Principles of Personal Property (Introduction and Possession)

Examine the doctrines affecting liability of the bailee at will/for term.

3) Common Carriers: Strict liability is the for Common Carriers (transport companies different from bailees) subject to contractual clauses excluding strict liability. 4) Deviation from a prescribed obligation: -Where there is a deviation from a prescribed obligation which is described in a bailment contract, the bailee becomes strictly liable. -(Edwards v Newland & Co)- Bailee held strictly liable when he sub-bailed the goods with authority which was a deviation from the contractually prescribed obligation. -(Gibaud v Great Eastern Rly Co)- Bailee cannot rely on any contractual clause excluding liability where there is a deviation from a prescribed obligation. 5) Wrong 'holding over': -Strict liability also arises where bailee has wrongful 'handed over' the goods meaning bailee fails to comply with handing over the goods when the bailor ask for goods to be returned. -(Mitchell v Ealing LBC): D, a gratuitous bailee, offered to store P's goods but they P's husband lawfully demanded their return a misunderstanding by D meant P did not collect goods. Goods later stolen. -Held that D was strictly liable because it failed to comply with the request to hand the goods over which constituted wrongful 'handing over'. Like with deviation from a prescribed obligations held that any exclusion liability clause and ability to discharge the burden of proof of reasonable care in circumstances is not an effective defence. 6) Liability of involuntary and unconscious bailees -(Robot Arenas v Waterfield): D became an involuntary bailee (party becomes a bailee without intending it) who was also an unconscious bailee meaning that he could not even be sure that anyone claimed ownership of the goods in question. -Held (1) Basic rule is that an involuntary bailee is not entitled to destroy the goods simply because it is an annoyance or inconvenience to store them. Norman Palmer describes the issue of an involuntary bailee as giving rise to a situation which the common law is incapable of adequately dealing with aka giving a statutory solution. (2) But where the bailee is involuntary and unconscious he can escape liability if bailee can establish he was not subjectively aware or should be reasonably objectively aware of the true ownership of the goods. -Rationale is that D is reasonably entitled to conclude that no one was interested in the goods. Unconscious bailee will most likely arise where there is no response to ownership enquires and control to the goods is left open (such as an unlocked hanger in Robot Arenas).

Examine the pragmatic variable interpretation of the concept of possession.

(Re Atlantic Computer Systems Plc)- Computer company had lease then sub-leased computers out to end-users. Company became insolvent and wanted to repossess computers from end-users. Held that despite end-users having physical custody and control that computer company was still in possession. -Decision of practically instead of a legally logical one.

Explain how to make the distinction between a substitutional bailment and a sub-bailment.

(Wincanton v P&O): -Original bailor hired W to deliver its goods to consumers from P&Q's warehouse on pallets hired by P&O. The number of pallets taken by W was recorded and customers who retained the pallets signed a pallet exchange note evidencing receipt. P&O sued W for breach of duty owed as bailee in respect of non-return of pallets. -P&O argued that W was a bailee (with sub bailment to customers) and that W remained a bailee of P&O and was responsible for the recovery of the pallets from the sub-bailee aka customers). -Held to be a substitutional bailment where W was bailee who took pallets for the purposes of delivering the goods but bailment ended on delivery to customers. Reasoning was that neither the receipt acknowledging bailment to P&O or contract provided for any ongoing responsibility on the part of W to recover the pallet once they had been delivery. -(Kamidian v Holt): States the factors that indicate a substitutional bailment: (1) no agreement that original bailee to be responsible for return of goods to bailor on termination of the bailment; (2) assumption by original bailor of responsibility for performance of the task, albeit with a right to delegate; (3) right of original bailor to substantial part of the overall reward for the task; (4) a contract between bailor and secondary bailee.

Examine the law of liability of sub-bailees in a sub-bailment.

