The Tort of Conversion
1st Edition
Published on 9. November 2009
244 pages
978-1-84731-797-1 (ISBN)
Description
The legal and commercial importance of the tort of Conversion is difficult to overstate, and yet there remains a sense that the principles of the tort are elusive. Most recently, this was illustrated by the difficulties posed for the House of Lords by the Conversion issue in OBG v Allan [2007] UKHL 21, on which it was closely divided.
Conversion, as we now recognise it, has a complex pedigree. Showing little regard for received taxonomies, it has elements which make lawyers think in terms of property, despite its eventful descent from actions in personam. Conversion is, therefore, something of a hybrid creature, which perhaps explains the paucity of scholarly analysis of the subject to date, property lawyers and tort lawyers each regarding it as the other's concern.
This book is the first comprehensive appraisal of the modern tort of Conversion. It offers a coherent and accessible rationalisation of the subject, supported by rigorous analysis of all aspects, from title to sue to the available remedies. The principal thesis of the work is that the development of Conversion has somewhat stagnated, and in consequence the tort has so far been unable to fulfil either its theoretical or its practical potential as a legal device. Whilst this is partly a result of historical factors, it is also a consequence of the fact that no systematic examination of the tort in England appears ever to have been carried out. The primary objectives of the book, therefore, are to provide such an analysis, to present Conversion as a useful and important tort, well suited to the demands of contemporary law and commerce, and to offer a principled framework for its future development.
Conversion, as we now recognise it, has a complex pedigree. Showing little regard for received taxonomies, it has elements which make lawyers think in terms of property, despite its eventful descent from actions in personam. Conversion is, therefore, something of a hybrid creature, which perhaps explains the paucity of scholarly analysis of the subject to date, property lawyers and tort lawyers each regarding it as the other's concern.
This book is the first comprehensive appraisal of the modern tort of Conversion. It offers a coherent and accessible rationalisation of the subject, supported by rigorous analysis of all aspects, from title to sue to the available remedies. The principal thesis of the work is that the development of Conversion has somewhat stagnated, and in consequence the tort has so far been unable to fulfil either its theoretical or its practical potential as a legal device. Whilst this is partly a result of historical factors, it is also a consequence of the fact that no systematic examination of the tort in England appears ever to have been carried out. The primary objectives of the book, therefore, are to provide such an analysis, to present Conversion as a useful and important tort, well suited to the demands of contemporary law and commerce, and to offer a principled framework for its future development.
More details
Edition
1. Auflage
Language
English
Place of publication
London
United Kingdom
Publishing group
Bloomsbury Publishing PLC
Target group
Professional and scholarly
ISBN-13
978-1-84731-797-1 (9781847317971)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
John Randall | Sarah Green
The Tort of Conversion
Book
11/2009
Hart Publishing
€202.50
Shipment within 15-20 days
Persons
Sarah Green is a CUF Lecturer and Fellow and Tutor in Law of St Hilda's College, Oxford.
John Randall MA (Cantab), QC is a Barrister at St Philips Chambers, Birmingham, principally practising in chancery and commercial law. He is a Bencher of Lincoln's Inn, and sits as a Recorder and Deputy High Court Judge. He is a Visiting Fellow at the Faculty of Law of the University of New South Wales in Sydney.
John Randall MA (Cantab), QC is a Barrister at St Philips Chambers, Birmingham, principally practising in chancery and commercial law. He is a Bencher of Lincoln's Inn, and sits as a Recorder and Deputy High Court Judge. He is a Visiting Fellow at the Faculty of Law of the University of New South Wales in Sydney.
Content
1 Introduction
2 The History of Conversion
INTRODUCTION AND CONTEXT
THE MEDIEVAL ANCESTORS OF CONVERSION
Appeal of Robbery or Larceny
Trespass de bonis asportatis
Replevin
Detinue
Detinue sur bailment
The Plea of devenerunt ad manus
Detinue sur trover
The Shortcomings of Detinue sur trover
THE EMERGENCE OF TROVER
1. Possessed of the Goods of his Own Property
2. Loss and 3. Finding
4. Delivery Up Requested but Refused
5. Conversion to Own Use (Causing Loss)
Conclusion
THE HEGEMONY OF TROVER
Trover takes the Ground of Trespass
Trover takes the Ground of Detinue
Residual Categories
Conclusion
THE RECOGNITION OF CONVERSION
CONVERSION IN THE NINETEENTH CENTURY
Statutory Reforms
A New Legal Fiction-the Conversion of Choses in Action
Evidenced by Converted Documents
Affirmation of Strict Liability
The Common Law (Still) Presents Great Difficulties
CONVERSION IN THE TWENTIETH CENTURY
Obscurities Remain
Expansion of the New Legal Fiction
Financing of and Title to Motor Cars
The Report of the Law Reform Committee
Statutory Intervention
CONCLUSIONS
3 What is a Conversion?
NAME
INTERESTS PROTECTED
THE RELATIONSHIP BETWEEN THE WRONGFUL INTERFERENCE TORTS
Trespass
Reversionary Injury
THE IMPORTANCE OF POSSESSION
A Peculiar Notion of Possession?
