Movable property, unlike land, generates its own distinct family of torts addressing interference with possession or ownership: trespass to goods for direct physical interference, conversion for dealings amounting to a denial of the owner's rights, and detinue for wrongful refusal to return goods on demand.
Legal Framework
| Tort | Essential Requirement |
|---|---|
| Trespass to goods | Direct, unauthorised physical interference with goods in another's possession |
| Conversion | A dealing with goods so seriously inconsistent with the owner's rights as to amount to a denial of, or exclusion from, those rights |
| Detinue | Wrongful refusal or failure to return goods to a person entitled to their possession, following a proper demand |
Trespass to Goods
Trespass to goods is any direct, unauthorised physical interference with goods in another person's possession, such as damaging, moving, or touching them without permission, and, similar to trespass to land, does not necessarily require proof of actual damage, since it protects the fundamental possessory interest in the goods themselves.
Why this tort protects possession specifically, similar to the land based trespass tort: The person in actual possession of goods has an immediate, practical interest in their undisturbed control, an interest the tort protects directly, and this possessory interest can belong to someone other than the strict legal owner (such as a person who has borrowed or is otherwise lawfully holding goods belonging to someone else).
Conversion
Conversion requires a dealing with goods that is so seriously inconsistent with the true owner's rights of ownership or possession that it amounts to a denial of, or a serious interference excluding the owner from, those rights, going beyond the mere temporary interference trespass to goods addresses.
Why conversion requires this more serious degree of interference than mere trespass: Conversion essentially treats the defendant as having, in substance, appropriated the goods for their own purposes in a manner fundamentally inconsistent with the true owner's rights, a considerably more serious wrong than a merely temporary, non-appropriating interference; the remedy for conversion often effectively requires the defendant to pay the full value of the goods (as though compelled to "purchase" them from the true owner at their full value), reflecting this underlying idea that the defendant's conduct amounted to a serious, appropriating denial of ownership rather than a mere temporary interference.
Examples of conduct constituting conversion include wrongfully selling another's goods, wrongfully destroying them, wrongfully consuming them, or wrongfully retaining them despite the true owner's clear entitlement and demand in circumstances amounting to a genuine denial of their rights.
Fouldes v Willoughby (1841): The defendant, a ferry operator, removed the plaintiff's horses from his ferry boat and put them ashore, refusing to carry them further, but did not himself take, use, or dispose of the horses in any manner inconsistent with the plaintiff's ownership; the plaintiff could have simply retrieved his horses from the shore where they were left. The court held this specific conduct, mere removal from the boat without any further dealing inconsistent with ownership, did not constitute conversion, since there was no genuine denial of or exclusion from the plaintiff's ownership rights, merely an interference with one specific mode of transport the defendant was refusing to provide.
Why this case remains an important illustration of conversion's outer limits: It demonstrates that not every interference with goods, even one causing genuine inconvenience, rises to the level of conversion; the specific conduct must amount to a genuine denial of, or serious exclusion from, the owner's rights, not merely an interference with one particular use or mode of dealing with the goods while leaving the owner's underlying possession and ownership otherwise intact and recoverable.
Detinue
Detinue is the wrongful detention of goods, arising where the defendant, having lawful possession of the plaintiff's goods at some point, wrongfully refuses or fails to return them upon a proper demand by the person entitled to their possession.
Why detinue exists as a distinct tort, related to but separate from conversion: Detinue specifically addresses the continuing wrongful retention itself, and its characteristic remedy (an order for the actual return of the specific goods themselves, known as specific restitution) is distinct from conversion's typical remedy of monetary compensation for the goods' value; detinue is particularly useful where the plaintiff genuinely wants the specific goods themselves returned, rather than merely their monetary value, such as where the goods have some unique or irreplaceable character.
Armory v Delamirie (1722): Though primarily known for establishing a finder's superior possessory right against all but the true owner, this case's underlying facts (a jeweller's apprentice refusing to return a jewel he had been given to appraise) also illustrates principles relevant to wrongful detention and conversion of goods, the jeweller's refusal to return the specific item, or account for its value, being treated as actionable, reinforcing the strength of even a finder's or temporary possessor's rights against a subsequent wrongful detainer.
Illustrations
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Trespass to goods: A person, without permission, opens and rummages through another's parked vehicle, moving items inside without taking anything or causing any damage. This unauthorised physical interference with goods in another's possession constitutes trespass to goods, even absent any actual damage or removal.
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Conversion, wrongful sale: A person, entrusted with safekeeping another's valuable painting, wrongfully sells it to a third party without any authority to do so. This wrongful sale, dealing with the painting in a manner entirely inconsistent with and denying the true owner's ownership rights, constitutes conversion, and the true owner may claim the full value of the painting.
