Ownership of Stolen Goods, Court Case.

Wheelnut

The local paper here carried a report of a case in the District Court this week and I thought the outcome seems strange. I am unable to find a link to the newspaper story so I will try to summarize it:

Mr. A advertised a car for sale on a well-known Irish website. Mr. B bought the car for €17,400 and paid by bank draft.

Mr. A became suspicious when he saw the car re-advertised on the same website for €10,000. He informed the Gardai and on their advice checked with his bank. The bank draft was a forgery.

Meanwhile Mr. B had sold the car to Mr. C. The Gardai investigated and seized the car but they failed to find Mr. B.

The court case was an application by Mr. A to have the car returned to him by the Gardai. Mr. C was also represented in the case and he applied to have the car returned to him.

After hearing the evidence the judge made several comments but the strange part (to me) was that he "asked" Mr. A to make a payment of €2,000 to Mr. C with a view to getting his car back. We are told that Mr. C settled for €2,500 from Mr. A and the payment was without prejudice. Mr. A then got his car back.

I was always under the impression that stolen goods remained the property of the owner and anyone buying stolen goods had no right of ownership. A person buying stolen goods risks losing both the goods and the money he paid for them. Why would a judge ask one victim to compensate another and was he right in law?

Marcusm

A bona fide purchaser for value without notice can acquire good title to stolen goods. This is an exception to what is known as the "nemo dat" rule which generally means that good title can only be passed by someone who already possesses good title. It seems likely that the DJ was seeking an equitable outcome.

conorh91

It would be preferable to see the article itself, but one explanation might be that the courts distinguish between voidable contracts and contracts which are void ab initio.

If I break into your home, and steal your computer, and then I try to sell that computer online, then a rule applies which is called the nemo dat rule. Nemo dat says that I had a void title over the computer to begin with. I was never entitled to sell the computer, therefore the contract of sale between myself and the purchaser was void from the outset.

But circumstances do arise, particularly in sales involving substantial sums of money (and delays in transferring money) where the villain merely has a voidable title.

His title not yet void, but it will be void at some future date, when the scheme becomes apparent. A big clock is now ticking. if he can shift the stolen article before his title is voided, then the Nemo dat rule may not apply, and the new, clueless purchaser may keep the stolen article.

There are a few other exceptions involving hire-purchase agreements and sales that occur in markets overt (markets recognized by Royal Charter).

All of the exceptions to the Nemo dat rule are rare.

Ken.

Anyone nowadays excepting a bank draft for a large sum of money from a stranger deserves a €2500 idiot tax and should kiss the Judges arse he kept the idiot tax low.

vinnie13

ken wrote: »

Anyone nowadays excepting a bank draft for a large sum of money from a stranger deserves a €2500 idiot tax and should kiss the Judges arse he kept the idiot tax low.

couldt agree more some pl are so thick

Paz-CCFC

Why does being careless make you deserving of being the victim of a crime? If you carelessly leave your front door unlocked, do you deserve to be burgled? If you carelessly walk through a bad neighbourhood, do you deserve to be assaulted and robbed?

It's the same attitude towards the victims of internet fraud. "It's their own fault, they deserve it". No they don't. It's letting the perpetrator off the hook, by unfairly putting the blame on the victim.

Thankfully, the justice system doesn't really follow that line of thinking and, in the event (albeit seemingly unlikely here) that the victim can identify and report the perpetrator, they could face criminal penalties and be liable to paying the victim what he was cost. That would be what's deserved.

Victor

That sounds like the judge was had.

Part of the scam is that the first buyer always disappears and it will be a co-conspirator that advertises the car for sale.

conorh91 wrote: »

There are a few other exceptions involving ... sales that occur in markets overt (markets recognized by Royal Charter).

Do any of these still exist? The exception was abolished in the UK.

hullaballoo

That's very cynical, V. I like it.

Does the District Court have equitable jurisdiction to make decision such as this?

Mycroft H

Doesn't Market Ouvert still exist now here?

234

Mycroft H wrote: »

Doesn't Market Ouvert still exist now here?

Yes, though I think that there are very few (less than 12) markets to which the exception applies.

Wheelnut

ken wrote: »

Anyone nowadays excepting a bank draft for a large sum of money from a stranger deserves a €2500 idiot tax and should kiss the Judges arse he kept the idiot tax low.

