¹ References to sections hereafter will be to the Act unless otherwise stated.

² Ownership is not a term of art (Turner, “Some Reflections on Ownership in English Law” (1941) 19 Can. B.R. 342, 349) but a few provisions of the Act refer to the “owner” of the goods. E.g., sections 21(1), 25.

³ See E.g., Lawson, , “The Passing of Property and Risk in Sale of Goods—A Comparative Study” (1949) 65 L.Q.R. 352Google Scholar; Smith, , Property Problems in Sale (1978), p. 52Google Scholar; Preston, Battersby. “The Concepts of‘Property’, ‘Title’ and ‘Owner’ Used in the Sale of Goods Act 1893” (1972) 35 M.L.R. 268Google Scholar; Adams, Atiyah, The Sale of Goods (1995, 9th ed.), pp. 265–271Google Scholar; Davies, , “Transferability and Sale of Goods” (1987) 7 L.S. 1, 5–9.Google Scholar

⁴ See supra, note 3 above.

⁵ See e.g., Goode, Commercial Law (2nd ed., 1995), p. 206, n. 81.Google Scholar

⁶ On “content” as an aspect of ownership, see Rudden, Lawson, The Law of Property (1982, 2nd ed.), chapter VII and also at pp. 8–12.Google Scholar

⁷ Honore, , “Ownership” in Guest, Oxford Essays in Jurisprudence (1961), chapter V.Google Scholar

⁸ Kocourek, , Jural Relations, (2nd ed., 1928), pp. 323–332.Google Scholar

⁹ See Dias, , Jurisprudence (5th ed, 1985), pp. 297, 299–301.Google Scholar

¹⁰ E.g.,Bell, , Modern Law of Personal Property in England and Ireland (1989), p. 66Google Scholar; Pollock, , “Some General Legal Notions” part VII reprinted in Goodhart, Jurisprudence and Legal Essays (1961), p. 97Google Scholar (“Ownership may be described as the entirety of the powers of use and disposal allowed by law”).

¹¹ We may say with Salmond that “an owner is free to use and dispose of his property as he pleases, except in so far as he does not infringe his duties to specific encumbrances, his duties under special regulations concerning the use of property, and his general duties under the general law of the land”: Fitzgerald, , Salmond on Jurisprudence (12th ed., 1966), p. 45.Google Scholar

¹² “The Roman Law Concept of Dominium and the Idea of Absolute Ownership” [1985] Acta Juridica 1,1.

¹³ Nibbett v. Confectioners' Materials Co. [1921] 3 K.B. 387.

¹⁴ Franklin v. Neate (1844) 13 M. & W. 481; Harper v. Godsell (1870) 5 Q.B. 422; Halliday v. Holgate (1868) 3 Exch. 299. Cf. section 12(3).

¹⁵ This was considered by Pollock to be a central feature of ownership. He wrote: “the owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere”. See his essay “Some General Legal Notions”, op. cit., at p. 98. Cf. Honore who sees this characteristic as just one (rather than the central) feature of ownership: note 7 above, at pp. 126–128. See also Lewis, “The Modern Concept of Ownership of Land” [1985] Acta Juridica 241, 257–258Google Scholar; Van der Waal, Merwe, The Law of Things & Servitudes (1993), p. 98.Google Scholar

¹⁶ See the definition of “property” in section 61(1).

¹⁷ Op. cit. note 7.

¹⁸ Hohfeld, , Fundamental Legal Conceptions (1919).Google Scholar

¹⁹ A Theory of Properly (1990), p. 22. (Emphasis added.) See also Becker, , Property Rights (1977), chapter 2.Google Scholar

²⁰ Hereafter, the phrase “title to goods” will be used to refer to an absolute title to the absolute legal interest, as opposed to a lesser interest, in goods.

