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Judge and JuristEssays in Memory of Lord Rodger of Earlsferry$

Andrew Burrows, David Johnston, QC, and Reinhard Zimmermann

Print publication date: 2013

Print ISBN-13: 9780199677344

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199677344.001.0001

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Lawyer for All Time

Lawyer for All Time

(p.382) (p.383) 31 Lawyer for All Time
Judge and Jurist

David L Carey Miller

Oxford University Press

Abstract and Keywords

This chapter considers a narrow point of property law and an associated law reform issue. The point relates to the position of the non-owner possessor of a corporeal movable who successfully invokes negative prescription against a person claiming delivery of the thing on the basis of proving the right of ownership. The position and role of the presumption that the possessor of a movable is its owner in the structure and system of property law are considered with particular reference to the full treatment by Baron Hume in his lectures.

Keywords:   property law, law reform, corporeal movable, Baron Hume, ownership, negative prescription

When Alan Rodger returned to Scotland and joined the Faculty of Advocates in 1974, he had no direct Aberdeen connection. But one came to flourish. Two distinct factors were prominent. The primary one was Roman law; the other was an annual American summer school.

Roman law was a major aspect of Alan Rodger’s affection for Aberdeen, with its strength in the subject and its noted library of civilian works. Awarded an honorary LLD in 1999, Alan later became an Honorary Professor of Law. Already Lord President, he also contributed to a quincentenary conference in 1995.1 In 2001 he gave the first CMS Cameron McKenna lecture. ‘Law for All Times: the Work and Contribution of David Daube’2 took the ‘scales of justice’ theme of Daube’s 1951 inaugural lecture as a basis for a discussion of difficult issues which might have engaged the legendary Daube mind.3 During a conference after the lecture, Jonathan Daube informed me of his family’s decision, taken on the advice of Alan Rodger and Reuven Yaron,4 that David Daube’s papers and books be gifted to Aberdeen University. Alan made a key contribution to an Aberdeen conference in 2009 to mark the centenary of the birth of David Daube; and his paper on the relationship between Daube and Buckland drew on material in the Daube Papers.5 In a report with his paper, he noted that the conference ‘served to remind scholars of the rich archive of material about David Daube that is now to be found in the University of Aberdeen’.6

(p.384) Known to be an exceptionally talented legal scholar, Alan’s return to Scotland was noted with interest by legal academics; perhaps especially in Aberdeen with its strength in Roman law. At that time my acquaintance with Alan was a limited personal one. Fergus Rodger, Alan’s father, and JD Sutherland, father of my former wife Anne, had been colleagues in mental health. Anne told of a brilliant family friend who was at Oxford. She knew him well; the families had taken European holidays together. I first met Alan through the Rodger/Sutherland family connection.

Alan did a stint as external examiner in my comparative law course in the early 1980s;7 I well remember his insistence that borderline fails should not pass by simply saying something at their viva. After becoming Solicitor-General in 1989 he accepted my invitation to address the Baltimore/Maryland summer school students. He continued in this role on an annual basis as Lord Advocate and later Lord President. Even when his working life moved to London, he was happy to continue and ‘Lord Rodger’s lecture’ became a tradition. As a Lord of Appeal in Ordinary, Alan had met US Supreme Court Justices and was extremely well informed about the US Court and its complex constitutional role. The summer school students found it astonishing that he knew so much about their law and was ready to engage in discussion with them on US issues.

Capable of contributing to knowledge over a wide range of intellectually challenging subjects, Alan Rodger gave the inaugural Jean Clark Lectures at Aberdeen in May 2007 on the topic ‘Constitutional Crisis and the Courts: Lessons from the Disruption’. Alan made this intriguing choice of subject after his nomination as the first lecturer. A reviewer in the Edinburgh Law Review saw the work’s obvious strengths in both the scholarship, which will make it a reference point for churchmen and lawyers, and the manner in which the character of the ‘ministers, counsel and judges…is brought to life in this elegant and cultured account of the events and their context’.8

Alan was a true and loyal friend of Aberdeen University. The reasons for that could not have been better ones: students and scholarship.

1. Introduction

This essay will consider a narrow point of property law and an associated law reform issue. The point relates to the position of the non-owner possessor of a corporeal moveable who successfully invokes negative prescription against a person claiming delivery of the thing on the basis of proving the right of ownership. The relevant section in the governing statute provides that:‘[i]f, after the date when any right to which this section applies has become exercisable or enforceable, the right has subsisted for a continuous period of twenty years unexercised or unenforced, and (p.385) without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished’.9

What is the position of the possessor who has successfully invoked the section? As in any other situation of possession of a moveable thing—at any rate where possession is ‘as one’s own’10—the possessor is protected by a presumption of ownership, rebuttable by a claimant who is able to show ownership and that possession was lost or parted with in circumstances inconsistent with transfer. Because of its relevance to the negative prescription issue, much of this essay will be concerned with the presumption.

