Date: Thu, 10 May 2007 21:46

From: Lewis Klar

Subject: Illegal gains

In Canada, technically a wrongful possessor has better rights than someone who wrongfully takes the property from him/her. It is said that "jus tertii" is no defence; ie the fact that a third person has better rights than both of them cannot be raised by the second wrongful dispossessor.

Complicating this however is the defence of illegality or ex turpi causa. A person cannot seek the court's assistance to gain a benefit from an illegal act. Although this has been severely limited in Canadian tort law (e.g. seeking damages for injuries caused by the negligence of another is permissible even if the parties were engaged in wrongdoing at the time), I think that in the example of trying to recover stolen goods or their value by suing a second thief could still get caught by the defence of illegality. The person is seeking to profit from what was a criminal act.

Lewis Klar
Professor of Law
University of Alberta

>>> "Wright, Richard" 5/10/2007 2:25 PM >>>

I believe the general position in the U.S. is that even a thief's property is protected from other thieves. Two well-known old cases are Anderson v. Gouldberg, 53 N.W. 636 (Minn. 1892); Tapscott v. Cobbs, 52 Va. (11 Gratt.) 172 (1854), the latter involving protection of the possessory rights of a wrongful adverse possessor.

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