²¹ Per Judge Paul Baker Q.C. in In re Stapylton Fletcher Ltd. [1994] 1 W.L.R. 1181, 1203, citing the leading authority, In re Wait [1927] 1 Ch. 606, 636. See also Leigh and Sillivan Ltd v. Aliakmon Shipping Co. Ltd [1986] A.C. 785, 812 and Re Goldcorp Exchange Ltd. [1995] 1 A.C. 74, 91.

²² Goode, Commercial Law, note 5 above, at p. 36. Chattels are not subjected to the doctrine of estates: Tyler and Palmer, , Crossly Vaines on Personal Property (5th ed., 1973), p. 43.Google Scholar

²³ In whom the absolute title vests may often be incapable of determination. As a pragmatic matter, as pointed out by Professor Bridge, in a title dispute, the Court “has traditionally been called upon only to adjudicate in favour of one or other of two claimants, an exercise in the relative rather than the absolute… [I]t may not be possible in proceedings to track down all parties with an interest in a disputed chattel”. Personal Property Law (1993), pp. 19–20.

²⁴ Cf.Mattei, Gordley, “Protecting Possession” (1996) 44 American Journal of Comparative Law 293Google Scholar, who argue that the concept of possessory title was “invented” by Holmes and Pollock. They argue that it is more accurate to say that the “possessor has a right to possession but one that is not as extensive as the right of the owner”. (Ibid., at p. 329.) But there does not seem any harm to use the term “possessory title” so long as it is recognised that it is inferior to an absolute title.

²⁵ Absolute title may be acquired by other ways, e.g., by way of gift, under a testamentary disposition, or through an exchange.

²⁶ (1856) 5 El. &B1. 802, 805.

²⁷ There must be an animus domini: an intention to hold the chattel as owner. See Goode, Proprietary Rights and Insolvency In Sales Transactions (2nd ed., 1989), p. 4Google Scholar; Parker v. British Airways Board [1982] 1 Q.B. 1004, 1017. But cf. Harris, “The Concept of Possession in English Law” in Guest, , Oxford Essays in Jurisprudence (1961), chapter IV, pp. 86–87Google Scholar, and Dias, Jurisprudence, at pp. 275–276.

²⁸ As Pollock and Wright say, “possession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior and better right. Having reached this point, the law cannot stop at protecting and assisting the possessor himself. It must protect those who stand in his place by succession or purchase; the general reasons of policy are at least as strong in their favour as in his, their case at least as meritorious”. An Essay on Possession in the Common Law (1888, 1990 Reprint), p. 93.

²⁹ As the defendants did in Parker v. British Airways Board [1982] 1 Q.B. 1004.

³⁰ Holmes put this colourfully: “man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again… As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves”. (The Common Law (1923 Reprint), p. 213.)

³¹ Pollock, op. cit. note 10, at p. 100.

³² Buying and selling are two sides of the same coin. One takes away, the other gives. As Salmond noted: “Purchase is a derivative title, but sale is an alienative fact”. (Salmond on Jurisprudence, at p. 333).

³³ Eastwood, The Contract of Sale of Goods (2nd ed., 1946), p. 81.Google Scholar

³⁴ Salmond on Jurisprudence, at p. 333.

³⁵ Ibid., at p. 46.

³⁶ Goode, Commercial Law, at pp. 38, 39–40.

³⁷ Section 10(a), Torts (Interference with Goods) Act 1977; Rogers, , Winfield & Jolowicz on Tort (14th ed., 1994), p. 498.Google Scholar

³⁸ On the rights of an occupier, see Parker v. British Airways Board [1982] 1 Q.B. 1004, especially at 1017–1018.

³⁹ However, in view of the provisions of Torts (Interference with Goods) Act 1977, T may arguably be able to set up the jus lerii. Cf. Winfield & Jolowicz on Tort, at p. 502.

⁴⁰ Birks calls this a “power in rem”: An Introduction to the Law of Restitution (1988), pp. 66–67.

⁴¹ See generally, Whitehorn Brothers v. Davison [1911] 1 K..B. 463,481 (per Buckley L.J.).