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Distinguishing conversion from mere trespass, Fouldes v Willoughby principle: A warehouse operator, in a dispute over unpaid storage fees, temporarily moves a customer's stored goods to a different section of the same warehouse, still fully accessible and recoverable by the customer upon payment of the disputed fees, without selling, destroying, or otherwise dealing with the goods in any manner denying the customer's underlying ownership. Applying Fouldes v Willoughby, this specific conduct, mere relocation without any genuine denial of ownership, likely constitutes at most trespass to goods rather than the more serious tort of conversion, since the customer's underlying ownership and ultimate right to recover the goods remains intact.
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Detinue, wrongful refusal to return: A person lends a rare book to a friend for a specified period, and upon the period's expiry, makes a clear, proper demand for its return, which the friend wrongfully refuses without any valid justification, continuing to retain the book. This wrongful continued retention following a proper demand constitutes detinue, and the lender may seek an order for the specific return of the book itself, given its unique, irreplaceable character.
Recall Check
- Why does trespass to goods, like trespass to land, not require proof of actual damage?
- Why does conversion require a more serious degree of interference than mere trespass to goods, and what did Fouldes v Willoughby illustrate about this distinction?
- Why is detinue a useful distinct remedy where the plaintiff wants the specific goods themselves returned, rather than merely their monetary value?
Key Cases
Fouldes v. Willoughby (1841) Fouldes-v-Willoughby-1841 Issue: Whether removing goods from one specific location or mode of transport, without further dealing inconsistent with ownership, constituted conversion. Rule: Conversion requires a genuine denial of, or serious exclusion from, the owner's rights; mere interference with one specific mode of dealing, leaving underlying ownership and recovery intact, does not suffice. Held: The court held no conversion occurred, establishing this important limitation distinguishing conversion from lesser forms of interference.
Armory v. Delamirie (1722) Armory-v-Delamirie-1722 Issue: The rights of a finder or temporary possessor of goods against a subsequent wrongful detainer. Rule: A finder or lawful temporary possessor holds a superior possessory right against all but the true owner, and wrongful refusal to return or account for goods held is actionable. Held: The court's reasoning reinforced the strength of possessory rights, relevant to understanding wrongful detention and conversion principles.
Distinctions
| Basis | Trespass to Goods | Conversion | Detinue |
|---|---|---|---|
| Degree of interference | Direct physical interference, any degree | Serious interference amounting to a denial of ownership rights | Wrongful continued retention after proper demand |
| Typical remedy | Damages for interference | Damages, often equal to the full value of the goods | Order for specific return of the goods, or damages |
| Proof of damage required | No, actionable per se | Generally not, given the serious nature of the interference | Requires proof of wrongful retention following proper demand |
Flashcards
Q: What does trespass to goods protect, and does it require proof of damage? A: Direct, unauthorised physical interference with goods in another's possession; no proof of damage is required.
Q: What degree of interference does conversion require? A: A dealing with goods so seriously inconsistent with the owner's rights as to amount to a denial of, or exclusion from, those rights.
Q: What did Fouldes v Willoughby establish about the limits of conversion? A: Mere interference with one specific mode of dealing with goods, leaving underlying ownership intact and recoverable, does not amount to conversion.
Q: What is detinue, and what distinct remedy does it typically offer? A: Wrongful refusal or failure to return goods following a proper demand; its characteristic remedy is an order for specific return of the goods themselves.
Q: Why might a plaintiff prefer to pursue detinue rather than conversion in some circumstances? A: Detinue's remedy of specific restitution is preferable where the plaintiff wants the specific, unique goods themselves returned, rather than merely their monetary value.
Exam Scenario
A person leaves their bicycle with a repair shop for servicing. Upon completion, they return to collect it and make a clear, proper demand for its return, which the shop wrongfully refuses, falsely claiming an unpaid balance the customer disputes and which is genuinely not owed, continuing to retain the bicycle indefinitely. Advise the customer on the appropriate tort claim and remedy.
Approach: Identify this as detinue, since the shop, having initially lawfully possessed the bicycle for servicing, is now wrongfully refusing to return it following a proper demand by the person entitled to its possession, based on a false, disputed justification (the alleged unpaid balance genuinely not owed). Advise the customer that they may pursue a detinue claim seeking an order for specific return of the bicycle itself, rather than merely monetary compensation, since the bicycle's specific, particular character (the customer's own specific bicycle, not simply any equivalent bicycle) makes specific restitution the more appropriate and desired remedy here, distinct from conversion's typical value based compensation remedy, though the customer could alternatively frame the claim as conversion if they preferred to seek the bicycle's monetary value instead of its actual physical return.
See Also
- Trespass to Land : the related but distinct family of torts protecting immovable property, sharing with these movable property torts the underlying concern for protecting possessory and ownership interests against unauthorised interference.