The approach taken in this decision does seem a somewhat unnecessary inroad into the strict nature of conversion.  It would be odd to have a fault based version of the tort, when the application of contributory negligence has been ousted.  Surely also as a tort of strict liability, the intention of the defendant is irrelevant?  The result is however eminently sensible.

Perhaps the better approach would be to say that the fault (or not) of the defendant is irrelevant, what is relevant is the claimant’s right to bring the action founded on possession or immediate right to possess, and that the claimant is estopped by their conduct from asserting possession and/or an immediate right to possess against this particular defendant?  

___________________________

Phillip Morgan
Lecturer in Contract and Tort Law
School of Law
University of Southampton
Highfield
Southampton SO17 1BJ
Phillip.Morgan@soton.ac.uk

http://www.law.soton.ac.uk/
http://www.soton.ac.uk/law/staff/academicstaff/morgan_phillip.html

 


-----Original Message-----
From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
Sent: 24 February 2010 12:18
To: Robert Stevens
Cc: William Swadling; obligations@uwo.ca
Subject: Re: Conversion with a human face

On 24/02/2010 11:51, Robert Stevens wrote:
> Ignoring abandonment, I wonder if this decision is right.
>
> The earlier case relied upon is AVX Limited v. EGM Solders Limited. There
> C rejected a consignment of red widgets supplied by D which were to be
> redelivered. Unfortunately a mistake was made so that not only the boxes
> of red widgets but also boxes of valuable green widgets were sent back. D,
> not realising that the contents of the boxes were anything other than the
> rejected red widgets, scrapped the lot.
>
> In such a situation there is no conversion because the relevant intention
> cannot be shown. D didn't intend to do anything with respect to the
> destroyed green widgets, they never knew they existed.
>
> Robot Arenas is not the same because the defendants did intend to scrap
> the tv show set. Reasonably, but mistakenly, detroying someone else's
> goods is a tort. If I smash up your car, reasonably but mistakenly
> thinking it is mine, I am a tortfeasor.
>
> I would have thought that the proper analysis should have been that the
> defendant should have been liable, but that the analysis should not stop
> there. The seller of the premises was (presumably) contractually
> undertaking that they had title to sell anything left on the premises, in
> which case the defendant has a claim over against the seller for the
> liability incurred in destroying something they thought they had bought.
> If the sellers were (unusually?) not undertaking that they had the right
> to sell what was left on the premises, the defendant's correct course of
> action should have been to insist that the sellers remove the set from the
> hangar, rather than simply choosing to destroy someone else's goods.
>
> I always rather liked Robot Wars on telly.
>  Rob
>
>   
>> On 23/02/2010 15:38, William Swadling wrote:
>>     
>>>  Andrew,
>>>
>>> This is fascinating.  I don't suppose you have a copy of the judgment?
>>>
>>>  Best,
>>>
>>> Bill
>>>
>>>  -----Original Message-----
>>> From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
>>>  Sent: Tuesday, February 23, 2010 3:35 PM
>>> To: obligations@uwo.ca
>>> Subject: Conversion with a human face
>>>
>>> A very ordinary situation lay behind a decision of Colin Edelman QC in
>>> the QBD on 8 February this year. You buy a commercial building (here an
>>> old RAF station) and find it's full of stuff (actually an old film-set)
>>> when you take over. Are you liable in conversion if you then trash the
>>> stuff, assuming -- wrongly -- that no-one cares about it?
>>>
>>> This is a difficult one. The fact that you're an involuntary bailee
>>> won't help: the fact that you don't have positively to look after goods
>>> thrust on you doesn't allow you deliberately to destroy them.
>>> Nevertheless Edelman manages to say you may escape even here, by
>>> confirming yet another hole in strict liability in conversion. A person
>>> in involuntary   possession of goods who reasonably believes (having in a
>>>  suitable case made enquiries) that he's entitled to deal with them, e.g.
>>> because they've been abandoned, is protected from liability. In the
>>> event the defendant escaped on this ground.
>>>
>>> There's also a helpful suggestion (yet again) that abandonment of goods
>>> is possible in English law, and if shown destroys title in the same way
>>> as derelictio did in Rome.
>>>
>>>
>>> All the best
>>>
>>>  Andrew
>>>
>>>
>>>       
>>  On Bailii (sorry: I ought to have given the case name. It's Robot Arenas
>> Ltd&  Anor v Waterf1eld&  Anor [2010] EWHC 115 (QB)).
>>
>> Best
>>
>>  A
>>
>> --
>> Andrew M Tettenborn
>> Bracton Professor of Law, University of Exeter
>>
>>
>>
>>  Snailmail:
>>
>> Law School
>> University of Exeter
>> Rennes Drive
>> Exeter EX4 4RJ
>>  England
>>
>>
>> Phone:
>>
>>  Tel:              01392-263189 (int +44-1392-263189)
>>  Fax:              01392-263196 (int +44-1392-263196)
>>  Cellphone:       07870-130528 (int +44-7870-130528)
>>
>>
>>
>> LAWYER, n.
>> One skilled in circumvention of the law. (Ambrose Bierce, 1906).
>>
>>
>>
>>     
>
>   
Doesn't this argument run into a few difficulties? If I sell a building,
the normal inference is that I'm selling real estate, not chattels. And
if I'm not selling chattels at all, it's a bit odd that I should be
regarded as guaranteeing title to chattels that may be there.

There's also a practical point. It's all very well giving the buyer a
claim over against his seller. But the seller is likely to be pretty
uninterested in stirring his stumps -- after all, he's just got shot of,
and been paid for, a piece of realty he didn't want. Must we really say
that buyers have to hold onto apparent junk pending its removal by a
seller who isn't interested, or risk liability to the owner and then the
prospect of pursuing the same uninterested seller for an indemnity?

On reflection I rather like the immunity in the Robot Arena case. But if
you don't, it seems to me the obvious answer is an extension of the
right of disposal under the 1977 Act, to cover those coming into
occupation of land.


Andrew

--
Andrew M Tettenborn
Bracton Professor of Law, University of Exeter



Snailmail:

Law School
University of Exeter
Rennes Drive
Exeter EX4 4RJ
England


Phone:

Tel:              01392-263189 (int +44-1392-263189)
Fax:              01392-263196 (int +44-1392-263196)
Cellphone:       07870-130528 (int +44-7870-130528)



LAWYER, n.
One skilled in circumvention of the law. (Ambrose Bierce, 1906).