-Although doctrine of privity would appear to prevent the bailor pursuing a sub-bailee on the basis of the contract between bailee and the sub-bailee, general ruling by courts is that sub-bailee still owes a duty of care to bailor. -'Collateral bailment' relationship described in (The Pioneer Container) where by assuming possession of goods, a sub-bailee assumes a duty to the bailor of whom he is aware, quite independently of the contract of sub-bailment. -(Morris v Martin & Sons) Held that even though the sub-bailee and head bailor did not have a contractual relationship that the sub-bailee owed the head bailor a duty of care to reasonable take care of the goods because they had voluntarily taken possession of someone else's goods. 2 methods of protecting sub-bailees: (1) Sub-bailment on terms - (The Pioneer Container): Held that where the bailor has authorised a sub-bailment and in particular authorised the terms in question of the sub-bailment, he will be bound by the terms of the contract. Here head bailor was bound by a jurisdiction clause because he had agreed to a sub-bailment "on any terms". -Also thought that the principle will apply to any modification of rights agreed to in the contract of sub-bailment e.g. terms limiting or excluding liability (2) Contract for the benefit of the 3rd party: - Initially law resisted allowing sub-bailees as 3rd parties to take advantage of favourable terms in the contract between head bailor and initial bailee. -But (Scruttons v Midland Silicones) Lord Reid allowed enforcing 'Himalaya clauses' where as contractual construction, the courts might enforce contractual terms whereby the contracting party (the initial bailee) contracted as the agent of the sub-bailee who benefits from the clause. Meaning that initial bailee must have intended for the sub-bailee to also be protected. -Contract (Rights of Third Parties) Act 1999 s. 1(1)-(4) +(6) codifies this by allowing 3rd parties to rely on 'Himalaya clauses'.

Examine the concept and structure of Hire-Purchase Agreements and Chattel Leases.

-Chattel Leases is a contract that allows the bailee to use the goods for a term but without a provision allowing the bailee to obtain legal title. -Hire-Purchase Agreements is also a contract to use the goods for a term as long as instalments are paid but with a provision allowing the bailee to purchase the goods per specific arrangements which will include fulfilling certain conditions. Structure of a HPA (1) A car dealer with reach an arrangement with a consumer who will promise to pay the price of the car plus interest over a period of time. (2) Finance company will pay the car dealer for the car at a slightly discounted rate and takes responsibility for collecting on the consumer's debt of the price of the car plus interest. Finance company gets title to the car and becomes the bailor with the customer (the hirer) being the bailee. (3) Bailee has the right to hold on to the car as long as it meets all the instalment payments under the hire-purchase arrangement. When all the instalments (price of car and interest) have been paid, the bailee has the choice to purchase the car typically through payment of a nominal sum.

Examine the concept of indivisibility of possession.

-Sometimes possession can be shared among co-owners, with each to be regarded as having possession provided they share physical control of the chattel in question. Collectively, the co-owners intend to exclude others from possession. -Other times possession is indivisible (only one party with an interest in property can be said to be possession at any one time). Problem in such situations is that it is not always clear who is in possession where one party apparently cedes possession but retains a lien (right to keep possession of another's property until the debt owed by the party is discharged) that allows them to restrict the other's possession. -(Great Eastern Railway Co v Lord's Trustee), Consumer rented allotment to store coal had no access key to coal. Company had contractual right to sell coal if consumer failed to pay, consumer declared bankrupt without payment made. Company's claim to obtaining possession and a possessory lien (needs possession) allowing priority over bankrupt's estate, held to have possession because had sufficient control over coal to warrant possession which court argued was the company's intended security in the arrangement. -Exception for bailment at will where the bailee and bailor share possession, so that either can bring a case for trespass (Ancona v Rogers)

Examine the 'norm' liability of the Bailee to the Bailor with regards to the Standard of care and Burden of Proof.

1) Standard of Care is the normal standard of liability for damage to bailed assets in the absence of a contractual term. -(Coggs v Bernard) which set different standards according to the degree of fault has been OVERRULED by (Houghland v RR Low (Luxury Coaches) which sets the standard of care as what is reasonable care in the circumstances (ordinary duty in negligence). - Gratuitous bailees have a special rule: divided authority and opinion on either (1) per (The Winson) a lower standard of care is required of gratuitous bailee or (2) per (Port Swettenham Authority v TW Wu applied in Yearworth) same standard applies but the fact that bailment was gratuitous is to be a factor to be taken into account in deciding whether the bailee was negligent on the facts. -The 2nd latter opinion seemed to be dominant. 2) Burden of Proof -(Port Swettenham Authority v TW Wu & Co) The burden is on the bailee to show that loss or damage was not as a result of his negligence. -In Port Swettenham Authority v TW Wu, bailee failed terribly in discharging its burden of poof and was held to be negligent and liable. -Rationale: Bailee being in possession of the goods, is in a better position to explain any facts or evidence that arises with regards to what happened to the goods. Bailor may have very little understanding of what happened to the goods especially in a commercial transaction where the goods maybe moved around.