⁴² E.g., Whitehorn Brothers v. Davison [1911] 1 K..B. 463 (dispute of “title“ between a pledgee and the “owner” from whom the pledgor had bought the goods).

⁴³ Sieghart, , Chalmers' Sale of Goods Act 1893 (14th ed., 1963), p. 184.Google Scholar

⁴⁴ [1940] A.C. 1014, 1051. Lord Porter was speaking in the context of section 154(l)(c) of the Companies Act 1929, where the term “property” also appears.

⁴⁵ See definition of “goods” in section 61(1).

⁴⁶ Chalmers' Sale of Goods Act 1893, at p. 184. Robert, Goff L.J. expressed the same view in Clough Mill Ltd. v. Martin [1985] 1 W.L.R.111Google Scholar, 115. For other possible meanings of “property”, see Dias, Jurisprudence, at p. 295, n. 10.

⁴⁷ According to Bell, op. cit. note 10, a t p. 6, the common law recognises only these two legal interests in personal property. The persons who have special property are probably restricted to a bailee, a pledgee and a person holding a lien. Cf. Sewell v. Burdick (1884) 10 App. Cas. 74, 92–93; Jenkyns v. Brown (1849) 14 Q.B. 496, 502–503.

⁴⁸ Or his share of t he claim. Section 2(c), (d) of the Sale of Goods (Amendment) Act 1995 makes it clear that there can be a sale of an undivided share in goods (e.g., a third share in a horse).

⁴⁹ The seller who has given away to A for a limited purpose some of his rights in relation to the goods may nevertheless contract to transfer his claim to the bundle of residuary rights over the goods to B. Hence, the owner may sell to B goods which he has pledged to A and A has to deliver the goods to B if B tenders the amount owed: Franklin v. Neate; Harper v. Godsell; Halliday v. Holgate, cited note 14 above. See also Jenkyns v. Brown (1849) 14 Q.B. 496 (seller conferred special property in the goods on A and later sold general property in the same goods to B.)

⁵⁰ Section 12(1).

⁵¹ As where the buyer is told by the seller that the goods were found by him.

⁵² Which is likely to be the case in sheriffs' and pawnbrokers' sales: Bridge, “The Title Obligations of the Seller of Goods” in McKendrick, Palmer, Interests in Goods (1993), chapter 5, pp. 144–145.Google Scholar

⁵³ 53 E.g., a contract of bailment under which possession but not ownership passes.

⁵⁴ A similar approach was taken by Harris in relation to the concept of “possession”: “The Concept of Possession in English Law”, note 26 above, at p. 70.

⁵⁵ “Property”, as Holmes, op. cit. note 29, at p. 215, said, “denote the consequence and connote the facts.… There are always two things to be asked: first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group.”

⁵⁶ In re Wait [1927] 1 Ch. 606, 636.

⁵⁷ See e.g., Car & Universal Finance Ltd v. Caldwell [1965] 1 Q.B. 525, Newtons of Wembley Ltd. v. Williams [1965] 1 Q.B. 560; Worcester Works Finance v. Cooden Engineering Co. Ltd [1972] 1 Q.B. 210. See also Ward v. Bignall [1967] 1 Q.B. 534, at 543, 544, 551 (the effect of resale under s. 48(3) is a rescission of the contract of sale and the result is that property reverts to the seller).

⁵⁸ See e.g., Commission Car Sales (Hastings) Ltd v. Saul [1957] N.Z.L.R. 144, 146; McDougall v. Aeromarine of Emsworth Ltd [1958] 1 W.L.R. 1126, at 1130. Generally, see Benjamin's Sale of Goods (4th ed., 1992) at paras. 15–112, 15–118.Google Scholar

⁵⁹ Head v. Tattersall (1870) L.R. 7 Ex. 7 at 14; Kwei Tek Chao v. British Traders and Shippers Ltd [1954] 2 Q.B. 459 at 487.

⁶⁰ Section 16. This is a rule of law. Parties may not contract out of it: Re Goldcorp Exchange Ltd. [1995] 1 A.C. 74.