Times have certainly changed. Once upon a time bank drafts were almost better than cash because they were regarded as a cheque written by the bank and banks never go broke.

Victor wrote: »

Part of the scam is that the first buyer always disappears and it will be a co-conspirator that advertises the car for sale...

Yes, that was how the scam was carried out. I was trying to confine my summary to the key points so as to focus on how the judge settled the case.

conorh91

hullaballoo wrote: »

Does the District Court have equitable jurisdiction to make decision such as this?

No, the District Court has no equitable jurisdiction.

But based on the OP, the DJ seems to have acted as some sort of mediator, appealing to both parties to achieve an equitable resolution. There seems to be no doubt that Mr C. had a valid title.

hullaballoo

Well, that's why I asked the question.

How could a DJ find that Mr C has good title where Mr C can only make that assertion under equitable jurisdiction? In this case, does Mr A not get the car back irrespective of Mr C's claim as equity's darling?

(I appreciate that this was not a "decision" as the judge simply tried to find a solution that was best for both sides, although both probably felt hard done by!)

conorh91

hullaballoo wrote: »

Well, that's why I asked the question.

How could a DJ find that Mr C has good title where Mr C can only make that assertion under equitable jurisdiction?

OK, maybe I should have said the District Court does not have inherent equitable jurisdiction.

The exception to the nemo dat rule which Marcusm and I and offered is statutory, i.e. s.23 Sale of Goods Acts 1893

hullaballoo

conorh91 wrote: »

OK, maybe I should have said the District Court does not have inherent equitable jurisdiction.

The exception to the nemo dat rule which Marcusm and I and offered is statutory, i.e. s.23 Sale of Goods Acts 1893

Actually, the point is only complete after your post pointing out the timing issue because the statutory exception provided there does not cover circumstances where the bank draft has already failed to clear. At that point, the seller's title is void and s. 23 is unavailable to the good faith buyer.

What I'm concerned about is that the DC doesn't have jurisdiction to grant equitable remedies, leaving Mr C here totally in he lurch. Now, in this case, the judge did the best job he could have and I have to say, I commend his thinking. I just don't want people to go away from this thread with misinformation about the application of equity in the DC. It seems the judge may have realised he was fettered in this way and worked around it exceptionally well.

Wheelnut

Could I ask you guys to explain to me the meaning of equitable jurisdiction and inherent equitable jurisdiction.

conorh91

Wheelnut wrote: »

Could I ask you guys to explain to me the meaning of equitable jurisdiction and inherent equitable jurisdiction.

They're really the same thing.

The courts have some inherent powers. These are powers that can exist in the absence of any written law, and which are necessary if the court is to be effective and independent.

Equitable jurisdiction is one such example.

Equitable jurisdiction refers to the powers of a court to grant remedies out of discretion, as opposed to a remedy awarded by way of a legal right.

Equitable jurisdiction exists in order to prevent injustice which would arise out of a strict abidance with the parties' legal rights and obligations.

Equitable jurisdiction exists in the Circuit Court and in the Superior Courts.

Here's an image I really like

http://www.brendanconley.com/barexam/wp-content/uploads/2013/09/Remedies.jpg

Fred Swanson

This post has been deleted.

Bepolite

Fred Swanson wrote: »

This post has been deleted.

No lawyer I have ever spoken to has ever heard of this concept. I'm not for one second saying it doesn't exist, many have mentioned it here; I simply make the point for interests sake.

hullaballoo wrote: »

Actually, the point is only complete after your post pointing out the timing issue because the statutory exception provided there does not cover circumstances where the bank draft has already failed to clear. At that point, the seller's title is void and s. 23 is unavailable to the good faith buyer.

What I'm concerned about is that the DC doesn't have jurisdiction to grant equitable remedies, leaving Mr C here totally in he lurch. Now, in this case, the judge did the best job he could have and I have to say, I commend his thinking. I just don't want people to go away from this thread with misinformation about the application of equity in the DC. It seems the judge may have realised he was fettered in this way and worked around it exceptionally well.

Although on a different point entirely I got to ask (what I thought was a very intelligent question*) to a High Court (now SC) Judge at a lecture he was giving involving various points including tracing. The folly of my point (which I believe referenced Solomon) was pointed out to me in a very gentlemanly fashion - my faith in lateral thinking has now, however, been fully restored :pac:

*turns out of course it wasn't.

(Great thread OP)

johnnyskeleton

hullaballoo wrote: »

Well, that's why I asked the question.

