Previous: Bailment


Before considering how tort law can protect property rights, the concept of ownership should be briefly considered. According to Waverley BC v Fletcher [1996], ownership means having a bundle of rights enforceable against the world, with relative priority of entitlement. It is rarely a contentious issue, according to Yearworth v North Bristol NHS Trust, and cannot be fragmented. As a result, and according to s 136(1) of the Law of Property Act 1925, a debt cannot be owned by way of tenancy in common between multiple people.

History of torts protecting property

Historically, the tort of detinue (detention) was a claim which could be made by a bailor against a bailee for not returned bailed goods. It was expanded to cover claims made against bailee’s transferees, but did not cover damage to goods. Detinue has now been merged with the tort of conversion.

Trespass was (and still is) a tort which protects goods from interference by force. The distinction between forcible and non-forcible interference can be illustrated by the examples given in Reynolds v Clarke: intentionally throwing a log onto a highway to cause damage to a passing car would constitute trespass, whilst merely leaving it on the highway would not. Trespass covers damage inflicted to goods.

Today, there are two key torts which protect property rights: trespass and conversion. Detinue was abolished by the Torts (Interference with Goods) Act 1977. The difference between the two is an intention to permanently deprive, which is required for conversion...

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