⁶¹ Section 18, rule 5, para. (3).

⁶² Section 18, rule 5, para. (4). Prior to the enactment of this provision, it was difficult to justify cases like The Elafi [1982] 1 All E.R. 208: see Law Com. No. 215; Scot. Law Com. No. 145: Sale of Goods Forming Part of Bulk (1993) at p. 6.

⁶³ Sections 20A. One requirement of this provision is that the bulk must be identified. Suppose Bl and B2 each contracts to buy 10 cases of wine from ss general stock. Since no bulk is identified, sections 20A would not apply. Suppose further that S sets aside 20 cases pursuant to the two contracts. In such a case, the courts appear willing to hold (on the basis that the parties had so intended) that property has passed to Bl and B2 as tenants in common of the 20 cases. It is however difficult to see how the goods can be said to have become ascertained. See Re Stapylton Fletcher Ltd. [1995] 1 All E.R. 192 at 210; Re Goldcorp Exchange Ltd. [1994] 3 W.L.R. 199 (Walker and Hall claimants); Sealy, “Contract to Sell Unascertained Goods—No Passing of Property, No Equitable or Restitutionary Relief” [1994] C.L.J. 443 at 445.

⁶⁴ Sections 17, 19.

⁶⁵ Some cases seem almost to treat the rules as setting out rules of law as opposed to presumptions of intention. See e.g., Dennant v. Skinner & Collon [1948] 2 K..B. 164.

⁶⁶ See generally, Goode, Proprietary Rights and Insolvency in Sales Transactions, at pp. 16–17.

⁶⁷ This external relationship does not arise where a party claims through the buyer or seller (e.g., a trustee in bankruptcy) or deals in their name (e.g., a liquidator). Cf. Atiyah & Adams, Sale of Goods, at p. 269.

⁶⁸ Section 20(1).

⁶⁹ Section 49(1).

⁷⁰ Section 39(2).

⁷¹ Section 28. The unpaid seller has a right of lien: section 41.

⁷² “The Passing of Property and Risk in Sale of Goods—A Comparative Study” (1949) 65 L.Q.R. 352, 359.

⁷³ E.g., Atiyah & Adams, Sale of Goods, at p. 269, n. 23; Battersby & Preston, op. cit. note 3.

⁷⁴ But this does not mean that the seller loses all rights over the goods once property in the goods has passed to the buyer. For instance, notwithstanding that the property has passed to the buyer, the seller generally has a right to withhold possession until the buyer is ready and willing to pay the price: section 28.

⁷⁵ The leading cases include Aluminium Industrie Vaassen B.V. v. Romalpa Aluminium Ltd. [1976] 1 W.L.R. 676; In re Bond Worth Ltd. [1980] Ch. 228; Borden (UK) Ltd. v. Scottish Timber Products Ltd. [1981] Ch. 25; Clough Mill v. Martin [1985] 1 W.L.R. 111; Hendy Lennox (IndustrialEngines) Ltd v. Grahame Puttick Ltd. [1984] 1 W.L.R. 485.

⁷⁶ These cases commonly speak of “retention of title”, which is inaccurate. “Property” is the concept that should be employed when dealing with the relation between buyer and seller. That the seller has retained property under the contract with the buyer does not mean that the seller's title cannot be defeated by a third party: see The Saetta [1993] 2 Lloyd's Rep. 268.

⁷⁷ The contract is therefore an agreement to sell: section 2(5). Generally, parties are free to agree on when property should pass in specific and ascertained goods: section 17. See also section 19(1) (allows seller to reserve right of disposal).

⁷⁸ E.g., when the buyer becomes insolvent. The contract would usually allow the seller to repossess the goods upon default in payment: see, for instance, Hendy Lennox (Industrial Engines) Ltd. v. Grahame Puttick Ltd. [1984] 1 W.L.R. 485. In such a case, property in the goods does not revert to the seller upon rescission for the obvious reason that property never left the seller.