Identify and explain the two situations where it is significant whether the legal relationship amounts to 'property' aka a proprietary interest.

1) There is legislative provisions that only apply to rights that are designated as proprietary rights. -(Swift v Dairywise Farms) and (Armstrong DLW GMBH v Winnington Network) where the Insolvency Act was being applied but could only apply to proprietary rights. -Yearworth v NHS where only if plaintiff had proprietary rights would he have the legal standing to bring a negligence case. 2) Whether the legal relationship in question enjoys rights normally associated with property -National Provincial Bank v Ainsworth: Claimant claiming for the right to be enforceable against a 3rd party which is only available with property. -Gray comments that in such situations it is actually a policy decision instead of a legal one because the legal issue results in circular thinking. Namely that in deciding whether the property is transmissble and enforceable against 3rd parties you have to ask if it is property, but the very foundations of it being property depends on those two issues, at least partially. -Thus if the issue has not already been decided by the courts, it is better to look at policy considerations whether the situation should be enforceable against 3rd parties and insolvencies.

Examine the concept of Bailment, the 3 types of normal bailment and its requirement for possession.

Bailment is: one party (A) taking possession of other party's property without transfer of ownership with certain obligations imposed on the part A as a result. Types of Bailment 1) Bailment at will: There is no term set on the arrangement and the bailor who has given possession to the bailee is at liberty is demand return of the goods at any time at will. 2) Bailment at term (Arrangement provides that the bailee take possession for a specified term. Bailee has a right to retain possession of the goods for specified term even if the bailor demands that the bailee return the goods. If the Bailor seizes the goods may be liable for trespass to goods, conversion or breach of contract.) 3) Sub-Bailment and substitutional/springing-bailment: -Sub-Bailment is where in addition to a simple bailment (simple bailee-bailor agreement), bailee with permission from bailor bails the goods to other 3rd party (now sub-bailee). -Substitution/springing bailment: Initial bailee drops out of the arrangement so that new possessor (sub-bailee) becomes a direct bailee in a simple bailment relationship with the original bailor. Possession requirement -Bailment requires a transfer of possession as between bailor and bailee -(Ashby v Tolhurst)- Car park attendant allowed car to be stolen when parked in a private car park. Arrangement held not to be a bailment because car park company lacked possession. -Car was not in car park company's possession just because it was on their property. Court though it would be inappropriate for company to have a right to sue thief for trespass to goods. Additional argument that the car being locked on the premises establishes that control remained with car owner not company. Legal source of obligations of bailment is sui generis (unique), set apart from tortious or contractual liability.

Examine the classification of Personal Property into different categories. (Chattels Real and Chattels Personal- Choses in posession)

Chattels Real: Effectively a leasehold interest (Historically just a contractual right with only a personal action remedy right. Today recognised as an estate in land.) Chattels Personal: 1) Choses in possession 2) Choses in action Choses in possession -Tangible moveable items which you physically possess. includes all goods under the SOGA 1979. Rights to a human body: -[Dobson v North Tyneside Health Authority] held that deceased next of kin did not have a property right to husband's brain Human body parts: -[Kelly and Lindsay] held that if work/skill was expended on the body so that it acquired usefulness which distinguishes it from an interred corpse and that person therefore acquires a right to retain possession of it Products of the human body -[Yearworth v North Bristol NHS Trust]: Sperm held to be actionable in a damage to property claim as property in action in negligence or bailment. Held there was a proprietary right in the sperm which the negligence claim was dependent on.

Examine the classification of Personal Property into different categories. (Chattels Personal- Choses in action)

Choses in action -Intangible, cannot be physically possessed or can only be proven through a legal action. 1) Pure intangibles 2) Documentary intangibles Pure intangibles - Well established examples: debts, intellectual property rights etc -Lack of physical manifestation to possess means delivery is not possible and transfer is effected only by assignment and not sale. -Scope is susceptible to expansion to include novel rights. Good example is licences and quotas that confer a right to do something otherwise prohibited. The test is normally that property rights can be assigned or traded. Examples: (Can be assigned) -[Chan Nai Keung v AG for HK]- (Export Quotas) -Re Celtic Extraction (transferable waste management licence) -Armstrong DLW GMBH v Winnington Network (Carbon emission held to be property as it was tradable) Documentary Intangibles -Documents reflecting the transaction that gives rise to the chose in action which embodies the chose itself rather than merely amounting to evidence of its existence is called a documentary intangible. -Examples: 1) Bills of lading: document of carriage of goods by sea. Possession of the bill of lading is taken as constructive possession of the goods themselves instead of just a mere obligation to transfer the goods at some future point. The transfer of the document equally transfers obligations 2) Bills of exchange: document embodying promise to pay stated sum. Transfer of bill effects transfer of benefit of promise to pay. -Transfer is by 'negotiation' which is physical delivery coupled with endorsement if appropriate.

