The Nemo Dat Rule and its Exceptions
Where the goods are not sold with the authority or consent of the seller then the buyer acquires no better title to the goods than the seller dd
Section 21 (1) refers to the first exception to the Nemo dat rule relating to authority and consent - what is the general rule
Sub buyer paid buyer for peaches who become insolvent and did not pay the original seller. Question was which of the sub buyers was entitled to the fruits. Court decided the sub-buyer was entitled because in this case the sellers knew of the sub sale and were anxious to get rid of the goods. Also commented that in Mourdaunt the seller had no reason to doubt the buyer's ability to buy the goods
Relating to consent being the first exception to the nemo dat rule DF Mount Ltd v Jay met a conflicting decision to Mordaunt Bros - related to the sale of tinned peaches and sub buyers
Owners gave a third party documents which enabled him to make a representation to the finance company that he was the true owner of the goods
Relating to estoppel by Representation (exception to the nemo dat rule) What happened in Easter Distributors v Goldring - what was held to be a sufficient representation - documents
Where there is a duty of care between the owner and the buyer
Relating to estoppel by negligence (second exception to nemo dat principle) when does this only arise
Debs v Sibec Developments
Relating to estoppel by representation and the second requirement that it must be voluntary, in which case was being held at gunpoint and force to sign a receipt for a car NOT voluntary? - Debbbbbz
Central Newbury Car Auctions v Unity Finance - they are not a document of title at law and therefore are not representations
Relating to estoppel by representation, are car registration documents valid at law as a representation (if or if not why) and which case says this?
Mercantile Bank of India v Central Bank of India
Relating to estoppel by representation, which case held that documents given to a third party was NOT enough to amount to representation (INDIA) general rule
No
Relating to representations (estoppel exception to nemo dat) although it was found in Eastern Distributors v Goldring, will documents given to a third party normally amount to a representation?
A mercantile agent in the ordinary course of business
Relating to s9 FA buyer in possession, who must the buyer in possession act as
The car was bought in good faith without notice of C's rights, the sale was in a street market. Defendant said that this was not in the ordinary course of business of buying a car so s9 could not apply - HELD: this market was often use to sell cars therefore it was and third party obtained car
Relating to the fifth and sixth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition you must consider Newtons of Wembley v Williams - car - street market - ordinary course of business as if B was a mercantile agent
Claimant sold car to X for a cheque, claimant was not happy X paid with cheque and kept the logbook. Cheque was fake. HELD retention of log book showed an intention for property not to pass until the cheque was paid and therefore the defendant could not obtain good title as the sale had not been in the ordinary course of business of a mercantile agent had the X been one
Relating to the fifth and sixth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition you must consider whether the sale was in the ordinary course of business (as if b was a mercantile agent) - What were the facts of Lambert v G & C Finance - the court assessed for the first time what it means for a mercantile agent to act in the ordinary course of business
Not just someone behaving as mercantile agent but the OWNER must consent to the possession of the docs of title and/or goods
Relating to the fifth and sixth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition you must consider whether the sale was in the ordinary course of business and WITH THE CONSENT OF THE OWNER (as if b was a mercantile agent) what were the facts of National Employers' Mutual general insurance
Yes
Relating to the fifth exception to the SGA under SGA s23 where there is sale by voidable title - does it apply to sales and pledges?
