Protection of ownership and transfer of moveables by a non-owner in Scots Law

Abstract

This thesis explores the protection of ownership of corporeal moveables in Scots law with particular reference to the position of a good faith acquirer from a non-owner. It exposes three fundamental tenets of Scots property law to critical scrutiny: the sharp theoretical distinction between possession and ownership, the requirement that the owner consent to derivative transfer and the right of the owner to recover his or her property from any third party in possession. In many other civil law jurisdictions, greater protection is afforded to the bona fide purchaser. The thesis explores the historical and doctrinal reasons for the strong protection of the original owner in Scots doctrine, including an important Romanist tradition but also a significant moral and theological emphasis on the duty to restore, particularly in Viscount Stair’s influential Institutions. Utilising a historical and comparative approach, the first part of the thesis outlines the development of early Scots law and the foundation of the modern Romanist structure of the law governing transfer of moveables. It is argued that the modern patchwork of exceptions to the nemo plus rule lacks any unifying justificatory principle and produce often uncertain results. The thesis also examines the various justifications advanced for protecting good faith acquirers. The most frequently cited explanation is that of promotion of commerce, but significant difficulties are identified with this argument. It is further concluded that the publicity afforded by possession is not sufficient for it to justify protection of acquirers. In terms of security and certainty of rights, good faith acquisition is not a panacea for the problems associated with highly mobile property such as vehicles. However, in light of the deficiencies of the current Scots law rules, a clear doctrine explicitly conferring ownership in more precisely defined circumstances would be preferable.