RELATIONSHIP TO VINDICATIO
THE GIST OF CONVERSION
CONVERSION IN THE CONTEXT OF THE PROPERTY TORTS
Nature of the Interference
Degree and Extent of the Interference
THE REQUISITE CONDUCT OF THE DEFENDANT
Actions of the Defendant: Use and Possession
Intention
Innocent Converters
THE THREE ELEMENTS OF CONVERSION
1. A Claimant who has the Superior Possessory Right
2. A Deprivation of the Claimant's Full Benefit of that Right
3. An Assumption by the Defendant of that Right
AN EXCEPTION TO THESE PRINCIPLES: STATUTORY CONVERSION
4 Title to Sue
THE NATURE OF THE PROBLEM
RELATIVITY OF TITLE
WHY THE COMMON LAW PROTECTS THE POSSESSION OF WRONGDOERS
LEGAL POSSESSION
WHAT IS ACTUAL POSSESSION?
Jus Tertii
WHY ACTUAL POSSESSION CAN BE SUFFICIENT
BAILMENT
FINDERS
THE SIGNIFICANCE OF LEGAL POSSESSION
WHAT AMOUNTS TO A SUFFICIENT PROPRIETARY RIGHT?
EQUITABLE RIGHTS AND CONVERSION
CONCLUSIONS
5 The Subject Matter of Conversion
PROPERTY AND POSSESSION
MEANINGFUL INDICIA OF POSSESSION
Cognitive Indicia
MONEY
PARTS OR PRODUCTS OF THE HUMAN BODY
DIGITIZED PRODUCTS
Manual Indicia
i Excludability and movability
ii Excludability and exclusive access
iii Exhaustibility
Policy Implications
INTANGIBLE PROPERTY
Manual Indicia
i Excludability
ii. Exhaustibility
COPYRIGHT
INFORMATION
Manual Indicia
i. Excludability
ii. Exhaustibility
THE LAW OF THEFT
THE IMPORTANCE OF EFFECTIVE PROTECTION OF PROPERTY INTERESTS
6 Conversion and the Economic Torts
THE NEED TO EXAMINE THEIR RELATIONSHIP
BACKGROUND-THE FRAMEWORK OF TORTIOUS LIABILITY
THE PLACE OF CONTRACTUAL RIGHTS AND OTHER INTANGIBLE PROPERTY
PROPERTY TORTS
Trespass to goods
Conversion
Nuisance
ECONOMIC TORTS
Lumley v Gye-Procuring or Inducing a Breach of Contract
Causing Loss by Unlawful Means
Lawful and Unlawful Means Conspiracies
Conclusion
COMPARISON OF LUMLEY v GYE AND CONVERSION
The Gist of these Torts
The Nature of the Interference Required
The Right to Claim
The Permissible Subject Matter of a Claim
The Mental Element Required
The Remedies Available
CONCLUSIONS
7 Damages and Other Remedies
INTRODUCTION
THE MEASURE OF DAMAGES FOR CONVERSION
(a) The Basic Rule
(b) Time of Valuation
Rising Market Value
Falling Market Value
(c) Absence of a Market
(d) Presumptions as to Value
(e) Special Rules
Assets Severed from Land
Improvements
Title Deeds
Negotiable Instruments, Securities and Like Documents
Other Documents of Some Evidential Status
Claimant with a Limited Interest
(f) Where the Goods are Returned-'Temporary Deprivation'
(g) Consequential Loss
Post-Conversion Increases in Value
User Damages
Costs of Mitigation, and Loss of Business and/or Profits
Miscellaneous
Foreseeability and Remoteness
Causation of Consequential Loss
CAUSATION
EXTINCTION OF TITLE
THE DUTY TO MITIGATE
CONTRIBUTORY NEGLIGENCE
OTHER REMEDIES
(a) Final Orders for Delivery Up: Section 3(1)(a) of the 1977 Act
(b) Alternative Final Orders at the Defendant's Election: Section 3(1)(b)
(c) Interlocutory Orders for Delivery Up: Section 4
(d) Recaption
(e) 'Waiver of Tort'
(f) An Equitable Claim to Converted Assets and their Proceeds of Sale?