The innocent party must evince their intention to rescind the contract where they cannot contact the rogue by calling police or AA
Relating to the fifth exception to the SGA under SGA s23 where there is sale by voidable title - what was stated in Car & Universal finance v Caldwell
The innocent party must do something to evince to the other party their intention to terminate the contract and prove this with evidence - contacting the police or the AA
Relating to the fifth exception to the SGA under s23 SGA - what must the innocent buyer do where the rogue seller has fraudulently sold them the original owners goods - how can they do this
where seller involved in sale by duress, misrepresentation or possession of goods fraudulently
Relating to the fifth exception to the nemo dat rule under s23 sga where there has been a sale by voidable title - what are example of situations in which title can be avoided
as you have to envision the buyer as if they were a mercantile agent in possession of goods or docs of title
Relating to the fifth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition - and this will have the same effect if the person who made the transfer as a mercantile agent or had consent of owner - why is this called the legal fiction of s9
s2
Relating to the fifth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition - and this will have the same effect if the person who made the transfer as a mercantile agent or had consent of owner what other part of FA should you consider
Whether B1 was acting in the ordinary course of business and in good faith (s 2 (1))
Relating to the fifth requirement of s9 Factors Act that there must have been a sale/ pledge or other disposition - and this will have the same effect if the person who made the transfer as a mercantile agent or had consent of owner what should you consider -
an agreement to sell - Helby v Matthews
Relating to the fifth requirement of the fourth exception to the nemo dat rule being under the Factors act (mercantile agents) being that there must be some sale, pledge or other disposition - what is not sufficient?Which case was this demonstrated (hire purchase agreement of a piano)
No (same as s8 Pacific Motor Auctions v Motor Credits)
For s9 does nature of possession matter?
2 (2)
Relating to the fifth requirement of the fourth exception to the nemo dat rule being under the Factors act (mercantile agents) being that there must be some sale, pledge or other disposition - what section of the factors act states that a pledge is sufficient? 11 times 2 braket
Assent must be evidence that the seller intends to renounce his rights to the goods but it is not enough to demonstrate that a sub contract has been brought to his notice (in this case there was deemed to be no consent)
Relating to the first exception to Nemo Dat which is consent, Mordaunt Bros v British Oil explained what consent is - what was it deemed to be
If the HP is void or voidable and avoided before the disposition s27 will not apply
Relating to the first requirement of the HPA part 3 s27 hire purchase agreement that there must be a hire purchase agreement or conditional sale agreement what was held in Shogun
then it will not be covered by s9
Relating to the first requirement of the seventh exception to nemo dat rule s9 FA that there must be a sale or agreement to sell - although CSA was covered in Lee v Butler WHAT DOES S9 STATE ABOUT CSA WHERE AT LEAST PART OF THE PRICE IS PAYABLE BY INSTALMENTS AND IF IT IS CONSIDERED TO BE A CONSUMER CREDIT AGREEMENT UNDER CCA 1974
hire purchase agreements are NOT covered (Helby v Matthews) Hire AND purchase agreements ARE covered (Lee v Butler)
Relating to the first requirement of the seventh exception to nemo dat rule s9 FA that there must be a sale or agreement to sell - what agreements are covered and which are NOT -> they have similar names so be careful
says it rids the law of an unnecessary complication (before you had to determine whether seller was still in possession as seller or something else)
How does Atiyah support the second requirement to apply the sixth exception of the nemo dat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both that there MUST BE CONTINUOUS PHYSICAL POSSESSION
9
How many requirements are there for the sixth exception to the nemo dat rule that the seller must be in possession of the goods?
Because although he gave possession of car a registration documents to the crook who sold it to the bona fide purchaser, he could still assert title because car registration documents are not legal ones
IF estoppel by conduct is envoked, relating to the reliance by conduct (third requirement of estoppel nemo dat exception) why did the COA say that the owner could still assert his title over the car despite having been careless -> arguably unfair on bona fide purchaser - Central Newbury Car Auctions v Unity Finance
Hire purchase agreements are not covered by s9 as there is no legal obligation to buy the goods at the end
Relating to the first requirement of the seventh exception to nemo dat rule s9 FA that there must be a sale or agreement to sell - what was held in Helby v Matthews? - hire purchase agreement of piano, hire purchaser then sold piano on -
This is covered
Relating to the first requirement of the seventh exception to nemo dat rule s9 FA that there must be a sale or agreement to sell - what was held in Lee v Butler - about an agreement to hire furniture which would automatically belong to buyer on all the instalments being paid - buyer sold the furniture on without having paid for it when the agreement was that the furniture would not be moved from her home
There must be a buyer 1 who has purchased goods but the seller has retained physical possession
Relating to the first requirement to apply the sixth exception of the nemo sat rule s8 FA of a seller being in possession being that a person has sold goods what must there be
A transfer of interest in the goods (does not cover a mere transfer of possession)
Relating to the fourth and fifth requirement of the sixth exception to the nemo dat rule (seller in possession s8 factors act) that there must be a sale, pledge or other disposition. What did the court of appeal say there must be in order to constitute a disposition in Worcester Works Finance v Coden Engineering?