⁷⁹ Provided the goods have not lost their identity: E.g., Borden (UK) Ltd. v. Scottish Timber Products Ltd. [1981] Ch. 25. Further, the seller's retention of property may also in exceptional cases lead to a right to trace into the proceeds of the subsale: Aluminium Industrie Vaassen B.V. v. Romalpa Aluminium Ltd. [1976] 1 W.L.R. 676. This is highly exceptional. The Court is unlikely to allow such a claim because in reality the buyer does not sub-sell the goods on the seller's account and what the seller desires is an equitable charge over the goods which must be registered.

⁸⁰ This was the view of Lord Keith in Armour v. Thyssen Edelstahlwerke AG [1991] 2 A.C. 339, 353. Cf. Clough Mill Ltd v. Martin [1985] 1 W.L.R. 111 at 117–118.

⁸¹ E.g., In re Bond Worth [1980] Ch. 228. The charge must be registered.

⁸² E.g., Armour v. Thyssen Edelstahlwerke AG [1991] 2 A.C. 339.

⁸³ Lawson's position as stated in “The Passing of Property and Risk in Sale of Goods— A Comparative Study”, note 3 above, is sometimes interpreted (e.g., by Davies, op. cit. note 3, at p. 5) to be that the passing of property … affect(s) solely the relations of the parties inter se whereas only the title passage provisions bind third parties”. This does not accurately reflect Lawson's view. According to him, the heading “Transfer of Property between Seller and Buyer”, under which sections 16–20 come, “is only meant to warn the reader that such a transfer will not necessarily operate against third parties; it does not say that it will never so operate”. (Ibid., at p. 358) This is the position that is taken in this article. The passing of property sometimes will and sometimes will not affect relation of the buyer/seller with a third party.

⁸⁴ This was acknowledged by Lord Brandon in Leigh & Sillivan v. Aliakmon Shipping Co. Ltd. [1986] A.C. 785. His Lordship (who must have had in mind only the normal situation where the seller has absolute title to the goods) said: “The passing of the property in goods the subject matter of … a contract [of sale] is fully dealt with in ss. 16 to 19 of the Act … Those sections … appear to have been framed on the basis that the expression ‘property’, as used in them, is intended to comprise both the legal and the equitable title”.

⁸⁵ Leigh and Sillivan Ltd. v. Aliakmon Shipping Co. Ltd. [1986] A.C. 785.

⁸⁶ E.g., Lord v. Price (1873) L.R. 9 Exch. 54.

⁸⁴ Section 28.

⁸⁸ Cf. section 52; Société des Industries Metallurgiques SA v. Bronx Engineering Co. Ltd. [1975] 1 Lloyd's Rep. 465.

⁸⁹ As noted by Weir, A Casebook on Torts (7th ed., 1992), at pp. 473–478.Google Scholar

⁹⁰ Cf. section 3 of the Torts (Interference with Goods) Act 1977; Bridge, , Personal Property Law (1993), at pp. 58–59.Google Scholar

⁹¹ Pollock and Maitland doubted that there was any right in movable goods that deserved the name of ownership: The History of English Law (2nd ed., 1968) at p. 153Google Scholar. See also: Kiralfy, , “The Problem of a Law of Property in Goods” (1949) 12 M.L.R. 424.Google Scholar

⁹² Cf. Atiyah & Adams, Sale of Goods, at p. 265.

⁹³ Op. cit. note 3, at p. 280.

⁹⁴ Op.cit. note 3, at p. 271.

⁹⁵ Op. cit. note 3, at p. 273.

⁹⁶ [1923] 2 K.B. 500.

⁹⁷ Ibid., at p. 506.

⁹⁸ Op. cit. note 3, at p. 288.

⁹⁹ Op. cit. note 3, at p. 273.

¹⁰⁰ Op. cit. note 3, at p. 288.

¹⁰¹ Section 2(4).

