The Tort of Conversion

The legal and commercial importance of the tort of Conversion is difficult to overstate, and yet there remains a sense that the principles of the tort are elusive. Most recently, this was illustrated by the difficulties posed for the House of Lords by the Conversion issue in OBG v Allan [2007] UKHL 21, on which it was closely divided.

Conversion, as we now recognise it, has a complex pedigree. Showing little regard for received taxonomies, it has elements which make lawyers think in terms of property, despite its eventful descent from actions in personam. Conversion is, therefore, something of a hybrid creature, which perhaps explains the paucity of scholarly analysis of the subject to date, property lawyers and tort lawyers each regarding it as the other's concern.

This book is the first comprehensive appraisal of the modern tort of Conversion. It offers a coherent and accessible rationalisation of the subject, supported by rigorous analysis of all aspects, from title to sue to the available remedies. The principal thesis of the work is that the development of Conversion has somewhat stagnated, and in consequence the tort has so far been unable to fulfil either its theoretical or its practical potential as a legal device. Whilst this is partly a result of historical factors, it is also a consequence of the fact that no systematic examination of the tort in England appears ever to have been carried out. The primary objectives of the book, therefore, are to provide such an analysis, to present Conversion as a useful and important tort, well suited to the demands of contemporary law and commerce, and to offer a principled framework for its future development.

Auteur

Sarah Green is the Law Commissioner for Commercial and Common Law at the Law Commission of England and Wales. Prior to that, she was Professor of Private Law at the University of Bristol, UK, Professor of the Law of Obligations at the University of Oxford, UK, and a lecturer at the University of Birmingham, UK.

Contenu

1 Introduction
2 The History of Conversion
INTRODUCTION AND CONTEXT
THE MEDIEVAL ANCESTORS OF CONVERSION
Appeal of Robbery or Larceny
Trespass de bonis asportatis
Replevin
Detinue
Detinue sur bailment
The Plea of devenerunt ad manus
Detinue sur trover
The Shortcomings of Detinue sur trover
THE EMERGENCE OF TROVER