The principle, agent cannot be their employee - there must a commercial agency relationship
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the first requirement that there must be a mercantile agent - who must the mercantile agent be independent from?
Weiner v Harris
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the first requirement that there must be a mercantile agent what case held you can be a mercantile agent for someone in the same profession as you (in this case they were both jewellers)
You can be a mercantile agent if you only act for one single principle
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the first requirement that there must be a mercantile agent what was held in Lowther v Harris
Salesman asked car owner if he could look at the log book of his car. At that moment his wife pretended to faint and fraudster asked car owner to take her to hospital and fraudster sold the car. HELD. it was irrelevant that there had been fraud, the owner of documents had given them over consensually. (HOWEVER in this case the original car owner was successful as goods were construed to be the car and the registration documents and the fraudster did not obtain consensual possession of the car)
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the POSSESSION OF THE AGENT with the CONSENT OF THE OWNER - what happened in Pearson v Rose * Young - how did the car salesman trick the car owner - and what did the court hold?
If the owner gives consent and then withdraws it, consent is only valid if the buyer has notice of it
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner - what is stated in s 2 (2) Factors Act - relates to the consent and withdawal
If the agent has valid consent to hold the goods, he will be deemed to have possession of the documents of title with such consent if he obtains them by virtue of the consent to the goods
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner - what is stated in s 2 (3) - relates to if their is valid consent for the goods, there will also be valid consent o...
The owner
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner - what is stated in s 2 (4) - relates to who the burden pf proof is on to prove that there was no consent to the agent being in consent of goods
The owner must consent to the agent having possession of the goods for a reason which is connected with them being the mercantile agent
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner - what was stated by the court in Astley Industrial Trust v Miller - what must the owner consent to? In this case car manufacturers delivered the car to a hire purchase company on the condition it would be hired and not sold therefore the exception did NOT apply
If furniture is left with a repairer for repair and he happens to be a dealer too, that does not mean he can sell the good too. The fact that owner did not know of the agent's full capacity should not affect him
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner - what was stated by the court in Pearson v Rose & Young - relates to the purpose of the possession in the capacity of the agent
The registration documents were locked in the glove department of the car and the mechanic cut a replacement key to get the documents and sold the car on - held there was no consent
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the fourth requirement that the goods must be in the possession of the mercantile agent with the consent of the owner, what happened in Stadium Finance v Robbins - (docs locked in car)
Beverly Acceptances v Oakley
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the second requirement that the mercantile agent must be in possession of the goods or the documents of title at the time of the sale. In which case did the court say there was no possession as the log book and car had to be held at the same time the bill of sale was executed
Lloyds and Scottish Finance v Williamson
In which case was there held to be an estoppel by representation related to a finance company which allowed the agent to sell the motor car as if he were its real owner - this amounted to a representation and good title was passed on
s 1 (4) Factors Act
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the second requirement that there must be a mercantile agent - what are documents of title defined under - which section (remember car log books are not documents of title at law)
s 1 (3) includes wares and merchandise
Relating to the fourth exception to the nemo dat principle (the factors act 1889 s2 (1) and the third requirement that the sale must be of goods what section are they defined under and what can they include
Forsythe intentional v Silver Shipping Co - seizure of goods does not constitute delivery
Relating to the fourth requirement of s9 FA (7th nemo dat exception) of delivery or transfer - delivery requires a conscious voluntary act by B1 (B2 cannot seize the goods from B1) what case held this - Bruce - colur
the buyer must not know the seller lacks authority to sell the goods
Relating to the last (7th) requirement of the fourth exception to the nemo dat rule where there is a sale by a mercantile agent under the FA that the sale must be in good faith - what does this mean
Sale of car between two friends at a huge undervalue and the seller requested an open cheque (one which has been signed but does not have an amount of money on it) It was held there was a lack of goods faith as it was clear the buyer knew of the seller's lack of authority
Relating to the last (7th) requirement of the fourth exception to the nemo dat rule where there is a sale by a mercantile agent under the FA that the sale must be in good faith - what happened in Heap v Motorists Advisory Agency - how was the car sold and purchased
Jerome v Bentley & Co
Relating to the second exception of estoppel, which case held that merely giving a third party possession of the goods will not act as representation that they are entitled to sell them? - jermain
Where the representation was made by words or conduct
Relating to the second exception to the nemo dat rule that is estoppel by representation, when is there no need to show fraud or intention to deceive?
