possession in the common law - HiddenMysteries Information Central

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give, and on the other side to receive, lawful possession of that chattel either as incident to an intended
transfer of the property, or in some other right, works a lawful transfer of possession.’ And the character of
the possession so transferred is not altered by any subsequent conduct or intention of the transferee. 2
But a delivery which has all the outward marks of consent may fail of this result in divers ways, by reason
of abnormal conditions which preclude the existence of true consent. These conditions are summed up under
the general name of Mistake; they may or may not be complicated with Fraud. Not every fraud or mistake has
such an effect, for a real though voidable consent (and consequently a real transfer of rights of property [101]
or possession or both, which may become irrevocable as against innocent third parties) may be induced by
these causes.
I. Mistake as the interest to be transferred.
The giver intends to pass possession for a limited purpose, or property on a specific trust. The receiver
intends to receive possession for the purpose of exercising unlimited dominion. Here the question of honest
mistake will hardly arise in practice. If the receiver reasonably believes the giver to intend to pass the
property, it must be (unless in some very abnormal case) that the giver has entitled him so to believe, and
therefore cannot be heard to say the contrary. If the receiver, knowing the giver’s real intention, intends to
obtain the thing in order to convert it to his own use, there is no real consent and no transfer of rightful
possession. The intent with which the receiver apprehends the thing is repugnant to that with which the giver
puts it in his power; he therefore takes as a trespasser, and may be a thief. As in every case of taking by
trespass (de bonis asportatis) he acquires possession in law, though a wrongful possession, as distinguished
from bare physical detention or custody.
This is the case of obtaining possession by a trick, as distinguished from obtaining property by false
pretences. The rule is well established. 1
Where the giver does intend to pass property to the receiver, being induced thereto by some false
representation of the receiver not affecting the substance of the transaction itself, there is a real though not
finally valid consent; the agreement is voidable on the ground of fraud, but not void, and third parties giving
value in good faith may acquire irrevocable rights under it; and the offence committed, if any, is not theft but
obtaining by false pretences. This also is well settled. The difficulties in particular cases are really difficulties
of fact.
Conversely, it is possible that the giver intends to pass a [102] greater interest than the receiver intends to
acquire; as if a specific chattel, say a horse or a book, were delivered with the purpose of gift, but accepted on
the supposition of a bailment on loan (as might happen from the use of ambiguous words, such as, ‘Keep it as
long as you please’). Here it is certain that lawful possession passes, for to that extent there is real consent. 1 It
seems that property does not pass unless and until the receiver knows and assents to the full intention of the
giver. We are not here concerned to inquire what personal obligations between the parties may arise from
facts of this kind.
II.:Mistake as to the identity of the thing delivered.
1. Peter and John are collectors of ancient coins. Each has duplicates of a coin of which the other has no
specimen. John proposes to Peter an exchange of duplicates, and Peter assents. Peter, intending to hand one of
his duplicates to John, by mistake hands to him a coin of similar general appearance, but in fact a different
and much more rare and valuable specimen.
If John at the moment perceives Peter’s error, and takes the coin with the intention of appropriating it to his
own use, he certainly does not acquire property. Much less, indeed, than a total mistake as to the identity of
the object would prevent property from passing. ‘Si aes pro auro veneat, non valet.’ 2 It can make no
difference whether the intended transaction were sale, barter, or gift. Again, he does not acquire possession by
consent, for there is not any intention to give possession otherwise than as incident to property. This is a point
easily overlooked, but one cannot see how an ineffectual intention of the owner to pass property should have a
different effect which he did not intend. Either he transfers all the interest which he was capable and desirous
2 The cases to which the doctrine of trespass ah initio applies are not really exceptions to this rule. Possession taken by authority of law without consent is trespassory at all
times, but the trespass is justified so long and so long only as the authority is not abused.
[101] 1 E.g. R. v. Gumble, 1872, L.R. 2 C.C. 1 (obtaining a sovereign under pretence of getting change for a debt of sixpence; clearly larceny of the sovereign, not of 19s 6d,
but error on this point in the indictment is amendable).
[102] 1 Cp. Hill v. Wi1son, 8 Ch. at p. 896. That was the case of a money payment, so that property passed also.
2 Ulpian, D. 18. 1. de cont. empt. 14.