There is no specific judicial authority on this point but two distinct positions can be contended for. On one view, the owner’s right to restitution being extinguished, the thing must be regarded as unowned and, as such, to vest in the Crown. This follows from the rule that moveables, once owned, which come to be unowned belong to the Crown as per the maxim quod nullius est fit domini regis.11 This position is contended for in a convincing passage in the definitive modern text on prescription in the law of Scotland:

Ownership of corporeal property prescribes in 20 years. After that time, the possessor can therefore no longer be dispossessed by the original owner. But neither, unless there is an acquisitive prescription which can run in his favour, can the possessor be said to be owner. The consequence, if the original owner is no longer the owner and the possessor is not the owner either, must be that ownership vests in the Crown, as it does for all property which becomes ownerless.12

This view is by no means a minority one, but is, rather, probably the general one. The leading modern property text is to like effect; it refers to the ownership of a ring—belonging to C but sold by A to B—being lost after 20 years by negative prescription: ‘[b]ut unless the existence of positive prescription is recognized the ring does not thereby become the property of B. Instead it is res nullius and thus, it is thought, the property of the Crown. In practice, however, there is little prospect of B’s title being challenged.’13

The difficulty involved is apparent in another passage in Professor Kenneth Reid’s work on property in the corporeal moveable property section by Professor William Gordon:14

(p.386) If negative prescription applies, but the forty-year positive prescription which may apply at common law has not yet run, the possessor will not in fact be owner but he will be able to rely on the presumption of ownership arising from possession to recover the thing from third parties. In theory at least, the true owner would be able to recover from a third party until a title was acquired against him by positive prescription or at least until his right of recovery was lost by negative prescription if it is so lost.15

The Scottish Law Commission (SLC), in the context of a recent proposal to introduce a system of positive prescription applying to corporeal moveable property, seem to see the conclusion that ‘property falls to the Crown following negative prescription’16 as the indisputable outcome. The position that the SLC takes—to be considered later17—is part of the catalyst for an examination of the matter.

That conclusion should mean that, in principle, the Crown could now obtain the thing from the possessor on the basis that ownership trumps possession. But would the Crown succeed in an action for delivery? An alternative view is that the presumption that the possessor is owner protects a person who has successfully seen off the owner by recourse to negative prescription. The argument is that, in this case, the Crown would not be able to rebut the presumption because it could not show that possession was lost or parted with in circumstances not consistent with transfer.

The position and role of the presumption that the possessor of a movable is its owner in the structure and system of property law will be considered with particular reference to the full treatment by Baron Hume in his lectures.18

2. Does Title always Trump?

(1) The general position

It is trite, and need not be dwelt upon, that in the property law of Scotland ownership, or title, and possession are conceptually different and distinct. In principle, title takes precedence, unless the title-holder is bound by a right granted to the possessor. In a speech clarifying a fundamental issue of Scottish property law, Lord Rodger of Earlsferry adopted Professor Barry Nicholas’s19 description of Roman law’s ‘unbridgeable division between real and personal rights’.20 This controlling dichotomy is relevant to the distinction between ownership and possession in the sense that in principle the real right of ownership in a given thing trumps a right of possession.

(p.387) The right of ownership—title—to a thing derives only from the trigger of circumstances of acquisition and not from the mere factual state of possession. This distinction is absolutely clear in the case of heritable property, in which the right of ownership exists by reference to a title deed. In the case of corporeal movable property, there is no equivalent form of title deed but, of course, the distinction remains controlling to the extent that possession, even though a protected right, is in principle always trumped by title. Recognition of this entrenched position, involving a distinction between an abstract and a factual position, is implicit in the presumption that the possessor of a moveable thing is its owner. This is manifest in the way the presumption works, in that it can always be rebutted by proof of ownership and proof by the claimant owner that he or she did not part with possession in a manner consistent with a transfer of ownership. The theme of this essay is that the presumption is not an unjustified expansion of the right of possession—tending to blur the distinction between possession and ownership—but, rather, an integral part of the structure of property law applying to corporeal moveables. But what is the consequence of a successful invoking of the presumption? The SLC has recently said that the presumption is ‘only a presumption’21 but what does this mean? This question can be considered by reference to a fictitious scenario.

