Introduction

This topic provides an examination of what might be loosely referred to as the foundation conceptual and legal arrangements governing title to personal property, both tangible (often in the form of goods [also referred to more technically as chattels]) and intangible (including in the current period, virtual property). In relation to personal property and property rights, the law has historically drawn technical distinctions between tangibles (choses in possession) and intangibles (choses in action) [see: Chambers 5.25]. In this topic, we start by examining what amounts to an interest in goods according to law. We then investigate how title to goods is established before examining the important maxim of ‘nemo dat quod non habet’, which provides that in relation to title to goods:

‘…a person gets no better title than the transferor to that person had.’

The underlying policy of establishing title is considered. We then review a range of factors which constitute exceptions to nemo dat including: disentitling conduct by the owner; the consequences of the Sale of Goods Act 1896 (Qld) and the Factors Act 1892 (Qld) in relation to transactions by mercantile agents (Factors); and sales in the circumstances of a voidable title. We conclude by reviewing how property law deals with other types of personal property rights in relation to: money, negotiable instruments and ‘virtual’ property.

NB: Topic 4 needs to be read in conjunction with the impact of the Personal Property Security Act covered in Topic 5. The legislative framework and some of the assumptions in the case law discussed in T

Reading:

A Moore, S Grattan and L Griggs, Australian Property Law: Cases and Materials, Lawbook Co Casebook, Thomson Reuters (Professional) Australia Limited, Pyrmont (5^th ed, 2016) [APL] Ch 4, excluding [4.30-4.100; 4.170-4.175]. (extract supplied on Moodle)

NB. The primary reading for this topic is in this extract from the above casebook. This is NOT the prescribed casebook, as this topic is not sufficiently covered in your prescribed casebook.

NB the reference in these notes to APL is to APL 5^th edition referred to above. Don’t get confused with APL 10^th ed which is the prescribed casebook for all topics except Topics 4 and 5.

Objectives

After studying Topic 4 you should be able to:

• Identify and articulate the legal features of how title to goods can be established;
• Appreciate the significance of the legal maxim: Nemo Dat Quod Non Habet;
• Identify and articulate the legal characteristics of conduct which will disentitle an owner of goods of their ownership rights;
• Appreciate the requirements of sales of goods by a Mercantile Agent (Factor) under both the Sale of Goods Act 1896 (Qld) and the Factors Act 1892 (Qld) from a property law perspective;
• Identify and articulate how the law deals with sales under voidable titles; and
• Identify and articulate the various exceptions to Nemo Dat; and
• Appreciate how Australian property law regulates money and virtual property.

Summary

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Tutorial

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Version

This unit was last updated on 04.03.2019