excludes motor dealers and finance companies
Relating to the second requirement of HPA p3 s27 that the hire purchaser disposes of the car to a private purchaser, what was does s29 HPA define private purchaser to exclude - held in G E capital Bank Ltd v Rushton and Stevenson v Beverley
The fact that the PP knows the vehicle was let on hire purchase doe s not matter if they genuinely thought all the finance had been paid
Relating to the second requirement of HPA p3 s27 that the private purchaser buys the car in good faith and without notice what was held in Barker v Bell
fraudulent consent
Relating to the second requirement of the seventh exception to nemo dat rule s9 FA that the buyer must have obtained consent (relates to consent of possession of docs of title or goods) what kind of consent is sufficient - Pearson v Rose & Young
Worcester Works Finance v Cooden Engineering
Relating to the second requirement to apply the sixth exception of the nemo dat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both - which case confirmed Mitchell v Jones that it does not matter what private agreement is made by the seller and the buyer and whether the seller remains bailee - it is sufficient if he remains in continuous possession of the goods he has sold to purchaser
Seller sold the Horse to the buyer and obtained it back on lease where he then sod it to another buyer, there was held to be NO physical possession due to the fact that there had been a break in ownership due to the horse being given back to the seller - there cannot be a beak in continuity of possessio
Relating to the second requirement to apply the sixth exception of the nemo fat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both - what happened in Mitchell v Jones - Horse - lease
Where the seller still had possession of the goods at the time the sale was executed and where the seller did not have possession of the goods at the time the sale was executed but the goods then came into his possession
Relating to the second requirement to apply the sixth exception of the nemo fat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both what are the two types of possession?
The seller retained physical possession because of a display agreement, this was held to still be physical possession it does not matter what capacity the seller holds possession of the goods
Relating to the second requirement to apply the sixth exception of the nemo fat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both what happened in Pacific Motor Auctions v Motor Credits
As long as the buyer obtains possession of the goods before he sold them onto buyer 2 the exception will apply
Relating to the second requirement to apply the sixth exception of the nemo fat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both what held in Staffs Motor Guarantee v British Wagon?
The capacity in which the seller holds the goods
Relating to the second requirement to apply the sixth exception of the nemo fat rule s8 FA that the seller continues to be in possession of the goods or documents of title or both what is irrelevant?
Section 8 is wider
Relating to the sixth exception to the nemo dat rule that the seller must be in possession of the goods what are the differences between s 8 FA and s24 SGA?
Factors Act
Relating to the sixth exception to the nemo dat rule that the seller must be in possession of the goods what statute must you refer to in the exam?
s8 Factors act and s24 SGA
Relating to the sixth exception to the nemo dat rule that the seller must be in possession of the goods what two sections of statute govern this?
not have any knowledge of the previous sale (any transaction outside the ordinary course of business could be sufficient to put someone on notice)
Relating to the sixth requirement of the 6th exception to the nemo dat rule (buyer in possession s8 Factors act) that the person recieving the goods must be receiving them in good faith or without notice of the previous sale to buyer 1 - what must b2 do?
within business hours, at usual place of business and the sale not being at an undervalue
Relating to the sixth requirement of the fourth exception to the nemo dat principle that the sale possession must be in the ordinary course of business. the ordinary course of business was defined in Oppenheimer v Attenborough & Son - what can this be interpreted as being
The sale of a car without its log book
Relating to the sixth requirement of the fourth exception to the nemo dat principle that the sale possession must be in the ordinary course of business. what held to not be in the ordinary course of business in Stadium Finance v Robbins - sale of car without?