Dr Malum (M), of Edinburgh, having inherited from his aunt a moderately valuable but little known Scottish colourist painting, conspires with a Mr Torque (T) to perpetrate an insurance fraud. By arrangement, T removes the picture from M’s residence in the latter’s absence and takes it to London. Presenting false credentials and forged proof of title papers, T sells it to a reputable specialist dealer for £15,000. Four days after the picture is displayed, Aberdeen millionaire Sir Don (D) buys it for £35,000. Some months later M, having had cold feet in respect of an insurance scam, acts irrationally in seeking to recover the picture as his stolen property. In ensuing Aberdeen Sheriff Court litigation M, in an action for delivery against D, must prove that he is owner and that he lost possession in a manner inconsistent with a transfer of ownership. D, having engaged a private detective, is able to present the true facts to the court. The Sheriff’s decision is that because M failed to establish the second leg of the presumption, his claim to recover possession on the basis of a right of ownership must fail and that D can keep the picture. Is D’s position any different from what it was before he successfully resisted the claim of the only party able to prove title?

There are three possible answers. First, that D’s position is no different from what it was prior to the decree in his favour, that is, that of a protected possessor. Secondly, that D is owner by reason of his successful recourse to the presumption that the possessor is owner. Thirdly, that in consequence of the decree denying the right of the owner to recover, the painting is unowned property and, as such, vests in the Crown on the basis of the maxim quod nullius est fit domini regis. This (p.388) possibility may seem far-fetched but it could, perhaps, be contended for on a basis analogous to the negative prescription reasoning.22

The conclusion that there has been no change in the status quo but a mere continuation of protected possession seems counter-intuitive where the only party able to recover has been denied the right to do so. Where the basis of that decision was the claimant owner’s failure to show circumstances not consistent with a transfer of ownership, the position is akin to the various situations in which ownership may pass, at least to a bona fide party, on an inferential basis. The exceptional cases in which ownership may pass without reference to a direct expression of intention by the owner are justified on the basis of an inference of consent to transfer.23 On this analogy, the second leg of what must be established to rebut the presumption is key. This is true in the sense of the obvious significance of the point that the owner has been unable to show that he or she did not intend that ownership should pass. The presence of this prerequisite of proof to rebut the presumption does not support the notion of a ‘mere presumption’ meaning no more after than it did before decree in favour of the possessor. On the contrary, the position of the party protected by the presumption is different after its successful invocation because it has been established that the thing came to be in the marketplace on a basis not inconsistent with inferring the owner’s intention to allow transfer. Any idea that the thing concerned comes to be unowned and so vests in the Crown is tenable only on the basis of denying any scope for an inferential basis of transfer.

The basis of the Crown title solution is that the owner is no longer owner and that possession, albeit protected, is not ownership, so the thing must be unowned and vest in the Crown. This would leave the party who came into possession on the basis of good faith purchase in a weaker position after successful recourse to the presumption than he or she was before. The notion that title must always trump is misplaced as a basis for Crown entitlement in this scenario. That is because the presumption deals with the title point in its second leg, on the basis of which the owner’s intention to transfer is inferred from his initial parting with the thing, meaning that title can be passed on. In an earlier essay concerned with the position of Scots law regarding the protection of the good faith purchase of a moveable, my conclusion failed to recognize the significance of the presumption.24 The better view would appear to be that the presumption functions as a circumscribed protection of the bona fide purchaser of movable property.

From the point of view of the scope of the presumption, it is significant that its protection is ultimately limited by the circumstances in which the owner lost or parted with possession. The Dr M scenario may seem an improbable one but it (p.389) broadly replicates the position in relatively recent litigation.25 A more common position would be that of an owner who voluntarily parted with possession for purposes of sale by an agent but has a subsequent change of mind. Even though the agency may have been revoked, procrastination by the owner in recovering possession of the thing concerned could lead to difficulty in establishing the second leg of the presumption where a bona fide purchaser third party had come into possession. Another relevant application of inferred intention is the general one of personal bar, at common law26 and under legislation.27

The logical conclusion of this line of reasoning is that the possessor’s position after decree in his or her favour on the basis of the presumption is that of owner.

(2) When there has been negative prescription

The position is different when the owner has been denied the right to recover on the basis of negative prescription. Let us assume that M’s painting had, indeed, been stolen but that more than 20 years had elapsed before he discovered that it was in the possession of D. The presumption does not help D because M can show that he lost possession through theft. However, D, being innocent as to the theft,28 can defend on the basis that M’s right has been extinguished by negative prescription. How would this work in our example? In particular, what does it mean to say that M’s right has been extinguished?