Examine the 4 types of constructive delivery.

Constructive delivery where posession of the chattel is transferred without transferring physical control. 1) Delivery of effective means of securing possession with consent. E.g. Giving a key that gives access to goods on another's premises -(Hilton v Tucker)- Court gave example of giving a key which amounts to transferring full control over the goods. -(Wrightson v McAruther and Hutchinson)-Despite lacking the key to the outer door, courts held that the delivery of the keys to the storage room to C and the licence to come onto the premises amounted to a pledge and delivery of the goods. -Emphasised that the crucial issue was not whether there was symbolic delivery of the goods but that there was real sufficient control of the goods which the keys sufficiently proved. AC: Whether this is constructive or actual possession? Judge claims it is actual possession but argument that as long as the goods are on a 3rd parties land that it is constructive rather than actual possession 2) Symbolic Delivery -(Kemp v Falk)- Held that delivery of part of the salt with assignment could be symbolic delivery of all of salt with the burden of proof being on the party trying to assert the symbolic delivery. 3) Attornment - Where goods are held by a 3rd party, a sale may be effected without the goods leaving the 3rd party's premises if the third party gives notice to buyer tha that the goods are now being held for the buyer not the seller. The acknowledgement is 'attornment'. -(Laurie and Morewood v Dudin & Sons)- 3rd party warehouseman entering sale in his books was not attornment or constructive delivery. -Rationale: Attornment is a type of estoppel where the 3rd party holding the goods is estopped from not delivering the goods if he has already made a representation to the buyer. Hence, there must be notice because without notice given or representation there is nothing that can influence his conduct. 4) Certain Delivery Documents: Some delivery documents are documents of title that when transferred effective constructive delivery and possession of the subject of the underlying contract. Includes: - Transferring bills of lading (Lickbarrow v Mason) as a document of title and thus is taken as constructive possession & delivery of goods by imposing an obligation to deliver goods to the person named in document or lawful holder. -(The Delfini)- Stated bills of lading had two functions (1) symbol of constructive possession of goods (2) Does not directly transfer property of goods but is part of the mechanism by which property is passed.. -Excludes: (1) (Lackington v Atherton) Delivery orders- Where goods are held by a third party, a seller of those goods may issue a delivery order requiring the third party to surrender possession to the buyer. -Rationale:lf the 3rd party holder e.g. warehouse company fails to deliver the goods per the delivery order, it is a contractual matter between the buyer and seller. Only attornment has the effect of constructive delivery and possession (2) Delivery Warrants (Farina v Home)- delivery warrant is generated by a third party holding property and records an undertaking to deliver the property to the seller or to someone else named by the seller. -Delivering delivery warrant to the buyer is not constructive delivery/attornment. Might be evidence of contract of sale but does not affect possession, not a delivery document.

Explain the enforceability of Hire-Purchase Agreements and Chattel leases against 3rd parties.