'acting in the ordinary course of business of a mercantile agent'
Relating to the sixth requirement of the fourth exception to the nemo dat principle that the sale possession must be in the ordinary course of business. what was the ordinary course of business defined as being in Oppenheimer v Attenborough & Son -
CCA 1974 (pledge made under a regulated agreement)
Relating to the third exception to the nemo dat principle that a non owner may pass on good title under special powers of sale - what common law powers can incur this?
The road traffic regulation act 1984 meant that good title to a stolen car had been acquired
Relating to the third exception to the nemo dat principle that a non owner may pass on good title under special powers of sale - what happened in bulbruin v romanyszyn - relates to non owner being able to obtain title due to statute
CPR 1998
Relating to the third exception to the nemo dat principle that a non owner may pass on good title under special powers of sale - which statute means a sale by order of court can pass good title
S21 (2) (b)
Relating to the third exception to the nemo dat principle that a non-owner may pass property in the goods on under special powers of sale - which section of the SGA holds this?
1) common law powers (pledge made under a regulated agreedment under CCA 1974) 2) statutory powers (power of law enforcement officers to sell goods seized under a writ of execution - Bulbrin v Romanyszyn - Road traddiv Regulation act meant that good title had bee acquired 3) sale by order of the court (CPR 1998)
Relating to the third exception to the nemo dat principle that a non-owner may pass property in the goods on under special powers of sale - which three powers can be used to apply this rule?
Because K did not act on any of the representations made by F
Relating to the third requirement of estoppel (exception to nemo dat principle) that is there must be reliance on the representation, why did reliance by conduct fail in Farquharson Bros v King?
Plaintiff sold car to garage who then sold it to defendant. Plaintiff delivered it straight to defendant but the garage did not pay Plaintiff when they went into liquidation. HELD property had passed to the D and constructive delivery is sufficient
Relating to the third requirement of the s9 nemo dat exception buyer in possession that the b1 must be in possession of the goods or docs of titles - what were the facts of four point garage v carter - triangle direct through middle
Nicholson v Harper - this is considered to be a bad judgement (HELD As a bad jugement in Gamer's motor centre v Natwest Wholesale)
Relating to the third requirement of the sixth exception to the nemo dat rule under s8 FA where the seller is in possession that there must be a delivery or transfer of the goods or documents of title by the seller or a mercantile agent acting on his behalf to the second buyer - in which case did the merchant keep wine bought by the claimants in his warehouse without delivery note or any evidence the wine had been purchased. seller then sold the wine to the warehousemen. HELD the claimants were entitled to the wine because there was no transfer in possession to the warehousemen (wine kept in warehouse) and is this still considered a good judgement?
Gamer's motor centre v natwest Wholesale
Relating to the third requirement of the sixth exception to the nemo dat rule under s8 FA where the seller is in possession that there must be a delivery or transfer of the goods or documents of title by the seller or a mercantile agent acting on his behalf to the second buyer - in which case was the idea of constructive delivery considered to be enough (physical delivery is not needed)
Related to material which was leased back to the seller but the seller maintained physical possession the whole time - Court of Appeal held that constructive delivery of the goods to the seller sufficed
Relating to the third requirement of the sixth exception to the nemo dat rule under s8 FA where the seller is in possession that there must be a delivery or transfer of the goods or documents of title by the seller or a mercantile agent acting on his behalf to the second buyer - the approach in Gamers was followed in Micheal Gerson v Wilkinson, in what character was there deemed to be possession
mercantile agents
WHO does the fourth exception to the nemo dat principle (factors act s 2 (1)) ONLY APPLY TO
People acting on behalf of a principle
What are mercantile agents?