¹⁰² Even if it is accepted that there is a sale, we may still conclude that the buyer/plaintiff had a right to reject by implying an agreement to exclude the operation of section 11 (4) in the circumstances of the case: Bell, op. cit. note 10, at p. 305.

¹⁰³ Under Part III, C. below.

¹⁰⁴ See section 2(4).

¹⁰⁵ Chalmers' Sale of Goods Act 1893, at p. 12.

¹⁰⁶ See section 2(5).

¹⁰⁷ Op. cit. note 3, at pp. 273–274.

¹⁰⁸ If, contrary to As representation, the painting never existed, or is of a different description, there would arguably not be a sale: Varley v. Whipp [1900] 1 Q.B. 513 at 516.

¹⁰⁹ Since property has passed to B, risk is likely to be with B at the time of fire: section 20(1).

¹¹⁰ Section 49(1). It is assumed that there is nothing to bring the case under section 49(2).

¹¹¹ Under Part III, B.

¹¹² E.g., under an exchange or by way of gift.

¹¹³ While the Act does not regulate the other modes of acquiring title to chattels, it envisages that possibility. For instance, sections 24 and 25 refer to “dispositions” other than a sale.

¹¹⁴ For instance, we may say that a pledgee has a title to possession. Often there is no need to throw in the word “title” for either he has possession or he has not. However, as discussed earlier, an issue of relativity of title may also arise in relation to lesser interests.

¹¹⁵ Cf. Smith, op. cit. note 3, at pp. 47–48.

¹¹⁶ In Cochrane v. Moore (1890) 25 Q.B.D. 57, 72–73, Fry and Bowen L.JJ. held, after a review of the relevant cases, that “according to the old law no gift or grant of a chattel was effectual to pass it whether by parol or by deed, and whether with or without consideration unless accompanied by delivery: that on that law two exceptions have been grafted, one in the case of deeds, and the other in that of a contract of sale where the intention of the parties is that the property shall pass before delivery”. It is clear, from the context, that by “property”, the judges meant an absolute title to the chattel.

¹¹⁷ Bell, op. cit. note 10, at pp. 323–324.

¹¹⁸ See sections 12(1), (3) and, generally, Hudson, , “The Condition as to Title in Sale of Goods” (1957) 20 M.L.R. 236Google Scholar and “The Exclusion of Section 12(1) of the Sale of Goods Act” (1961) 24 M.L.R. 690.Google Scholar

¹¹⁹ Chapman v. Speller (1850) 14 Q.B. 621; Peto v. Blades (1814) 5 Taunt. 657; Eichholz v. Bannister (1864) 17 C.B. (N.S.) 708, 722.

¹²⁰ Morley v. Attenborough (1849) 3 Exch. 500, especially at 513; Eichholz v. Bannister (1864) 17 C.B. (N.S.) 708, 722.

¹²¹ Bagueley v. Hawley (1867) L.R. 2 C.P. 625; Payne v. Elsden (1900) 17 T.L.R. 161.

¹²² As Erie C.J. noted in Eichholz v. Bannister (1864) 17 C.B. (N.S.) 708, 723, “in almost all the transactions of sale in common life, the seller by the very act of selling holds out to the buyer that he is the owner of the article he offers for sale”.

¹²³ E.g., where the labels on the goods that he owns infringe the trade-mark of another: Niblett v. Confectioners' Materials Co. [1921] 3 K.B. 387.

¹²⁴ Assumed in Anderson v. Ryan [1967] I.R. 34. Cf. Atiyah & Adams, Sale of Goods, supra, note 3, at p. 78.

¹²⁵ See the two paragraphs after the next paragraph.

¹²⁶ E.g, Rowland v. Divall [1923] 2 K.B. 500; Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286; Barber v. NWS Bank pic [1996] 1 W.L.R. 641.

¹²⁷ But the seller would still be in breach of term (a) if title was fed to the buyer only because the buyer chose to pay off the original owner: cf. Robin & Rambler Coaches Ltd. v. Turner [1947] 2 All E.R. 284.