1. Possessed of the Goods of his Own Property
2. Loss and 3. Finding
3. Delivery Up Requested but Refused
4. Conversion to Own Use (Causing Loss)
   Conclusion
   THE HEGEMONY OF TROVER
   Trover takes the Ground of Trespass
   Trover takes the Ground of Detinue
   Residual Categories
   Conclusion
   THE RECOGNITION OF CONVERSION
   CONVERSION IN THE NINETEENTH CENTURY
   Statutory Reforms
   A New Legal Fiction-the Conversion of Choses in Action
   Evidenced by Converted Documents
   Affirmation of Strict Liability
   The Common Law (Still) Presents Great Difficulties
   CONVERSION IN THE TWENTIETH CENTURY
   Obscurities Remain
   Expansion of the New Legal Fiction
   Financing of and Title to Motor Cars
   The Report of the Law Reform Committee
   Statutory Intervention
   CONCLUSIONS
   3 What is a Conversion?
   NAME
   INTERESTS PROTECTED
   THE RELATIONSHIP BETWEEN THE WRONGFUL INTERFERENCE TORTS
   Trespass
   Reversionary Injury
   THE IMPORTANCE OF POSSESSION
   A Peculiar Notion of Possession?
   RELATIONSHIP TO VINDICATIO
   THE GIST OF CONVERSION
   CONVERSION IN THE CONTEXT OF THE PROPERTY TORTS
   Nature of the Interference
   Degree and Extent of the Interference
   THE REQUISITE CONDUCT OF THE DEFENDANT
   Actions of the Defendant: Use and Possession
   Intention
   Innocent Converters
   THE THREE ELEMENTS OF CONVERSION
5. A Claimant who has the Superior Possessory Right
6. A Deprivation of the Claimant's Full Benefit of that Right
7. An Assumption by the Defendant of that Right
   AN EXCEPTION TO THESE PRINCIPLES: STATUTORY CONVERSION
   4 Title to Sue
   THE NATURE OF THE PROBLEM
   RELATIVITY OF TITLE
   WHY THE COMMON LAW PROTECTS THE POSSESSION OF WRONGDOERS
   LEGAL POSSESSION
   WHAT IS ACTUAL POSSESSION?
   Jus Tertii
   WHY ACTUAL POSSESSION CAN BE SUFFICIENT
   BAILMENT
   FINDERS
   THE SIGNIFICANCE OF LEGAL POSSESSION
   WHAT AMOUNTS TO A SUFFICIENT PROPRIETARY RIGHT?
   EQUITABLE RIGHTS AND CONVERSION
   CONCLUSIONS
   5 The Subject Matter of Conversion
   PROPERTY AND POSSESSION
   MEANINGFUL INDICIA OF POSSESSION
   Cognitive Indicia
   MONEY
   PARTS OR PRODUCTS OF THE HUMAN BODY
   DIGITIZED PRODUCTS
   Manual Indicia
   i Excludability and movability
   ii Excludability and exclusive access
   iii Exhaustibility
   Policy Implications
   INTANGIBLE PROPERTY
   Manual Indicia
   i Excludability
   ii. Exhaustibility
   COPYRIGHT
   INFORMATION
   Manual Indicia
   i. Excludability
   ii. Exhaustibility
   THE LAW OF THEFT
   THE IMPORTANCE OF EFFECTIVE PROTECTION OF PROPERTY INTERESTS
   6 Conversion and the Economic Torts
   THE NEED TO EXAMINE THEIR RELATIONSHIP
   BACKGROUND-THE FRAMEWORK OF TORTIOUS LIABILITY
   THE PLACE OF CONTRACTUAL RIGHTS AND OTHER INTANGIBLE PROPERTY
   PROPERTY TORTS
   Trespass to goods
   Conversion
   Nuisance
   ECONOMIC TORTS
   Lumley v Gye-Procuring or Inducing a Breach of Contract
   Causing Loss by Unlawful Means
   Lawful and Unlawful Means Conspiracies
   Conclusion
   COMPARISON OF LUMLEY v GYE AND CONVERSION
   The Gist of these Torts
   The Nature of the Interference Required
   The Right to Claim
   The Permissible Subject Matter of a Claim
   The Mental Element Required
   The Remedies Available
   CONCLUSIONS
   7 Damages and Other Remedies
   INTRODUCTION
   THE MEASURE OF DAMAGES FOR CONVERSION
   (a) The Basic Rule
   (b) Time of Valuation
   Rising Market Value
   Falling Market Value
   (c) Absence of a Market
   (d) Presumptions as to Value
   (e) Special Rules
   Assets Severed from Land
   Improvements
   Title Deeds
   Negotiable Instruments, Securities and Like Documents
   Other Documents of Some Evidential Status
   Claimant with a Limited Interest
   (f) Where the Goods are Returned-'Temporary Deprivation'
   (g) Consequential Loss
   Post-Conversion Increases in Value
   User Damages
   Costs of Mitigation, and Loss of Business and/or Profits
   Miscellaneous
   Foreseeability and Remoteness
   Causation of Consequential Loss
   CAUSATION
   EXTINCTION OF TITLE
   THE DUTY TO MITIGATE
   CONTRIBUTORY NEGLIGENCE
   OTHER REMEDIES
   (a) Final Orders for Delivery Up: Section 3(1)(a) of the 1977 Act
   (b) Alternative Final Orders at the Defendant's Election: Section 3(1)(b)
   (c) Interlocutory Orders for Delivery Up: Section 4
   (d) Recaption
   (e) 'Waiver of Tort'
   (f) An Equitable Claim to Converted Assets and their Proceeds of Sale?
   CONCLUSIONS
   8 Conclusion