How could a DJ find that Mr C has good title where Mr C can only make that assertion under equitable jurisdiction? In this case, does Mr A not get the car back irrespective of Mr C's claim as equity's darling?

(I appreciate that this was not a "decision" as the judge simply tried to find a solution that was best for both sides, although both probably felt hard done by!)

Presumably Mr C also has legal title and has registered the sale! But apart from anything else €17k is above even the new jurisdiction. Possibly it was in the circuit, or there is more to it than meets the eye

Pro Hoc Vice

Bepolite wrote: »

No lawyer I have ever spoken to has ever heard of this concept. I'm not for one second saying it doesn't exist, many have mentioned it here; I simply make the point for interests sake.



Although on a different point entirely I got to ask (what I thought was a very intelligent question*) to a High Court (now SC) Judge at a lecture he was giving involving various points including tracing. The folly of my point (which I believe referenced Solomon) was pointed out to me in a very gentlemanly fashion - my faith in lateral thinking has now, however, been fully restored :pac:

*turns out of course it wasn't.

(Great thread OP)

I find it really strange that no lawyer you have spoken to has ever heard of market overt, while it is in reality an academic issue it is or at least was covered when I did my degree. While in 10 years practice I have never found it in the wild so to speak I find it very strange that a number of lawyers had never heard of it. It would be in my opinion be like a number of barristers saying they never heard of carbolic smoke ball.

Pro Hoc Vice

johnnyskeleton wrote: »

Presumably Mr C also has legal title and has registered the sale! But apart from anything else €17k is above even the new jurisdiction. Possibly it was in the circuit, or there is more to it than meets the eye

From the OP

"The court case was an application by Mr. A to have the car returned to him by the Gardai. Mr. C was also represented in the case and he applied to have the car returned to him."

Sounds like a police property application in the DC.

Bepolite

Pro Hoc Vice wrote: »

I find it really strange that no lawyer you have spoken to has ever heard of market overt, while it is in reality an academic issue it is or at least was covered when I did my degree. While in 10 years practice I have never found it in the wild so to speak I find it very strange that a number of lawyers had never heard of it. It would be in my opinion be like a number of barristers saying they never heard of carbolic smoke ball.

Literally asked probably a dozen or so. Now it could have been that one or two simply didn't want to engage with the conversation at 8am when there were other things to be getting on with and to be fair of that dozen 2 or 3 would have been budding academics.

I think saying it's like not having heard of Carlill is overstating it a bit.

Pro Hoc Vice

Bepolite wrote: »

Literally asked probably a dozen or so. Now it could have been that one or two simply didn't want to engage with the conversation at 8am when there were other things to be getting on with and to be fair of that dozen 2 or 3 would have been budding academics.

I think saying it's like not having heard of Carlill is overstating it a bit.

http://books.google.ie/books?id=EIvFWptwb0QC&pg=PA232&lpg=PA232&dq=market+overt+ireland&source=bl&ots=vTnOtQcfkT&sig=rXvMe6-PpG_Mx4VUV6hnPlcTHJY&hl=en&sa=X&ei=SIA6VJueN7Gf7gbMmYHACw&ved=0CCAQ6AEwAg

Commercial and Economic Law in Ireland
By Fidelma White

Any person doing degree in law should have come across this in at a guess 3 subjects, contract, criminal and commercial. I remember studying it a couple of times at least.

Bepolite

Pro Hoc Vice wrote: »

http://books.google.ie/books?id=EIvFWptwb0QC&pg=PA232&lpg=PA232&dq=market+overt+ireland&source=bl&ots=vTnOtQcfkT&sig=rXvMe6-PpG_Mx4VUV6hnPlcTHJY&hl=en&sa=X&ei=SIA6VJueN7Gf7gbMmYHACw&ved=0CCAQ6AEwAg

Commercial and Economic Law in Ireland
By Fidelma White

Any person doing degree in law should have come across this in at a guess 3 subjects, contract, criminal and commercial. I remember studying it a couple of times at least.

I still think comparing something that a massive song and dance (quite literally if D v S the opera is anything to go by) is made to an obscure exception which is probably never even mentioned in a lecture, and only covered off in the reading it over-stating it. Should one remeber everything in the reading, of course - who does though?

I can only go by what I've been told - as I say perhaps they simply didn't want to engage on the subject. Two people I asked would have had degrees from Cambridge so perhaps it's simply a conspiracy of silence!