The defining feature of ownership is the right to recover the thing from one who has no legal right to possession on the basis of the system which, of course, includes the presumption that the possessor is owner. The extinguishing of the definitive right to recover possession amounts to a denial of ownership itself. The argument advanced by respected modern authorities and adopted by the SLC29 is that if the thing is no longer owned it must be unowned and so vest in the Crown in terms of the common law principle quod nullius est fit domini regis. Accepting for the purposes of the argument that M is no longer in contention, title in principle vests in the Crown but D continues to be protected by the presumption that he is owner. What then happens if the Crown seeks to assert title?

There is no precedent which assists with this question but the better view would seem to be that the Crown would not succeed because it could not overcome the presumption. The Crown’s position would be that it became title-holder immediately upon the judicial decree in favour of the possessor which, in terms of section 8 of the Prescription and Limitation (Scotland) Act 1973, in effect declared the property to be ownerless. The obvious problem, however, is that the possessor is protected by the presumption and it is difficult to see that the Crown could rebut it. (p.390) While the Crown could, in principle, prove a quod nullius-based title it would not be in a position to show that it lost possession in circumstances inconsistent with transfer because it never had possession.30 The Crown, coming ‘out of the blue’, would not be in a position to show the necessary prior interest to rebut the presumption.

The position would, of course, be different if the Crown’s entitlement arose from the finding of property with no known owner, the classic situation being treasure trove. In this situation, the presumption, if asserted by the finder against the Crown seeking to recover, would not be sustained. Assuming a sufficient causa possessionis to allow access to the presumption in the circumstances of finding another’s property,31 the Crown could, of course, show title and also demonstrate that its right of possession was being denied in circumstances not consistent with any transfer of ownership. Arguably, from the Crown’s point of view, the unjustified assertion of a right of possession by a finder, not intending to hand the thing over to someone in authority, amounts to a wrongful denial of the right to possession. Any assertion by the finder that he or she held on a basis consistent with a relinquishing of ownership by the Crown would be unsustainable in principle. In the St Ninian’s Isle treasure case, the University of Aberdeen based its unsuccessful claim not on a protected right to possession but on ownership—on the primary basis that the quod nullius est fit domini regis rule did not apply in Shetland.32

The position of an innocent possessor who has successfully invoked negative prescription against the owner is a very different one from that of a finder of apparently unowned property who unlawfully asserts a title to it. There is no authority in support of the notion that the Royal prerogative-based quod nullius rule33 is part of the structure of the law of property, in the sense that it comes into play to trump the position of a possessor who has successfully invoked the presumption against the owner. The application of quod nullius to defeat a possessor’s successful resort to negative prescription will be commented on in the next section.

3. Scottish Law Commission Perspective

The SLC work on prescription and title to movable property addresses the role and relevance of the presumption that the possessor of a corporeal moveable is its owner. Considering the case for a rule of positive prescription, the SLC in its 2012 (p.391) Report34 reiterates arguments for and against, which were first presented in a Discussion Paper.35 The SLC observes that an argument against positive prescription is that ‘possession itself raises a presumption of ownership’ but that the ‘presumption can be rebutted’.36 The Report refers to a review of the SLC Discussion Paper, by this writer, suggesting that the efficacy of the presumption may be underrated.37 The Report acknowledges the importance of the presumption. In the context of ‘moveables with long lives, which are identifiable and may be of high value’, for example ‘paintings, jewellery and antiques’, it is noted that because there is no register of title, buyers ‘can make enquiries as far as possible, but often reliance has to be placed on the fact that the law presumes that the possessor of a corporeal moveable is the owner’.38 But the Report goes on to note that ‘[w]hile the presumption may be difficult to overcome, it is nevertheless only a presumption’.39

This might be taken to suggest that the possessor’s position is the same after successful invocation of the presumption against the owner. That this is the position of the SLC would appear to be borne out by what is said in respect of negative prescription. The SLC does not accept the argument that negative prescription ends the prior owner’s right of challenge and puts the possessor, protected by the presumption of ownership, in a position in which his or her assertion40 of a right of ownership cannot be challenged. In response to the argument that ‘negative prescription under the existing law removes the erstwhile owner’s right of challenge’, the Report says, ‘But, as we have seen, ownership then falls to the Crown rather than the possessor. Yet the possessor continues to hold the property. Ownership and possession thus remain divided’.41

This position is advanced on the basis that title and possession are distinct and a non-owner possessor does not become owner by reason of his or her right to possession being upheld by recourse to the presumption. But is this the position of the common law? This question will be examined in the next section by reference to Baron Hume’s Lectures.