Debate is over whether HPA and CLs confer a proprietary interest/right to the bailee or merely a contractual right. (1) Merely a contractual rights (Traditional approach) -(Helby v Matthews) Where bailee on a HPA handed piano over to the pawnbroker (using a pledge) who using possessory security was allowed to hold on to the piano and the bailor (owner of the piano) sued for recovery of the piano. -Held that Nemo Dat applies, bailee has no proprietary right in goods and cannot grant title to goods to buyer. -Held that the HPA conferred no proprietary interest until the bailee chooses and does indeed exercise his option to purchaser after satisfying all instalment payments, thus Bailee and pawnbroker did not have a sale arrangement. -This view is favoured by Swadling. (2) Can bind 3rd parties who aquire ownership from bailor -Sometimes the courts suggest that hire purchase and chattel leasing contracts confer some kind of proprietary right on the hirer Scenario 1: HPA/CL will survive Bailor selling goods to 3rd party. -There is clear authority that a chattel lease will survive a sale by a bailor to a 3rd party because one in possession of goods under a hire arrangement is entitled to rely on his possessory rights if sued by a purchaser of the goods. (Rich v Aldred) -(Rich v Aldred): Held that a right to possession was still a property right of some form even if it was not a sale. That if the owner took the goods back prematurely that bailee could sue him. Scenario 2: HPA may survive the actions of a 3rd party given rights/interest by the bailor -(De Mattos v Gibson): Ship-owner entered into voyage charterparty (renting ship and crew for a voyage) and mortgaged (and defaulted) the ship before the charterpaty ended. Held that 3rd party/mortgagee was bound, that where you acquire property with the knowledge of a contract with the previous owner allowing another party to use the goods in a particular way that you are not allowed to use the property in a way that would not have been allowed under that contract. Cannot act in a way that is in conflict with a contract you are aware off. -(Lord Strathcona Steamship): Upheld (De Mattos) where ship was sold explicitly stipulating that buyer was to accept responsibilities under the charter contract but buyer refused to comply.

Examine the meaning of delivery and its importance.

Delivery (per SOGA 1979 s.61(1)) means voluntary transfer of possession from one party to another. Requires consensual agreement. -Normal delivery is where the goods change physical possession and control. -Constructive delivery is also allowed where possesion of the chattel is transferred without transferring physical control.

Examine a Bailor's right to damages in a HPA and Chattel Lease, particularly taking into account the bailee's equitable interest.

General rule: A hire arrangement may prohibit assignment and indicated that the arrangement may be terminated by any such attempted assignment. -(Wickham Holdings v Brooke House Motors): But where instalments have already been paid before such a sale takes place, the damages due to the bailor should take the instalments into account. -Cannot recover for the market value of the asset without regard to any sums paid under the hire arrangement. Lord Denning's problematic rationale: -Viewed the HPA as involving the bailee as having a proprietary interest in the car that grew as the instalments were paid current had an equitable interest. Held that the original conversion remedies approach does not apply where immediately prior to the conversion the bailor has only a limited interest in the goods and the hirer (bailee) has the relative "most valuable interest" in the good. - This conflicts with the [Helby v Matthew]'s strict view that a HPA does not confer a proprietary right. Correct Rationale: -Lord Winn's rationale in Wickham as well is better, stating that the factoring in of the instalments is not the result of the bailee having a proprietary interest but that on the balance of probabilities the finance company would only have expected the 2nd car dealership to pay the outstanding sum. The outstanding amount being the true value of the car to the finance company. -One difficulty with both explanations is that the bailee's rights were automatically terminated in the event of a wrongful sale.

Examine the concept of property.

Gray: "Property is not a thing but a "power relationship" ... existing between a person and a valued resource (whether tangible or intangible". -To claim "property" in a resource is, in effect, to assert a strategically significant degree of control over that resource." When the court is deciding whether there is a proprietary interest in property, will focus on the essential features of property rights: 1) Property right are enforceable against 3rd parties, not just against other parties to the same contract regarding the chattel. -Property rights 'bind the word' 2)Are enforceable in insolvency: Property rights will survive the bankruptcy of the person against whom they are asserted so the chattel can be reclaimed from the trustee in bankruptcy instead of having to line up as an unsecured creditor. 3) Property rights are generally assignable: -National Provincial Bank Ltd v Ainsworth- Held that not being capable of being assignable was enough of a reason for the legal relationship to not be a property right. 4) Confer some degree of control in respect of resources: -Gray thinks that property is not about the consumption of benefits or enjoyment of access but about control over those benefits and over access. 5) Property is characterised as a 'bundle of rights'. Per Honore it is not necessary for all the rights in the bundle to be present for the legal relation to be proprietary. -Honore says that because resources are diverse and can be owned in different ways that not all the features of property are necessary, just need enough of these characteristics for the legal relationship to share a 'family resemblance' to property. -Applied in Yearworth v North Bristol NHS Trust where the court ruled for having a proprietary right based on a right to destroy the sperm, even where there was no legal right to use the sperm.

Examine the concept and law on Loans for consumption and mixing.

