitchings[1976] 1QB 225, CA at 241 per Lord Denning MR.


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26 (1) Subject to this Act, if goods are sold by aperson who is not the owner of them, and whodoes not sell them under the authority or withthe consent of the owner, the buyer acquires no

better title to the goods than the seller had,unless the owner's conduct precludes theowner from denying the seller's authority to sell.


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2. Sales by mercantile

agent.


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59 (1) If a mercantile agent is, with the consent of the

owner, in possession of goods or of the documents oftitle to goods, any sale, pledge or other disposition of

the goods made by the mercantile agent when acting inthe ordinary course of business of a mercantile agent is,

subject to this Act, as valid as if the mercantile agent

were expressly authorized by the owner of the goods tomake the sale, pledge or other disposition, if the persontaking under the disposition acts in good faith, and hasnot at the time of the disposition notice that the person

making the disposition has not authority to make it.


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(2) If a mercantile agent has, with the consentof the owner, been in possession of goods, or ofthe documents of title to goods, any sale,pledge or other disposition that would havebeen valid if the consent had continued is validdespite the termination of the consent, if theperson taking under the disposition has not atthat time notice that the consent has beenterminated.


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3) If a mercantile agent has obtainedpossession of any documents of title to goodsbecause of being or having been, with theconsent of the owner, in possession of thegoods represented by it, or of any otherdocuments of title to the goods, the agent'spossession of the first mentioned documents is,for the purposes of this Act, deemed to be withthe consent of the owner.


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(4) For the purposes of this Act, theconsent of the owner is presumed unless

there is evidence to the contrary.


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59 (1) If a mercantile agent is, with the consentof the owner, in possession of goods or of the

documents of title to goods, any sale, pledge orother disposition of the goods made by themercantile agent when acting in the ordinarycourse of business of a mercantile agent is,

subject to this Act, as valid as if the mercantileagent were expressly authorized by the ownerof the goods to make the sale, pledge or otherdisposition, if the person taking under the

disposition acts in good faith, and has not at thetime of the disposition notice that the personmaking the disposition has not authority tomake it.


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3.Where you have the sellers

in possession.


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30(1) If a person having sold goods continuesor is in possession of the goods, or of thedocuments of title to the goods, the delivery ortransfer by that person, or by a mercantile agentacting for that person, of the goods ordocuments of title under any sale, pledge orother disposition of them, or under anyagreement for the sale, pledge or otherdisposition of them, to any person receiving thesame in good faith and without notice of theprevious sale has the same effect as if theperson making the delivery or transfer wereexpressly authorized by the owner of the goods

to make the delivery or transfer.


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4. Buyer in possession.


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S. 30 (3) If a person having bought or agreed to buy goods

obtains, with the consent of the seller, possession of the goods

or the documents of title to the goods, the delivery or transfer

by that person, or by a mercantile agent acting for that person,

of the goods or documents of title under any sale, pledge or

other disposition of them, or under any agreement for thesale, pledge or other disposition of them, to any person

receiving the same in good faith and without notice of any

lien or other right of the original sellerin respect of the goods

has the same effect as if the person making the delivery or

transfer were a mercantile agent in possession of the goods ordocuments of title with the consent of the owner.


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5. Sales under voidable title.


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28 When the seller of goods has a voidable titleto them, but the seller's title has not beenavoided at the time of the sale, the buyeracquires a good title to the goods, if they arebought in good faith and without notice of theseller's defect of title.


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6. Market overt.


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27 (1) If goods are sold in market overt,according to the usage of the market, the buyeracquires a good title to the goods, as long asthey are bought in good faith and without noticeof any defect or want of title on the part of theseller.(2) This section does not affect the law relatingto the sale of horses.


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Other exceptions in Canada


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Questions:

1. What is the apparent aim of the legislation

regarding sales without title?

2. What are the policy justifications for the six

exceptions to the basic rule ofnemo dat quod non

habet?

sales without title

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