The SLC view—supported by most modern authority42—that the Crown is entitled following a successful defence of negative prescription by the possessor, may seem less anomalous than that of the Crown entitled ‘out of the blue’. That said, it is open to the objection of ruling out the application of section 8 against the Crown even though the Act applies to the Crown.43 In any event, not wanting to weaken the perceived entitlement of the Crown—especially in the (p.392) case of cultural property—the SLC draft Bill makes special provision to protect Crown ownership.44

4. The Common Law according to Hume

Hume gives a full account of the presumption that the possessor of a movable thing is its owner. He considers the circumstances of trade in movable property, not involving any controlling system of recording title but facilitating successive transactions as a matter of normal and everyday commerce, as the basis for a rule protecting the position of the possessor. Commencing from the common situation in which there has probably been transmission through predecessors before ‘the thing may have at least come rightly and fairly down to the present possessor’,45 Hume sees the ultimate justification for the presumption as follows:

Now, in these circumstances, that the present possessor should prove his own modus acquirendi, and how his author came by it, and his author again, and that he should thus trace back the progress of the thing through all its successive transmissions, up to this claimant himself, the present complainer, this would be to require what is very seldom possible to be complied with and it would put an end to all sort of security or facility in the traffic of moveable subjects.46

That Hume is concerned with a presumption with the potential to provide for the recognition of a right of title appears from the detail of his description:

For these expedient reasons our practice lays the burden of proof on the former owner, vindicating his subject. We do not require of the present possessor to show, even how he himself acquired the moveable, much less how it came to any intermediate person between him and the pursuer: we presume in his favour from his possession alone, qua dominus, in the character of owner, that the thing came fairly to him on some just and lawful title of acquisition; and this presumption it lyes upon the pursuer or complainer, to overcome. Which to do he must prove, not only that the thing once belonged to him, but also quomodo desiit possedere—the manner of the departure of the thing out of his hands. He must show, that the thing passed from him either utterly without his consent (as by stealth, or robbery or being lost); or, at least, without any intention on his part to transfer the property of the thing, as by loan or pledge, on deposit, or on some other the like limited and defeasible title of possession consistent with the right of property remaining in him.47

Is this description consistent with the presumption being ‘only a presumption’ in the sense of meaning no more after successful invocation than before any issue of right to the thing arose? On the contrary, it describes a device intended to resolve issues of title in respect of movables, an approach aiming to provide for and (p.393) promote certainty about the ownership of a thing which has come to be possessed by one who is assumed to have acquired on a legitimate basis in a market context.

Hume observes that a requirement that the present possessor should ‘prove his own modus acquirendi’ and how his predecessor possessors came by the thing, would demand ‘what is very seldom possible to be complied with and it would put an end to all sort of security or facility in the traffic of moveable subjects’.48 Referring to Stair,49 Hume says, ‘The unreasonableness of this will appear if we take the case of a horse which has been bought five or six times. How unjust it would be if the first owner were entitled to recover it from the last purchaser, if the latter did not prove all the different bargains which may have taken place!’50

Emphasizing commercial need, Hume’s treatment presents the presumption as a device protecting the good faith purchaser, albeit on a limited basis. This, of course, is consistent with various situations—recognized by common law and extended by statutory provision51—in which property, no longer in the owner’s possession, may pass to a bona fide party despite the absence of any active intention to transfer by the owner. But the presumption does not function in favour of a bona fide purchaser regardless. As Hume says, it does not ‘serve to defend the present holder against the right owner’s claim of restitution, that he purchased the thing bona fide, and paid a fair price for it…’.52 Title trumps where the pursuer can show ownership and that possession was not lost in circumstances consistent with transfer. The presumption prevails only where there is some basis for recognition of a process of derivative acquisition in the circumstances in which the owner parted with possession. The vitium reale of theft is an overriding factor in the sense that, in principle, an owner can always recover a thing taken without his or her consent. The presumption still applies in this situation to protect a possessor, regardless of good faith, but it will be readily rebuttable by the deprived owner.

Referring to the presumption as a ‘notorious, and well established article of our common law’ sanctioned in many judgments, ‘the better authorities for being old’, Hume alludes to an era in which litigation over corporeal moveables was common, something demonstrated by frequent recourse to spuilzie.53

Hume first refers to a mid-seventeenth-century action raised by Walter Scot—as assignee of his father Sir John of Scotstarvet, in Fife—against Sir John Fletcher54 for delivery of an ‘Atlas Major’, ‘now in his hand’. While there could hardly be any doubt as to the pursuer being in a position to establish at least former ownership of this very special Atlas—‘…six volumes of Atlas Major, which the said Sir John [Scot] caused reprint, and made some voyages to Holland for that effect’55—it was (p.394) nonetheless required that the pursuer establish the basis under which possession was lost or parted with as not consistent with a transfer of ownership. In relation to the process by which the pursuer must proceed, the Lords upheld the position of the defender:

