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Nemo dat quod non habet. No one can transfer a better title in property than he himself has.






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Nemo dat quod non habet. No one can transfer a better title in property than he himself has. Sales without title. Two principles are competing at law: 1. the protection of property; and 2. the protection of commercial transactions and in particular the person who takes in good faith.
Nemo dat quod non habet. No one can transfer a better title in property than he himself has.

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Slide 1

Nemo dat quod non habet. No one can transfer a better title in property than he himself has.

Slide 2

Sales without title.

Slide 3

Two principles are competing at law:1.the protection of property; and2.the protection of commercial transactions and in particular the person who takes in good faith.

Slide 4

SGA s. 26 (1) Subject to this Act, if goods are sold by a person who is not the owner of them, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner's conduct precludes the owner from denying the seller's authority to sell.

Slide 5

29 (1) If goods have been stolen and the offender is prosecuted to conviction, the property in the goods stolen revests in the person who was the owner of the goods, or that person's personal representative, despite any intermediate dealing with them, whether by sale in market overt or otherwise.(2) Despite any enactment to the contrary, if goods have been obtained by fraud or other wrongful means not amounting to theft, the property in the goods does not revest in the person who was the owner of the goods, or that person's personal representative, merely because of the conviction of the offender.

Slide 6

1.Estoppel.“An estoppel is where a man is concluded by his own act or acceptance to say the truth.” Coke.

Slide 7

"a principle of justice and equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to so." Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA at 241 per Lord Denning MR.

Slide 8

26 (1) Subject to this Act, if goods are sold by a person who is not the owner of them, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner's conduct precludes the owner from denying the seller's authority to sell.

Slide 9

2.Sales by mercantile agent.

Slide 10

59 (1) If a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge or other disposition of the goods made by the mercantile agent when acting in the ordinary course of business of a mercantile agent is, subject to this Act, as valid as if the mercantile agent were expressly authorized by the owner of the goods to make the sale, pledge or other disposition, if the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make it.

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(2) If a mercantile agent has, with the consent of the owner, been in possession of goods, or of the documents of title to goods, any sale, pledge or other disposition that would have been valid if the consent had continued is valid despite the termination of the consent, if the person taking under the disposition has not at that time notice that the consent has been terminated.

Slide 12

3) If a mercantile agent has obtained possession of any documents of title to goods because of being or having been, with the consent of the owner, in possession of the goods represented by it, or of any other documents of title to the goods, the agent's possession of the first mentioned documents is, for the purposes of this Act, deemed to be with the consent of the owner.

Slide 13

(4) For the purposes of this Act, the consent of the owner is presumed unless there is evidence to the contrary.

Slide 14

59 (1) If a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge or other disposition of the goods made by the mercantile agent when acting in the ordinary course of business of a mercantile agent is, subject to this Act, as valid as if the mercantile agent were expressly authorized by the owner of the goods to make the sale, pledge or other disposition, if the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make it.

Slide 15

3.Where you have the sellers in possession.

Slide 16

30 (1) If a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for that person, of the goods or documents of title under any sale, pledge or other disposition of them, or under any agreement for the sale, pledge or other disposition of them, to any person receiving the same in good faithand without notice of the previous sale has the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the delivery or transfer.

Slide 17

4.     Buyer in possession.

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S. 30 (3) If a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for that person, of the goods or documents of title under any sale, pledge or other disposition of them, or under any agreement for the sale, pledge or other disposition of them, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods has the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

Slide 19

5.Sales under voidable title.

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28 When the seller of goods has a voidable title to them, but the seller's title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if they are bought in good faith and without notice of the seller's defect of title.

Slide 21

6. Market overt.

Slide 22

27 (1) If goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, as long as they are bought in good faith and without notice of any defect or want of title on the part of the seller.(2) This section does not affect the law relating to the sale of horses.

Slide 23

Other exceptions in Canada

Slide 24

Questions:1. What is the apparent aim of the legislation regarding sales without title?2. What are the policy justifications for the six exceptions to the basic rule of nemo dat quod non habet?


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