Loans for consumption is not a type of bailment. -Bailment contemplates the return of the actual property bailed so where the bailee is authorised to substitute different property the relationship is not a bailment. Examples: (1) Depositing of money: (Foley v Hill) held that because depositing money with the bank results in 'losing' title. As the exact notes and coins are nto returned when you withdraw the money, technically you do not have a right to recover the cash back but instead a personal right to recover an equivalent sum from the bank (2) Mixtures of goods: - (South Australia Insurance v Randell) held that where farmers deposited corn in a common miller for storage with a right to claim an equal quantity of corn. Held to be a sale not bailment because contract failed to reflect any intention to have continuing property rights in the grain. -Same facts ^^(Chapman Bros v Verco Bros) Held that miller was not a bailee and ownership passed to him on delivery (as a buyer or giftee) so his estate on bankruptcy entitled to corn as against farmers. - (Mercer v Craven Grain Storage Co) Distinguishing case where held that farmers were tenants in common and bailors of the mixture where farmers sought to sue for conversion and wrongful retention. Difference was that farmers entered intro agreement to mixed storage but contract clear reflected parties intentions to continuing property rights in the mixture. AC: -Bridge criticises the decision because their Lordships "found a bailment in the deposit of grain on terms calling, not for the return of the very same grain but of an equivalent quantity." However this does not seem to be accurate, (1) terms of the arrangement purported to provide that the farmers retained property rights in the mixture and (2) the law generally allows for rights to be maintained when property is mixed, with the parties whose property is mixed becoming tenants in common of the mixture. (Reflected in SOGA 1995 Amendment Act s.20A regarding sale of goods forming part of a bulk). (3) No reason why the party mixing the goods in question should not become a bailee for the original owner with respect to that owner's share of the mixture if the contract provides for that. Smith criticises the logic of the judgement because such arrangements might allow for the grain store to be completely emptied and then refilled from other depositors, so that farmers could not be said to have contributed anything to the mixture. -Smith however went a step further in still characterising as a bailment the situation of substitution where the farmers' orders were fulfilled from a new mixture of grain when the old mixture ran out. -But the courts disagreed refusing to reconcile substitution with common principles of bailment. Lord Templeman said "the storage society was guilty of conversion if it allowed the mix to be so depleted by withdrawals that the balance remaining was not sufficient to satisfy the demands of the plaintiffs." -Lord Templeman is supported by Dyson LJ in Wincanton who expresses doubt that an arrangement providing for the substitution of assets could be a bailment.

Examine the AC questioning and criticising the (De Mattos- Lord Strathcona Steam) line of authority on constructive trust.

Overall there is a differing of opinion over the legal effect of HPA/CLs: (1) Wider proprietary right approach: -McMeel concludes that De Mattos and Strathcona makes it clear that true chattel leases confer proprietary rights. And that Diplock J in [Port Line v Ben Line Steamers]'s distinction between charter arrangements and mere HPA/CL means that charter arrangements cannot confer possessory rights but that a bare HPA/CL can still confer a proprietary interest. (2) Stricter reading only contract right/ Use of 'constructive trust' logic -McFarlane favours a restrictive reading of De Mattos and Strathcona, whereby a lease binds a purchaser of the asset only because specifically undertook a new contract obligation to respect the HPA/CL and that merely having knowledge of the arrangement would not have been sufficient: Reconciles with the same distinction that was made in regard to contractual licences of land in Ashburn Anstalt. Supported by more recent authorities like (Law Debenture Trust Corpn v Ural Caspian Oil) that at most a HPA/CL on its own will only warrant granting an injunction prohibiting a breach and not a mandatory injunction ordering compliance (3) Alternative tortious interference interpretation: -(Swiss Bank) Brown Wilkinson J's suggestion that following [De Mattos] where 3rd party has actual knowledge of HPA, a Bailee can sue for tortious intereference with contractual relations.

Examine the concept of 'Possession' with reference to its lack of a fixed meaning and the two elements required for an assertion of possession.