¹²⁸ Lucas v. Smith [1926] V.L.R. 400; Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286, 1295 (Pearson J. was inclined to this view although he ultimately left the point open). Cf. Patten v. Thomas Motors Pty Ltd. (1965) 66 S.R. (N.S.W.) 458, 464.

¹²⁹ [1900] 1 Q.B. 513.

¹³⁰ Atiyah & Adams, Sale of Goods, at p. 273. Cf. Benjamin's Sale of Goods, at p. 688, para. 5–020, where it is suggested that the decision should be restricted to the situation where goods are sold by description.

¹²⁷ Whitehorn Brothers v. Davison [1911] 1 K.B. 463; Bradley & Cohn Ltd v. Ramsay & Co. (1912) 106 L.T. 771, 773; Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286; Guthrie & Anor v. Motor Credits Ltd. (1963) 37 A.L.J.R. 167; Patten v. Thomas Motors Pty Ltd. (1965) 66 S.R. (N.S.W.) 458; Bennett v. Griffin Finance [1967] 2 Q.B. 46, 50 (point reserved by Winn L.J.).

¹³² Kennedy, , Benjamin on Sale (7th ed.), p 10 (relevant passage, from the 8th ed., quoted in Patten v. Thomas Motors Pty Ltd (1965) 66Google Scholar S.R. (N.S.W.) 458, 462); Halsburys Laws of England (4th ed.), vol. 41, para. 747Google Scholar; Sutton, Sales and Consumer Law (4th ed., 1995), pp. 336–337.Google Scholar

¹³³ Lucas v. Smith [1926] V.L.R. 400,403; Patten v. Thomas Motors Pty Ltd (1965) 66 S.R. (N.S.W.) 458,461.

¹³⁴ Eg., Rajapakse v. Fernando [1920] A.C. 892.

¹³⁵ Those holding this view include: Benjamin's Sale of Goods, at p. 161; Ellinger, “Buyer's Remedies when Seller does not have the Right to Sell the Goods” (1969) 5 Victoria Univ. of Wellington Law Review 168, pp. 169–170, 177; Campbell J. in Denis Geary Motors v. Hunter Street Finance [1979] Qd. R. 207, 210–211.

¹²⁶ Cf. the reasoning of Campbell J. in Denis Geary Motors v. Hunter Street Finance [1979] Qd. R. 207, 210–211. His reasoning was that, where the seller does not have title to the goods, the contract of sale operates as an “assignment of property to be acquired in the future”. This reasoning may be doubted. First, as mentioned earlier, a contract of sale does not of itself rise to any sort of equitable interests. Secondly, while it is of course possible to contract to sell “future goods” (which term is defined in section 61(1)), a sale is clearly intended to be a present as opposed to a future assignment of property.

¹³⁷ Patten v. Thomas Motors Pty Ltd. (1965) 66 S.R. (N.S.W.) 458, 461; Lucas v. Smith [1926] V.L.R. 400,403.

¹³⁸ Cf. Elwin v. O'Regan & Maxwell [1971] N.Z.L.R. 1124, 1127; H.W. West Ltd. v. McBain (1950) N.I. 144. A question of priority may arise if H sells the car to C after selling it to B. In such a case, when H exercises the option to purchase, title apparently vests in B and not C: Denis Geary Motors v. Hunter Street Finance [1979] Qd. R. 207. However, if H is a “seller in possession”, section 24 may arguably operate to give C absolute title to the car.

¹³⁹ Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286; McNeill v. Associated Car Markets Ltd. (1962) 35 D.L.R. (2d) 581.

¹⁴⁰ Car and Universal Finance Co. Ltd v. Caldwell [1965] 1 Q.B. 525, 532. See also Burrows, The Law of Restitution (1993) pp. 33–34 and Ward v. Bignall [1967] 1 Q.B. 534.

¹³⁸ It would be fictitious to say that the title vests in B for a scintilla temporis before it is passed on to H.

¹⁴² Hence, the conclusion in Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286, 1296, that the title in the car vested in the defendants must be right.

