Study sets, textbooks, questions
Upgrade to remove ads
Wk 2 CPPL Possession
Terms in this set (21)
What is possession?
No exhaustive definition which suits all contexts
} The meaning always depends on the context
} A relationship in fact between a person and some material object
what are the elements of possession
control and intention to possess
what are the six forms of possession
2. actual possession
3. legal possession
4. lawful possession
5. constructive possession
6. right to possession
What is the first form of possession - custody?
Physical holding or control of a chattel which does not amount to possession
What is the second form of possession - actual?
} Physical possession evidenced by some outward act
} the person holds the item for their own benefit.
} the control enables the possessor to exclude others
} question of fact - where some has hidden an object so that they can take it into their physical custody when they wish and where others are not likely to discover it except by accident, they are in actual possession.
What is the third form of possession - legal?
} State of being a possessor in the eye of the law; coexists with the fact of physical control, making the exercise of that control rightful
} Need not have lawful origin
What is the fourth form of possession - lawful?
} Legal possession + legal right to possess
} It is not wrongful and is the possession of the true owner
What is the fifth form of possession - constructive?
} Legal possession without actual possession; right to claim actual possession
} Example: Goods being stored in a locked warehouse; owner sells goods and give key to buyer
} Buyer has constructive possession of goods
What is the sixth form of possession - right to possession?
} The legal right to acquire actual possession *Penfolds Wines Pty Ltd v Elliott
} More than one type of possession may exist at the same time: not mutually exclusive
How can possession be transferred?
What is the first method of transfer of possession- delivery?
} Delivery = means of divesting and acquiring possession in relation to choses in possession (chattels/ goods)
} Voluntary and consensual transfer of possession from one person to another eg by sale or gift; intention of person making delivery (transferor in possession): transferee should acquire possession
} Actual delivery - usually goods are handed over or taken;
} Constructive delivery - goods are delivered without any change in their actual possession
What is the second method of transfer of possession?
} Abandonment = means of divesting possession
} Absolute relinquishment of private goods
What are the elements of abandonment - transfer of possession method?
o Unilateral physical abandonment
o intention to abandon
§ Moorhouse v Angus & Robertson (No 1) Pty Ltd  1 NSWLR 700 - manuscript abandoned after 6 years?
What is the third element of abandonment - finding?- how n possession be transferred
} Finding = A person in possession of an object has rights even where the person is not the true owner
} Armory v Delamirie : finder does not acquire absolute property, but can keep it against all but the rightful owner
} Usually a dispute between the finder, the occupier of land, and the owner of the land
Principles vary according to circumstances of the finding
} Rights acquired are possessory, not ownership
} Right is to keep it against all but true owner
What are the remedies for infringement of possessory rights?
} Trespass to goods (based on possession, not ownership)
} Detinue (based on possession, not ownership)
} Conversion (based on possession, not ownership)
} Special action on the case (NOT based on possession)
In what ways can a loss of possession arise?
} Wrongful taking: (cause of action in trespass);
} Wrongful detention: (cause of action in detinue);
} Wrongful disposing (cause of action in conversion)
What is the trespass remedy/ cause of action for infringement of possessory rights?
} Trespass = a voluntary act which involves the direct and unauthorised interference with the possessor's actual possession of a chattel
} Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
} Majority (Starke, Dixon and McTiernan JJ) leading judgment Dixon J
} Title to sue= actual possession or an immediate right to possession, depending on the circumstances
} Remedy:= damages for the injury done to the chattel
What is the conversion remedy / cause of action for infringement of possessory rights?
Conversion: intentional = (deliberate) wrongful dealing with another's goods in a manner which is inconsistent with the immediate right of possession of the owner.
What are the elements of conversion?
Defendant's conduct inconsistent with rights of owner
Intention: conduct was deliberate - not accidental
Conduct was so extensive an encroachment of the proprietary rights of the owner as to exclude him/her from use and possession of the goods
What is the detinue remedy/ cause of action for infringement of possessory rights
} a wrongful detention of goods, and
} the tortfeasor refuses to deliver up the goods when demanded
What is the 'special action on the case' remedy/ cause of action for infringement of possessory rights?
Special action on the case = action for an owner who is not in actual possession and has no right to immediate possession. Penfolds Wines
Sets found in the same folder
Wk 2 CPPL The concept of property
Wk 2 CPPL Fixtures and Chattels
Wk 2 CPPL Ownership and possession of personal pro…
Other sets by this creator
WK1 BR Regulation as a concept
WK 1 BR History of regulation and some theories th…
Other Quizlet sets
Chemistry 2 Test 4
NUR 351: Modules 4.01 and 4.02
Lab pratical 4