The defender answered, Non relevat, unless it were condescended quo titulo; for if it came in the defender’s hands by emption or gift, it is his own; and in mobilibus possessio praesumit titulum; seeing, in these, writ nor witnesses use not to be interposed; and none can seek recovery of such, unless he condescend quo modo dessiit possedere; else all commerce would be destroyed; and whoever could prove that once any thing was his, might recover it per mille manus, unless they instruct their title to it.56

The functioning of the presumption as a rule controlling the right to recover moveable property which has come into the hands of another and the reason for having this rule, are both made clear in this quotation. Stair’s report of the decision refers to the submission ‘in mobilibus possessio presumit Titulum’ by Fletcher’s counsel—apparently suggesting proprietary effect.57

Hume58 does signal a limit to the presumption in that ‘a weaker and less pointed proof of the manner of parting with possession may suffice in certain cases, in which from their nature the presumption in favor of the possessor is not so strong.’ This point is supported by the example of a valuable jewel which makes its appearance in the possession of a common beggar. The modern definitive general property text notes modern authority59 supporting the proposition that, ‘[t]he strength of the presumption is not constant but varies with the length and nature of the possession held’.60 The text goes on to refer to Hume’s example of the beggar with a jewel. This perceived limitation is problematic because it introduces uncertainty into a presumption which otherwise operates in a clear and straightforward way. The presumption functions by putting the onus on the claimant to demonstrate a right to recover from a remote possessor; there should not be any ‘second guessing’ based on the apparent circumstances of possession. That the presumption fits the relevant structure in its rational sphere of operation supports the argument that it should not be weakened or limited by allowing an inarticulate application of judicial discretion.

Hume refers to other cases in support of the position of the presumption. They include Ramsay v Wilson,61 which reflects facts easily interesting enough to be the subject of theatre,62 and which, although primarily an authority on prescription, is relevant in recognizing the presumptive title arising from possession of movables.

(p.395) 5. Presumptions and this Presumption

The view of the institutional writers is that the presumption that the possessor of a thing is its owner is a praesumptio juris: Stair says, ‘[y]et this is but praesumptio juris, admitting a contrary probation…’63 Earlier in the same title, Stair comments regarding the standing of this category of presumptions, ‘yet even these presumptions admit a contrary stronger probation; and though presumptions be said transferre onus probandi, rather than to prove, yet they prove unless the contrary be proven’.64 Erskine explains the concept of praesumptio juris as ‘that which is in general terms established by our law or decisions as a presumption, but without founding any consequence upon it or statuting super praesumpto; so that it is taken for true only till the contrary shall appear to the judge to be supported by stronger evidence’.65 Erskine says that an example of this type of presumption is the presumption that ‘[t]he property of moveables is presumed from possession of them’.66 This presumption is a ‘proper presumption arising from the supposition of certain facts’ which ‘may be elided, not only by a direct contrary proof, but by contrary pregnant presumptions’.67

David Sellar states that ‘there has been continuing uncertainty as to whether the presumption of ownership arising from the possession of moveables should be classed as a presumption of law (juris tantum) or a presumption of fact (judicis vel hominis), Stair and the older authorities opting for the former, but more recent authority tending towards the latter’.68

In a dictum—seeming to contain, if not demote, the role of the presumption—quoted by Sellar, Lord President Cooper said, ‘if the circumstances do not raise the plea of bar…the possession of the moveables can create no more than a presumption of fact, more or less strong according to the circumstances, but capable of being redargued’.69

The measure of standing of a presumption must be by reference to its operation, more specifically, the extent to which it is entrenched and what it takes to rebut it. The policy justification for a given presumption should be relevant to its standing; if the justification for the presumption is accepted to be compelling one would expect this to be reflected in the scope and manner of the presumption’s operation. Regarding the presumption arising from possession, Stair acknowledges the compelling justification for it, ‘the great security of commerce, which would be extremely prejudiced, if men were obliged to prove the titles of their possession of moveables…’.70

(p.396) 6. Conclusion

Any view that the presumption compromises a fundamental aspect of the law by conceding that in the case of moveables the distinction between ownership and possession is not necessarily controlling, is probably misplaced. This is because the presumption functions by recognizing that the owner’s consent to transfer can be inferred from the circumstances in which possession was parted with or lost. Where such circumstances are present, a subsequent acquirer is protected by, effectively, a presumption that he or she has come into possession on a derivative basis. Of course, a party claiming possession on the basis of a right of ownership can always show that the circumstances are not consistent with possible derivative transmission; doing so will meet the critical second leg of the presumption.

