Trespass to Goods

Torts Protecting Ownership/ Possession of Goods

There are a number of civil wrongs which protect the rights of the true owner and the person in possession of goods. Because of the relativity of title, the true owner might better be described as the person with the better title to the goods.

Trespass to goods is the direct and wrongful interference with another in the possession of goods or movables. The person in possession of goods may assert that right to possession against all comers, except a person with better title. In this respect, there is considerable truth in the expression that possession is nine-tenths of the law.

Accordingly, the person who finds moveable property / a chattel, (such as something that has been clearly lost), who is not aware of the identity of the true owner, may retain possession of it against all parties, except the true owner.


Trespass to Goods

Trespass to goods is the unjustifiable and unlawful direct taking of or interference with another’s possession of goods. The claimant must have a right to possession or ownership.

The action must be willful or negligent as opposed to involuntary. A trespass to goods need not involve the taking of the goods, as is required to be the case with the civil wrongs of conversion or detinue. It is enough that the goods are interfered with or moved. It is not settled whether actual loss or damage is required.

The damage, loss or interference must directly affect the goods themselves. The removal of goods which are later damaged is insufficiently direct for the purpose of liability in trespass. Liability in negligence may arise.

The interference may comprise taking the goods or chattels from another, damaging them, breaking them and even simply moving them from one place to another. It is usually enough to touch the property. Moving, damaging and using property constitutes trespass.


Possession and Title

Trespass to goods is based primarily on interference with possession and not on the assertion of title in itself. A person in possession or with the right to possession may maintain the action. There is no legal action as such for declaring the title to goods. The action is for possession.

The possessor can maintain an action for trespass against all persons, except a person with better title. The title may derive from purchase from a previous person with good title, manufacture, finding and taking from the state of nature.

The person with the better title may himself be in a position to restrain and sue the possessor, for the wrongful holding of goods. In this case, the action is based on his better immediate right to possession, which is derived from his better title. The principle emphasises the relativity of title to property.


Actionable without Loss

As with trespass generally, most authorities hold that trespass to goods is actionable, without proof of damage.  By being actionable in itself, any interference with goods constitutes a wrong. A claim may be made be either for damages on and/or for recovery of the goods concerned.

If damage was required, then a person would be free to interfere with goods without legal liability or restraint, provided he did so in such a way that did not cause any financial loss.

The defences to trespass to goods are similar to those for other types of trespass. For example, the State, police and other governmental authorities may have statutory rights to take and detain items for certain purposes. Consent and licence of a person with title is a defence.


Strict Liability

As with trespass generally, liability is strict in that he need not act intentionally or negligently. Trespass to goods arises where a person in fact unlawfully interferes with the ownership and possession of a third party. The deliberate taking of an item in the mistaken belief that it belongs to the person can still be a trespass to the goods.

The defendant must act willfully in the sense that his actions are voluntary.  A person who sleepwalks or is caused directly by another to move or take goods, is not liable, at least if he has not been negligent in the circumstances.

A person may be liable for trespass, notwithstanding that he acts in good faith and is not aware that his actions are wrongful. If the other party, in fact, has a better title, then his actions constitute trespass, notwithstanding an honest belief in his title. The issue may be relevant to the issue of damages.


Rights to Recover

Possession alone is sufficient to maintain a claim for trespass. The right based on possession constitutes possessory title.  A person with possessory title may lose the goods to a rightful owner with the better title, who seizes them. Conversion and detinue protect the rights of the owner, in the sense of the person entitled to possession. Where the owner who has hired out the goods, so that he is not entitled to immediate possession, he is not entitled to sue for conversion or detinue.

At common law as applied in the Republic of Ireland, both the possessor and true owner may recover compensation against a person who wrongfully detains goods.  The possessor may obtain, recover and keep the goods. He need not account to the true owner unless the true owner himself takes action.

1977 legislation in Northern Ireland and in England remedies this possession.  The person held liable may be entitled to unjust enrichment if he has to compensate the true owner.


Defences to Trespass I

There are various defences to a calim of  trespass to goods. They are broadly similar to those which apply to other forms of trespass.

Consent will constitute a defence. However, it must not be obtained lawfully. It must not be obtained by duress or by fraud. The person giving consent must have the capacity to understand the matter consented to and its consequences. If a person is deceived as to the nature of the act concerned, then the apparent consent may be invalidated. Medical claims may be based on inadequate explanation and lack of informed consent.

Necessity is a circumstance of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.

Persons exercising lawful authority may commit what would otherwise be assault, battery, false imprisonment or trespass to land. Gardai have powers to arrest without warrant, where they reasonably believe that arrestable offence (carries five or more years imprisonment) has been committed. Members of the public have more limited rights of arrest without.


Defences to Trespass II

Self-defence and the defence of other persons and property may justify what would be otherwise a trespass. Reasonable force may be used for the protection of persons and property. What is reasonable, depends on the circumstances.

The force must be proportionate to the threat. Greater force may be used to resist a violent act. If unreasonable force is used, this might itself constitute a battery.The force must be reasonable and proper in the circumstances.

A person may exercise force and violence to defend property from an intruder. Where the entry was without force or violence, it is necessary to request the trespasser to leave before resorting to physical measures


References and Sources

Irish Texts

Modern law of personal property in England and Ireland 1989  Bell

Consumer Law Rights & Regulation 014 Donnelly & White

Commercial Law White       2012 2nd ed

Commercial & Economic Law in Ireland  2011 White

Commercial Law 2015 Forde         3rd ed

Irish Commercial Precedents (Looseleaf)

Commercial & Consumer Law: Annotated Statutes 2000  O’Reilly

Irish Tort Legislation           Fahey Irish Tort Legislation           2015

Tort Law in Ireland   Tully   Tort Law in Ireland   2013

Torts in Ireland         Quill    Torts in Ireland         2014

McMahon & Binchy Law of Torts  4th      2013

McMahon & Binchy        Casebook on the Law of Torts 3rd 2005

Connolly, U   Tort Nutshell             2009

Connolly, U & Quinlivan     Tort Cases & Materials

UK Texts

Personal Property Law: Text and Materials  2000  Sarah Worthington

Personal Property Law (Clarendon Law Series) 2015 Michael Bridge

The Law of Personal Property 2017   Professor Michael Bridge and Prof. Louise Gullifer

The Principles of Personal Property Law 2017  Duncan Sheehan

Crossley Vaines on Personal Property 1967 by J C Vaines

The Law of Bills of Sale 2017 James Weir

Palmer on Bailment 2009  Norman Palmer

The Reform of UK Personal Property Security Law: Comparative Perspectives  2012 John de Lacy

The Law of Personal Property Security 2007  Hugh Beale and Michael Bridge

Lunney, M. and K. Oliphant Tort law: text and materials. (OUP) 2013 5th Ed

Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law. (OUP) 2012 7th Ed

Giliker, P. Tort. (Sweet & Maxwell) 2014 5th Ed

Horsey, K. and E. Rackley Tort law. (OUP) 2015 4th Ed

McBride, N.J. and R. Bagshaw Tort law. (Pearson) 2012

Steele, J. Tort law: text, cases and materials. (OUP) 3rd Ed

’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials. (Oxford: Hart Publishing) 2015 7th Ed

Weir, T. A Casebook on tort. (Sweet & Maxwell, 2004) 10th Ed