1) where the person has sold the goods 2) but the person remains in possession of the goods 3) person (can be a mercantile agent) delivers or transfers goods or docs of title 4) Goods can be transferred by sale, pledge or other disposition 5) Goods can be kept 6) person must receive them in good faith without notice of the previous sale
What are the 6 requirements of the sixth exception to the nemo dat rule that the seller must have been in possession of the goods s8 FA 1. sale. 2. continues. poss of. 3. \ delivery of 4. what kind of contract 5. what other kind of agreement can mean the seller can keep them 6. person must receive them in
The plaintiff stored his tapestries in the house of the defendant who sold it on for a cheaper price. Held: the plaintiff was able to recover the price of the goods due to the fact that he was not authorised to sell on the goods for the lower price
What are the facts of Lowther v Harris - relates to the fact you can be a mercantile agent even if you have one single principle
A purchased a car from the plaintiff who did all he could to rescind the contract when he found out the cheque was dishonoured. A then sold the car on a street market in London in good faith to the defendant. HELD - although the plaintiff had done all he could to rescind the contract good title had been passed on from A to the plaintiff due to the fact that the ale had taken place in the ordinary course of business of a mercantile agent.
What are the facts of Newtons of Wembly v Williams, relates to where a sale between the buyer in possession can pass on good title if they behave as a mercantile agent
1) where the seller of goods has a voidable title to them 2) but the title has not been avoided at the time of the sale 3) the buyer acquires a good title to the goods 4) provided he buys in good faith and without notice of the seller's defect of title
What are the four requirements of the Sale by voidable title (s23) fifth exception to the nemo dat rule to apply?
1. where A steals goods and passes them to B who provides value in good faith 2. Where A sells goods to B but retains possession and then sells them to another B 3. Where A passes his goods to B to seek offers for sale and B sells them without A's authority and keeps the proceeds 4. where A buys goods on credit and pledges them to B with no intention of paying for them
What are the four typical situations in which the nemo dat rule will apply? 1. stealing 2. possession 3. pass 4. credit
1) there must be a mercantile agent 2) the agent must be in possession of the goods or docs of title at time of sale 3) the sale must be of goods 4) the good must be in the possession of the mercantile agent with the consent of the owner 5) there must a sale, pledge or other disposition 6) must be in the ordinary course of business 7) the sale must be in good faith
What are the seven stages of the application of the factors act s 2 (1) -> the fourth exception to the nemo dat principle 1) who must there be? 2) who must be in possession of what? 3) what must the sale be of? 4) who must consent to possession by mercantile agent 5) what kind of contract must there be 6) what course 7) faith?
1) where a person having agreed to buy or has bought goods 2) Obtains with the consent of the seller 3) the possession of the goods or documents of titles 4) transfers or delivers those goods or titles (or has a mercantile agent do it for them) 5) under any sale or agreement to sell 6) transfers them to any person recieving them in good faith
What are the six requirements of FA s9 1. agree or K 2. obtains with 3. possession 4. delivery 5. under sale or 6. to other person in
1) where there is a hire purchase agreement or conditional sale agreement 2) the hire purchaser makes a disposition with a private purchaser (PP must be in good faith without notice of the hire purchase agreement) 3. only applies to motor vehicles under hire purchase or condition sale agremeents
What are the three requirements of p3 of the HPA 1964 to apply to Hire purchase agreements 1. type of agreement 2. disposition between 3. applies to
Estoppel by negligence and estoppel by representation
What are the two types of estoppel? exception to the nemo dat rule?
A seller who has remained in possession of the goods to pass on good title to the second seller
What can s8 FA (6th exception to the nemo dat rule) apply to
the distinction between void and voidable title
What did the Law Commissions 12th report recommend should be abolished?
a single more coherent principle as is the case in the USA
What do some argue the exceptions to the nemo dat rule should be replaced with?
Where a party who has a voidable title to the goods has sold them to a third party, that third party will obtain good title so long as the original contract was not avoided
What does s23 (fifth exception to the nemo dat rule provide)
The legal fiction of s9 which olds that the buyer in possession can pass on good title if they behave as a mercantile agent
What does the Law Commissions 12th report recommend should be abolished - the legal fiction
That they are over complicated and confused
What is Atiyah's criticism of the exceptions to the nemo dat rule?