CONCLUSIONS
8 Conclusion
2 The History of Conversion
INTRODUCTION AND CONTEXT
THE MEDIEVAL ANCESTORS OF CONVERSION
Appeal of Robbery or Larceny
Trespass de bonis asportatis
Replevin
Detinue
Detinue sur bailment
The Plea of devenerunt ad manus
Detinue sur trover
The Shortcomings of Detinue sur trover
THE EMERGENCE OF TROVER
1. Possessed of the Goods of his Own Property
2. Loss and 3. Finding
4. Delivery Up Requested but Refused
5. Conversion to Own Use (Causing Loss)
Conclusion
THE HEGEMONY OF TROVER
Trover takes the Ground of Trespass
Trover takes the Ground of Detinue
Residual Categories
Conclusion
THE RECOGNITION OF CONVERSION
CONVERSION IN THE NINETEENTH CENTURY
Statutory Reforms
A New Legal Fiction-the Conversion of Choses in Action
Evidenced by Converted Documents
Affirmation of Strict Liability
The Common Law (Still) Presents Great Difficulties
CONVERSION IN THE TWENTIETH CENTURY
Obscurities Remain
Expansion of the New Legal Fiction
Financing of and Title to Motor Cars
The Report of the Law Reform Committee
Statutory Intervention
CONCLUSIONS
3 What is a Conversion?
NAME
INTERESTS PROTECTED
THE RELATIONSHIP BETWEEN THE WRONGFUL INTERFERENCE TORTS
Trespass
Reversionary Injury
THE IMPORTANCE OF POSSESSION
A Peculiar Notion of Possession?
RELATIONSHIP TO VINDICATIO
THE GIST OF CONVERSION
CONVERSION IN THE CONTEXT OF THE PROPERTY TORTS
Nature of the Interference
Degree and Extent of the Interference
THE REQUISITE CONDUCT OF THE DEFENDANT
Actions of the Defendant: Use and Possession
Intention
Innocent Converters
THE THREE ELEMENTS OF CONVERSION
1. A Claimant who has the Superior Possessory Right
2. A Deprivation of the Claimant's Full Benefit of that Right
3. An Assumption by the Defendant of that Right
AN EXCEPTION TO THESE PRINCIPLES: STATUTORY CONVERSION
4 Title to Sue
THE NATURE OF THE PROBLEM
RELATIVITY OF TITLE
WHY THE COMMON LAW PROTECTS THE POSSESSION OF WRONGDOERS
LEGAL POSSESSION
WHAT IS ACTUAL POSSESSION?
Jus Tertii
WHY ACTUAL POSSESSION CAN BE SUFFICIENT
BAILMENT
FINDERS
THE SIGNIFICANCE OF LEGAL POSSESSION
WHAT AMOUNTS TO A SUFFICIENT PROPRIETARY RIGHT?
EQUITABLE RIGHTS AND CONVERSION
CONCLUSIONS
5 The Subject Matter of Conversion
PROPERTY AND POSSESSION
MEANINGFUL INDICIA OF POSSESSION
Cognitive Indicia
MONEY
PARTS OR PRODUCTS OF THE HUMAN BODY
DIGITIZED PRODUCTS
Manual Indicia
i Excludability and movability
ii Excludability and exclusive access
iii Exhaustibility
Policy Implications
INTANGIBLE PROPERTY
Manual Indicia
i Excludability
ii. Exhaustibility
COPYRIGHT
INFORMATION
Manual Indicia
i. Excludability
ii. Exhaustibility
THE LAW OF THEFT
THE IMPORTANCE OF EFFECTIVE PROTECTION OF PROPERTY INTERESTS
6 Conversion and the Economic Torts
THE NEED TO EXAMINE THEIR RELATIONSHIP
BACKGROUND-THE FRAMEWORK OF TORTIOUS LIABILITY
THE PLACE OF CONTRACTUAL RIGHTS AND OTHER INTANGIBLE PROPERTY
PROPERTY TORTS
Trespass to goods
Conversion
Nuisance
ECONOMIC TORTS
Lumley v Gye-Procuring or Inducing a Breach of Contract
Causing Loss by Unlawful Means
Lawful and Unlawful Means Conspiracies
Conclusion
COMPARISON OF LUMLEY v GYE AND CONVERSION
The Gist of these Torts
The Nature of the Interference Required
The Right to Claim
The Permissible Subject Matter of a Claim
The Mental Element Required
The Remedies Available
CONCLUSIONS
7 Damages and Other Remedies
INTRODUCTION
THE MEASURE OF DAMAGES FOR CONVERSION
(a) The Basic Rule
(b) Time of Valuation
Rising Market Value
Falling Market Value
(c) Absence of a Market
(d) Presumptions as to Value
(e) Special Rules
Assets Severed from Land
Improvements
Title Deeds
Negotiable Instruments, Securities and Like Documents
Other Documents of Some Evidential Status
Claimant with a Limited Interest
(f) Where the Goods are Returned-'Temporary Deprivation'
(g) Consequential Loss
Post-Conversion Increases in Value
User Damages
Costs of Mitigation, and Loss of Business and/or Profits
Miscellaneous
Foreseeability and Remoteness
Causation of Consequential Loss
CAUSATION
EXTINCTION OF TITLE
THE DUTY TO MITIGATE
CONTRIBUTORY NEGLIGENCE
OTHER REMEDIES
(a) Final Orders for Delivery Up: Section 3(1)(a) of the 1977 Act
(b) Alternative Final Orders at the Defendant's Election: Section 3(1)(b)
(c) Interlocutory Orders for Delivery Up: Section 4
(d) Recaption
(e) 'Waiver of Tort'
(f) An Equitable Claim to Converted Assets and their Proceeds of Sale?
CONCLUSIONS
8 Conclusion