Possession is a type of interest in PP which lacks a 'completely logical and exhaustive definition' in English law. (Earl Jowitt). -In Jurisprudence thought of as an abstract legal tool which only has meaning in the context of English property law. Harris says it is a 'functional and relative concept' which is satisfied by different conditions in different context. Two elements are essential to establish possession: 1) Physical Control -Relative concept does not necessarily require complete possession depending on the circumstances. -(Young v Hichens), action in trespass to goods required possession of fish as goods. Argued that a strong probability of complete capture of the fish barring D's interference should be enough to have possession but court disagreed requiring actual possession of having caught the fish because in the circumstances it was indeed possible to have actual possession and actual possession was thus was not too high a bar of physical control. Contrast with very different circumstances in: -(The Tubantia)- Sunken ship found and salvaged by P who worked on salvaging the ship 25 days a year which was all that was possible given the sea conditions. D disrupted P's salvaging (removing C's drive anchors) and sent his own divers to salvage material. -Held that C had done enough to gain possession because (1) had done as much as possible in circumstances to use, occupy and exercise control over the vessel and (2) C's actions were preventing anyone else exercising a similar amount of control over the vessel. -Relative meaning of possession accounts for the fact that 'actual possession' like in Young v Hichens was impossible here. 2) Intention to Exclude Others from possession: -If one has de facto possession but lacks requisite intention to exclude others from possession then legal possession is not present. Not a great deal is expected if one's de facto possession of the object is clear enough. Only likely to be an issue if one's control of the object is rather tenuous. - Intention to exclude is still relative so possession can still occur where the intention to exclude others from possession is not absolute but to a degree. -[Park v British Airways Board]- Bracelet found in BA lounge by customer who returned it to BA on the condition that they would find the owner and if they didn't he wanted the Bracelet back. BA claimed possession, although held that BA had de facto possession as the bracelet was found on their premises BA held to have relatively insufficient intention to exclude others from possession. -Chattel found in area open to the public that BA, suggested BA used signs stating that they intended to enforce possession of any items found in the property or conduct some further checks in the area to show insufficient intention to exclude others from possession. -Note similar position where employees are in physical possession of employer's property but do not have legal possession of the property, instead have custody of the property because they do not have an intention to exclude others from possession.

Examine the Possessory rights in insolvency of a bailor. Examine the right of a Relief from forfeiture of a bailee for a HPA and chattel lease.

Possessory Rights in the event of Insolvency -(Bristol Airport Plc v Powdrill): Held that a specifically enforceable lease arrangement (chattel lease) in equity would give rise to a proprietary interest. Does not explain why. Relief from forfeiture: -HPA and CLs provide for the possibility of repossession of the chattel by the financier in the event of a breach. But courts have developed law on the extent of an equitable jurisdiction to grant relief against forfeiture -Foundational case in land law is Shiloh Spinners Ltd v Harding. -Dillon LJ obiter in (BICC plc v Burndy Corp) suggest that both proprietary and possessory rights being forfeited should have a relief of forfeiture available. HPA - (Transag Haulage (IAR) v Leyland), held that (1) jurisdiction to grant relief only arises in relation to contracts concerning transfer of proprietary or possessory rights (2) Court will grant relief where the primary object of bargain is to secure a particular outcome which can be obtained without forfeiture. (3) Factors to consider when deciding whether to grant relief: conduct of applicant, gravity of breaches, and disparity in value of property forfeited and damage caused by breach Chattel Leases -(On Demand Information v Michael Gerson) Held that jurisdiction from relief from forfeiture was possible where rights were either proprietary or possessory even if purely contractual. -(Celestial Aviation Trading 7 v Paramount Airway): held that leasing of aircraft was a possessory right. AC: Celestial suggests that any contractual right conferring a right to exclusive possession is sufficient to give a court the jurisdiction to provide relief from forfeiture. -Whether the interest is proprietary in the sense of binding third parties is a separate issue that is not relevant in this context. McMeel and Bridge seem to be mistaken in reading On Demand to indicate that chattel leases are proprietary in that latter sense - an error that seems to derive from reading references to the need for the right to be "proprietary or possessory" as if those were synonyms rather than referring to distinct concepts.

Explain the distinction between Realty (real property/Land) and Personalty (Personal property).

Real property is interest in land and personal property is interest/rights in all other assets. Significance of distinction: -Land is subject to the doctrine of tenures and estates so that different estates in land permit fragmentation of right in land. (Can have different interest rights/interest in the same piece of land) -Personal property has no doctrine of estates so that any gift of a chattel for life (a life interest in land) with delivery will pass the absolute ownership of the chattel not a life interest. Because law of PP does not recognise a 'life interest. Remedy rights for a wrongfully dispossessed owner: -Real property: rights can be enforced in a real action allowing the recovery of possession of land. -Personal property: right enforced through personal actions (largely limited to damages). Mode of transfer: -Estates in land transferred by conveyance; personal property transferred by sale or assignment (for intangible PP)