Property Law

Problems with title

* Applies equally to heritable and movable property.

* Distinct situations, defective because transferor was not the owner or not authorized by the owner (nemo dat)

* Fraud or bad faith of transferee in issue (more complex), Eg. cheques, where transferee knows someone else already bought the property etc.

* Distinguish owner/non-owner transferor case

Defect of transferor's title:

* No transmission of right deriving from purported transfer by a non-owner. Get possession (maybe good faith), but no ownership.

* A void title is not a defective title but no title at all; A lends book to B who then sells it to C. C has good faith possession, not ownership. C's possessory right position is best distinguished from a situation of defective title.

* Note cases in which implied or inferred consent or authorization may be in issue; the question in these cases is whether title has passed.

* Common law personal bar; provioso to s 21 of SGA; also ss24 and 25 (situations of good faith acquisition by subsequent transferee trumping because circumstances attributable to owner justify this)

Fraud or bad faith of transferee:

I) Fraud

* Morrisson, (owner of cattle thought they were dealing with another farmer, purported to be an agent of them, therefore no transmission & void)

* Shogun (appeared to be the person on the driver's license when buying a vehicle, hire purchase legislation debate, held not a contract because dealer intended to contract with the person on the ID) transferee pretending to be someone else.

* Look at transferor's intentions to see if there is a transfer of property

* MacLeod - 3rd party transmission

II) Bad Faith

* Focus on double sales; note 'offside goals' label of Scots law (see Reid, Property paras 695-700)

* The subsequent purchaser who is aware of the first contract amounts to offside goal, defective outcome, double sale knowledge critical.

* Rodger

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