It seems that the dubiety about this presumption is because its basis has not been properly recognized. Arguably, it is structural in controlling the protection of possession by reference to the critical question whether, in allowing the thing to get into circulation, the owner can be taken to have implied an intention to transfer. An associated structural rule is spuilzie, which allows a possessor to recover the possession of a thing taken without authority or consent. Stair recognizes the link between the presumption and spuilzie in noting that, ‘[i]n spuilzies the pursuer needs no other title but possession, from whence in moveables a right is presumed’.71 The efficacy of the presumption would be undermined if the law failed to protect the status quo of bare possession against vitious dispossession. As pointed out in an earlier paper, the limitation of spuilzie as a claim for immediate restoration against the actual dispossessor fits with the presumption, which must potentially be available to protect a possessor subsequent to the vitious dispossessor.72

If this analysis of the functioning of the presumption is correct, it has a role in supporting a possessor’s right in the situation where an owner’s claim is denied on the basis of negative prescription. The view that title falls to the Crown in the negative prescription situation rests on the basis that the possessor who has successfully invoked negative prescription is only a possessor. But if the owner’s right has been denied through negative prescription there is obviously no possibility that the possessor’s position—in terms of possible derivative acquisition—can be challenged. That is the point about negative prescription: it tells the claimant that it is too late to assert ownership and claim that the thing passed from his or her possession in circumstances not consistent with transfer. The position must then necessarily be that the assumption stands that the possessor obtained the property concerned on some valid derivative basis. One need (p.397) hardly say that, as a matter of policy, this is a better solution than to vest title in the Crown.

Clarification of the role of the presumption does not mean that the positive prescription proposed in the SLC Report is unnecessary. But if this ‘minority view’ of the common law position is correct, the recommendations for reform should proceed on a different basis.


* Emeritus Professor of Property Law, University of Aberdeen; Senior Associate Research Fellow, IALS. The assistance of Douglas Bain, Dr Jonathan Daube, Dr David Parratt, and Dr Andrew Simpson is gratefully acknowledged; David Johnston kindly commented on a near final draft; this all said, the failings and faults in this essay are mine alone.

(1) ‘The Use of the Civil Law in the Scottish Courts’ in David Carey Miller and Reinhard Zimmermann (eds), The Civilian Tradition and Scots Law (1997) 225.

(2) For a full account and text see Ernest Metzger (ed), Law for All Times: Essays in Memory of David Daube (2004) 2 Roman Legal Tradition 3.

(3) See my few words on this in ‘David Daube Centenary’ in Ernest Metzger (ed), David Daube: A Centenary Celebration (2010) 3–4.

(4) Another distinguished Romanist with an Aberdeen connection through David Daube: see n 3 at 5.

(5) See Alan Rodger, ‘Buckland and Daube: A Cambridge Friendship’ (2010) 127 ZSS (RA) 245.

(6) At 675–6.

(7) 1980–84; see Aberdeen University Calendar 1979–1980 531.

(8) Marjory A MacLean, review of Lord Rodger of Earlsferry, The Courts, the Church and the Constitution: Aspects of the Disruption of 1843 (2008) in (2009) 13 Edinburgh LR 173, 174.

(9) Prescription and Limitation (Scotland) Act 1973, s 8.

(10) Bankton, An Institute of the Laws of Scotland in Civil Rights (1751–53) 2.1.34.

(11) ‘Where things were once owned but no longer have an owner, the general rule is that they belong to the Crown: quod nullius est fit domini regis (what belongs to no-one becomes the property of the lord king)’: see Professor WM Gordon in The Laws of Scotland: Stair Memorial Encyclopaedia, vol 18 (1993) para. 540 (subsequently published as Reid et al, The Law of Property in Scotland (1996); hereafter Reid). Gordon refers to Stair, Institutions of the Law of Scotland (1693) 2.1.5 and 3.3.27; Erskine, An Institute of the Law of Scotland (8th edn, 1871) 2.1.10; and Bell, Principles of the Law of Scotland (10th edn, 1889) s 1291.

(12) David Johnston, Prescription and Limitation (2nd edn, 2012) 20.04.

(13) Reid n 11) para. 675.

(14) Sadly, Professor Bill Gordon died on 1 September 2012; see obituary in 2012 SLT (News) 175.

(15) Para. 567.

(16) SLC, Report on Prescription and Title to Moveable Property (Scot Law Com No 228, 2012) 3.36.

(17) See Section 3.

(18) My colleague Dr Andrew Simpson is working on the history of the presumption. My interpretation of the position of the common law is a tentative one pending the conclusion of his work; meantime I am grateful for his insights.

(19) An Introduction to Roman Law (1962) 100.

(20) Burnett’s Trustee v Grainger 2004 SC (HL) 19, at [87].

(21) Report n 16) 2.1.

(22) See text to n 13.

