Property, Ownership, Title, Possession

It should be noted that the heart of a sale is the transfer of property--s.2(1)

SGA.

If the situation does not concern the transfer of property, it would not be in
the ambit of sale of goods law/ would not be a contract of sale.

Commercial law makes a distinction between these 4 concepts:

 Property (General property/ Special property)

 Ownership
 Title
 Possession

Property

 Defined in s61 SGA- as general property, but includes special property.

 General Property: The absolute ownership of goods. An owner has general property.
When we say someone owns a good in our daily life, we are referring to the general
property; it essentially means that the ‘someone’ has a general property in the
goods.
 Special Property:

There are 2 views as to the meaning of ‘special property’:

It could simply mean possession of good, as put forward by Michael Furmston.

Or;

It means an interest, a right, a qualified interest in property. (Interest of bailee,

pledgee, charge, lienholder) It is subordinate to the unconditional, absolute, general
property/ ownership.

Property can be described as a bundle of legal consequences (rights). (Atiyah)

--Legal consequences flowing from passing of property, which are essentially rights. The
legal consequences from passing of property are rights, acquired by the buyer.
--What is ‘property’ can be understood by considering the legal consequences (rights) flow
from the passing of property. What rights does one acquire after the property has passed to
him? This is meant as the ‘legal consequences’. (Atiyah)

Legal consequences after passing of property:

1. (Where property passed) Does not obtain possession automatically. Does not have
right of possession.

Hence, it could be evidenced that property & possession could be separated, passes
at different times, and are not the same thing.
Possession could only been passed when the price of goods has been paid, or if the
seller grant the buyer credit. (s28 SGA- makes delivery conditional on payment)

Property, however, could pass independent of payment & delivery as per the
presumptive rules of s18, r1 or where the parties intend property to pass.

(Property & Possession- distinction)

2. (Where property had not pass; remained with seller) But buyer does obtain
possession of the goods --(seller sells to buyer-but reserve the property-only pass
the possession to buyer):-

The buyer may be able to sell to sub-buyer and, as a result the sub-buyer has a
better title than the seller and hence the property passes to the sub-buyer. This is
the effect of s25- Buyer in possession, an exception to the Nemo Dat rule.

Under normal circumstances, one who does not have the right to sell will not be
able to sell the goods to a third party; this is the effect of the Nemo Dat rule. The
one without the right to sell may be sued if he sells the goods, but not the sub-
buyer.

It could be seen from this that the relationship between ‘Property’ and ‘Title’
(appears to be different): One might hold the ‘Property’ of the goods, but the
ultimate buyer (sub-buyer) is the one with the better title. The sub-buyer is without
property, but was held to have better title than the original owner, due to the
exceptions to the Nemo Dat rule.
 Although it appears that the concept ‘Property’ and ‘Title’ are distinct,
however, when the sub-buyer obtained the better title, it was said that he
has the property of the goods as a result.

(Property & Title)

Atiyah has given another example, that because of the strange result of s25(1) –
(Nemo Dat exception), that the buyer (cf seller), although having possession and
property of the goods, could not pass the title of the goods to a Mala Fide
transferee.

---Cannot actually define ‘property’, so look at the after effect (legal consequences) of the
‘passing’ of ‘property’; what does the ‘property’ holder actually has, after acquiring the
‘property’? Just like, if one would like to ask some super star which is ‘famous’ to advertise
for them, but company/ PIC could not actually define ‘famous’, so they will look at, for
example, the number of likes that particular super star has on Instagram.

Title:

The mere fact of having property does not grant one a good title against the whole world.
(As seen above)

It would depend on the circumstances of the case. --(Does the seller has a right to sell? Do
the circumstances fall within the exceptions of Nemo Dat rule?)

It was said by Sealy & Hooley, that the ‘Title’ is the strength of interests of parties. In a
particular goods, both the true owner & sub-buyer may both have an interests in the goods,
but, depending on circumstances, the true owner, or, conversely the sub-buyer may have a
better title against the other, as

Ownership:

Property IS ownership; as seen from CRA 2015. The definition given to ‘ownership’ under
CRA and the definition given to ‘Property’ under SGA is the same. (s4(1) CRA; s61 SGA).
Further, the CRA 2005 invokes ss17-ss19 & s20A & s20B, the regime of passing of property
of the SGA, as its regime for the transfer of property in consumer sales context.