This is where the owner or the goods acts as the seller is entitled to sell the goods, as a consequence the owner is estoppel from denying this (buyer then becomes owner of the goods at the expense of the original owner)
What is estoppel (second exception to the nemo dat rule)
Where the owner by words or conduct represents to the buyer that they are the true owner
What is estoppel by representation? - second exception to nemo dat rule?
s 8 applies to seller in possession after sale and s 9 applies to buyer in possession after sale
What is the difference between s 8 and s 9 Factors act - what different scenarios do they apply to?
Hire Purchase s27 Hire Purchase Act 1964
What is the eighth exception to the Nemo Dat rule?
Where there is a sale by voidable title
What is the fifth exception to the Nemo Dat Rule? Governed by SGA - what kind of sale does it apply to?
Authority/consent
What is the first exception to nemo dat
The factors Act 1889 s 2 (1)
What is the fourth exception to the nemo dat principle?
You cannot transfer title to something if you yourself do not have good title to it
What is the general principle of Nemo Dat Quod Non Habet?
Buyer 1 can pass on good title to buyer 2 even where they do not have good title
What is the outcome of successful application of s9 (7th exception to nemo dat rule)
The person transferring the goods passes on good title as if they were expressly authorised to pass the goods on by the real owner
What is the result of Section 8 FA - 6th exception to the nemo dat rule - if it can be applied successfuly
A bona fide purchaser of a vehicle in which the seller holds it through a hire purchase agreement will obtain good title
What is the result of part 3 HPA 1964? (remember only applies to the purchase of motor vehicles)
Estoppel
What is the second exception to the nemo dat rule? - s 21 (1)
Section 21
What is the statutory footing of the Nemo Dat rule in the SGA?
That a non owner may pass good title in the goods under special powers of sale
What is the third exception to the nemo dat principle?
Where the seller has sold goods to buyer 1 but has kept them, then sold them onto buyer 2 who now has physical control over them
What kind of scenario would s8 factors act (sixth exception to nemo dat rule normally apply to)
s23
What section of the SGA governs the fifth exception to the nemo dat rule that where there is a sale by voidable title
s9 Factors Act
What statute does the seventh exception to the nemo dat rule that buyer is in possession after sale come under?
Face to face contracts will have voidable title whereas written contracts with forged signatures will be held void
What was stated in Shogun Finance Ltd v Hudson relating to what kind of contracts the fifth exception to the nemo dat rule will apply to (sale by voidable title) - face to face and written
Fraudster purchased car off Caldwell and paid a fake cheque and disappeared. Caldwell did all he could do locate car, contacted police and AA. question for the court was whether this communication was enough to avoid the contract. HELD: it was
What were the facts of Car & Universal Finance v Caldwell? - relates to the fifth exception to the nemo dat rule under SGA s23
A rouge bought jewellery under a fake name with a fake cheque and then pawed it. Question as to who was entitled to the jewel. HELD: the innocent third party as there was no evidence the jewellers would not have sold the jewels to the rogue under his real identity. You contract with who is in front of you not who they claim to be.
What were the facts of Phillips v Brookes - relates to the fifth exception to the nemo dat rule under SGA s23
void and voidable title - there can be no transfer where the original contract and title those goods was void
When applying s23 (fifth exception to nemo dat principle) sale with voidable title - what must you distinguish between - one will not work
1. protection of property - nobody can give better title than they possess 2. protection of commercial transactions - the person who takes in good faith for value should receive value
Which two principles did Lord Denning outline in Bishopsgate Motor Finance Corporation v Transport Breaks, relating to the justification of nemo dat and what it is for? Protection -
They state that the innocent purchaser should have to be contacted in order for the contract to be rescinded and that the defrauded seller should not be able to rescind the contract through actions
Why does the Law Comission's 12 report recommend the reversal of the decision in Caldwell?