(23) See David L Carey Miller with David Irvine, Corporeal Moveables in Scots Law (2nd edn, 2005) 10.15 in fine.

(24) ‘The Owner’s All-Conquering Right?: The Scottish Version’ in Coenraad Visser (ed), Essays in Honour of Ellison Kahn (1989) 87, 99–102.

(25) Chief Constable, Strathclyde Police v Sharp 2002 SLT (Sh Ct) 95; see my comment ‘Title to Moveables: Mr Sharp’s Porsche’ (2003) 7 Edinburgh LR 221.

(26) See Carey Miller n 23) 10.19.

(27) Most significantly, the Sale of Goods Act 1979, s 21.

(28) Schedule 3(g) provides for the imprescriptibility of ‘any right to recover stolen property from the person by whom it was stolen or from any person privy to the stealing thereof’.

(29) See Section 1.

(30) See my argument in ‘Positive Prescription of Corporeal Moveables?’ (2011) 15 Edinburgh LR 452.

(31) Cf Carey Miller n 23) 2.07.

(32) Lord Advocate v Aberdeen University and Budge 1963 SC 533; for a recent comment, see David L Carey Miller, ‘St Ninian’s Treasure: Lord Advocate v University of Aberdeen and Budge’ in John P Grant and Elaine Sutherland (eds), Scots Law Tales (2010) 111.

(33) In Lord Advocate v Aberdeen University and Budge 1963 SC 533 at 543, Lord Hunter held the basis of the quod nullius rule to be Royal prerogative; in the Inner House, so did Lord Mackintosh (at 561).

(34) See n 16.

(35) SLC, Discussion Paper: Prescription and Title to Moveable Property (Scot Law Com No 144, 2010).

(36) Report n 16) 2.10.

(37) Carey Miller n 30).

(38) Report n 16) 1.3.

(39) Report n 16).

(40) In the absence of any system of formal title, the right of ownership must necessarily be a matter of assertion and this, clearly, is the rational basis of the presumption.

(41) Report n 16) 2.10.

(42) See Section 1.

(43) Prescription and Limitation (Scotland) Act 1973, s 24.

(44) Draft Prescription and Title to Moveable Property (Scotland) Bill, s 3, in Report n 16) App A.

(45) GCH Paton (ed), Baron Hume’s Lectures 1786–1822 (1939–58) 3.228–9.

(46) Hume n 45) 229.

(47) Hume n 45).

(48) Hume n 45).

(49) Stair n 11) 3.1.7.

(50) Hume n 45) 3.229.

(51) Carey Miller n 23) 10.15–23.

(52) Hume n 45) 3.232.

(53) Hume n 45) 3.229–30. Alan Rodger’s case comment ‘Spuilzie in the Modern World’ 1970 SLT (News) 33 did not please the sheriff substitute in a subsequent case, who commented that the article might be considered to be ‘written in arrogant vein, coming as it does from the pen of one who is not (at least yet) qualified to represent another in a Scots court.…’ (Mercantile Credit Co Ltd v Townsley 1971 SLT (Sh Ct) 37, 39).

(54) Scot v Fletcher (1665) Mor 11616–17.

(55) See the Newbyth report printed in Morison’s Dictionary after the main report.

(56) Scot v Fletcher (1665) Mor 11616–17.

(57) See The Decisions of the Lords of Council and Session, vol 1 (1683) 258. (I am indebted to Dr Andrew Simpson for this reference.)

(58) Hume n 45) 3.231.

(59) George Hopkinson Ltd v Napier and Sons 1953 SC 139 at 147.

(60) Reid n 11) para.130.

(61) (1665) Mor 9114–15.

(62) See A Murray, ‘“The Monuments of a Family”: A Collection of Jewels Associated with Elizabeth of Bohemia’ (2001) 131 Proceedings of the Society of Antiquaries of Scotland 327; see also Andrew R C Simpson, ‘Positive Prescription in Scots Law’ (2009) 13 Edinburgh LR 445, 467–70.

(63) Stair n 11) 4.45.17.

(64) Stair n 11) 4.45.13.

(65) Erskine n 11) 4.2.36.

(66) Erskine n 11).

(67) Erskine n 11).

(68) W David H Sellar, ‘Presumptions in Scots Law’ in Richard H Helmholz and W David H Sellar (eds), The Law of Presumptions: Essays in Comparative Legal History (2009) 203, 221.

(69) George Hopkinson v Napier & Son 1953 SC 139, 147.

(70) Stair n 11) 4.45.17.

(71) Stair n 11) 1.9.17.

(72) ‘Spuilzie—Dead, Dormant or Manna from Heaven?’ in H Mostert and M de Waal (eds), Essays in Honour of CG van der Merwe (2011) 127, 136–7.