¹⁴³ The seller may have the right to divest the true owner of his absolute title to goods. See for instance the right of resale provided in section 48(3).

¹⁴⁴ We may ignore the passing of title to lesser interests in goods under transactions other than a sale.

¹⁴⁵ For instance, under section 48(2) of the Act, the relevant provisions of the Factors Act, and principles of agency and estoppel.

¹⁴⁶ Here, and later where the proposition is repeated, co-owners are considered a single entity.

¹⁴⁷ Exceptionally, it must be considered in context of the several collateral transactions: The Elafi [1982] 1 All E.R. 208; section 18, rule 5, para. 3.

¹⁴⁸ This is notwithstanding the fact that his bundle of residuary rights may be seriously depleted. Cf. Hendy Lennox (Industrial Engines) Ltd v. Grahame Puttick Ltd. [1984] 1 W.L.R. 485, 492.

¹⁴⁹ [1976] 1 W.L.R. 676.

¹⁵⁰ Ibid., at p. 679.

¹⁵¹ Ibid, at p. 681. See also the analysis of Roskill L.J. at pp. 688G–H and 690C–D; and of Goff L.J. in Clough Mill Ltd v. Martin [1985] 1 W.L.R. 111,116F–H. Similarly, in The Saetta [1993] 2 Lloyd's Rep. 268, where bunkers were supplied by the plaintiffs to the charterers under a contract which contained a Romalpa clause, Clarke J. held that the clause “had the effect, as between thè plaintiffs and the charterers, that property in the bunkers did not pass until they were paid for and that, since the bunkers were not paid for, the property in them never passed to the charterers”. Ibid., at p. 272.)

¹⁵² [1965] 1 Q.B. 525, 532.

¹⁵³ Ibid., at p. 532. Emphasis added.

¹⁵⁴ [1972] 1 Q.B. 210.

¹⁵⁵ Per Phillimore L.J., Ibid., at p. 219. Megaw L.J. was of a similar view (Ibid., at pp. 220–221) but not Lord Denning. According to the latter, to constitute a disposition, the interest that passes need not be a legal proprietary interest; it may also be an equitable proprietary interest (Ibid., at p. 219). This view is arguably too wide: see Preston, “Disposition under Section 25(1) of the Sale of Goods Act 1893” (1972) 88 L.Q.R. 239 at 243–244.

¹⁵⁶ Per Lord Denning, Ibid., at p. 219 and Megaw L.J., Ibid., at pp. 220–221. It is perhaps more accurately to say that property passed to X by virtue of their rescission or termination of the contract of sale with S. X would have a right of rescission if S had intended to defraud X (which is unclear on the facts) and a right of termination if S had repudiated the contract. The third judge, Phillimore L.J., reasoned that property had passed from S to X because there was a resale of the car by S to X (Ibid., at p. 219).

¹⁵⁷ Professor Goode has noted that if, as Lord Denning thought, there was a revesting of property independently of section 24, that provision would be rendered superfluous: “The Dispositive Effect of a Seller's Possession” (1972) 35 M.L.R. 186, 188. See also Preston, “Dispositions Under Section 25(1) of the Sale of Goods Act 1893” (1972) 88 L.Q.R. 239. This criticism loses its force if “property” is distinguished from “title”, as is suggested in this article. Section 24 is not rendered superfluous because the fact that property had passed from S to X did not of itself give the latter an absolute title to the car.

¹⁵⁸ The references in sections 8 and 9 of the Factors Act to an “agreement for sale” appear to indicate that B may obtain title to goods before he obtains property from S. But those provisions have to be read with section 2(1) of the same Act which requires a “sale” to B. See In re Highway Foods International Ltd. [1994] T.L.R. 539.

¹⁵⁹ [1990] 1 A.C. 24.

¹⁶⁰ Ibid., at pp. 280–281.

¹⁶¹ An example of the latter would be where A is a “seller in possession” and the case falls under section 24 of the Act.