Pro Hoc Vice

Bepolite wrote: »

I still think comparing something that a massive song and dance (quite literally if D v S the opera is anything to go by) is made to an obscure exception which is probably never even mentioned in a lecture, and only covered off in the reading it over-stating it. Should one remeber everything in the reading, of course - who does though?

I can only go by what I've been told - as I say perhaps they simply didn't want to engage on the subject. Two people I asked would have had degrees from Cambridge so perhaps it's simply a conspiracy of silence!

I would assume UK colleges don't cover it. It is most definitely covered in the university I attended.

Bepolite

Pro Hoc Vice wrote: »

I would assume UK colleges don't cover it. It is most definitely covered in the university I attended.

Sorry I meant to say post-graduate degrees. NUI(G) and TCD - I think where the undergrad degrees, I realise it's weird remembering that but I went through a phase of worry about that sort of thing.

The UCD grad might very well have just being trying to get me to piss off! :pac:

I suppose it is worth noting that at least two of the barristers I've have regular contact with have BCOMMs and only every studied law at the Inns - I suspect that's pretty common. Whether it's something that is covered off in any great detail when you're trying to cope with, what I can only imagine is a punishing, curriculum of law of two years is something I obviously can't comment on.

As I say Post Hoc - you take the time to engage with me, whether this can be said for RL when I'm trying to discuss something I've no understanding of might just cause some people to feign ignorance!

Marcusm

Bepolite wrote: »

Sorry I meant to say post-graduate degrees. NUI(G) and TCD - I think where the undergrad degrees, I realise it's weird remembering that but I went through a phase of worry about that sort of thing.

The UCD grad might very well have just being trying to get me to piss off! :pac:

I suppose it is worth noting that at least two of the barristers I've have regular contact with have BCOMMs and only every studied law at the Inns - I suspect that's pretty common. Whether it's something that is covered off in any great detail when you're trying to cope with, what I can only imagine is a punishing, curriculum of law of two years is something I obviously can't comment on.

As I say Post Hoc - you take the time to engage with me, whether this can be said for RL when I'm trying to discuss something I've no understanding of might just cause some people to feign ignorance!

I'm surprised that market overt/marche ouvert is not covered as it contains the opportunity for many anecdotes/apocryphal stories. I have heard it from legal acquaintances that the market overt status of my local antiques market (Bermondsey, every Friday from 5am or so until lunch) was rescinded following a case where one of the Inns of Court sought to recover stolen paintings. The mere claim by the current holder that he'd bought them down the market was sufficient to retain them.

Wheelnut

johnnyskeleton wrote: »

... But apart from anything else €17k is above even the new jurisdiction. Possibly it was in the circuit, or there is more to it than meets the eye

It was definitely the District Court. As Pro Hoc Vice has suggested, it was probably a police property application. I think I have included all the main points in my summary so there is nothing that does not meet the eye.


PS: I am still searching all the local newspaper sites to see if I can find a link to the story but so far I've found nothing.

Bepolite

Marcusm wrote: »

I'm surprised that market overt/marche ouvert is not covered as it contains the opportunity for many anecdotes/apocryphal stories. I have heard it from legal acquaintances that the market overt status of my local antiques market (Bermondsey, every Friday from 5am or so until lunch) was rescinded following a case where one of the Inns of Court sought to recover stolen paintings. The mere claim by the current holder that he'd bought them down the market was sufficient to retain them.

It must be me then :pac:

Wheelnut wrote: »

It was definitely the District Court. As Pro Hoc Vice has suggested, it was probably a police property application. I think I have included all the main points in my summary so there is nothing that does not meet the eye.


PS: I am still searching all the local newspaper sites to see if I can find a link to the story but so far I've found nothing.

Sorry to have derailed your thread OP.

johnnyskeleton

Bepolite wrote: »

It must be me then :pac:



Sorry to have derailed your thread OP.

I hope you didn't close your account because of this thread?

Wheelnut

Bepolite wrote: »

Sorry to have derailed your thread OP.

No Problem, it's very interesting.

In my layman's view the thread seems to be slowly coming around again to the voidable title that was mentioned near the beginning. The judge must have felt that Mr. C had some grounds for a claim and that could only happen if Mr. B had a voidable title, am I correct? Presumably then that title would have become void when the bank draft bounced so the title only existed for a short time.