Date: Wed, 19 Nov 2008 11:21

From: John Blackie

Subject: Interference with property

A footnote to Martin's on spuilzie, which he knows is one of my favourite topics.

Both in its South African form and its Scottish form it is first and foremost a summary remedy which enables a deprived possessor immediately to get physical delivery of the item of property. Even a mala fide possessor can use the remedy.  It restores the position as it was immediately previously.  All that needs to be shown is that the claimant was de facto possessing the item and he did not consent to dispossession.  It is not concerned with ownership questions for example.  These can come in later proceedings.  The summary nature of the remedy is captured in a medieval maxim spoliatus ante omnia restituendus.   In South African law the remedy ("mandament van spolie") is solely this, a quick remedy to regain physical possession.

The Scottish "violent profits" aspect of the claim is assessed as the sum that could have been earned with utmost industry from the item during the period that it is in the hands of the dispossessor.  It is not clear just exactly whose industry is taken as the yardstick for this. There is a consequent problem if the item is such that it cannot be put to earn money. In such a case at the most there would then be only an unjustified enrichment claim, based on "a reasonable sum" for holding the item. How that is assessed where the item could not have been hired out by the possessor is anyone's guess.  Also the question of claims for “fruits” has to be integrated, and none of this is.  (See me and Ian Farlam, “Enrichment by Act of the Party Enriched” in Zimmermann, Reid and Visser (eds), Mixed Legal Systems in Comparative Perspective – Property and Obligations in Scotland and South Africa (OUP, 2004) pp 469 - 497).  (I think now that Martin is right to classify spuilzie as property law, and not delict or enrichment, but it has an interface with enrichment.)

As remedy for quickly putting the possession position back to the status quo ante, it has something to be said for it, and the policy behind it may not be that different from that behind the tort of conversion in anglo-american law.  A difference is that it does not apply to an innocent party, although it could in so far has he/she/it withholds possession after time that the claim is made. The "violent profits" dimension is not obviously desirable in a sensible legal system. It is quite often, though, used as a threat by solicitors acting to get back immoveable property for their client's from tenants who refuse to go after a lease has come to an end. (It also applies to immoveables.) There is rule that at least in towns (defined as "burghs") the measure of violent profits in such a situation is twice the market rent.

The whole thing is ripe for reform.

John

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________________________________
From: Ben Mcfarlane 
Sent: 19 November 2008 09:24
To: 'Neil Foster'; 'Martin Hogg' 
Subject: RE: interference with property

The approach of Flaux J to conversion seems reasonable to me. There is a distinction between (i) interfering with B's thing; and (ii) interfering with B's use of a thing. The former can be a breach of a duty owed by the rest of the world to B; the latter merely interferes with B's liberty to make use of a thing, and is not necessarily a breach of a duty owed to B. If deliberate interferences with liberties to use a thing count as conversion, its scope would be very wide: as shown by the example of terrorists blowing up the entrance to a harbour and so “converting” the vessels therein. In most cases, of course, interfering with a liberty to use a thing involves interfering with that thing, and so the distinction is hidden. And in practice, of course, the distinction may not always be easy to draw, e.g. if A takes a key and throws it away, knowing it is the key to the lock of B's locked bike, does A convert the bike? But I think the distinction still exists.

I wonder if The Van Gogh is a bit like OBG. Loss is caused to a claimant because of a purported but invalid exercise of a statutory power. As a result, it is tempting to extend the boundaries of an existing private law concept to provide some redress. But the risk, exemplified I think by the minority in the House of Lords in OBG, is that we illegitimately extend that private law concept to fill a “gap” caused by the fact that the remedy provided by statute in the event of the invalid exercise of the power is not regarded by us as adequate (even if Parliament presumably did regard it as adequate).

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